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Home My WebLink About2021-cv-2063 - City of Fort Collins v. Open International, et al. - 341 - Appeal transmittedRev. 8/17/2017 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO OFFICE OF THE CLERK Alfred A. Arraj United States Courthouse 901 19th Street Denver, Colorado 80294 www.cod.uscourts.gov Jeffrey P. Colwell Clerk Phone: (303) 844-3433 Date: 4/18/2024 USA or other Pro Se Retained CJA FPD Federal Agency (Appeal Fee Exempt) Case No: 21-cv-2063-CNS-SBP Amended Notice of Appeal Other pending appeals Date Filed: 4/17/2024 Transferred Successive §2254 or §2255 Appellant: Supplemental Record Pro Se Appellant: IFP forms mailed/given Motion IFP pending Appeal fee paid IFP denied Appeal fee not paid Retained Counsel: Appeal fee paid Appeal fee not paid Motion IFP filed The Preliminary Record on Appeal is hereby transmitted to the Tenth Circuit Court of Appeals. Please refer to the forms, procedures, and requirements for ordering transcripts, preparing docketing statements and briefs, and designations of the record that are found on the Tenth Circuit’s website, www.ca10.uscourts.gov. If not already completed, either an appeal fee payment for filing this case or filing of a motion to proceed in forma pauperis will be made to this District Court. The transcript order form must be filed in the District Court as well as the Court of Appeals within 14 days after the notice of appeal was filed with the District Court. If you have questions, please contact this office. Sincerely, JEFFREY P. COLWELL, CLERK by: s/A. Garcia Garcia Deputy Clerk cc: Clerk of the Court, Tenth Circuit Court of Appeals Open International, LLC, Open Investments, LLC Case No. 1:21-cv-02063-CNS-SBP Document 341 filed 04/18/24 USDC Colorado pg 1 of 1 ALLMTN,APPEAL,JD1,MJ CIV PP,TERMED U.S. District Court - District of Colorado District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:21-cv-02063-CNS-SBP City of Fort Collins v. Open International, LLC et al Assigned to: Judge Charlotte N. Sweeney Referred to: Magistrate Judge Susan Prose Case in other court: District Court, Larimer County, Colorado, 2021CV30475 Cause: 28:1332 Diversity-Breach of Contract Date Filed: 07/30/2021 Date Terminated: 03/26/2024 Jury Demand: Plaintiff Nature of Suit: 190 Contract: Other Jurisdiction: Diversity Special Master Nancy E. Rice represented by Nancy E. Rice Judicial Arbiter Group, Inc. 1601 Blake Street Suite 400 Denver, CO 80202 303-572-1919 Email: nrice@jaginc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff City of Fort Collins a Colorado home rule municipality represented by Andrea Ahn Wechter Dorsey & Whitney LLP 1400 Wewatta Street Suite 400 Denver, CO 80202-5549 303-629-3400 Fax: 303-629-3450 Email: wechter.andrea@dorsey.com ATTORNEY TO BE NOTICED Case L. Collard Dorsey & Whitney LLP 1400 Wewatta Street Suite 400 Denver, CO 80202-5549 303-629-3400 Fax: 303-629-3450 Email: collard.case@dorsey.com ATTORNEY TO BE NOTICED John R. Duval Fort Collins City Attorney's Office P.O. Box 580 Fort Collins, CO 80522 970-221-6520 Email: jduval@fcgov.com 1 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 1 of 74 TERMINATED: 11/17/2023 ATTORNEY TO BE NOTICED Maral Shoaei Dorsey & Whitney LLP 1400 Wewatta Street Suite 400 Denver, CO 80202-5549 303-352-1146 Email: shoaei.maral@dorsey.com ATTORNEY TO BE NOTICED Nora Olson Cooke Dorsey & Whitney LLP 1400 Wewatta Street Suite 400 Denver, CO 80202-5549 303-629-3421 Email: cooke.nora@dorsey.com TERMINATED: 01/03/2023 V. Defendant Open International, LLC a Florida limited liability company represented by Alexander D. White Holland & Hart LLP P. O. Box 8749 555 17th Street Suite 3200 Denver, CO 80201-8749 303-295-8517 Email: adwhite@hollandhart.com ATTORNEY TO BE NOTICED Alexandria E. Pierce Holland & Hart P. O. Box 8749 555 17th Street Suite 3200 Denver, CO 80201-8749 720-610-7886 Email: aepierce@hollandhart.com ATTORNEY TO BE NOTICED Anna C. Van de Stouwe Holland & Hart LLP Commercial Litigation/Appellate 555 17th Street Suite 3200 Denver, CO 80202 303-295-8017 2 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 2 of 74 Email: avandestouwe@ftc.gov TERMINATED: 08/01/2023 Christopher David Mack Kirkland & Ellis LLP 95 South State Street Suite 2000 Salt Lake City, UT 84111 801-877-8212 Fax: 801-877-8101 Email: chris.mack@kirkland.com (Inactive) TERMINATED: 06/02/2022 ATTORNEY TO BE NOTICED Hannah E. Armentrout Holland & Hart LLP P. O. Box 8749 555 17th Street Suite 3200 Denver, CO 80201-8749 303-295-8408 Fax: 303-416-8906 Email: hearmentrout@hollandhart.com ATTORNEY TO BE NOTICED Jeffrey I. Sandman Webb Daniel Friedlander LLP 75 14th Street NE Suite 2450 Atlanta, GA 30309 978-886-0639 Email: jeff.sandman@webbdaniel.law ATTORNEY TO BE NOTICED Kevin Christopher McAdam Holland & Hart LLP P. O. Box 8749 555 17th Street Suite 3200 Denver, CO 80201-8749 303-295-8267 Fax: 303-223-3293 Email: kcmcadam@hollandhart.com ATTORNEY TO BE NOTICED Laurie Webb Daniel Webb Daniel Friedlander LLP 75 14th Street NW Suite 2450 Atlanta, GA 30309 404-433-6430 3 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 3 of 74 Email: laurie.daniel@webbdaniel.law ATTORNEY TO BE NOTICED Paul Douglas Swanson Holland & Hart LLP P. O. Box 8749 555 17th Street Suite 3200 Denver, CO 80201-8749 303-295-8578 Email: pdswanson@hollandhart.com ATTORNEY TO BE NOTICED Defendant Open Investments, LLC a Florida limited liability company represented by Alexander D. White (See above for address) ATTORNEY TO BE NOTICED Alexandria E. Pierce (See above for address) ATTORNEY TO BE NOTICED Anna C. Van de Stouwe (See above for address) TERMINATED: 08/01/2023 Hannah E. Armentrout (See above for address) ATTORNEY TO BE NOTICED Jeffrey I. Sandman (See above for address) ATTORNEY TO BE NOTICED Kevin Christopher McAdam (See above for address) ATTORNEY TO BE NOTICED Laurie Webb Daniel (See above for address) ATTORNEY TO BE NOTICED Paul Douglas Swanson (See above for address) ATTORNEY TO BE NOTICED Counter Claimant Open Investments, LLC a Florida limited liability company represented by Alexandria E. Pierce (See above for address) ATTORNEY TO BE NOTICED 4 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 4 of 74 Anna C. Van de Stouwe (See above for address) TERMINATED: 08/01/2023 Hannah E. Armentrout (See above for address) ATTORNEY TO BE NOTICED Paul Douglas Swanson (See above for address) ATTORNEY TO BE NOTICED Counter Claimant Open International, LLC a Florida limited liability company represented by Alexandria E. Pierce (See above for address) ATTORNEY TO BE NOTICED Anna C. Van de Stouwe (See above for address) TERMINATED: 08/01/2023 Hannah E. Armentrout (See above for address) ATTORNEY TO BE NOTICED Paul Douglas Swanson (See above for address) ATTORNEY TO BE NOTICED V. Counter Defendant City of Fort Collins a Colorado home rule municipality represented by Andrea Ahn Wechter (See above for address) ATTORNEY TO BE NOTICED Case L. Collard (See above for address) ATTORNEY TO BE NOTICED John R. Duval (See above for address) TERMINATED: 11/17/2023 ATTORNEY TO BE NOTICED Maral Shoaei (See above for address) ATTORNEY TO BE NOTICED Counter Claimant 5 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 5 of 74 Open Investments, LLC a Florida limited liability company represented by Alexander D. White (See above for address) ATTORNEY TO BE NOTICED Alexandria E. Pierce (See above for address) ATTORNEY TO BE NOTICED Anna C. Van de Stouwe (See above for address) TERMINATED: 08/01/2023 Hannah E. Armentrout (See above for address) ATTORNEY TO BE NOTICED Paul Douglas Swanson (See above for address) ATTORNEY TO BE NOTICED Counter Claimant Open International, LLC a Florida limited liability company represented by Alexander D. White (See above for address) ATTORNEY TO BE NOTICED Alexandria E. Pierce (See above for address) ATTORNEY TO BE NOTICED Anna C. Van de Stouwe (See above for address) TERMINATED: 08/01/2023 Christopher David Mack (See above for address) TERMINATED: 06/02/2022 ATTORNEY TO BE NOTICED Hannah E. Armentrout (See above for address) ATTORNEY TO BE NOTICED Paul Douglas Swanson (See above for address) ATTORNEY TO BE NOTICED V. Counter Defendant City of Fort Collins a Colorado home rule municipality represented by Andrea Ahn Wechter (See above for address) 6 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 6 of 74 ATTORNEY TO BE NOTICED Case L. Collard (See above for address) ATTORNEY TO BE NOTICED John R. Duval (See above for address) TERMINATED: 11/17/2023 ATTORNEY TO BE NOTICED Maral Shoaei (See above for address) ATTORNEY TO BE NOTICED Nora Olson Cooke (See above for address) TERMINATED: 01/03/2023 Date Filed #Docket Text 07/30/2021 1 NOTICE OF REMOVAL by Open Investments, LLC, Open International, LLC from District Court, Larimer County Colorado, Case Number 2021CV30475. (Filing fee $ 402, Receipt Number 1082-7984909), filed by Open Investments, LLC, Open International, LLC. (Attachments: # 1 Exhibit 1-State Court Complaint, # 2 Exhibit 2-State Court Waiver of Service, # 3 Exhibit 3-State Court Docket, # 4 Exhibit 4-State Court Notice of Filing of Notice of Removal, # 5 Civil Cover Sheet, # 6 Supplemental Civil Cover Sheet)(Swanson, Paul) (Entered: 07/30/2021) 07/30/2021 2 Stipulated MOTION for Extension of Time to File Answer or Otherwise Respond to Complaint by Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 07/30/2021) 07/30/2021 3 NOTICE of Entry of Appearance by Hannah E. Armentrout on behalf of Open International, LLC, Open Investments, LLCAttorney Hannah E. Armentrout added to party Open International, LLC(pty:dft), Attorney Hannah E. Armentrout added to party Open Investments, LLC(pty:dft) (Armentrout, Hannah) (Entered: 07/30/2021) 07/30/2021 4 FIRST AND FINAL NOTICE TO ALL ATTORNEY(S) AND UNREPRESENTED PARTIES IN REMOVED, TRANSFERRED, OR OTHER CASES. To receive any further notice in a case removed or transferred to this court, or special matters including discovery disputes, bankruptcy appeals, or withdrawals of reference, Multi-district litigation (MDL), etc., all attorneys and unrepresented parties must enter an appearance under D.C.COLO.LAttyR 5(a). An attorney must be an active member of this court's bar and be in good standing in accordance with D.C.COLO.LAttyR 3. A waiver of the fee for bar admission may apply in limited situations. (Text Only Entry) (cpomm, ) (Entered: 07/31/2021) 07/30/2021 5 Case assigned to Magistrate Judge Nina Y. Wang. Text Only Entry (cpomm, ) (Entered: 07/31/2021) 07/30/2021 6 COMPLAINT and Jury Demand against Open International, LLC, Open Investments, LLC, filed by City of Fort Collins.(cpomm, ) (Entered: 07/31/2021) 7 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 7 of 74 07/30/2021 7 Magistrate Judge consent form issued pursuant to D.C.COLO.LCivR 40.1, direct assignment of civil actions to full time magistrate judges. (cpomm, ) (Entered: 07/31/2021) 08/02/2021 8 ORDER Setting Scheduling/Planning Conference and Setting Deadline for Filing of Consent/Non-Consent Form by Magistrate Judge Nina Y. Wang on 08/02/2021. Consent Form due by 9/2/2021. Proposed Scheduling Order due 9/9/2021. Scheduling Conference set for 9/16/2021 09:30 AM in Courtroom A 502 before Magistrate Judge Nina Y. Wang. (alave, ) (Entered: 08/02/2021) 08/03/2021 9 MINUTE ORDER: In light of the 2 Stipulated Extension of Time to Respond to Complaint, filed under D.C.COLO.LCivR. 6.1(a), Defendants' responses to the Complaint are due 8/27/2021. By Magistrate Judge Nina Y. Wang on 08/03/2021. Text Only Entry(nywlc2, ) (Entered: 08/03/2021) 08/03/2021 10 NOTICE of Entry of Appearance by Case L. Collard on behalf of City of Fort CollinsAttorney Case L. Collard added to party City of Fort Collins(pty:pla) (Collard, Case) (Entered: 08/03/2021) 08/03/2021 11 NOTICE of Entry of Appearance by Maral Shoaei on behalf of City of Fort CollinsAttorney Maral Shoaei added to party City of Fort Collins(pty:pla) (Shoaei, Maral) (Entered: 08/03/2021) 08/17/2021 12 STANDING ORDER: As of August 16, 2021, the public health risks caused by the coronavirus, and in particular, the Delta variant of the coronavirus, continue to be present. In order to support public health efforts to cabin the spread of the coronavirus, to protect the health of the Parties and counsel by minimizing their need to travel, and to protect the health of the general public, the following measures are adopted in an abundance of caution. Accordingly, IT IS ORDERED THAT: (1) All proceedings, notwithstanding any evidentiary proceedings, including but not limited to trials, which are scheduled to occur through January 1, 2022, shall be held via telephone conference, unless otherwise ordered by the court. Participants may access this court's conference line by using the following dial-in information: 1-888-363-4749, Access Code 5738976. This Amended Standing Order does not apply to any criminal matters; evidentiary civil matters; or other matters specifically set after the effective date to be in-person, scheduled through January 1, 2022; (2) All jury trials scheduled to occur through January 1, 2022 shall proceed as scheduled, pursuant to the District of Colorado's Jury Trial Protocols and its effective General Order(s), available at http://www.cod.uscourts.gov/CourtOperations/COVID-19Guidance.aspx; and (3) Parties and/or counsel are advised to check information on the website of the United States District Court for the District of Colorado (http://www.cod.uscourts.gov/) and specifically, for Magistrate Judge Wang, for continuing information. By Magistrate Judge Nina Y. Wang on 08/17/2021. Text Only Entry (nywlc2, ) (Entered: 08/17/2021) 08/27/2021 13 ANSWER to 6 Complaint , COUNTERCLAIM against City of Fort Collins by Open Investments, LLC, Open International, LLC.(Swanson, Paul) (Entered: 08/27/2021) 09/02/2021 14 CONSENT to Jurisdiction of Magistrate Judge by Plaintiff City of Fort Collins All parties do not consent.. (Collard, Case) (Entered: 09/02/2021) 09/02/2021 15 NOTICE of Entry of Appearance by Andrea Ahn Wechter on behalf of City of Fort CollinsAttorney Andrea Ahn Wechter added to party City of Fort Collins(pty:cd), Attorney Andrea Ahn Wechter added to party City of Fort Collins(pty:pla) (Wechter, 8 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 8 of 74 Andrea) (Entered: 09/02/2021) 09/02/2021 16 CASE REASSIGNED pursuant to 14 . All parties do not consent. This case is randomly reassigned to Judge Robert E. Blackburn. All future pleadings should be designated as 21-cv-02063-REB. (Text Only Entry) (cmadr, ) (Entered: 09/02/2021) 09/03/2021 17 MEMORANDUM RETURNING CASE by Senior Judge Blackburn. This case is randomly reassigned to Judge Daniel D. Domenico. All future pleadings should be designated as 21-cv-0263-DDD. (athom, ) (Entered: 09/03/2021) 09/09/2021 18 Proposed Scheduling Order by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins. (Collard, Case) (Entered: 09/09/2021) 09/13/2021 19 STIPULATION for Extension of Time to Answer or Respond to the Complaint by Plaintiff City of Fort Collins. City of Fort Collins answer due 10/8/2021. (Collard, Case) (Entered: 09/13/2021) 09/15/2021 20 ORDER REFERRING CASE to Magistrate Judge Nina Y. Wang. Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this case is referred to the assigned United States Magistrate Judge to (1) convene a scheduling conference under Fed. R. Civ. P. 16(b) and enter a scheduling order meeting the requirements of Local Civ. R. 16.2, (2) conduct such status conferences and issue such orders necessary for compliance with the scheduling order, including amendments or modifications of the scheduling order upon a showing of good cause, (3) hear and determine pretrial matters, including discovery and other non-dispositive motions, (4) conduct hearings, including evidentiary hearings, and submit proposed findings of fact and recommendations for rulings on dispositive motions, and (5) pursuant to Local Civ. R. 16.6 and at the discretion of the Magistrate Judge, convene such early neutral evaluation and/or settlement conferences and direct related procedures as may facilitate resolution of this case without the necessity of a motion or prior authorization of the undersigned. SO ORDERED by Judge Daniel D. Domenico on 9/15/2021. Text Only Entry (dddlc2, ) (Entered: 09/15/2021) 09/16/2021 21 SCHEDULING ORDER by Magistrate Judge Nina Y. Wang on 09/16/2021. Discovery due by 5/26/2022. Dispositive Motions due by 6/27/2022. (alave, ) (Entered: 09/16/2021) 09/16/2021 22 COURTROOM MINUTES/MINUTE ORDER for Scheduling Conference held on 9/16/2021 before Magistrate Judge Nina Y. Wang. Parties shall submit a proposed Protective Order on or before 9/24/2021. Discovery due 5/26/2022. 702 Motions due 5/26/2022. Dispositive motions due 6/27/2022. FTR: NYW-FTR. (bwilk, ) (Entered: 09/16/2021) 09/17/2021 23 NOTICE of Entry of Appearance by Christopher David Mack on behalf of Open International, LLCAttorney Christopher David Mack added to party Open International, LLC(pty:dft) (Mack, Christopher) (Entered: 09/17/2021) 09/24/2021 24 Joint MOTION for Extension of Time to Submit Proposed Stipulated Protective Order by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 09/24/2021) 09/27/2021 25 ORDER granting 24 Motion for Extension of Time to File re 24 Joint MOTION for Extension of Time to Submit Proposed Stipulated Protective Order. The parties have until and including 10/1/2021 to submit a draft Protective Order. SO ORDERED by Judge Daniel D. Domenico on 9/27/2021. Text Only Entry (dddlc2, ) (Entered: 9 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 9 of 74 09/27/2021) 09/30/2021 26 NOTICE of Entry of Appearance by John R. Duval on behalf of City of Fort CollinsAttorney John R. Duval added to party City of Fort Collins(pty:cd), Attorney John R. Duval added to party City of Fort Collins(pty:pla) (Duval, John) (Entered: 09/30/2021) 10/01/2021 27 Joint MOTION for Extension of Time to Submit Proposed Stipulated Protective Order by Plaintiff City of Fort Collins. (Collard, Case) (Entered: 10/01/2021) 10/05/2021 28 ORDER granting 27 Motion for Extension of Time to File re 27 Joint MOTION for Extension of Time to Submit Proposed Stipulated Protective Order. The parties have until and including 10/6/2021 to submit their proposed stipulated protective order. SO ORDERED by Judge Daniel D. Domenico on 10/5/2021. Text Only Entry (dddlc2, ) (Entered: 10/05/2021) 10/06/2021 29 Joint MOTION for Protective Order by Plaintiff City of Fort Collins. (Attachments: # 1 Proposed Order (PDF Only))(Collard, Case) (Entered: 10/06/2021) 10/08/2021 30 ANSWER/REPLY to 13 Answer to Complaint, Counterclaim by City of Fort Collins.(Collard, Case) (Entered: 10/08/2021) 10/14/2021 31 ORDER REFERRING MOTION(S): 29 Joint MOTION for Protective Order filed by City of Fort Collins. Motions referred to Magistrate Judge Nina Y. Wang. SO ORDERED by Judge Daniel D. Domenico on 10/14/2021. Text Only Entry (dddlc2, ) (Entered: 10/14/2021) 10/14/2021 32 STIPULATED PROTECTIVE ORDER by Magistrate Judge Nina Y. Wang on 10/14/2021.(alave, ) (Entered: 10/15/2021) 11/02/2021 33 NOTICE of Entry of Appearance by Anna Matejcek on behalf of All Defendants Attorney Anna Matejcek added to party Open International, LLC(pty:dft), Attorney Anna Matejcek added to party Open Investments, LLC(pty:dft) (Matejcek, Anna) (Entered: 11/02/2021) 11/02/2021 34 NOTICE of Entry of Appearance by Anna Matejcek on behalf of All Defendants (Matejcek, Anna) (Entered: 11/02/2021) 02/28/2022 35 Joint MOTION to Amend/Correct/Modify 21 Scheduling Order by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Proposed Order (PDF Only) Granting Joint Motion to Amend Scheduling Order)(Swanson, Paul) (Entered: 02/28/2022) 02/28/2022 36 ORDER REFERRING MOTION: 35 Joint MOTION to Amend/Correct/Modify 21 Scheduling Order filed by Open Investments, LLC, Open International, LLC. Motion referred to Magistrate Judge Nina Y. Wang. SO ORDERED by Judge Daniel D. Domenico on 2/28/2022. Text Only Entry (dddlc2, ) (Entered: 02/28/2022) 02/28/2022 37 MINUTE ORDER granting the 35 Joint Motion to Amend the Scheduling Order. The Scheduling Order is hereby amended as follows: affirmative expert designations are due 6/17/2022; rebuttal expert designations are due 7/19/2022; discovery closes on 8/19/2022; Rule 702 motions are due 8/19/2022; and dispositive motions are due 9/16/2022. The Parties are hereby advised that no further extensions of these deadlines will be granted absent extraordinary circumstances. By Magistrate Judge Nina Y. Wang on 02/28/2022. Text Only Entry(nywlc2, ) (Entered: 10 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 10 of 74 02/28/2022) 04/14/2022 38 NOTICE of Entry of Appearance by Alexander White on behalf of All Defendants Attorney Alexander White added to party Open International, LLC(pty:dft), Attorney Alexander White added to party Open Investments, LLC(pty:dft) (White, Alexander) (Entered: 04/14/2022) 04/14/2022 39 MOTION to Withdraw as Attorney Christopher Mack by Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit A - Notice of Withdrawal, # 2 Proposed Order (PDF Only) Proposed Order)(White, Alexander) (Entered: 04/14/2022) 05/04/2022 40 Joint MOTION to Amend/Correct/Modify Scheduling Order by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins. (Attachments: # 1 Proposed Order (PDF Only))(Collard, Case) (Entered: 05/04/2022) 05/13/2022 41 ORDER REFERRING MOTION: 40 Joint MOTION to Amend/Correct/Modify Scheduling Order filed by City of Fort Collins. Motion referred to Magistrate Judge Nina Y. Wang. SO ORDERED by Judge Daniel D. Domenico on 5/13/2022. Text Only Entry (dddlc2, ) (Entered: 05/13/2022) 05/16/2022 42 MINUTE ORDER: This matter is before the court on the 40 Joint Motion to Modify the Scheduling Order. The Motion is GRANTED. Fact discovery REMAINS SET at 8/19/2022, and the discovery deadlines are hereby RESET as follows: affirmative expert disclosures are due 9/9/2022; rebuttal expert disclosures are due 10/7/2022; expert discovery closes 10/28/2022; Rule 702 Motions are due 11/4/2022; and dispositive motions are due 11/18/2022. No further extensions of these deadlines will be granted. By Magistrate Judge Nina Y. Wang on 05/16/2022. Text Only Entry(nywlc2, ) (Entered: 05/16/2022) 05/24/2022 43 MOTION TO COMPEL PRODUCTION OF TMG DOCUMENTS by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Swanson, Paul) Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 05/24/2022) 05/24/2022 44 MOTION to Compel Production of TMG Documents by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Level 1 Restricted Document 43 ). Text Only Entry (athom, ) (Entered: 05/24/2022) 05/27/2022 45 Motion to Quash Defendants' Subpoena on Vanir Construction Management, Inc. and for Protective Order by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Collard, Case) Modified on 6/8/2022 (alave, ). Modified on 6/8/2022 to add gavel and add text - Motion now at Level 1 pursuant to 52 Order (athom, ). Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 05/27/2022) 06/02/2022 46 ORDER REFERRING MOTIONS: 44 MOTION to Compel filed by Open Investments, LLC, Open International, LLC, 39 MOTION to Withdraw as Attorney Christopher Mack filed by Open Investments, LLC, Open International, LLC. Motions referred to Magistrate Judge Nina Y. Wang. SO ORDERED by Judge 11 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 11 of 74 Daniel D. Domenico on 6/2/2022. Text Only Entry (dddlc2, ) (Entered: 06/02/2022) 06/02/2022 47 ORDER regarding 45 Restricted Level 1 Document. Document referred to Magistrate Judge Nina Y. Wang. SO ORDERED by Judge Daniel D. Domenico on 6/2/2022. Text Only Entry (dddlc2, ) Modified on 6/8/2022 to correct text pursuant to 52 Order (athom, ). (Entered: 06/02/2022) 06/02/2022 48 ORDER TO SHOW CAUSE by Magistrate Judge Nina Y. Wang on 06/02/2022. Plaintiff is hereby ORDERED to SHOW CAUSE, in writing and on or before June 6, 2022, why this court should not reduce the restriction level associated with the Motion to Level 1 Restriction. (alave, ) (Entered: 06/02/2022) 06/02/2022 49 MINUTE ORDER granting the 39 Motion to Withdraw as Attorney. Attorney Christopher David Mack is hereby terminated from his representation of Defendants in this matter. By Magistrate Judge Nina Y. Wang on 06/02/2022. Text Only Entry(nywlc2, ) (Entered: 06/02/2022) 06/06/2022 50 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 06/06/2022) 06/07/2022 51 ORDER REFERRING MOTION: 50 MOTION for Leave to Restrict filed by City of Fort Collins. Motion referred to Magistrate Judge Nina Y. Wang. SO ORDERED by Judge Daniel D. Domenico on 6/7/2022. Text Only Entry (dddlc2, ) (Entered: 06/07/2022) 06/07/2022 52 MINUTE ORDER: This matter is before the court on 50 Plaintiff's Motion to Restrict Access and Response to the June 2, 2022 Order to Show Cause. In light of Plaintiff's representations in the Response to the Order to Show Cause, the Clerk of Court is DIRECTED to reduce the restriction level of the 45 Motion to Quash from Level 2 Restriction to Level 1 Restriction, pending further order of the court. In addition, in light of Plaintiff's representation that the Motion to Restrict is opposed, Defendants SHALL RESPOND to the Motion to Restrict on or before 6/15/2022. No replies will be permitted absent leave of court. By Magistrate Judge Nina Y. Wang on 06/07/2022. Text Only Entry (nywlc2, ) (Entered: 06/07/2022) 06/07/2022 53 MOTION for Leave to Restrict by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1 - Motion to Compel Redacted)(Shoaei, Maral) (Entered: 06/07/2022) 06/08/2022 54 Response in Opposition to the City's Motion to Quash Subpoena on Vanir and for Protective Order by Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Swanson, Paul) Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 06/08/2022) 06/08/2022 55 RESPONSE in Opposition to the City's 45 MOTION to Quash Subpoena on Vanir and for Protective Order filed by Defendants Open International, LLC, Open Investments, LLC. (Text Only Entry for Level 1 Restricted Document 54 ). Text Only Entry (athom, ) (Entered: 06/08/2022) 06/13/2022 56 MINUTE ORDER by Magistrate Judge Nina Y. Wang on 06/13/2022. IT IS ORDERED that a Discovery Conference is set for June 16, 2022 at 9:30 a.m. All participants shall use the following dial-in information: 888-363-4749, Access Code: 5738976 to participate at the designated time. Counsel shall submit, if appropriate, the chart or joint status report and any written materials to 12 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 12 of 74 WangChambers@cod.uscourts.gov on or before 12:00 p.m. on June 15, 2021. (alave, ) (Entered: 06/13/2022) 06/14/2022 57 RESPONSE to 53 MOTION for Leave to Restrict, 50 MOTION for Leave to Restrict filed by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Affidavit Declaration of Hernando Parrott)(Swanson, Paul) (Entered: 06/14/2022) 06/14/2022 58 Opposition to Defendants' Motion to Compel Production of TMG Documents 43 by Plaintiff City of Fort Collins.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Collard, Case) Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 06/14/2022) 06/14/2022 59 Opposition to 44 MOTION to Compel Production of TMG Documents filed by Plaintiff City of Fort Collins. (Public Entry for Level 1 Restricted Document 58 ). Text Only Entry (athom, ) (Entered: 06/14/2022) 06/16/2022 60 ORDER REFERRING MOTION: 53 MOTION for Leave to Restrict filed by City of Fort Collins. Motion referred to Magistrate Judge Nina Y. Wang. SO ORDERED by Judge Daniel D. Domenico on 6/16/2022. Text Only Entry (dddlc2, ) (Entered: 06/16/2022) 06/16/2022 61 COURTROOM MINUTES/MINUTE ORDER for Telephonic Discovery Hearing held on 6/16/2022 before Magistrate Judge Nina Y. Wang. FTR: NYW-FTR. (cpomm, ) (Entered: 06/16/2022) 06/17/2022 62 REPLY to Response to 53 MOTION for Leave to Restrict filed by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Affidavit Declaration of Brian Wasko)(Wechter, Andrea) (Entered: 06/17/2022) 06/17/2022 63 Reply in Support of Open's Motion to Compel TMG Documents by Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13)(Swanson, Paul) Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 06/17/2022) 06/17/2022 64 MOTION for Protective Order by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Wechter, Andrea) (Entered: 06/17/2022) 06/17/2022 65 REPLY In Support to Response to 44 MOTION to Compel Production of TMG filed by Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Level 1 Restricted Document 63 ). Text Only Entry (athom, ) (Entered: 06/19/2022) 06/22/2022 66 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit A)(Wechter, Andrea) (Entered: 06/22/2022) 06/22/2022 67 Reply in Support of Motion to Quash Defendants' Subpoena on Vanir Construction Management and for Protective Order by Plaintiff City of Fort Collins.. (Attachments: # 1 Affidavit Declaration, # 2 Exhibit E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H)(Wechter, Andrea) Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 06/22/2022) 06/22/2022 68 13 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 13 of 74 REPLY to Response to 45 MOTION to Quash Defendants' Subpoena on Vanir Construction Management, Inc. and for Protective Order filed by Plaintiff City of Fort Collins. (Public Entry for Level 1 Restricted Document 67 ). Text Only Entry (athom, ) (Entered: 06/22/2022) 06/28/2022 69 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1)(Shoaei, Maral) (Entered: 06/28/2022) 06/28/2022 70 ORDER REFERRING MOTIONS: 66 MOTION for Leave to Restrict filed by City of Fort Collins, 64 MOTION for Protective Order filed by City of Fort Collins, 69 MOTION for Leave to Restrict filed by City of Fort Collins. Motions referred to Magistrate Judge Nina Y. Wang. SO ORDERED by Judge Daniel D. Domenico on 6/28/2022. Text Only Entry (dddlc2, ) (Entered: 06/28/2022) 06/28/2022 71 RESPONSE to 66 MOTION for Leave to Restrict, 69 MOTION for Leave to Restrict in Opposition filed by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 06/28/2022) 06/28/2022 72 MINUTE ORDER: Defendants SHALL RESPOND to the 64 Motion for Protective Order on or before 7/5/2022. Any reply shall be filed no later than 7/12/2022. By Magistrate Judge Nina Y. Wang on 06/28/2022. Text Only Entry (nywlc2, ) (Entered: 06/28/2022) 06/30/2022 73 MINUTE ORDER: This matter is before the court on 43 Defendants' Motion to Compel and 45 Plaintiff's Motion to Quash. It is ORDERED that on or before 7/11/2022, Plaintiff shall submit two privilege logs: one covering the documents at issue in the Motion to Compel and the other covering the documents at issue in the Motion to Quash, given Plaintiff's representation that the third-party subpoena at issue in the Motion to Quash is duplicative of discovery requests previously submitted to Plaintiff. In addition, on or before 7/11/2022, Plaintiff shall submit a copy of any engagement letter(s) it has with TMG Consulting to Wang_Chambers@cod.uscourts.gov for in camera review. By Magistrate Judge Nina Y. Wang on 06/30/2022. Text Only Entry (nywlc2, ) (Entered: 06/30/2022) 07/01/2022 74 Response in Opposition to the City's Motion for Protective Order by Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Swanson, Paul) Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 07/01/2022) 07/01/2022 75 RESPONSE in Opposition to 64 MOTION for Protective Order filed by Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Level 1 Restricted Document 74 ). Text Only Entry (athom, ) (Entered: 07/02/2022) 07/05/2022 76 Notice of Supplemental Record in Support of 43 Motion to Compel TMG Documents by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) Modified on 7/6/2022 to add title of document (athom, ). Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 07/05/2022) 07/05/2022 77 Exhibit 14 to 76 Notice of Supplemental Record by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) Modified on 7/6/2022 to add title of document (athom, ). Modified on 5/9/2023 to Unrestrict document pursuant to 218 14 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 14 of 74 ORDER issued 5/9/2023 (jdyne). (Entered: 07/05/2022) 07/05/2022 78 Exhibit 15 to 76 Notice of Supplemental Record by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) Modified on 7/6/2022 to add title of document (athom, ). Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 07/05/2022) 07/06/2022 79 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Shoaei, Maral) (Entered: 07/06/2022) 07/12/2022 80 NOTICE PLAINTIFF CITY OF FORT COLLINS NOTICE OF SUPPLEMENTAL RECORD IN OPPOSITION OF MOTION TO COMPEL TMG DOCUMENTS by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins (Attachments: # 1 Exhibit H - Excerpt from Travis Storin Deposition)(Wechter, Andrea) (Entered: 07/12/2022) 07/12/2022 81 RESPONSE to 73 Minute Order,,, Privilege Log Vanir by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins. (Wechter, Andrea) (Entered: 07/12/2022) 07/12/2022 82 NOTICE re 73 Minute Order,,, filing Vanir Privilege Log by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins (Shoaei, Maral) (Entered: 07/12/2022) 07/12/2022 83 NOTICE re 73 Minute Order,,, Filing TMG Privilege Log by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins (Shoaei, Maral) (Entered: 07/12/2022) 07/12/2022 84 REPLY to Response to 64 MOTION for Protective Order filed by Plaintiff City of Fort Collins. (Wechter, Andrea) (Entered: 07/12/2022) 07/15/2022 85 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1)(Shoaei, Maral) (Entered: 07/15/2022) 07/15/2022 86 NOTICE re 83 Notice (Other), 82 Notice (Other) Open's Response to City's Notices re Privilege Logs and Notice of Supplemental Submission of Sortable-Filterable Logs by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC (Swanson, Paul) (Entered: 07/15/2022) 07/20/2022 87 NOTICE re 73 Minute Order,,, Response to Open's Notice of Supplemental Logs by Plaintiff City of Fort Collins (Attachments: # 1 Exhibit Privilege Log)(Collard, Case) (Entered: 07/20/2022) 07/20/2022 88 ORDER REFERRING MOTIONS: 53 MOTION for Leave to Restrict filed by City of Fort Collins, 85 MOTION for Leave to Restrict filed by City of Fort Collins, 64 MOTION for Protective Order filed by City of Fort Collins, 79 MOTION for Leave to Restrict filed by City of Fort Collins.Motions referred to Magistrate Judge Nina Y. Wang. SO ORDERED by Judge Daniel D. Domenico on 7/20/2022. Text Only Entry (dddlc2, ) (Entered: 07/20/2022) 07/21/2022 89 RESPONSE to 85 MOTION for Leave to Restrict, 79 MOTION for Leave to Restrict filed by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 07/21/2022) 08/01/2022 90 REASSIGNMENT OF JUDGE. This action is reassigned to Judge Charlotte N. Sweeney upon her appointment. Unless otherwise ordered, the dates and times for all 15 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 15 of 74 previously scheduled matters will be maintained and will now be handled by Judge Sweeney in Courtroom 204 in the Byron Rogers Courthouse. Her chambers are located in C-253 and her telephone number is (303) 335-2610. All future pleadings should be designated as 21-CV-02063-CNS-NYW. (Text only entry) (sdunb, ) (Entered: 08/01/2022) 08/01/2022 91 AMENDED ORDER OF REFERENCE TO UNITED STATES MAGISTRATE JUDGE: ORDER REFERRING CASE to Magistrate Judge Michael E. Hegarty. Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this case is referred to the assigned United States Magistrate Judge to (1) convene a scheduling conference under Fed. R. Civ. P. 16(b) and enter a scheduling order meeting the requirements of Local Civ. R. 16.2, (2) conduct such status conferences and issue such orders necessary for compliance with the scheduling order, including amendments or modifications of the scheduling order upon a showing of good cause, (3) hear and determine pretrial matters, including discovery and other non-dispositive motions, (4) conduct hearings, including evidentiary hearings, and submit proposed findings of fact and recommendations for rulings on dispositive motions, and (5) pursuant to Local Civ. R. 16.6 and at the discretion of the Magistrate Judge, convene such early neutral evaluation and/or settlement conferences and direct related procedures as may facilitate resolution of this case without the necessity of a motion or prior authorization of the undersigned. By District Judge Charlotte N Sweeney on 8/1/2022. Text Only Entry (cnssec, ) (Entered: 08/01/2022) 08/04/2022 92 REPLY to Response to 85 MOTION for Leave to Restrict filed by Plaintiff City of Fort Collins. (Collard, Case) (Entered: 08/04/2022) 08/10/2022 93 MINUTE ORDER: A Final Pretrial Conference is set for 4/14/2023 at 10:00 AM in Courtroom C204 before District Judge Charlotte N Sweeney. The parties' Proposed Pretrial Order is due by 4/7/2023. By District Judge Charlotte N Sweeney on 8/10/2022. Text Only Entry (cnssec.) (Entered: 08/10/2022) 08/11/2022 94 NOTICE of Pending Motions by Plaintiff City of Fort Collins (Collard, Case) (Entered: 08/11/2022) 08/11/2022 95 Minute ORDER by Magistrate Judge Michael E. Hegarty on 11 August 2022. At the request of the parties, the Court will hold a discovery conference on August 12, 2022, at 11:00 a.m., in Courtroom A-501, on the fifth floor of the Alfred A. Arraj United States Courthouse located at 901 19th Street, Denver, Colorado. (cmadr, ) (Entered: 08/11/2022) 08/12/2022 96 COURTROOM MINUTES for proceedings held before Magistrate Judge Michael E. Hegarty: Discovery Hearing held on 8/12/2022. Discovery deadline extended to 11/14/2022 and the 50 53 66 69 79 85 Motions to Restrict are GRANTED. FTR: A501. (cthom, ) (Entered: 08/12/2022) 08/16/2022 97 ORDER ON MOTION TO COMPEL by Magistrate Judge Michael E. Hegarty on 16 August 2022. IT IS ORDERED that: (1) Open's Motion to Compel Production of TMG Documents 44 is granted in part and denied in part as set forth in this Order;(2) On or before August 31, 2022, Plaintiff shall produce to Open all documents which contain factual work product with the same subject matter of the final report; (3) On or before September 14, 2022, Plaintiff shall submit an updated privilege log to Defendant; (4) On or before September 28, 2022, the Parties shall thoroughly meet and confer about Plaintiff's assertion of attorney-client privilege over the subject documents and the Parties shall file a Joint Status Report indicating the results of 16 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 16 of 74 their meet and confer, as well as the number of remaining disputed documents, if any; (5) If, after a robust meet and confer, the Parties have not reached an agreement as to Plaintiff's assertion of attorney-client privilege, the Court will set additional deadlines for submissions or set any hearings as the Court sees fit.(cmadr, ) (Entered: 08/16/2022) 08/16/2022 98 ORDER ON MOTION TO QUASH by Magistrate Judge Michael E. Hegarty on 16 August 2022. IT IS ORDERED that: (1) Plaintiff City of Fort Collins's Motion to Quash Defendants' Subpoena on Vanir Construction Management, Inc. and for Protective Order 45 is denied without prejudice11 as set forth in this Order; (2) On or before September 14, 2022, Plaintiff shall submit an updated privilege log to Defendant; (3) On or before September 28, 2022, the Parties shall thoroughly meet and confer about Plaintiff's assertion of attorney-client privilege over the subject documents and the Parties shall file a Joint Status Report indicating the results of their meet and confer, as well as the number of remaining disputed documents, if any; (4) If, after a robust meet and confer, the Parties have not reached an agreement as to Plaintiff's assertion of attorney-client privilege, the Court will set additional deadlines for submissions or set any hearings as the court sees fit.(cmadr, ) (Entered: 08/16/2022) 08/16/2022 99 ORDER ON MOTION FOR PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 16 August 2022. IT IS ORDERED that: Plaintiff City of Fort Collins's Motion for Protective Order to Require Defendants' Compliance with the October 14, 2021 Stipulated Protective Order 64 is DENIED(cmadr, ) (Entered: 08/16/2022) 09/12/2022 100 Proposed Scheduling Order Stipulated by Plaintiff City of Fort Collins. (Collard, Case) Modified on 11/7/2022 to edit event type per chambers. (sphil, ). (Entered: 09/12/2022) 11/04/2022 101 Motion for Leave to Amend Complaint by Plaintiff City of Fort Collins.. (Collard, Case) Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 11/04/2022) 11/04/2022 102 Plantiff's MOTION for Leave to Amend Complaint and If Necessary, Amend it's Affirmative Defenses to Defendants' Counterclaims by Plaintiff City of Fort Collins. (Public Entry for Restricted Document 101 filed on 11/4/2022). Text Only Entry. (sphil, ) (Entered: 11/07/2022) 11/07/2022 103 MEMORANDUM regarding 100 Stipulated Amendment to Scheduling Order and 102 Plaintiff's MOTION for Leave to Amend Complaint and If Necessary, Amend its Affirmative Defenses to Defendants' Counterclaims. Motions 100 and 102 referred to Magistrate Judge Michael E. Hegarty, by Judge Charlotte N. Sweeney on 11/7/2022. Text Only Entry (cnssec.) (Entered: 11/07/2022) 11/07/2022 104 Exhibits 1 part 1 to 102 Plantiff's MOTION for Leave to Amend Complaint by Plaintiff City of Fort Collins.. (Attachments: # 1 Exhibit 1-2, # 2 Exhibit 1-3, # 3 Exhibit 1-4, # 4 Exhibit 1-5, # 5 Exhibit 1-6)(Collard, Case) Modified on 11/8/2022 to document title and linkage. (sphil, ). Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 11/07/2022) 11/07/2022 105 Exhibit 2 to 102 Plantiff's MOTION for Leave to Amend Complaint by Plaintiff City of Fort Collins.. (Attachments: # 1 Exhibit 3, # 2 Exhibit 4, # 3 Exhibit 5, # 4 Exhibit 6, # 5 Exhibit 7)(Collard, Case) Modified on 11/8/2022 to add document title and linkage. (sphil, ). Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 11/07/2022) 17 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 17 of 74 11/07/2022 106 Exhibit 8 to 102 Plantiff's MOTION for Leave to Amend Complaint by Plaintiff City of Fort Collins.. (Attachments: # 1 Exhibit 9, # 2 Exhibit 10, # 3 Exhibit 11, # 4 Exhibit 12, # 5 Exhibit 13)(Collard, Case) Modified on 11/8/2022 to add document title and linkage. (sphil, ). Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 11/07/2022) 11/08/2022 107 Minute ORDER by Magistrate Judge Michael E. Hegarty on 8 November 2022. For good cause shown, the parties' Stipulated Amendment to Scheduling Order 100 is granted. The Court modifies Section 9 of the Scheduling Order as follows: Dispositive Motions due by 12/19/2022. Expert Discovery due 12/9/2022 Fact Discovery due 11/14/2022. (cmadr, ) (Entered: 11/08/2022) 11/10/2022 108 Minute ORDER by Magistrate Judge Michael E. Hegarty on 10 November 2022. At the request of the parties, the Court will hold a Discovery Conference on November 17, 2022, at 1:00 p.m. in Courtroom A-501, on the fifth floor of the Alfred A. Arraj United States Courthouse located at 901 19th Street, Denver, Colorado. (cmadr, ) (Entered: 11/10/2022) 11/11/2022 109 NOTICE of Entry of Appearance by Alexandria E. Pierce on behalf of Open International, LLC, Open Investments, LLCAttorney Alexandria E. Pierce added to party Open International, LLC(pty:cc), Attorney Alexandria E. Pierce added to party Open International, LLC(pty:dft), Attorney Alexandria E. Pierce added to party Open Investments, LLC(pty:cc), Attorney Alexandria E. Pierce added to party Open Investments, LLC(pty:dft) (Pierce, Alexandria) (Entered: 11/11/2022) 11/16/2022 110 NOTICE of Entry of Appearance by Nora Olson Cooke on behalf of City of Fort CollinsAttorney Nora Olson Cooke added to party City of Fort Collins(pty:pla) (Cooke, Nora) (Entered: 11/16/2022) 11/17/2022 111 COURTROOM MINUTES for proceedings held before Magistrate Judge Michael E. Hegarty: Discovery Hearing held on 11/17/2022. FTR: A501. (cthom, ) (Entered: 11/17/2022) 11/18/2022 112 Stipulated MOTION for Leave to Restrict by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit A - 2022-11-04 Dkt 101 City Motion for Leave to Amend Complaint)(Swanson, Paul) (Entered: 11/18/2022) 11/22/2022 113 MEMORANDUM regarding 112 Stipulated MOTION for Leave to Restrict filed by Open Investments, LLC, Open International, LLC. Motion 112 is referred to Magistrate Judge Michael E. Hegarty, by Judge Charlotte N. Sweeney on 11/22/2022. Text Only Entry (cnssec.) (Entered: 11/22/2022) 11/28/2022 114 BRIEF re 111 Discovery Hearing regarding Privilege Disputes by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit 1-Vanir-Produced Document Log with Color Coding, # 2 Exhibit 2-City-Produced Vanir Document Log-Color Coded, # 3 Exhibit 3-City TMG Document Log-Color Coded, # 4 Exhibit 4-City's General Privilege Log-Color Coded)(Pierce, Alexandria) (Entered: 11/28/2022) 11/28/2022 115 BRIEF Discovery by Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Collard, Case) (Entered: 11/28/2022) 11/28/2022 116 18 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 18 of 74 Defendants' Opposition to Motion to Amend by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit Exhibit A to Opp. Mot. Am., # 2 Exhibit Exhibit B to Opp. Mot. Am., # 3 Exhibit Exhibit C to Opp. Mot. Am.)(Swanson, Paul) Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 11/28/2022) 11/28/2022 117 Defendant's Opposition to 102 Motion to Amend, filed by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Public Enty to 116 Restricted Document Level 1) Text Only Entry. (angar, ) (Entered: 11/29/2022) 12/01/2022 118 Minute ORDER by Magistrate Judge Michael E. Hegarty on 1 December 2022. Pursuant to D.C.Colo.LCivR 7.2, the parties' Stipulated Motion to Restrict Access 112 is granted. The Clerk of the Court is directed to maintain under Restriction Level One Plaintiff's Motion for Leave to Amend Complaint and, If Necessary, Amend its Affirmative Defenses to Defendants' Counterclaims at ECF 101 , Exhibit 2 at ECF 105, Exhibit 3 at ECF 105-1, Exhibit 4 at ECF 105-2, Exhibit 5 at ECF 105-3, Exhibit 6 at ECF 105-4, Exhibit 7 at ECF 105-5, Exhibit 8 at ECF 106, Exhibit 9 at ECF 106-1, Exhibit 11 at ECF 106-3 and Exhibit 12 at ECF 106-4 until further order of the Court.(cmadr, ) (Entered: 12/01/2022) 12/12/2022 119 Plaintiff's Reply in Support of Motion to Amend by Plaintiff City of Fort Collins.. (Attachments: # 1 Exhibit 14, # 2 Exhibit 15, # 3 Exhibit 16, # 4 Exhibit 17, # 5 Exhibit 18, # 6 Exhibit 19, # 7 Exhibit 20, # 8 Exhibit 21, # 9 Exhibit 22)(Collard, Case) Modified on 5/9/2023 to Unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 12/12/2022) 12/12/2022 120 Plaintiff REPLY to Response to 102 Plantiff's MOTION for Leave to Amend Complaint, filed by Plaintiff City of Fort Collins. (Public Entry for Restricted Document 119 filed on 12/12/2022). Text Only Entry. (sphil, ) (Entered: 12/13/2022) 12/15/2022 121 Stipulated MOTION for Extension of Time to File Rule 56 and Rule 702 Motions by Plaintiff City of Fort Collins. (Collard, Case) (Entered: 12/15/2022) 12/19/2022 122 MOTION to Exclude Opinion Testimony by City's Proffered Non-Retained Expert Michelle Frey by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit 1 - Plaintiff's Disclosure of Hybrid/Non-Retained Witness)(Swanson, Paul) (Entered: 12/19/2022) 12/19/2022 123 MOTION to Exclude Testimony by City's Damages Expert by Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Van de Stouwe, Anna) Modified on 12/19/2022 to add a Level 1 Restriction - counsel will be filing a Motion for Leave to Restrict today (athom, ). Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 12/19/2022) 12/19/2022 124 MOTION for Summary Judgment by Plaintiff City of Fort Collins. (Attachments: # 1 Affidavit Declaration of Case Collard, # 2 Exhibit Exhibit 1 - Portions of City's Request for Proposal, # 3 Exhibit Exhibit 2 - Portions of Open's RFP Response, # 4 Exhibit Exhibit 3 - MPSA, # 5 Exhibit Exhibit 4 - Excerpts from 9.22.22 Parrott Dep. Tr., # 6 Exhibit Exhibit 5 - Record of City's Appropriated Funds and 19 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 19 of 74 Expenditures, # 7 Exhibit Exhibit 6 - Change Request and Invoice Records, # 8 Exhibit Exhibit 7 - First Amendment to the MPSA, # 9 Exhibit Exhibit 8 - Excerpts from 12.02.22 Parrott Dep. Tr., # 10 Exhibit Exhibit 9 - Ordinance No. 076, # 11 Exhibit Exhibit 10 - Project Change Request No. 29, # 12 Exhibit Exhibit 11 - City's Notice of Dispute and Terminiation, # 13 Exhibit Exhibit 12 - Open's Responses to City's First RFAs, # 14 Exhibit Exhibit 13 - Open's Second Supplemental Disclosures, # 15 Exhibit Exhibit 14 - Excerpts from 9.20.22 Parrott Dep. Tr., # 16 Exhibit Exhibit 15 - Declaration of H. Parrott under C.R.S. 24-91-103.6)(Collard, Case) Modified on 12/19/2022 to add a Level 1 Restriction - counsel will be filing a Motion for Leave to Restrict today (jtorr, ). Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 12/19/2022) 12/19/2022 125 Motion for Partial Summary Judgment by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit 1 - Open_Intl_00261851, # 2 Exhibit 2 - Open_Intl_00261900, # 3 Exhibit 3 - Open_Intl_00084109, # 4 Exhibit 4 - CFC_148603, # 5 Exhibit 5 - LisaRosintoski30b6_PDFTran, # 6 Exhibit 6 - EdithMercado_PDFTran, # 7 Exhibit 7 - CFC_170247, # 8 Exhibit 8 - CFC_221577, # 9 Exhibit 9 - CFC_119556, # 10 Exhibit 10 - CFC_084236, # 11 Exhibit 11 - MichaelNeilBeckstead_PDFTran, # 12 Exhibit 12 - CFC_221064, # 13 Exhibit 13 - TravisStorin30b6_PDFTran, # 14 Exhibit 14 - 2022-11-14 Supplemental Responses and Objections to Defendants' Discovery Requests, # 15 Exhibit 15 - Open_Intl_00090504, # 16 Exhibit 16 - Open_Intl_00090562, # 17 Exhibit 17 - City Responses to RFAs, # 18 Exhibit 18 - CFC_217096, # 19 Exhibit 19 - Open_Intl_00119874, # 20 Exhibit 20 - Open_Intl_00090563, # 21 Exhibit 21 - HernandoParrott_PDFTran, # 22 Exhibit 22 - 2022-08-01 Open's Responses to City's Second Set of Interrogatories to Defendants, # 23 Exhibit 23 - Open_Intl_00129504, # 24 Exhibit 24 - CFC_044339, # 25 Exhibit 25 - CFC_083373, # 26 Exhibit 26 - CFC_059235, # 27 Exhibit 27 - CFC_103158 - 159, # 28 Exhibit 28 - CFC_195765, # 29 Exhibit 29 - CFC_113576 - 577, # 30 Exhibit 30 - CFC_122732 - 733, # 31 Exhibit 31 - Open_Intl_00090576, # 32 Exhibit 32 - Open_Intl_00345050, # 33 Exhibit 33 - TMG_000055, # 34 Exhibit 34 - CFC_044339, # 35 Exhibit 35 - Open_Intl_00159420, # 36 Exhibit 36 - CFC_199671, # 37 Exhibit 37 - Open_Intl_00159697, # 38 Exhibit 38 - CFC_017051, # 39 Exhibit 39 - DrMichelleFrey_PDFTran, # 40 Exhibit 40 - CFC_215431, # 41 Exhibit 41 - CFC_220079, # 42 Exhibit 42 - Open_Intl_00167954, # 43 Exhibit 43 - Open_Intl_00169233 - DrMichelleFrey_556, # 44 Exhibit 44 - Open_Intl_00170563, # 45 Exhibit 45 - Open_Intl_00170560, # 46 Exhibit 46 - CFC_012803, # 47 Exhibit 47 - CFC_140500, # 48 Exhibit 48 - CFC_083203, # 49 Exhibit 49 - CFC_059188 - MichaelNeilBeckstead_142, # 50 Exhibit 50 - Open_Intl_00192695, # 51 Exhibit 51 - CFC_044544 - MichaelNeilBeckstead_141, # 52 Exhibit 52 - CFC_136909, # 53 Exhibit 53 - CFC_137733, # 54 Exhibit 54 - CFC_149548, # 55 Exhibit 55 - CoyAlthoff30b6_PDFTran, # 56 Exhibit 56 - CFC_067853 - CoyAlthoff30b6_499, # 57 Exhibit 57 - MichaelTravisStorin_PDFTran, # 58 Exhibit 58 - CFC_061163 - CoyAlthoff30b6_490, # 59 Exhibit 59 - Open_Intl_00090484, # 60 Exhibit 60 - AaronMcClune_PDFTran, # 61 Exhibit 61 - Open_Intl_00000032, # 62 Exhibit 62 - Open_Intl_00000036, # 63 Exhibit 63 - GeraldPaul30b6_PDFTran, # 64 Exhibit 64 - CFC_090490, # 65 Exhibit 65 - CFC_031300, # 66 Exhibit 66 - CFC_077137, # 67 Exhibit 67 - Open_Intl_00248291, # 68 Exhibit 68 - 2021-09-09 City of Fort Collins Rule 26 Initial Disclosures, # 69 Exhibit 69 - 2022-11-14 City's Eighth Supplemental Rule 26(a)(1) Disclosures, # 70 Exhibit 70 - Schedule A - SG 20 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 20 of 74 Damages Report 10.27.22 (Revised Conf. Designations)_Redacted, # 71 Exhibit 71 - 2022-12-07 C. Collard Ltr to P. Swanson re Contractual Damages, # 72 Exhibit 72 - 2022-10-23 Open's Second Supplemental Disclosures, # 73 Affidavit Declaration of Hernando Parrott, # 74 Affidavit Declaration of Diego Lopez, # 75 Affidavit Declaration of Jairo A. Contreras, # 76 Affidavit Declaration of Alexandria E. Pierce)(Swanson, Paul) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 12/19/2022) 12/19/2022 126 MOTION for Leave to Restrict by Defendants Open International, LLC, Open Investments, LLC. (Van de Stouwe, Anna) (Entered: 12/19/2022) 12/19/2022 127 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Collard, Case) (Entered: 12/19/2022) 12/19/2022 128 Motion to Exclude Expert Opinion of Defendants' Expert John Hutchinson by Plaintiff City of Fort Collins.. (Attachments: # 1 Exhibit Exh. 1 - Affirmative Report of John Hutchinson, # 2 Exhibit Exh. 2 - Rebuttal Report of John Hutchinson, # 3 Exhibit Exh. 3 - Dep. Tr. Excerpts J. Hutchinson, # 4 Exhibit Exh. 4 - Open_Intl_00357564)(Collard, Case) Modified on 5/10/2023 to unrestrict document with the exception of Exhibit 1 - Affirmative Expert Report of John Hutchinson pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 12/19/2022) 12/19/2022 129 Motion to Exclude Testimony and Opinions of the City's Expert Jon Brock by Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit Ex. A - Jon Brock (ISG) Report 10.27.22 (Revised Conf. Designations), # 2 Exhibit Ex. B- Rebuttal Expert Report of Jon Brock (ISG)-11.29.2022, # 3 Exhibit Ex. C -Rebuttal Expert Report of John Hutchinson, # 4 Exhibit Ex. D -MPSA CFC_120440-CFC_120457, # 5 Exhibit Ex. E -CFC_000150, # 6 Exhibit Ex. F -Erratum to Rebuttal Expert Report of John Hutchinson, # 7 Exhibit Ex. G, # 8 Exhibit Ex. H -Excerpts- Open_Intl_00084109, # 9 Exhibit Ex. I - CFC_109261 - Draft DD deck showing new 8th gen 1st install, # 10 Exhibit Ex. J - Excerpts of Rough Transcripts of Brock Dep, # 11 Exhibit Ex. K -Exhibit 90, # 12 Exhibit Ex. L -Excerpts of Tr. Dwayne Bishop)(White, Alexander) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 12/19/2022) 12/19/2022 132 MOTION for Partial Summary Judgment by Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Restricted Document 125 filed on 12/19/2022). Text Only Entry. (sphil, ) Modified on 12/21/2022 to edit file date. (sphil, ). (Entered: 12/21/2022) 12/19/2022 133 MOTION to Exclude Expert Opinion of John Hutchinson by Plaintiff City of Fort Collins. (Public Entry for Restricted Document 128 filed on 12/19/2022). Text Only Entry. (sphil, ) (Entered: 12/21/2022) 12/19/2022 134 MOTION to Exclude Testimony and Opinions of the City's Expert Jon Brock by Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Restricted Document 129 filed on 12/19/2022). Text Only Entry. (sphil, ) (Entered: 12/21/2022) 12/20/2022 130 Conventionally Submitted Material : 1 Flash Drive of Exhibits to Restricted Document - Level 1, 129 and Restricted Document - Level 1, 125 by Defendants Open International, LLC, Open Investments, LLC. Location: 1st Floor Area, Box A-1-6. Text Only Entry. (sphil, ) (Entered: 12/20/2022) 21 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 21 of 74 12/21/2022 131 ORDER granting in part and denying in part 121 Stipulated Motion for Extension of Time to File Rule 56 and Rule 702 Motions. The deadline to file a Rule 702 motion (if any) related to Open's rebuttal damages expert Schulman is extended to 1/6/2023. The response brief will be due 1/20/2023 and the reply brief due 1/30/2023. Rule 702 motions and responses will be limited to 15-pages, no replies. Regarding motions for summary judgment, the motions and response briefs will be limited to 30-pages, reply briefs limited to 15-pages. By Judge Charlotte N. Sweeney on 12/21/2022. Text Only Entry(cnssec, ) (Entered: 12/21/2022) 12/22/2022 135 ORDER granting 126 Motion for Leave to Restrict. By Judge Charlotte N. Sweeney on 12/22/2022. Text Only Entry(cnssec. ) (Entered: 12/22/2022) 12/22/2022 136 ORDER granting 127 Motion for Leave to Restrict. By Judge Charlotte N. Sweeney on 12/22/2022. Text Only Entry(cnssec. ) (Entered: 12/22/2022) 12/22/2022 137 Unopposed MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit A)(Shoaei, Maral) (Entered: 12/22/2022) 12/23/2022 138 Joint MOTION to Clarify re 131 Order on Motion for Extension of Time to File,, by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Proposed Order (PDF Only) Clarifying Rule 702 Briefing Order, Dkt. 131)(Swanson, Paul) (Entered: 12/23/2022) 12/27/2022 139 ORDER granting 138 Joint Motion to Clarify Rule 702 Briefing Order, Dkt. 131, by Judge Charlotte N. Sweeney on 12/27/2022.(jtorr, ) (Entered: 12/27/2022) 12/30/2022 140 Unopposed MOTION to Withdraw as Attorney by Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit A, # 2 Proposed Order (PDF Only))(Collard, Case) (Entered: 12/30/2022) 01/03/2023 141 MEMORANDUM regarding 137 Unopposed MOTION for Leave to Restrict. Motion 137 is referred to Magistrate Judge Michael E. Hegarty, by Judge Charlotte N. Sweeney on 1/3/2023. Text Only Entry (cnssec.) (Entered: 01/03/2023) 01/03/2023 142 ORDER granting 140 Motion to Withdraw as Attorney. Attorney Nora Olson Cooke is withdrawn. By Judge Charlotte N. Sweeney on 1/3/2023. Text Only Entry(cnssec. ) (Entered: 01/03/2023) 01/03/2023 143 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 01/03/2023) 01/03/2023 144 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 01/03/2023) 01/03/2023 145 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 01/03/2023) 01/03/2023 146 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 01/03/2023) 01/03/2023 147 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 01/03/2023) 01/04/2023 148 MEMORANDUM regarding 143 MOTION for Leave to Restrict; 144 MOTION for Leave to Restrict; 145 MOTION for Leave to Restrict; 146 MOTION for Leave to Restrict; and 147 MOTION for Leave to Restrict. Motions 143 , 144 , 145 , 146 , and 22 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 22 of 74 147 are referred to Magistrate Judge Michael E. Hegarty, by Judge Charlotte N. Sweeney on 1/4/2023. Text Only Entry (cnssec.) (Entered: 01/04/2023) 01/04/2023 149 Minute ORDER by Magistrate Judge Michael E. Hegarty on 4 January 2023. Pursuant to D.C.Colo.LCivR 7.2, the Plaintiff's Unopposed Motion to Restrict Access 137 is granted. The Clerk of the Court is directed to maintain under Restriction Level One Exhibit 14 at ECF 119-1, Exhibit 15 at ECF 119-2, Exhibit 16 at ECF 119-3, Exhibit 21 at ECF 119-8, and Exhibit 22 at ECF 119-9 until further order of the Court. Plaintiff files a redacted version of its Reply at ECF 137-1.(cmadr, ) (Entered: 01/04/2023) 01/06/2023 150 Motion to Exclude Testimony by City's Damages Expert by Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Van de Stouwe, Anna) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/06/2023) 01/06/2023 151 Motion to Exclude Testimony and Opinions of the City's Expert Jon Brock by Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(White, Alexander) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/06/2023) 01/06/2023 152 Motion to Exclude and Limit Opinions of Peter Schulman by Plaintiff City of Fort Collins.. (Attachments: # 1 Exhibit 1 - SG Damages Report, # 2 Exhibit 2 - P. Schulman Rebuttal Report, # 3 Exhibit 3 - Excerpts from P. Schulman Rough Dep. Tr.)(Collard, Case) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/06/2023) 01/06/2023 153 Motion to Exclude Expert Opinion of Defendants' Expert John Hutchinson by Plaintiff City of Fort Collins.. (Attachments: # 1 Exhibit 1 - Hutchinson Affirmative Report.pdf, # 2 Exhibit 2 - Hutchinson Rebuttal Report.pdf, # 3 Exhibit 3 - Dep. Tr. Excerpts J. Hutchinson, # 4 Exhibit 4 - Open_Intl_00357564.pdf)(Collard, Case) Modified on 5/10/2023 to unrestrict document with the exception of Exhibit 1 - Hutchinson Affirmative Report pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/06/2023) 01/06/2023 159 MOTION to Exclude Testimony by the City of Fort Collinss Damages Expert, Ronald Seigneur by Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Restricted Document 150 filed on 1/6/2023). Text Only Entry (sphil, ) (Entered: 01/11/2023) 01/06/2023 160 MOTION to Exclude Testimony and Opinions of the Citys expert Jon Brock by Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Restricted Document 151 filed on 1/6/2023). Text Only Entry (sphil, ) Modified on 1/11/2023 to add text. (sphil, ). (Entered: 01/11/2023) 01/06/2023 161 MOTION to Exclude and Limit Opinions of Peter Schulman by Plaintiff City of Fort Collins. (Public Entry for Restricted Document 152 filed on 1/6/2023). Text Only Entry (sphil, ) (Entered: 01/11/2023) 01/06/2023 162 MOTION to Exclude Expert Opinions of Defendants' Expert John Hutchinson by Plaintiff City of Fort Collins. (Public Entry for Restricted Document 153 filed on 23 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 23 of 74 1/6/2023). Text Only Entry (sphil, ) (Entered: 01/11/2023) 01/09/2023 154 Opposition to the City's Motion for Partial Summary Judgment by Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit 16, # 2 Exhibit 17, # 3 Exhibit 18, # 4 Exhibit 19, # 5 Exhibit 20, # 6 Exhibit 21, # 7 Exhibit 22, # 8 Exhibit 23, # 9 Exhibit 24, # 10 Exhibit 25, # 11 Exhibit 26, # 12 Exhibit 27, # 13 Exhibit 28, # 14 Exhibit 29, # 15 Exhibit Declaration of Parrott, # 16 Exhibit Declaration of Contreras, # 17 Exhibit Declaration of Swanson)(Swanson, Paul) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/09/2023) 01/09/2023 155 Response in Opposition to Motion to Exclude Testimony by Non-Retained Expert Michelle Frey, PhD by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins.. (Attachments: # 1 Ex. A - 2021-09-09 City of Fort Collins' Rule 26 Initial Disclosures, # 2 Ex. B - 2021-11-26 1-0 Open's Obj and Resp to City's First Set of ROGs, # 3 Ex. C - Excerpts from Frey Dep. Tr, # 4 Ex. D - Counsel Emails, # 5 Ex. E - Excerpt from Rosintoski Dep. Tr, # 6 Ex. F - Excerpts from Parrott Dep. Tr, # 7 Ex. G - Nagle v. Mink - Dkt 35)(Collard, Case) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/09/2023) 01/09/2023 156 Response to Defendants' Motion for Partial Summary Judgment by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins. (Collard, Case) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/09/2023) 01/09/2023 157 Declaration of Aaron Mcclune to 132 MOTION for Partial Summary Judgment by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins.. (Collard, Case) Modified on 1/11/2023 to add title and linkage. (sphil, ). Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/09/2023) 01/09/2023 158 Declaration of Case Collard re: 124 MOTION for Summary Judgment by Counter Defendant City of Fort Collins, Plaintiff City of Fort Collins.. (Attachments: # 1 Exh. A to Collard Case Declaration, # 2 Exh. B to Collard Case Declaration, # 3 Exh. C to Collard Case Declaration, # 4 Exh. D to Collard Case Declaration, # 5 Exh. E to Collard Case Declaration, # 6 Exh. F to Collard Case Declaration, # 7 Exh. G to Collard Case Declaration, # 8 Exh. H to Collard Case Declaration, # 9 Exh. I to Collard Case Declaration, # 10 Exh. J to Collard Case Declaration, # 11 Exh. K to Collard Case Declaration, # 12 Exh. L to Collard Case Declaration, # 13 Exh. M to Collard Case Declaration, # 14 Exh. N to Collard Case Declaration, # 15 Exh. O to Collard Case Declaration, # 16 Exh. P to Collard Case Declaration, # 17 Exh. Q to Collard Case Declaration, # 18 Exh. R to Collard Case Declaration, # 19 Exh. S to Collard Case Declaration, # 20 Exh. T to Collard Case Declaration, # 21 Exh. U to Collard Case Declaration, # 22 Exh. V to Collard Case Declaration, # 23 Exh. W to Collard Case Declaration, # 24 Exh. X to Collard Case Declaration, # 25 Exh. Y to Collard Case Declaration, # 26 Exh. Z to Collard Case Declaration, # 27 Exh. AA to Collard Case Declaration, # 28 Exh. AB to Collard Case Declaration, # 29 Exh. AC to Collard Case Declaration, # 30 Exh. AD to Collard Case Declaration, # 31 Exh. AE to Collard Case Declaration, # 32 Exh. AF to Collard Case Declaration, # 33 Exh. AG to Collard Case Declaration, # 34 Exh. AH to Collard Case Declaration, # 35 Exh. AI to Collard Case Declaration, # 36 Exh. AJ to Collard Case Declaration, # 37 Exh. AK to Collard Case Declaration, # 38 Exh. AL to Collard Case Declaration, # 39 Exh. AM to Collard Case Declaration, # 40 Exh. AN to Collard Case Declaration, 24 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 24 of 74 # 41 Exh. AO to Collard Case Declaration, # 42 Exh. AP to Collard Case Declaration, # 43 Exh. AQ to Collard Case Declaration, # 44 Exh. AR to Collard Case Declaration, # 45 Exh. AS to Collard Case Declaration, # 46 Exh. AT to Collard Case Declaration)(Collard, Case) Modified on 1/11/2023 to add title and linkage. (sphil, ). Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/09/2023) 01/09/2023 163 RESPONSE to 132 MOTION for Partial Summary Judgment filed by Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Restricted Document 154 filed on 1/9/2023). Text Only Entry (sphil, ) (Entered: 01/11/2023) 01/09/2023 164 RESPONSE to 122 MOTION to Exclude Opinion Testimony by City's Proffered Non-Retained Expert Michelle Frey filed by Plaintiff City of Fort Collins.(Public Entry for Restricted Document 1544 filed on 1/9/2023). Text Only Entry(sphil, ) (Entered: 01/11/2023) 01/09/2023 165 RESPONSE to 132 MOTION for Partial Summary Judgment filed by Plaintiff City of Fort Collins. (Public Entry for Restricted Document 156 filed on 1/9/2023 ). Text Only Entry (sphil, ) (Entered: 01/11/2023) 01/10/2023 166 Conventionally Submitted Material : 1 Flash Drive to 158 Restricted Document - Level 1 Declaration by Plaintiff City of Fort Collins. Location: 1st Floor Area, Box A-1-6. Text Only Entry. (sphil, ) (Entered: 01/11/2023) 01/17/2023 167 ORDER APPOINTING MASTER by Magistrate Judge Michael E. Hegarty on 17 January 2023. (Attachments: # 1 Affidavit) (cmadr, ) (Entered: 01/17/2023) 01/20/2023 168 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 01/20/2023) 01/20/2023 169 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 01/20/2023) 01/20/2023 170 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 01/20/2023) 01/20/2023 171 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 01/20/2023) 01/20/2023 172 MEMORANDUM regarding 168 MOTION for Leave to Restrict; 169 MOTION for Leave to Restrict; 170 MOTION for Leave to Restrict; 171 MOTION for Leave to Restrict. Motions 168 , 169 , 170 , 171 are referred to Magistrate Judge Michael E. Hegarty, by Judge Charlotte N. Sweeney on 1/20/2023. Text Only Entry (cnssec.) (Entered: 01/20/2023) 01/20/2023 173 Response in Opposition to the City's Motion to Exclude Expert Opinion of Defendants' Expert John Hutchinson by Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(White, Alexander) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/20/2023) 01/20/2023 174 Response in Opposition to Defendants' Motion to Exclude Testimony by City's Damages Expert by Plaintiff City of Fort Collins.. (Attachments: # 1 Exhibit Ex. 1 - Plaintiff's Affirmative Disclosures, # 2 Exhibit Ex. 2 - Notice of Deposition of Ronald Seigneur, # 3 Exhibit Ex. 3 - Email Cancelling Deposition, # 4 Exhibit Ex. 4 - 2022-12-07 C. Collard Ltr to P. Swanson re Contractual Damages, # 5 Exhibit Ex. 25 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 25 of 74 5 - Excerpts from P. Schulman Dep. Tr., # 6 Exhibit Ex. 6 - CFC Business Plan)(Collard, Case) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/20/2023) 01/20/2023 175 Response in Opposition to Open's Rule 702 Motion to Exclude Expert Testimony of the city's Expert Jon Brock by Plaintiff City of Fort Collins.. (Attachments: # 1 Exhibit Ex. 1 - JohnHutchinson_COND, # 2 Exhibit Ex. 2 - Expert Report of John Hutchinson, # 3 Exhibit Ex. 3 - JonBrock_COND)(Collard, Case) Modified on 5/10/2023 to unrestrict document with the exception of Exhibit 2 - Expert Report of John Hutchinson pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/20/2023) 01/20/2023 176 Response to City's Motion to Exclude and Limit Opinions of Peter Schulman by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit A-Schulman Depo Transcript Excerpts)(Van de Stouwe, Anna) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/20/2023) 01/20/2023 177 RESPONSE to 159 MOTION to Exclude filed by Plaintiff City of Fort Collins. (Public Entry for Restricted Document 174 filed on 1/20/2023 ). Text Only Entry. (sphil, ) (Entered: 01/23/2023) 01/20/2023 178 RESPONSE to 162 MOTION to Exclude filed by Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Restricted Document 173 filed on 1/20/2023). Text Only Entry. (sphil, ) (Entered: 01/23/2023) 01/20/2023 179 RESPONSE to 160 MOTION to Exclude filed by Plaintiff City of Fort Collins. (Public Entry for Restricted Document 175 filed on 1/20/2023 ). Text Only Entry. (sphil, ) (Entered: 01/23/2023) 01/20/2023 180 RESPONSE to 161 MOTION to Exclude filed by Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Restricted Document 176 filed on 1/20/2023). Text Only Entry. (sphil, ) Modified on 1/23/2023 to edit linkage. (sphil, ). (Entered: 01/23/2023) 01/23/2023 181 Order Terminating Motions: 1. 123 Motion to Exclude Testimony by City's Damages Expert (Seigneure). The motion has been refiled at ECF No. 150 /public entry 159 . 2. 133 Motion to Exclude Expert Opinion of John Hutchinson (Public Entry for Restricted Document 128 . The motion has been refiled at ECF No. 153 /public entry 162 . 3. 134 Motion to Exclude Testimony and Opinions of the City's Expert Jon Brock (Public Entry for Restricted Document 129 . The motion has been refiled at ECF No. 151 /public entry 160 . By Judge Charlotte N. Sweeney on 1/23/2023. Text Only Entry(cnssec.) (Entered: 01/23/2023) 01/23/2023 182 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. 1- Redacted Resp IOT Mtn to Exclude Testimony by Expert M. Frey)(Shoaei, Maral) (Entered: 01/23/2023) 01/23/2023 183 MOTION for Leave to Restrict by Plaintiff City of Fort Collins. (Shoaei, Maral) (Entered: 01/23/2023) 26 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 26 of 74 01/23/2023 184 Reply in Support of Motion for Summary Judgment by Plaintiff City of Fort Collins.. (Attachments: # 1 Affidavit 2023-01-23 Decl of M Shoaei ISO MSJ Reply, # 2 Ex. 1 - 2022-10-03 C. Collard Ltr to P. Swanson re Appropriation, # 3 Ex. 2 - Excerpts from G. Paul 30b6 Dep. Tr., # 4 Ex. 3 - Oct. 26-28, 2022 Email Correspondence, # 5 Ex. 4 - Ord. 154, 2017, # 6 Ex. 5 - Ord. 076, 2020, # 7 Ex. 6 - Ord. 093, 2018, # 8 Ex. 7 - Excerpts from H. Parrott 12.2.22 Dep. Tr.)(Collard, Case) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/23/2023) 01/23/2023 185 Reply in Support of Motion for Partial Summary Judgment by Counter Claimant Open International, LLC, Defendants Open International, LLC, Open Investments, LLC.. (Attachments: # 1 Exhibit Supplement to City Opp. Ex. A, # 2 Exhibit Supplement to Open SJ Ex. 60)(Swanson, Paul) Modified on 5/10/2023 to unrestrict document pursuant to 218 ORDER issued 5/9/2023 (jdyne). (Entered: 01/23/2023) 01/23/2023 187 REPLY to Response to 124 MOTION for Summary Judgment filed by Plaintiff City of Fort Collins. (Public Entry for Restricted Document 184 filed on 1/23/2023 ). Text Only Entry. (sphil, ) (Entered: 01/24/2023) 01/23/2023 188 REPLY to Response to 132 MOTION for Partial Summary Judgment filed by Defendants Open International, LLC, Open Investments, LLC. (Public Entry for Restricted Document 185 filed on 1/23/2023 ). Text Only Entry. (sphil, ) (Entered: 01/24/2023) 01/24/2023 186 MEMORANDUM regarding 182 Motion for Leave to Restrict and 183 Motion for Leave to Restrict. Motions 182 and 183 are referred to Magistrate Judge Michael E. Hegarty, by Judge Charlotte N. Sweeney on 1/24/2023. Text Only Entry (cnssec. ) (Entered: 01/24/2023) 01/24/2023 189 RESPONSE to 147 MOTION for Leave to Restrict, 146 MOTION for Leave to Restrict, 144 MOTION for Leave to Restrict, 145 MOTION for Leave to Restrict, 143 MOTION for Leave to Restrict filed by Counter Claimants Open International, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 01/24/2023) 01/25/2023 190 ORDER granting 143 Motion for Leave to Restrict; granting 144 Motion for Leave to Restrict ; granting 145 Motion for Leave to Restrict; granting 146 Motion for Leave to Restrict; granting 147 Motion for Leave to Restrict; granting 168 Motion for Leave to Restrict; granting 169 Motion for Leave to Restrict; granting 170 Motion for Leave to Restrict; granting 171 Motion for Leave to Restrict; granting 182 Motion for Leave to Restrict; granting 183 Motion for Leave to Restrict. Plaintiff has filed motions to restrict at ECF 143, 144, 145, 146, 147, 168, 169, 170, 171, 182, and 183. Defendants filed a response to ECF 143-147, and I assign their opposition to the remaining motions as well. I agree generally with Defendants' premise that as this case draws closer to trial, especially considering that Plaintiff is a municipality, the presumption against restriction gets much stronger. Indeed, if this case proceeds to the pretrial stage (i.e., close to trial) with no compromise resolution likely, I invite Defendants to file a motion to unrestrict all documents, which I would likely grant if referred to me. Also, as a general matter, I view documents generated solely because of a lawsuit (e.g., expert/damages reports, deposition testimony) and while the case is in intense discovery, to have less of a public interest. Other documents that were created outside of the lawsuit may have more of a public interest in disclosure, yet I still believe in protecting litigants' self-expressed need of confidentiality when appropriate. As with prior orders in this case (to which the parties' consented) restricting certain filings, I 27 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 27 of 74 provisionally grant the motions identified herein. However, I ask Plaintiff's counsel to advise their client that at some point, if the case approaches trial, all restrictions will be lifted. by Magistrate Judge Michael E. Hegarty on 1/25/2023. Text Only Entry(mehlc3, ) (Entered: 01/25/2023) 01/26/2023 191 ORDER by Magistrate Judge Michael E. Hegarty on 26 January 2023. Plaintiff's Motion for Leave to Amend Complaint 101 & 102 is granted. Plaintiff shall file a clean copy (i.e., no strikethroughs or underlines) of its amended pleadings on or before February 2, 2023.(cmadr, ) (Entered: 01/27/2023) 01/31/2023 192 AMENDED COMPLAINT against Open International, LLC, filed by City of Fort Collins.(Collard, Case) (Entered: 01/31/2023) 01/31/2023 193 Plaintiff's Amended ANSWER/REPLY to 13 Answer to Complaint, Counterclaim by City of Fort Collins.(Collard, Case) (Entered: 01/31/2023) 02/14/2023 194 ANSWER to 192 Amended Complaint and, COUNTERCLAIM against City of Fort Collins by Open Investments, LLC, Open International, LLC.(White, Alexander) (Entered: 02/14/2023) 02/21/2023 195 NOTICE Special Master's Recommendation Re Motion to Compel (Document #43) by Special Master Nancy E. Rice (Rice, Nancy) (Entered: 02/21/2023) 02/21/2023 196 NOTICE Special Master's Recommendation on Plaintiff's Motion to Quash (Document No. 45) by Special Master Nancy E. Rice (Rice, Nancy) (Entered: 02/21/2023) 02/22/2023 197 Plaintiff's First Amended ANSWER/REPLY to 194 Answer to Amended Complaint, Counterclaim by City of Fort Collins.(Collard, Case) (Entered: 02/22/2023) 03/05/2023 198 TRANSCRIPT of Discovery Conference held on November 17, 2022 before Magistrate Judge Hegarty. Pages: 1-22. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Patterson Transcription Company, ) (Entered: 03/05/2023) 03/06/2023 199 MOTION for Order to Adopt the Special Master's Recommendations (Dkts. 195, 196) and for Fees, Costs, and Further Related Relief by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 03/06/2023) 03/07/2023 200 MEMORANDUM regarding 199 MOTION for Order to Adopt the Special Master's Recommendations (Dkts. 195 , 196 ) and for Fees, Costs, and Further Related Relief. Motion 199 is referred to Magistrate Judge Michael E. Hegarty, by Judge Charlotte N. Sweeney on 3/7/2023. Text Only Entry (cnssec.) (Entered: 03/07/2023) 03/09/2023 201 Minute ORDER by Magistrate Judge Michael E. Hegarty on 9 March 2023. At the request of Plaintiff/Counter Defendant, the Court will hold a Discovery 28 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 28 of 74 Conferenceon March 20, 2023, at 1:15 p.m. in Courtroom A-501, on the fifth floor of the Alfred A. Arraj United States Courthouse located at 901 19th Street, Denver, Colorado. (cmadr, ) (Entered: 03/09/2023) 03/14/2023 202 MINUTE ORDER re: 201 Order. Having received the parties' correspondence regarding the Court's March 9, 2023 Minute Order at ECF 201, the Court hereby clarifies that Plaintiff/Counter Defendant may incorporate any objections it may have to the Special Master's Recommendations (ECFs 195, 196) in a response to Defendants and Counter Claimant's "Motion for Order to Adopt the Special Master's Recommendations (Dkts. 195, 196) and for Fees, Costs, and Further Related Relief," ECF 199, on or before March 16, 2023 instead of separately filing objections to ECFs 195 and 196 given the substantial overlap between any objections to the Special Master's Recommendations and any opposition to the Motion. The Court shall resolve the pending Motion, among other issues, at the March 20, 2023 Discovery Conference. ECF 201. Entered by Magistrate Judge Michael E. Hegarty on 3/14/23. Text Only Entry (mehlc5, ) (Entered: 03/14/2023) 03/16/2023 203 BRIEF in Opposition to 199 MOTION for Order to Adopt the Special Master's Recommendations (Dkts. 195, 196) and for Fees, Costs, and Further Related Relief filed by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. 1 Global Resolution Agreement, # 2 Ex. 2 - 2022-10-10 C. Collard Ltr to P. Swanson, # 3 Ex. 3- Excerpts from 11.17.2022 Discovery Conference, # 4 Ex. 4- Meet and Confer re Open's Fifth Set of Discovery Requests)(Collard, Case) (Entered: 03/16/2023) 03/20/2023 204 COURTROOM MINUTES for proceedings held before Magistrate Judge Michael E. Hegarty: Discovery Hearing held on 3/20/2023. FTR: A501. (cthom, ) (Entered: 03/20/2023) 03/21/2023 205 ORDER by Magistrate Judge Michael E. Hegarty on 21 March 2023. I hereby grant in part and deny in part Defendants' Motion to Adopt the Special Master's Recommendations (DKTS. 195, 196) and for Fees, Costs, and Further RelatedRelief at ECF 199 .(cmadr, ) (Entered: 03/21/2023) 03/27/2023 206 MOTION to Vacate and Reset Final Pretrial Conference by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 03/27/2023) 03/27/2023 207 MINUTE ORDER re: 206 Motion to Vacate and Reset Final Pretrial Conference. The Court orders that the City of Fort Collins file a response to 206 on or before 4/3/2023. By Judge Charlotte N. Sweeney on 3/27/2023. Text Only Entry (cnssec.) (Entered: 03/27/2023) 04/03/2023 208 MOTION to Clarify Order [Docket 205] by Plaintiff City of Fort Collins. (Collard, Case) (Entered: 04/03/2023) 04/03/2023 209 RESPONSE to 206 MOTION to Vacate and Reset Final Pretrial Conference filed by Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1 - 2023-03-23 COURTROOM MINUTES for Final Pretrial Conference)(Collard, Case) (Entered: 04/03/2023) 04/04/2023 210 MEMORANDUM regarding 208 MOTION to Clarify Order [Docket 205 ] filed by City of Fort Collins. Motion 208 is referred to Magistrate Judge Michael E. Hegarty, by Judge Charlotte N. Sweeney on 4/4/2023. Text Only Entry (cnssec. ) (Entered: 04/04/2023) 29 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 29 of 74 04/04/2023 211 ORDER granting 208 Motion to Clarify. Plaintiff has filed a "Motion to Clarify Order, Dkt 205" concerning the undersigned's Order on the Master's Recommendation concerning privileged documents. ECF 208. My Order addressed primary documents the Master was asked to review. The Order is intended to reach the same conclusion as to duplicates or near-duplicates of such primary documents. Entered by Magistrate Judge Michael E. Hegarty on 4/4/23. Text Only Entry(mehlc5) (Entered: 04/04/2023) 04/04/2023 212 ORDER granting 206 MOTION to Vacate and Reset Final Pretrial Conference. The Final Pretrial Conference set for 4/14/2023 at 10:00 AM is converted into a Telephonic Status Conference. The parties are directed to dial (571) 353-2301 and enter Access Code 770126989# when prompted. By Judge Charlotte N. Sweeney on 4/4/2023. Text Only Entry(cnssec. ) (Entered: 04/04/2023) 04/14/2023 213 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Telephone Status Conference held on 4/14/2023. Final Pretrial Conference set for 7/10/2023 at 1:00 PM in Courtroom A 702 before Judge Charlotte N. Sweeney. Two-week Jury Trial set to commence 10/23/2023 at 8:00 AM in Courtroom A 702 before Judge Charlotte N. Sweeney with a Trial Preparation Conference on 9/29/2023 at 9:00 AM in Courtroom A 702 before Judge Charlotte N. Sweeney. Court Reporter: Sarah Mitchell. (jdyne) (Entered: 04/14/2023) 04/14/2023 214 ORDER SETTING TRIAL: Two-week Jury Trial set to commence 10/23/2023 at 8:00 AM in Courtroom A 702 before Judge Charlotte N. Sweeney with a Trial Preparation Conference on 9/29/2023 at 9:00 AM in Courtroom A 702 before Judge Charlotte N. Sweeney. by Judge Charlotte N. Sweeney on 4/14/23. (jdyne) (Entered: 04/14/2023) 05/02/2023 215 REASSIGNING MAGISTRATE JUDGE. This action is reassigned to Magistrate Judge Susan Prose upon her appointment. All future pleadings should reference Magistrate Judge Prose at the end of the civil action number (such as 21-cv-02063-CNS-SP). Unless otherwise ordered, the dates and times for all previously scheduled matters will be maintained and will now be handled by Magistrate Judge Prose in Courtroom C-205. Her chambers are located in Room C-254 of the Byron G. Rogers Courthouse. Her telephone number is 303-335-2722. (Text only entry) (sdunb, ) (Entered: 05/02/2023) 05/03/2023 216 ORDER denying 122 Motion to Exclude re: Michelle Frey; denying 159 Motion to Exclude re: Ronald Seigneur; granting in part and denying in part 160 Motion to Exclude re: Jon Brock; denying 161 Motion to Exclude re: Peter Schulman; granting in part and denying in part 162 Motion to Exclude re: John Hutchinson. by Judge Charlotte N. Sweeney on 5/3/23.(jdyne) (Entered: 05/04/2023) 05/09/2023 217 Joint MOTION to Unrestrict Document 54 Restricted Document - Level 1 filed by Open Investments, LLC, Open International, LLC, 124 MOTION for Summary Judgment filed by City of Fort Collins, 43 Restricted Document - Level 1, filed by Open Investments, LLC, Open International, LLC, 58 Restricted Document - Level 1 filed by City of Fort Collins, 158 Restricted Document - Level 1,,,,,,,,, filed by City of Fort Collins, 185 Restricted Document - Level 1, filed by Open Investments, LLC, Open International, LLC, 151 Restricted Document - Level 1, filed by Open Investments, LLC, Open International, LLC, 184 Restricted Document - Level 1, filed by City of Fort Collins, 125 Restricted Document - Level 1,,,,,,,,,,,,,, filed by Open Investments, LLC, Open International, LLC, 155 Restricted Document - Level 1,, filed by City of Fort Collins, 78 Restricted Document - Level 1, filed by Open 30 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 30 of 74 Investments, LLC, Open International, LLC, 77 Restricted Document - Level 1, filed by Open Investments, LLC, Open International, LLC, 45 MOTION to Quash filed by City of Fort Collins, 74 Restricted Document - Level 1 filed by Open Investments, LLC, Open International, LLC, 150 Restricted Document - Level 1, filed by Open Investments, LLC, Open International, LLC, 153 Restricted Document - Level 1, filed by City of Fort Collins, 156 Restricted Document - Level 1 filed by City of Fort Collins, 157 Restricted Document - Level 1, filed by City of Fort Collins, 173 Restricted Document - Level 1 filed by Open Investments, LLC, Open International, LLC, 104 Restricted Document - Level 1, filed by City of Fort Collins, 175 Restricted Document - Level 1 filed by City of Fort Collins, 119 Restricted Document - Level 1, filed by City of Fort Collins, 129 Restricted Document - Level 1,,, filed by Open Investments, LLC, Open International, LLC, 63 Restricted Document - Level 1 filed by Open Investments, LLC, Open International, LLC, 154 Restricted Document - Level 1,, filed by Open Investments, LLC, Open International, LLC, 105 Restricted Document - Level 1, filed by City of Fort Collins, 106 Restricted Document - Level 1, filed by City of Fort Collins, 123 MOTION to Exclude Testimony by City's Damages Expert filed by Open Investments, LLC, Open International, LLC, 176 Restricted Document - Level 1 filed by Open Investments, LLC, Open International, LLC, 101 Restricted Document - Level 1 filed by City of Fort Collins, 128 Restricted Document - Level 1, filed by City of Fort Collins, 67 Restricted Document - Level 1 filed by City of Fort Collins, 152 Restricted Document - Level 1 filed by City of Fort Collins, 76 Restricted Document - Level 1, filed by Open Investments, LLC, Open International, LLC, 174 Restricted Document - Level 1, filed by City of Fort Collins by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit 1 - Redacted Hutchinson Affirmative Report, # 2 Proposed Order (PDF Only) on Joint Motion to Unrestrict Record)(Swanson, Paul) (Entered: 05/09/2023) 05/09/2023 218 ORDER granting 217 Joint Motion to Unrestrict by Judge Charlotte N. Sweeney on 5/9/23.(jdyne) (Entered: 05/09/2023) 05/10/2023 219 Redacted Expert Report of John Hutchinson (jdyne) (Entered: 05/10/2023) 05/11/2023 220 MINUTE ORDER by Magistrate Judge Susan Prose on 5/11/2023. A telephone discovery conference is set for May 24, 2023, at 3:00 p.m. in Courtroom C-205 before Magistrate Judge Susan Prose. The parties shall attend by calling 571-353-2301, Guest meeting ID- 868150043. All attendees shall please mute their phone when not speaking and not use speaker phone. At least five (5) business days in advance of the conference, each party shall file a discovery report (using the CM/ECF event for Brief, not Motion), no longer than three double-spaced pages, briefly summarizing the dispute and the partys position, highlighting any relevant law, and attaching the discovery requests and responses that are at issue. Text Only Entry (splc1) (Entered: 05/11/2023) 05/16/2023 221 NOTICE: Except to the extent Magistrate Judge Susan Prose has already vacated or reset a conference or hearing in this case, all conferences and hearings scheduled in this matter before its reassignment to Magistrate Judge Susan Prose remain scheduled at the dates and times set, and will be held in person in Courtroom C-205 (Byron Rogers U.S. Courthouse, 1929 Stout Street, Denver, Colorado) before Magistrate Judge Susan Prose unless previously expressly set by telephone or video. To attend telephone conferences, the parties shall call 571-353-2301, Meeting ID- 868150043 at the scheduled time. All attendees shall please mute their phone when not speaking 31 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 31 of 74 and not use a speaker phone. To attend video conferences, the parties shall follow the instructions attached to this Notice. Litigants and counsel whose offices are located outside of the Denver metropolitan area or who cannot reasonably make a personal appearance may appear at conferences and hearings by telephone. Please contact Chambers at (303) 335-2722 at least two business days prior to the conference or hearing to arrange appearance by telephone. (cpomm, ) (Entered: 05/16/2023) 05/17/2023 222 BRIEF Discovery by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. A - H. Parrott Dep. Transcript, # 2 Ex. B - 2022-08-04 City's Resp. and Obj. Second Set Discovery Requests, # 3 Ex. C - Oct. 3, 2022 Ltr re Appropriations with Exhibits, # 4 Ex. D - Oct 25-28, 2022 Email Correspondence, # 5 Ex. E - 2023-04-10 City's Resp. and Obj. to Defendants' Fifth Set Discovery Requests, # 6 Ex. F - 2023-03-20 Hearing Transcript - Discovery Conference, # 7 Ex. G - Expediture Spreadsheet, # 8 Ex. H - Business Plan, # 9 Ex. I - Conferral Email Exchange)(Collard, Case) (Entered: 05/17/2023) 05/17/2023 223 BRIEF Discovery by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit 1 - 2023-02-14 Open's Fifth Set of Discovery Requests to Plaintiff, # 2 Exhibit 2 - 2023-03-20 Hearing Transcript - Discovery Conference, # 3 Exhibit 3 - 2023-04-10 City's Resp. and Obj. to Defendants' Fifth Set Discovery Requests, # 4 Exhibit 4 - 2023-04-20 Appropriations Search Terms, # 5 Exhibit 5 - City Accting Open Contract - May 2021 Excerpt)(Van de Stouwe, Anna) (Entered: 05/17/2023) 05/21/2023 224 TRANSCRIPT of Discovery Conference held on March 20, 2023 before Magistrate Judge Hegarty. Pages: 1-64. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Patterson Transcription Company, ) (Entered: 05/21/2023) 05/22/2023 225 ORDER granting in part and denying in part 124 Plaintiff's Motion for Summary Judgment; denying 125 Defendants' Motion for Partial Summary Judgment by Judge Charlotte N. Sweeney on 5/22/23.(jdyne) (Entered: 05/22/2023) 05/24/2023 226 MINUTE ENTRY for proceedings held before Magistrate Judge Susan Prose: Discovery Hearing held on 5/24/2023. FTR: C205. (cpomm, ) (Entered: 05/25/2023) 06/07/2023 227 ORDER by Magistrate Judge Susan Prose on 6/7/2023, ruling on the discovery dispute briefed in ECF Nos. 222, 223. See attached order for particulars. (splc1) (Entered: 06/07/2023) 07/03/2023 228 Proposed Pretrial Order by Plaintiff City of Fort Collins. (Attachments: # 1 City of Fort Collins' Exhibit List, # 2 Open International's Exhibit List)(Collard, Case) (Entered: 07/03/2023) 07/10/2023 229 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Final Pretrial Conference held on 7/10/2023. Court Reporter: Sarah Mitchell. (jdyne) 32 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 32 of 74 (Entered: 07/10/2023) 07/10/2023 230 FINAL PRETRIAL ORDER by Judge Charlotte N. Sweeney on 7/10/23. (jdyne) (Entered: 07/10/2023) 07/19/2023 231 TRANSCRIPT of Final Pretrial Conference held on July 10, 2023 before Judge Sweeney. Pages: 1-26. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 07/19/2023) 07/24/2023 232 MOTION to Compel Election of Remedies and Limit Jury Demand by Counter Claimant Open International, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 07/24/2023) 07/24/2023 233 BRIEF Opposing Open's Request for an Early Election of Remedies by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. 1 Instruction 9.4, # 2 Ex. 2 Instruction 19.1, # 3 Ex. 3 Instruction 6.14)(Collard, Case) (Entered: 07/24/2023) 07/31/2023 234 NOTICE of Entry of Appearance by Kevin Christopher McAdam on behalf of Open International, LLC, Open Investments, LLCAttorney Kevin Christopher McAdam added to party Open International, LLC(pty:dft), Attorney Kevin Christopher McAdam added to party Open Investments, LLC(pty:dft) (McAdam, Kevin) (Entered: 07/31/2023) 07/31/2023 235 MOTION to Withdraw as Attorney Anna C. van de Stouwe by Defendants Open International, LLC, Open Investments, LLC. (McAdam, Kevin) (Entered: 07/31/2023) 07/31/2023 236 BRIEF re 233 Brief in Response to City's Brief Opposing Motion to Compel Election of Remedies and to Limit Jury Demand by Counter Claimant Open International, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 07/31/2023) 07/31/2023 237 RESPONSE to 232 MOTION to Compel Election of Remedies and Limit Jury Demand filed by Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Collard, Case) (Entered: 07/31/2023) 08/01/2023 238 ORDER granting 235 MOTION to Withdraw as Attorney Anna C. van de Stouwe. Attorney Anna C. Van de Stouwe is withdrawn. By Judge Charlotte N. Sweeney on 8/1/2023. Text Only Entry(cnssec. ) (Entered: 08/01/2023) 09/05/2023 239 TRANSCRIPT of Discovery Conference held on August 12, 2022 before Magistrate Judge Hegarty. Pages: 1-115. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic 33 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 33 of 74 transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Patterson Transcription Company, ) (Entered: 09/05/2023) 09/08/2023 240 MOTION in Limine by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit 1 - CFC's Initial Rule 26a1 Disclosures, # 2 Exhibit 2 - CFC's 7th Suppl Rule 26a1 Disclosures, # 3 Exhibit 3 - CFC's 8th Suppl Rule 26a1 Disclosures, # 4 Exhibit 4 - CFC's LT Open re 8th Suppl Rule 26a1 Disclosures)(Swanson, Paul) (Entered: 09/08/2023) 09/08/2023 241 MOTION in Limine by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. 1 - Decl. of T. Hickmann, # 2 Ex. 2 - T. Hickmann Depo, # 3 Ex. 3 - July 10, 2023 Pretrial Conference Transcript, # 4 Ex. 4 - Aug. 11, 2022 Email, # 5 Ex. 5 - August 12, 2022 Hearing Transcript)(Shoaei, Maral) (Entered: 09/08/2023) 09/15/2023 242 BRIEF in Opposition to 241 MOTION in Limine filed by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit A - 2022-10-03 Collard Letter with Attachments, # 2 Exhibit B - Excerpts of 2023-07-17 Rule 30(b)(6) Deposition of City of Fort Collins, # 3 Exhibit C - 2023-07-24 Collard Letter re approriations follow up)(Swanson, Paul) (Entered: 09/15/2023) 09/15/2023 243 RESPONSE to 240 MOTION in Limine filed by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. 1 - Pretrial Conference Transcript, # 2 Ex. 2 - July 17, 2023 City 30(b)(6) Deposition, # 3 Ex. 3 - 2022-12-16 Ltr re Inspection, # 4 Ex. 4 - Thumb-Drive Correspondence, # 5 Ex. 5 - Transmission Email re Translations, # 6 Ex. 6 - Sept. 5, 2023 Email)(Shoaei, Maral) (Entered: 09/15/2023) 09/22/2023 244 Proposed Voir Dire by Defendants Open International, LLC, Open Investments, LLC. (McAdam, Kevin) (Entered: 09/22/2023) 09/22/2023 245 Witness List by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 09/22/2023) 09/22/2023 246 Proposed Voir Dire by Plaintiff City of Fort Collins. (Collard, Case) (Entered: 09/22/2023) 09/22/2023 247 MOTION for Leave to Allow the Remote Video Testimony of Michelle Frey, PHD, and Colman Keane - Partially Unopposed by Plaintiff City of Fort Collins. (Collard, Case) (Entered: 09/22/2023) 09/22/2023 248 MOTION for Leave to Allow the remote testimony of: (1) Michelle Frey, PhD and (2) Colman Keane - Partially Unopposed by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. 1 - Sept. 12, 2023 Email, # 2 Ex. 2 - PreTrial Conference Tr. Excerpt)(Collard, Case) (Entered: 09/22/2023) 09/22/2023 249 Witness List by Plaintiff City of Fort Collins. (Collard, Case) (Entered: 09/22/2023) 34 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 34 of 74 09/22/2023 250 Exhibit List - Joint by Plaintiff City of Fort Collins. (Collard, Case) (Entered: 09/22/2023) 09/25/2023 251 NOTICE - City of Fort Collins' Time Estimates for Cross Examination of Open's Final Witness List by Counter Defendants City of Fort Collins, City of Fort Collins, Plaintiff City of Fort Collins (Shoaei, Maral) (Entered: 09/25/2023) 09/25/2023 252 Witness List Cross-Examination Estimates by Counter Claimant Open International, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 09/25/2023) 09/26/2023 253 ORDER terminating 247 Motion for Leave to Allow the Remote Video Testimony of Michelle Frey, PHD, and Colman Keane - Partially Unopposed. This motion appears to be a duplicate of ECF No. 248 , but without the attachments included with the Motion at ECF No. 248 . By Judge Charlotte N. Sweeney on 9/26/2023. Text Only Entry(cnsja. ) (Entered: 09/26/2023) 09/27/2023 254 RESPONSE to 248 MOTION for Leave to Allow the remote testimony of: (1) Michelle Frey, PhD and (2) Colman Keane - Partially Unopposed filed by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit A-Beckstead Transcript Excerpt, # 2 Exhibit B-Rosintoski Email, # 3 Exhibit C-W. Corredor Transcript Excerpt)(Swanson, Paul) (Entered: 09/27/2023) 09/27/2023 255 ORDER denying 232 Motion to Compel Election of Remedies and Limit Jury Demand. By Judge Charlotte N. Sweeney on 9/27/23.(jdyne) (Entered: 09/27/2023) 09/27/2023 256 TRIAL BRIEF by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit A-Disputed translation, # 2 Exhibit B-Incomplete email, # 3 Exhibit C-Complete email, # 4 Exhibit D-Counsel email, # 5 Exhibit E-Exhibit example)(Swanson, Paul) (Entered: 09/27/2023) 09/27/2023 257 TRIAL BRIEF by Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Collard, Case) (Entered: 09/27/2023) 09/29/2023 258 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Trial Preparation Conference held on 9/29/2023. 248 Plaintiff's Partially Unopposed Motion to Allow the Remote Video Testimony of Michelle Frey, PhD and Colman Keane is GRANTED. 241 Plaintiff's Motion in Limine is GRANTED in part, DENIED in part, and deferred in part. 240 Defendants' Motion in Limine is DENIED in part, GRANTED in part, and deferred in part. Court Reporter: Sarah Mitchell. (jdyne) (Entered: 09/29/2023) 10/02/2023 259 TRANSCRIPT of Trial Preparation Conference held on September 29, 2023 before Judge Sweeney. Pages: 1-54. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts 35 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 35 of 74 document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 10/02/2023) 10/04/2023 260 MINUTE ORDER: During the Trial Preparation Conference held September 29, 2023, the Court took under advisement Plaintiff's request to compel Defendant's Rule 30(b)(6) witnesses to testify at trial during Plaintiff's case-in-chief. Having considered such request, it is DENIED. Rule 30(b)(6) governs discovery procedures only and does not purport to address, nor compel, trial testimony. The duties of a Rule 30(b)(6) witness do not extend beyond discovery and such witness cannot be compelled to testify at trial absent a subpoena. See, e.g., Bell v. Boeing Co., No. 20-cv-1716, 2022 WL 1607935, at *5 (W.D. Wash May 20, 2022). Plaintiff did not issue trial subpoenas to these witnesses. Plaintiff may, however, designate portions of the respective Rule 30(b)(6) witnesses' deposition to be read during its case. Should it choose to do so, the deposition designations and objections of both parties must be filed on or before October 13, 2023. By Judge Charlotte N. Sweeney on 10/4/2023. Text Only Entry (cnsja. ) (Entered: 10/04/2023) 10/06/2023 261 STATEMENT of Deposition Designations and Objections-Joint by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. A - Designations of D. Bishop, # 2 Ex. B - Designations of E. Mercado)(Wechter, Andrea) (Entered: 10/06/2023) 10/06/2023 262 MINUTE ORDER: The Court has reviewed the parties' competing emails to Chambers over the last few days regarding Open's Rule 30(b)(6) witnesses. First, the Court reminds counsel that the invitation extended at the September 29, 2023 trial preparation conference to email Chambers was limited to inquiries about minor issues seeking clarification only. Plaintiff's counsel has elected to essentially file a motion for clarification and/or reconsideration via email which is inappropriate. Counsel is cautioned against future similar conduct. Second, the Court is quite familiar with the meaning of "will call" witnesses and the notion that such a designation binds the party to produce that witness at trial. A party's designation of a witness as a "will call" witness, however, does not obligate that party to produce that witness at the time demanded by the other party. Thus, that Open has designated three of its Rule 30(b)(6) witnesses as will call does not require Open to produce them during the City's case-in-chief as demanded by the City. As has been explained, Open will call those witnesses during the second week of trial. Should the City wish to call those witnesses during week one, it shall do so via deposition designation. If Open believes cross-designations are appropriate to that testimony, it shall make them as well. Regardless, Open can, and presumably will, call those witnesses during the second week of trial and will conduct direct examinations. Should the City wish to defer calling those witnesses via deposition and conduct its examination during the second week when called by Open, it may do so. The Court has already indicated that it will not entertain a Rule 50 motion from Open until those witnesses have testified. No further clarification will be offered on this issue. Finally, the Court reminds the parties that it expects its rulings to be followed without additional argument and assume counsel will conduct themselves accordingly during the trial. By Judge Charlotte N. Sweeney on 10/6/2023. Text Only Entry (cnsja. ) (Entered: 10/06/2023) 10/11/2023 263 ORDER regarding 261 Statement of Deposition Designations and Objections-Joint. See attached order. By Judge Charlotte N. Sweeney on 10/11/2023. (cnsja. ) (Entered: 10/11/2023) 36 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 36 of 74 10/12/2023 264 MINUTE ORDER: A Telephone Conference is set for 10/13/2023 at 11:30 a.m. in Courtroom A 702 before Judge Charlotte N. Sweeney. Counsel are directed to dial (571) 353-2301 and enter Access Code 770126989# when prompted. By Judge Charlotte N. Sweeney on 10/12/2023. Text Only Entry (cnsja. ) (Entered: 10/12/2023) 10/13/2023 265 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Telephone Status Conference held on 10/13/2023. Court Reporter: Sarah Mitchell. (jdyne) (Entered: 10/13/2023) 10/13/2023 266 STATEMENT re Designations and Objections - Juan Corredor - Joint by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. A - Juan Corredor Designations, # 2 Ex. B - Juan Corredor 30(b)(6)_Designations)(Shoaei, Maral) (Entered: 10/13/2023) 10/13/2023 267 STATEMENT re Designations and Objections - D. Lopez - Joint by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. A - D. Lopez Designations 2023-10-13, # 2 Ex. B - 30b6 D. Lopez Designations 2023-10-13)(Shoaei, Maral) (Entered: 10/13/2023) 10/13/2023 268 STATEMENT re Designations and Objections - H. Parrott - Joint by Plaintiff City of Fort Collins. (Attachments: # 1 Ex. 1 - Hernando Parrott_VOL I Designations 2023-10-13, # 2 Ex. 2 - Hernando Parrott_ VOL II Designations 2023-10-13, # 3 Ex. 3 - Hernando Parrott_VOL III Designations 2023-10-13, # 4 Ex. A - Open_Intl_00098729)(Shoaei, Maral) (Entered: 10/13/2023) 10/15/2023 269 TRANSCRIPT of Telephone Status Conference held on October 15, 2023 before Judge Sweeney. Pages: 1-12. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 10/15/2023) 10/17/2023 270 MINUTE ORDER: Before the Court are the parties' Joint Statements of Deposition Designations and Objections (ECF Nos. 266 , 267 , and 268 ). Attached to this minute order are the Joint Statements. The Court has highlighted the sustained objections in yellow. All other objections are overruled. By Judge Charlotte N. Sweeney on 10/17/2023. (Attachments: # 1 Deposition Excerpts, # 2 Deposition Excerpts, # 3 Deposition Excerpts) (cnsja.) (Attachment 1 replaced on 10/17/2023) (cnsja, ). (Attachment 2 replaced on 10/17/2023) (cnsja, ). (Attachment 3 replaced on 10/17/2023) (cnsja, ). (Entered: 10/17/2023) 10/23/2023 271 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Jury Trial Day One held on 10/23/2023. Jury selected, opening statements given, evidence and testimony presented, trial continued. Court Reporter: Sarah Mitchell. (jdyne) (Entered: 10/23/2023) 10/23/2023 272 Juror Strike Sheet - Unredacted - Level 3 - Viewable by Court Only. (jdyne) (Entered: 10/23/2023) 37 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 37 of 74 10/23/2023 273 Juror Strike Sheet - redacted. (jdyne) (Entered: 10/23/2023) 10/23/2023 275 Introductory Jury Instructions read 10/23/23. (jdyne) (Entered: 10/25/2023) 10/24/2023 274 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Jury Trial Day Two held on 10/24/2023. Evidence and testimony presented, trial continued. Court Reporter: Sarah Mitchell. (jdyne) (Entered: 10/24/2023) 10/25/2023 276 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Jury Trial Day Three held on 10/25/2023. Evidence and testimony presented, trial continued. Court Reporter: Sarah Mitchell. (jdyne) (Additional attachment(s) added on 10/27/2023: # 1 juror questions nos. 1-2) (jdyne, ). (Entered: 10/25/2023) 10/26/2023 277 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Jury Trial Day Four held on 10/26/2023. Evidence and testimony presented, trial continued. Court Reporter: Sarah Mitchell. (jdyne) (Entered: 10/26/2023) 10/27/2023 278 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Jury Trial Day Five held on 10/27/2023. Evidence and testimony presented, trial continued. Court Reporter: Sarah Mitchell. (Attachments: # 1 juror question no. 3) (jdyne) (Entered: 10/27/2023) 10/30/2023 279 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Jury Trial Day Six held on 10/30/2023. Evidence and testimony presented, trial continued. Court Reporter: Sarah Mitchell. (Attachments: # 1 juror questions nos. 4 and 5) (jdyne) (Entered: 10/30/2023) 10/31/2023 280 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Jury Trial Day Seven held on 10/31/2023. Evidence and testimony presented, trial continued. Court Reporter: Sarah Mitchell. (hguer) (Entered: 10/31/2023) 11/01/2023 281 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Jury Trial Day Eight held on 11/1/2023. Evidence and testimony presented, trial continued. Court Reporter: Sarah Mitchell. (Attachments: # 1 juror questions nos. 6-7) (jdyne) (Entered: 11/01/2023) 11/01/2023 289 Defense tendered and rejected Jury Instructions. (jdyne) (Entered: 11/03/2023) 11/01/2023 290 Defense tendered and rejected Jury Instructions. (jdyne) (Entered: 11/03/2023) 11/02/2023 282 MOTION for Judgment as a Matter of Law by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 11/02/2023) 11/02/2023 283 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Jury Trial Day Nine held on 11/2/2023. Evidence and testimony presented, closing arguments given, jury deliberations begin, trial continued. Court Reporter: Sarah Mitchell. (jdyne) (Entered: 11/02/2023) 11/02/2023 284 Defense submitted and rejected Jury Instructions(jdyne) (Entered: 11/02/2023) 11/02/2023 285 Final Jury Instructions given 11/2/23(jdyne) (Entered: 11/02/2023) 11/02/2023 286 Stipulations given to jury 11/2/23(jdyne) (Entered: 11/02/2023) 11/02/2023 287 38 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 38 of 74 Cross-Reference of Deposition Exhibits to Trial Exhibits(jdyne) (Entered: 11/02/2023) 11/02/2023 288 Jury Deliberation Question No. 1(jdyne) (Entered: 11/02/2023) 11/03/2023 291 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Jury Trial day ten completed on 11/3/2023. JURY VERDICT. Court Reporter: Sarah Mitchell. (jdyne) (Entered: 11/03/2023) 11/03/2023 292 Jury Deliberation Questions - Unredacted - Level 3 - Viewable by Court Only. (jdyne) (Entered: 11/03/2023) 11/03/2023 293 Jury deliberation questions - redacted.(jdyne) (Entered: 11/03/2023) 11/03/2023 294 Defense tendered and rejected jury instructions in response to juror questions(jdyne) (Entered: 11/03/2023) 11/03/2023 295 Jury Verdict - Unredacted - Level 3 - Viewable by Court Only. (jdyne) (Entered: 11/03/2023) 11/03/2023 296 JURY VERDICT - redacted. (jdyne) (Entered: 11/06/2023) 11/06/2023 297 MINUTE ORDER: A half-day Damages Hearing is set for 11/17/2023 at 9:00 AM in Courtroom A 702 before Judge Charlotte N. Sweeney. By Judge Charlotte N. Sweeney on 11/6/2023. Text Only Entry (cnsja.) (Entered: 11/06/2023) 11/17/2023 298 MINUTE ENTRY for proceedings held before Judge Charlotte N. Sweeney: Damages Hearing held on 11/17/2023. Evidence and testimony presented, hearing concluded. Court Reporter: Sarah Mitchell. (jdyne) (Entered: 11/17/2023) 11/17/2023 299 MOTION to Withdraw as Attorney by Counter Defendants City of Fort Collins, City of Fort Collins, Plaintiff City of Fort Collins. (Duval, John) (Entered: 11/17/2023) 11/17/2023 300 ORDER granting 299 Motion to Withdraw as Attorney. Attorney John R. Duval iw is withdrawn as counsel for City of Fort Collins. By Judge Charlotte N. Sweeney on 11/17/2023. Text Only Entry(cnsja.) (Entered: 11/17/2023) 11/21/2023 301 TRANSCRIPT of Damages Hearing held on November 17, 2023 before Judge Sweeney. Pages: 1-134. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 11/21/2023) 12/01/2023 302 Renewed MOTION for Judgment as a Matter of Law (Rule 50(b)) by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) (Entered: 12/01/2023) 12/06/2023 303 VOIR DIRE TRANSCRIPT of proceedings held on October 23, 2023 before Judge Sweeney. Pages: 1-93. (smitc, ) (Entered: 12/06/2023) 39 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 39 of 74 12/06/2023 304 TRANSCRIPT of Jury Trial - Day 1 held on October 23, 2023 before Judge Sweeney. Pages: 94-283. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 12/06/2023) 12/06/2023 305 TRANSCRIPT of Jury Trial - Day 2 held on October 24, 2023 before Judge Sweeney. Pages: 284-523. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 12/06/2023) 12/06/2023 306 TRANSCRIPT of Jury Trial - Day 3 held on October 25, 2023 before Judge Sweeney. Pages: 524-671. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 12/06/2023) 12/06/2023 307 TRANSCRIPT of Jury Trial - Day 4 held on October 26, 2023 before Judge Sweeney. Pages: 672-855. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 12/06/2023) 12/06/2023 308 40 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 40 of 74 TRANSCRIPT of Jury Trial - Day 5 held on October 27, 2023 before Judge Sweeney. Pages: 856-1084. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 12/06/2023) 12/06/2023 309 TRANSCRIPT of Jury Trial - Day 6 held on October 30, 2023 before Judge Sweeney. Pages: 1085-1378. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 12/06/2023) 12/06/2023 310 TRANSCRIPT of Jury Trial - Day 7 held on October 31, 2023 before Judge Sweeney. Pages: 1379-1650. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 12/06/2023) 12/06/2023 311 TRANSCRIPT of Jury Trial - Day 8 held on November 1, 2023 before Judge Sweeney. Pages: 1651-1938. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 12/06/2023) 12/06/2023 312 41 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 41 of 74 TRANSCRIPT of Jury Trial - Day 9 held on November 2, 2023 before Judge Sweeney. Pages: 1939-2060. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 12/06/2023) 12/06/2023 313 TRANSCRIPT of Jury Trial - Day 10 held on November 3, 2023 before Judge Sweeney. Pages: 2061-2095. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 12/06/2023) 12/08/2023 314 Defendants' Motion for Judgment Under Rule 52(c) and Brief Regarding Remedy of Rescission by Counter Claimants Open International, LLC, Open International, LLC, Defendant Open International, LLC. (Swanson, Paul) Modified to correct docket text on 12/11/2023 (cnsja. ). (Entered: 12/08/2023) 12/08/2023 315 BRIEF Closing by Plaintiff City of Fort Collins. (Attachments: # 1 Affidavit Declaration of Case Collard, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Collard, Case) (Entered: 12/08/2023) 12/13/2023 316 MOTION for Extension of Time to Respond to Defendants' Rule 50(b) Motion for Judgment as a Matter of Law by Plaintiff City of Fort Collins. (Attachments: # 1 Proposed Order (PDF Only))(Collard, Case) (Entered: 12/13/2023) 12/15/2023 317 ORDER granting 316 MOTION for Extension of Time to Respond to Defendants' Rule 50(b) Motion for Judgment as a Matter of Law. Plaintiff's deadline to respond to Defendants' Rule 50(b) Renewed Motion for Judgment as a Matter of Law (ECF No. 302 ) is extended to 21 days after opening post-judgment briefs. The Court further ORDERS that, within three business days of entry of final judgment, the parties will file a joint briefing schedule identifying the specific briefing dates for each motion. By Judge Charlotte N. Sweeney on 12/15/2023. Text Only Entry(cnsja. ) (Entered: 12/15/2023) 12/18/2023 318 Joint MOTION for Leave to Exceed Page Limit 314 MOTION for Default Judgment as to MOTION for Judgment by Plaintiff City of Fort Collins. (Attachments: # 1 Proposed Order (PDF Only))(Collard, Case) (Entered: 12/18/2023) 12/19/2023 319 ORDER granting 318 Joint Motion for Leave to Exceed Page Limit 314 Motion for Leave Defendants' Motion for Judgement Under Rule 52(c) and Brief Regarding 42 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 42 of 74 Remedy of Rescission. The Plaintiff is granted leave to submit a 13-page response. By Judge Charlotte N. Sweeney on 12/19/2023. Text Only Entry(cnsja. ) (Entered: 12/19/2023) 12/22/2023 320 RESPONSE to 314 Motion for Judgement Under Rule 52(c) and Brief Regarding Remedy of Rescissio MOTION for Judgment filed by Counter Defendants City of Fort Collins, City of Fort Collins, Plaintiff City of Fort Collins. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Collard, Case) (Entered: 12/22/2023) 12/22/2023 321 RESPONSE to 315 Closing Brief filed by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) Modified on 12/27/2023 to edit linkage per chambers. (sphil, ). (Entered: 12/22/2023) 12/22/2023 322 DISREGARD - DUPLICATE ENTRY. RESPONSE to 315 Brief by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) Modified on 1/3/2024 (cnsja.). (Entered: 12/22/2023) 01/04/2024 323 MOTION for Leave to File Brief in Reply to 320 Response to Motion, by Defendants Open International, LLC, Open Investments, LLC. (Attachments: # 1 Exhibit Proposed Brief in Reply to City's Responsive Closing Brief at Dkt. 320)(Swanson, Paul) (Entered: 01/04/2024) 01/04/2024 324 ORDER granting 323 MOTION for Leave to File Brief in Reply to 320 Response to Motion 314 . The Court directs the Clerk of Court to docket the Reply located at ECF No. 323-1. The Court will grant the City of Fort Collins leave to submit a 3-page reply to Open's Response Brief at ECF No. 321 by 1/8/2024. By Judge Charlotte N. Sweeney on 1/4/2024. Text Only Entry(cnsja.) (Entered: 01/04/2024) 01/04/2024 325 REPLY to 320 Response to 314 Motion for Judgment Under Rule 52(c) and Brief Regarding Remedy of Rescission MOTION for Judgment filed by Defendants Open International, LLC, Open Investments, LLC. (Reply filed per 32 Order). (sphil, ) (Entered: 01/04/2024) 01/08/2024 326 REPLY to Defendants' Response Brief [Dkt. 321] by Plaintiff City of Fort Collins. (Collard, Case) (Entered: 01/08/2024) 03/21/2024 327 ORDER by Judge Charlotte N. Sweeney on 3/21/2024, re: 314 Defendants' Motion for Judgment Under Rule 52(c), ECF No. 314, is DENIED. The Clerk of Court is directed to enter final judgment in favor of the City in the following amounts, as well as post-judgment interest at the rate set by 28 U.S.C. § 1961. Within 10 days of this Order, the City shall file a supplement to Mr. Seigneurs pre-judgment interest calculations in ECF No. 315-2, setting forth the amounts of pre-judgment interest due on the Citys project costs, third-party consulting costs, and labor costs from April 15, 2023, through the date of final judgment. The Court will enter a separate Order awarding these pre-judgment interest amounts accordingly. (sphil, ) (Entered: 03/21/2024) 03/21/2024 328 DOCKETING ERROR. ORDER. Modified on 3/25/2024 . see Ecf No. 327 Order. (sphil, ). (Entered: 03/22/2024) 03/26/2024 329 FINAL JUDGMENT in favor of the plaintiff, City of Fort Collins and against the defendants, Open International, LLC and Open Investments, LLC. Case is closed. By 43 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 43 of 74 Clerk on 3/26/24. (jdyne) (Entered: 03/26/2024) 03/26/2024 330 NOTICE re 327 Order on Motion for Judgment,, Expert Ronald Seigneur's Supplemental Calculations re Prejudgment Interest by Plaintiff City of Fort Collins (Attachments: # 1 Exhibit Exh A. - SG PJI Ft Collins v Open 032624)(Collard, Case) (Entered: 03/26/2024) 03/28/2024 331 ORDER re: 330 Notice of Expert Ronald Seigneur's Supplemental Calculations Regarding Pre-Judgment Interest filed by City of Fort Collins. Amended Judgment to issue. By Judge Charlotte N. Sweeney on 3/28/24. (jdyne) (Entered: 03/28/2024) 03/28/2024 332 AMENDED FINAL JUDGMENT in favor of in favor of the plaintiff, City of Fort Collins and against the defendants, Open International, LLC and Open Investments, LLC. By Clerk on 3/28/24. (jdyne) (Entered: 03/28/2024) 03/29/2024 333 Joint Motion for Entry of Briefing Schedule by Counter Claimants Open International, LLC, Open International, LLC, Open Investments, LLC, Open Investments, LLC, Defendants Open International, LLC, Open Investments, LLC. (Swanson, Paul) Modified to correct title on 3/29/2024 (jrobe, ). (Entered: 03/29/2024) 03/29/2024 334 ORDER granting 333 Joint Motion for Entry of Briefing Schedule. The parties' post-judgment motions are due by 4/23/2024; response briefs, including Plaintiff's response to Defendant's Motion at ECF No. 302 , are due by 5/14/2024; reply briefs are due 5/28/2024. By Judge Charlotte N. Sweeney on 3/29/2024. Text Only Entry(cnsja,) (Entered: 03/29/2024) 04/08/2024 335 NOTICE of Entry of Appearance by Jeffrey I. Sandman on behalf of All Defendants Attorney Jeffrey I. Sandman added to party Open International, LLC(pty:dft), Attorney Jeffrey I. Sandman added to party Open Investments, LLC(pty:dft) (Sandman, Jeffrey) (Entered: 04/08/2024) 04/08/2024 336 NOTICE of Entry of Appearance by Laurie Webb Daniel on behalf of All Defendants Attorney Laurie Webb Daniel added to party Open International, LLC(pty:dft), Attorney Laurie Webb Daniel added to party Open Investments, LLC(pty:dft) (Daniel, Laurie) (Entered: 04/08/2024) 04/09/2024 337 NON-STIPULATED Proposed Bill of Costs by Counter Defendants City of Fort Collins, City of Fort Collins, Plaintiff City of Fort Collins. Parties conferred on 4/9/2024. The following category or categories remain under dispute: Fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case. Fees for witnesses. Fees for exemplification and copies of papers necessarily obtained for use in the case. Costs incident to taking of depositions. Per court procedure, any objection to the Proposed Bill of Costs is due within 14 days (Attachments: # 1 Exhibit A, A1-A6, # 2 Exhibit B, # 3 Exhibit C, C1-C3, # 4 Exhibit D, D1-D48)(Shoaei, Maral) (Entered: 04/09/2024) 04/10/2024 338 MOTION for Bond (approval of security for stay of execution) by Defendant Open Investments, LLC. (Attachments: # 1 Exhibit letter of credit)(Sandman, Jeffrey) (Entered: 04/10/2024) 04/10/2024 339 44 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 44 of 74 MINUTE ORDER re: 338 Motion for Bond (approval of security for stay of execution). The City of Fort Collins is granted to 4/18/2024 to respond to the Motion 338 . By Judge Charlotte N. Sweeney on 4/10/2024. Text Only Entry (cnsja, ) (Entered: 04/10/2024) 04/17/2024 340 NOTICE OF APPEAL by Defendants Open International, LLC, Open Investments, LLC (Filing fee $ 605, Receipt Number ACODC-9643083) (Sandman, Jeffrey) (Entered: 04/17/2024) 45 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 45 of 74 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Charlotte N. Sweeney Civil Action No. 1:21-cv-02063-CNS-SBP CITY OF FORT COLLINS, a Colorado home rule municipality, Plaintiff, v. OPEN INTERNATIONAL, LLC, a Florida limited liability company and OPEN INVESTMENTS, LLC, a Florida limited liability company, Defendants. ORDER This matter comes before the Court on Defendants’ Motion for Judgment under Rule 52(c), ECF No. 314, as well as the parties’ respective closing briefs regarding amounts, if any, which may be recovered in recission by Plaintiff, the City of Fort Collins (the City), see ECF Nos. 314, 315.1 On November 3, 2023, a jury determined that Defendants, Open International, LLC and Open Investments, LLC (collectively, Open) had fraudulently induced the City to enter into the Agreements2 for the development of billing software. See ECF No. 296. One day prior, the Court granted the City’s motion for judgment as a matter of law with respect to 1 Unless otherwise noted, record citations are to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generate page numbers placed at the top of the documents. 2 These Agreements included the Master Professional Services Agreement, Scope of Work , and First Amendment to the MPSA. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 1 of 23 46 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 46 of 74 2 Open’s affirmative defenses of laches and unclean hands, finding that Open had failed to prove either. See ECF No. 312 at 54:6–22. Following the jury’s fraudulent inducement determination, the City elected to rescind the Agreements. ECF No. 313 at 31:7–12. On November 17, 2023, the Court held a hearing at which the parties presented expert testimony on appropriate restitution amounts in recission.3 See generally ECF No. 301. At the hearing’s conclusion, the Court further invited the parties to brief the issue of amounts owed to the City in restitution. See id. at 132:18–134:8. That issue is now fully briefed. Broadly speaking, the parties’ briefing centers on five categories of expenses requested by the City: (1) amounts the City paid to Open under the Agreements ; (2) amounts the City paid to third-party consultants; (3) the City’s labor costs; (4) the City’s lost net revenue; and (5) the City’s attorney’s fees and costs. See ECF No. 315 at 2. The City further requests pre-judgment interest for categories (1) through (4), and post- judgment interest in all five categories. Id. Separately, Open includes a motion for judgment under Rule 52(c) in its restitution brief, arguing that the City waived recission as a remedy and that recission liability cannot lie against Open Investments. See ECF No. 314 at 2–8. 3 “When a party recovers money damages in connection with recission, those damages are more accurately called restitution: The term recission refers to the avoidance of the transaction or the calling off of the deal,” whereas restitution (commonly in the form of monetary payment) occurs once the transaction is avoided. Szaloczi v. John R. Behrmann Revocable Trust, 90 P.3d 835, 841 n.8 (Colo. 2004) (citations omitted); accord EarthInfo v. Hydrosphere Resource Consultants, Inc., 900 P.3d 113, 118 (Colo. 1995) (rescission of the parties’ exchange in the form of restitution “seeks to prevent unjust enrichment of the defendant”). Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 2 of 23 47 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 47 of 74 3 I. LEGAL STANDARD “A plaintiff who has been fraudulently induced to enter a contract may either rescind the contract or affirm the contract and recover in tort for the damages caused by the fraudulent act.” W. Cities Broad., Inc. v. Schueller, 849 P.2d 44, 48 (Colo. 1993) (citing Trimble v. City & Cnty. of Denver, 697 P.2d 716, 723 (Colo. 1985)). When the victim of fraudulent inducement elects rescission, they are “limited in remedy to restoration of conditions existing before the agreement was made.” Trimble, 697 P.2d at 724. Put differently, recission requires each party to “return the opposite party to the status quo ante, or the position in which he or she was in prior to entering the contract.” EarthInfo, 900 P.2d at 118 (citations omitted). In rescission, a return to the status quo ante entails that each party: (a) restores property received from the other, to the extent such restoration is feasible; (b) accounts for additional benefits obtained at the expense of the other as a result of the transaction and its subsequent avoidance, as necessary to prevent unjust enrichment; and (c) compensates the other for loss from related expenditure as justice may require. Restatement (Third) of Restitution & Unjust Enrichment § 54(2) (Am. L. Inst. 2011). “The rule of returning the parties to the status quo ante is equitable and it requires the use of practicality in the readjustment of the parties’ rights.” EarthInfo, 900 P.2d at 118 (citation omitted). “Since recission is an equitable remedy, it is within the trial court’s sound discretion to determine the method for accomplishing a return to the status quo ante based upon the facts as determined by the trier of fact.” Id. (citations omitted); see Rice v. Hilty, 559 P.2d 725, 727 (Colo. App. 1976) (“Equity may fashion a remedy to effect justice suitable to the circumstance of the case.”). And in exercising its discretion, this Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 3 of 23 48 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 48 of 74 4 Court is guided by the ultimate principle that “one should not gain by one’s own wrong.” EarthInfo, 900 P.2d at 117 (citation omitted). II. DISCUSSION The Court has carefully reviewed the parties’ closing briefs, the exhibits attached thereto, the record from the parties’ trial conducted between October 23 through November 3, 2023, the record from the parties’ recission hearing held on November 17, 2023, the entire case file, and the relevant case law. In light of these authorities, the Court denies Open’s Rule 52(c) motion. The Court then considers each of the City’s five categories of requested expenses, as well as the City’s request for pre-judgment interest. A. Open’s Motion for Judgment under Rule 52(c) Open first moves for judgment against the City—purportedly pursuant to Federal Rule of Civil Procedure 52(c)—on two grounds: (i) the City waived its right to elect recission as a remedy in this case, and (ii) there is no evidence to support a judgment of recission against Open Investments. ECF No. 314 at 2–8. However, as the City correctly observes, see ECF No. 320 at 3, the procedures outlined in Rule 52(c) are reserved for nonjury trials. Goodwin v. Smith Chambers, No. 21-cv-3421-WJM-STV, 2024 WL 517865, at *14 (D. Colo. Feb. 9, 2024) (“If a party has been fully heard on an issue during the nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party.”) (quoting Fed. R. Civ. P. 52(c)). Here, the action was tried to a jury—including Open’s affirmative defense of waiver. See ECF No. 309 at 152:14–22, 155:8–156:5. Following the jury’s fraudulent inducement verdict in the City’s favor and the City’s subsequent election to rescind the Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 4 of 23 49 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 49 of 74 5 Agreements, the Court held a hearing at which the only issue before the Court was proper restitution amounts in recission. Id. at 154:12–155:6; see generally ECF No. 301. As such, Open’s post-verdict challenges to its liability to the City are more appropriately brought under Rule 50(b). Despite this, in the hopes of obviating the need to address these matters in the future, the Court addresses each of Open’s arguments in turn. 1. Waiver of the right to rescind Open first argues that no restitution amounts in recission are owed to the City because, notwithstanding the jury’s clear verdict that the City did not waive its fraudulent inducement claim, the City nonetheless waived its right to rescind the Agreements. See ECF No. 314 at 2. In making this argument, Open suggests that waiver of fraudulent inducement (as a claim) and waiver of recission (as a remedy) are governed by different tests, and while fraudulent inducement waiver was presented to the jury, recission waiver was reserved to the Court as an equitable matter and must be decided now.4 Indeed, according to 4 Interestingly, though, Open’s arguments throughout this case have not always maintained this purported “fraudulent inducement waiver” and “recission waiver” distinction. At the summary judgment stage, for instance, Open argued that the City had waived its fraudulent inducement claim. ECF No. 125 at 27–30. But later in its briefing on election of remedies, Open claimed that it had earlier argued at the summary judgment stage that the City had “waived recission by electing to affirm the contract.” ECF No. 232 at 3 (citing ECF No. 125 at 27–30) (emphasis added). Similarly, Open’s election briefing claimed that “[i]n response to the City’s claims, Open pleaded the affirmative defense of waiver.” ECF No. 232 at 3. But if, as Open maintains, waiver of fraudulent inducement (as a claim) and waiver of recission (as a remedy) constitute separate defenses, it would appear that Open specifically pleaded the former as an affirmative defense, but never the latter. See ECF No. 13 at 14 (“The City’s claims are barred by the doctrines of waiver and estoppel.”) (emphasis added); ECF No. 194 at 18 (same). Closely related, although the Court clarified at trial that all waiver-related defenses would be encompassed in a single instruction (i.e., the COLJI pattern instruction), see ECF No. 309 at 155:8–156:5, Open did not Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 5 of 23 50 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 50 of 74 6 Open, it is legally possible that, “irrespective of whether the plaintiff waived the fraud claim, the remedy of recission, if elected, might still be waived.” ECF No. 314 at 3. For this proposition, Open points to semantic differences between two Colorado cases purportedly demonstrating that fraudulent inducement waiver and recission waiver involve separate analyses. See ECF No. 314 at 3. In Gladden v. Guyer, the Colorado Supreme Court stated: The duty of rescinding arises immediately upon acquiring knowledge of the substantial and material facts constituting the fraud. It is not requisite that the defrauded party shall be acquainted with all the evidence constituting the fraud before the duty to act by way of rescission arises. When he has evidence sufficient to reasonably actuate him to rescind the contract . . . , no subsequent discovery of cumulative evidence can operate to execute waiver of the fraud if one has in the meantime occurred, or to revise a once lost right of rescission. 426 P.2d 953, 956 (Colo. 1967) (emphasis added) (quoting Richardson v. Lowe, 149 F. 625, 631 (8th Cir. 1906) (internal citations omitted)). By way of comparison, in Elk River Associates v. Huskin, the Colorado Court of Appeals stated: “To sustain the defense of ratification and waiver, it must appear that the defrauded party, with full knowledge of the truth respecting the false representations, elected to continue to carry out the agreement. This determination involves questions of object to the unified waiver instruction at the parties’ charging conference, see ECF No. 312 at 6:24–7:13. Nor did it propose any additional or different instructions for “recission waiver” in its “tendered and rejected” instructions. See ECF Nos. 284, 289, 290, 294. Based on the foregoing, it seems that even Open has conflated these “two” waiver standards on numerous occasions. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 6 of 23 51 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 51 of 74 7 fact, particularly the fact of intent.” 691 P.2d 1148, 1153 (Colo. App. 1984) (emphasis added). Based on the above principles, Open argues that Gladden and Elk River apply two different waiver tests—i.e., fraudulent inducement waiver requires “full knowledge of the truth” regarding the fraud, whereas recission waiver requires only “knowledge of the substantial and material facts constituting the fraud.” ECF No. 314 at 3. Open then argues that Gladden’s purported “recission waiver” test is for the Court to apply, and further suggests that, under Gladden, the City’s duty to rescind is tied to a lower threshold—i.e., its discovery of problems with Open’s software, rather than its discovery that Open’s defective software was a product of its fraud. Id. at 3–5. The trouble for Open, however, is that Colorado courts do not treat fraudulent inducement waiver and recission waiver as separate claims, governed by different tests, and decided by different factfinders. Indeed, courts in this district have treated the language in Gladden and Elk River as consistent, if not wholly equivalent. See, e.g., In re Mascio, 454 B.R. 146, 151 (D. Colo. 2011) (“To sustain the defense [of waiver], ‘it must appear that the defrauded party, with full knowledge of the truth respecting the false representations, elected to continue to carry out the agreement.’ Elk River Assocs. v. Huskin, 691 P.2d 1148, 1154 (Colo.App.1984) (emphasis added). Full knowledge entails ‘knowledge of the substantial and material facts constituting the fraud.’ Gladden v. Guyer, 162 Colo. 451, 426 P.2d 953, 955 (1967).”). At bottom, fraudulent inducement waiver and recission waiver comprise a single analysis—under Colorado law, a party’s “right to rescind and sue [is] waived” where “the Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 7 of 23 52 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 52 of 74 8 defrauded party, with full knowledge, intentionally condoned the fraud,” and “[w]hether fraud has been waived involves questions of fact, particularly the fact of intent,” which are “properly for the jury.” Bankers Trust Co. v. Int’l Trust Co., 113 P.2d 656, 664 (Colo. 1941). In this case, this exact standard for deciding the question of waiver was presented to the jury in a single instruction, see ECF No. 285 at 24 (Instruction No. 23), without objection from either party, see ECF No. 312 at 6:24–7:13, and the jury decided the waiver question in the City’s favor,5 see ECF No. 296. The Court therefore sees no reason to disturb the jury’s clear verdict on the waiver issue by passing separately upon the City’s right to rescind. Accordingly, Open’s motion as to this “recission waiver” issue is denied. 2. Recission against Open Investments Next, Open argues that the City failed to adduce evidence to support judgment in recission against Open Investments. See ECF No. 314 at 6–8. According to Open, the evidence at trial established that Open Investments’ sole link to this case was as a contractual guarantor for Open International, and that Open Investments was uninvolved in the fraudulent conduct at issue. See Tr. Ex. 1 at 4 (setting forth Open Investments’ “unconditional[] guarantee [of] the performance of Open International of all obligations set forth in [the] MPSA and Software License Agreement”); ECF No. 305 at 15:17–16:10; ECF No. 311 at 67:22–68:7; Tr. Ex. 66 at 1 (accusing only “Open International LLC” of 5 Indeed, as the City correctly observes, “[a]ll of the purported facts relied on in Open’s [m]otion to assert a waiver of recission are the same facts that the jury considered when denying Open’s affirmative defense of waiver.” ECF No. 321 at 4 (citing ECF No. 314 at 2–4) (emphasis in original). And for this reason, to the extent that Open argues that the City failed to adduce sufficient facts at trial showing that it sought to rescind promptly, the Court reserves its analysis on this issue for Open’s Rule 50(b) motion. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 8 of 23 53 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 53 of 74 9 breach and fraud). Open further observes that the RFP Response underlying the City’s fraudulent inducement claim was submitted by Open International, see Tr. Ex. 5, all payments under the now-rescinded Agreements were made to Open International, see Tr. Ex. 522, and Open Investments never received any payment or benefit from the City that would be returnable as restitution. As such, Open contends, now that the City has elected to rescind the Agreements, Open Investments’ liability in this case—arising solely in contract—has effectively dissipated. See ECF No. 314 at 7–8. For substantially the reasons outlined by the City in its response to Open’s motion, the Court agrees that this argument disclaiming any liability of Open Investments comes far too late. See ECF No. 320 at 7–11. If, as Open claims, the City failed to adduce any evidence of Open Investments’ liability for fraudulent inducement independent of its liability under the Agreements, Open never once raised this issue at trial or in its oral Rule 50(a) arguments. See ECF No. 309 at 142:10–1448:23; ECF No. 312 at 49:5–52:19, 55:8–56:23. Nor did Open raise this issue in its written Rule 50(a) motion memorializing its earlier oral argument.6 See ECF No. 282. Similarly, Open failed to separate liability for each entity, and in fact affirmatively represented itself “collectively” or “together” as “Open,” throughout the entirety of the case—including in its notice of removal, answer, 6 Indeed, Open only advanced a full-throated argument on this issue for the first time in its written Rule 50(b) motion. See ECF No. 302 at 6–8. Given that final judgment has yet to enter in this case, however, the Court defers consideration of this argument, except to note that if Open maintains its argument that recission liability does not lie against Open Investments, this argument is probably already waived as unraised at the Rule 50(a) stage. See Garcia v. Aerotherm Corp., No. 98-2214, 1999 WL 124486, at *3 (10th Cir. Dec. 21, 1999) (“[I]ssues not raised in an initial Rule 50(a) motion for judgment as a matter of law may not be asserted in a post-judgment motion for judgment as a matter of law under Rule 50(b).”); Brillhart v. Philips Elecs. N. Am. Corp., 179 F.3d 1271, 1275 (10th Cir. 1999) (“Failure to so move precludes a post - trial motion . . . for judgment as a matter of law . . . .”). Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 9 of 23 54 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 54 of 74 10 partial motion for summary judgment, amended answer, final pretrial order, motion in limine, trial brief, and written Rule 50(a) motion. See generally ECF Nos. 1, 13, 125, 194, 230, 240, 256, 282. Perhaps most significantly, Open did not object to language included in the jury instructions and verdict form applying liability for fraudulent inducement jointly to the entities.7 See ECF No. 285; ECF No. 296; ECF No. 312 at 3:3–32:20. As such, there is now a fraudulent inducement verdict against both Open International and Open Investments, and the Court is not at leisure to “undo” the verdict against one of them , or to order restitution from only one of them. See Farm Bureau Life Ins. Co. v. Am. Nat’l Ins. Co., 408 F. App’x 162, 172 (10th Cir. 2011) (“[A] party waives its right to present a legal argument on appeal by failing to object to [the] jury instruction[s] which authorized the verdict.”) (citations omitted); see also Glass Containers Corp. v. Miller Brewing Co., 643 F.2d 308, 312 (5th Cir. 1981) (“[A] litigant cannot strategically lie behind the log until after the trial and the receipt of evidence, argument, and charge to the jury before raising an issue not found in the pleadings nor included in the pre-trial order and them raise it when it is too late for his opponent to do anything about it.”). Simply put, Open’s request for this Court to reconsider the evidence and make a separate determination of Open Investments’ liability when it was not an issue at trial is inappropriate. As such, Open’s motion seeking to avoid Open Investments’ liability in recission is denied. 7 In fact, Open agreed to the City’s request that element 5 of the elemental instruction on fraudulent inducement be clarified to state “Open’s representation” rather than just “the representation.” See ECF No. 312 at 5:4–10; ECF No. 285 at 16 (Instruction No. 15). Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 10 of 23 55 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 55 of 74 11 B. The City’s Restitution Requests Having determined that judgment in Open’s favor is unwarranted, the Court next considers each of the City’s requested restitutionary amounts. As set forth below, the Court, in its equitable power and broad discretion, awards judgment in the City’s favor on its project costs, third-party consulting costs, and labor costs. The Court declines, however, to grant the City’s requests to recover its lost net revenue or attorney’s fees. 1. Amounts paid under the Agreements First, the City seeks to recover $8,756,659 in amounts it paid to Open for the billing software contracted for in the Agreements.8 See ECF No. 315 at 4–6; see also ECF No. 315-2 at 3; ECF No. 301 at 17:20–20:7 (testimony of the City’s damages expert, Ronald Seigneur). The Court agrees that the City is entitled to recover this amount in restitution. Put simply, the relevant law is well settled that under the City’s elected remedy of recission, Open should return any project costs the City paid pursuant to the Agreements. See Aaberg v. H.A. Harman Co., 358 P.2d 601, 603 (Colo. 1960) (“Upon discovery of the fraud, plaintiff had the right . . . to rescind the contract and sue for the return of the money paid.”); Rice, 559 P.2d at 727 (in recission, awarding restitution in the form of “whatever consideration [defendants] received under the contract”); In re Sun, 535 B.R. 358, 370 (10th Cir. Bankr. App. Panel 2015) (in recission, awarding restitution in the form of amounts paid under the parties’ contract plus interest); see also Restatement (Third) of Restitution & Unjust Enrichment § 54(1) (Am. L. Inst. 2011) (“A person who has 8 In particular, the City specifies that beginning in September 2018, the City paid Open $8,756,659 over the course of 33 months pursuant to the Agreements. See Tr. Ex. 743 at Sch. H. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 11 of 23 56 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 56 of 74 12 transferred money or other property is entitled to recover it by recission and restitution if the transaction is invalid or subject to avoidance . . . .”); id., § 13(1) (“A transfer induced by fraud or material misrepresentation is subject to recission and restitution.”). Notwithstanding this clear authority, Open argues that no restitution in the form of project costs should be awarded, because the $8,756,659 in amounts the City paid under the Agreements is fully offset by the value of the services Open contributed to the project at the City’s behest, which were purportedly worth more than $20 million.9 ECF No. 314 at 8–10, 12–14; ECF No. 321 at 7–9. More specifically, Open argues that regardless of the jury’s finding of Open’s liability for fraudulent inducement, recission is properly effectuated by “restitution on both sides.” ECF No. 314 at 9 (quoting EarthInfo, 900 P.2d at 118). In turn, when the consideration given by Open is properly accounted for— “mak[ing] ‘some apportionment’ between the amounts obtained through misconduct and the amounts the defendant rightly earned independent of its misconduct ,” ECF No. 314 at 10 (quoting EarthInfo, 900 P.2d at 120)—any award of the City’s project costs would be completely offset by the value of services performed by Open, thereby rendering restitution in the form of project costs impermissible. In advancing this argument, Open relies heavily on EarthInfo for the proposition that even where a defendant’s wrongdoing warrants recission, a trial court must still credit 9 On this point, Open’s damages expert, Peter Schulman, testified that during the three years that Open worked on the project, it provided 101,880 hours of implementation services and 22,105 hours of support services, which were worth $117 per hour, plus 29,353 hours of product and technology development services, which were worth $116 per hour—all for a total of $17,911,166 of services. See ECF No. 301 at 72:17–75:7, 80:10–24, 81:7–82:20. Furthermore, Mr. Schulman testified that during the same period, Open provided the services of its subcontractor, Milestone, for which Open paid $2,682,785. See id. at 80:21– 81:6, 81:25–82:6, 82:21–83:6. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 12 of 23 57 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 57 of 74 13 the defendant for having “materially contributed effort and investment” into the parties’ contractual relationship. See EarthInfo, 900 P.2d at 120–21; see id. at 120 (“Even the willful wrongdoer should not be made to give up that which is his own; the principle is disgorgement, not plunder.”) (citation omitted). Open’s reliance on EarthInfo in this regard, however, is misplaced. In that case, recission was sought based on a party’s breach of the contractual obligation to make payments, not fraud inducing a party’s entry into the contract in the first instance. See EarthInfo, 900 P.2d at 115–17. This distinction matters—EarthInfo instructs that recission is both equitable in nature and dependent on the defendant’s level of wrongdoing. See id. at 119. And while “a ‘mere’ breach of contract is not a ‘wrong’” that strips a defendant of his entitlement to restitution, more “intentional or substantial” wrongdoing may change the equitable calculus with respect to the defendant’s retention of benefits under the contract. Id. at 117, 119 (citations omitted); see id. at 117 (“It is a principle of the law of restitution that one should not gain by one’s own wrong.”) (citation omitted). In this case, Open was found to have committed a higher level of wrongdoing than “a mere breach of contract”—indeed, a jury determined that Open fraudulently induced the City into executing the contract. In that light, Open’s request for setoff of amounts it earned under a fraudulently procured contract would seem to offend basic principles of equity—i.e., if granted, Open’s requested setoff would “allow it to commit fraud, keep and use [its] software, and keep the nearly $9 million it was paid by the City because it ‘earned these amounts not by fraud but by work the City requested and accepted.’” ECF No. 326 at 3 (quoting ECF No. 321 at 8). As such, the Court will not credit Open for the work it did Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 13 of 23 58 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 58 of 74 14 after its fraud.10 See Arguelles v. Ridgeway, 827 P.2d 553, 557 (Colo. App. 1991) (“A party who seeks equity must do equity, and a party may not take advantage of his or her own wrongful acts. A court will not lend its equitable aid to a party who is guilty of fraudulent or unconscionable conduct . . . .”) (citations omitted); accord Restatement (Third) of Restitution & Unjust Enrichment § 54(3)(b) (Am. L. Inst. 2011) (“Recission is limited to cases in which counter-restitution by the claimant will restore the defendant to the status quo ante, unless the fault of the defendant . . . makes it equitable that the defendant bear any uncompensated loss.”); id., § 54(4)(a) (“If the claimant seeks to reverse a transfer induced by fraud or other conscious wrongdoing, the limitation described in subsection (3) is liberally construed in favor of the claimant.”); see also PHL Variable Ins. Co. v. P. Bowie 2008 Revocable Trust, 889 F. Supp. 2d 275, 281 (D.R.I. 2012) (the law does not “allow an entity to commit an intentional and calculated fraud . . . and walk away unscathed while the innocent party bears the financial burden of the fraud”); McKay v. Weager, 134 N.Y.S. 66, 69 (N.Y. 1911) (a claim cannot be used as a setoff where the transaction out of which it arose was fraudulent); Duncan v. Dazey, 318 Ill. 500, 505 (Ill. 1925) (“Equity will not permit a person to derive any benefit from a fraud perpetrated by him.”). In sum, the Court awards judgment in the City’s favor in the amount of $8,756,659 for project costs it paid to Open during the course of the parties’ Agreements. The Court 10 This is especially true in light of testimony at trial suggesting that (i) the City never received a fully functional version of Open’s software, but Open continued to develop it with the City’s assistance, and (ii) after the software was returned to Open’s control, Open proceeded to profit from it in connection with other North American municipal projects. See ECF No. 311 at 58:19–21; see also ECF No. 320 at 13. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 14 of 23 59 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 59 of 74 15 further declines to award Open any credit or setoff against this amount, as Open will not be compensated for its fraud. 2. Amounts paid to third-party consultants Second, the City seeks to recover $456,024 in amounts it paid to third -party consultants, TMG Consulting and Vanir Construction Management.11 See ECF No. 315 at 6–7; see also ECF No. 315-2 at 3; ECF No. 301 at 6:24–10:25 (Seigneur testimony). The City contends that it is entitled to recover these amounts because, “but for Open’s fraud, it would not have needed to hire or pay TMG or Vanir to provide consulting or project management services on the Project with Open.” ECF No. 315 at 6. In response, Open argues that the amounts the City paid to its third-party consultants (as well as the amounts representing the City’s own labor costs, discussed below) would aim to reimburse the City for its expenditures actually made in performance of the Agreements and, as such, are reliance damages that are unavailable in the recission context. ECF No. 315 at 3 (citing Spring Creek Exploration & Prod. Co., LLC v. Hess Bakken Invs. II, LLC, 887 F.3d 1003, 1026 (10th Cir. 2018)). Broadly speaking, a claimant who has elected recission is “limited in remedy to restoration of conditions existing before the agreement was made”—i.e., the simple return of any consideration each party gave pursuant to the contract. Trimble, 697 P.2d at 724; see EarthInfo, 900 P.2d at 118 (restitution “differs in principle from damages, which measure the remedy by the plaintiff’s loss and seek to provide compensation for that 11 More specifically, the City paid Vanir $169,917 in 2020 and an additional $86,810 in 2021 for project management services. See Tr. Ex. 743 at Sch. K3. The City also paid TMG a total of $199,297 for consulting services on the project in 2021. See Tr. Ex. 349 (yellow and green highlighting). Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 15 of 23 60 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 60 of 74 16 loss”). However, recission may still leave the claimant with losses from related expenditures—separate from any consideration given under the contract —that were made in reliance on the contract. While these reliance damages constitute a remedy “different in kind from recission and restitution,” they are “not necessarily inconsistent when the claimant’s basic entitlement is to be restored to the status quo ante.” Restatement (Third) of Restitution & Unjust Enrichment § 54 cmt. i (Am. L. Inst. 2011). Indeed, “[d]amages measured by the claimant’s expenditure can be included in the accounting that accompanies recission, in order to do complete justice in a single proceeding.” Id.; see Trimble, 697 P.2d at 724 (“The defrauded party may recover such damages as are a natural and proximate consequence of the fraud.”). Here, the City’s third-party consultant costs were directly related to its performance under the Agreements—performance which would not have occurred at all, but for the City having been induced by fraud into entering the Agreements. In that light, the City’s request to recover these costs appears to the Court to be eminently reasonable. See Rice, 38 P.2d at 340–41 (directing the lower court to consider “the reasonable value of services” in determining recission amounts due based on fraud); Elliott v. Aspen Brokers, Ltd., 811 F. Supp. 586, 591 (D. Colo. 1993) (while a claimant in recission may not recover expectancy or “benefit-of-the-bargain” damages, the claimant’s out-of-pocket expenses nonetheless remain available); see also Restatement (Third) of Restitution & Unjust Enrichment § 54(2)(c) (Am. L. Inst. 2011) (in recission, each party “compensates the other for loss from related expenditure as justice may require”); Robinson v. Katz, 610 P.2d 201, 207 (N.M. Ct. App. 1980) (explaining that restitutionary damages are “permissible to Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 16 of 23 61 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 61 of 74 17 restore the plaintiff to his former position when recission is granted because of fraud”); Gearhart v. Goehner, 701 P.2d 461, 467 (Or. Ct. App. 1985) (“Where rescission is based on fraud, and where the innocent party, before discovering the fraud, has made reasonable expenditures in reliance on the bargain, those expenses may be recovered upon rescission.”) (citation omitted). Accordingly, the Court awards judgment in the City’s favor in the amount of $456,024 for its payments to TMG and Vanir during the course of the parties’ Agreements. 3. Labor costs Third, the City seeks to recover $4,376,969 in services rendered by City personnel in connection with the project with Open. See ECF No. 315 at 7–9; see also ECF No. 315-2 at 3; ECF No. 301 at 20:8–24:9 (Seigneur testimony). As the City contends, it “was required to incur significant amount[s] [in] resources and labor costs in order to implement the Project that it would not have incurred but for Open’s fraudulent conduct,” and because Open’s software did not function as promised, the City’s employees had to spend extra time “testing, improving, and effectively developing Open’s product.”12 ECF No. 315 at 8. Once more, Open disputes the City’s entitlement to these amounts, arguing that reliance damages are impermissible in recission. ECF No. 321 at 3. For the reasons discussed above in connection with the City’s request to recover its third-party consulting expenses, the Court agrees that the City’s request to recover its 12 In particular, the City explains that, per the parties’ Agreements, it was required to staff a certain number of full-time equivalents (FTEs) on the project, and that from August 15, 2018, to January 15, 2021, the City employed an average of 12 business FTEs at $80/hour and 6 IT FTEs at $100/hour, each for an estimated five hours per day. See Tr. Ex. 743 at Sch. M; ECF No. 307 at 130:13–131:6; ECF No. 309 at 213:11–14. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 17 of 23 62 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 62 of 74 18 own labor costs is similarly reasonable. See Rice, 38 P.2d at 340–41; Elliott, 811 F. Supp. 586 at 591; see also Restatement (Third) of Restitution & Unjust Enrichment § 54(2)(c) (Am. L. Inst. 2011). Thus, the Court awards judgment in the City’s favor in the amount of $4,376,969 in labor costs it incurred during the course of the parties’ Agreements. 4. Lost net revenue Fourth, the City seeks to recover $3,389,467 in revenue lost from the project’s delays and the City’s resultant loss of customers. See ECF No. 315 at 9–10; see also ECF No. 315-2 at 3; ECF No. 301 at 11:4–17:19 (Seigneur testimony). Here, the City argues that “[h]ad Open not defrauded the City, the City could and would have chosen a different vendor . . . , the Project would have proceeded on time, the City would not have experienced the delayed customer growth it did with Open, and the City would not have lost customer revenue.”13 ECF No. 315 at 9. In response, the City contends that the lost profits the City had anticipated earning from future subscribers amount to expectation damages and, as such, are unavailable in recission. ECF No. 321 at 3–4. Here, the Court finds that Open has the better of this argument. Unlike the City’s requests to recover amounts it paid for labor and third-party consultants—expenditures it had actually made, and reimbursement for which would aid in its return to the status quo ante—projected revenues represent benefits the City would have realized after the 13 More specifically, the City contends that its “ability to add broadband customers was constrained because using Open’s poorly functioning software required manual processes for tasks that should have been automated,” and that “[t]he inoperability of Open’s system prevented t he City from introducing certain broadband products, which further resulted in lost business opportunities for the City.” ECF No. 315 at 9. Mr. Seigneur estimated that the City likely lost 6,632 customers, each of whom was expected to bring annual revenue of $1,081 to the City as of July 2022. In total, Mr. Seigneur calculated that the City would lose $3,389,467 in revenue through 2026. See Tr. Ex. 743 at 14–16; id. at Sch. F1. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 18 of 23 63 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 63 of 74 19 Agreements’ successful completion, not before the Agreements were ever executed. Simply put, these expectancy damages are not recoverable given the City’s election to rescind. See In re Sun, 535 B.R. at 370 n.33 (if the plaintiff elects recission of the contract, rather than ratification, benefit-of-the-bargain damages are not available); accord Rice, 559 P.2d at 727; Elliott, 811 F. Supp. at 591; see also Holscher v. Ferry, 280 P.2d 655, 658 (Colo. 1955) (“It is a well-settled rule of law that, when a party has an election to rescind an entire contract, he must rescind it wholly or in no part. He cannot consider it void for one purpose, and at the same time in force for the purposes of recovering damages.”). As such, the Court declines to award the City any amounts in connection with its lost net revenue. 5. Attorney’s fees and costs Fifth, the City seeks to recover attorney’s fees and costs it incurred in pursuing this action against Open. See ECF No. 315 at 10–13. Under the circumstances, the Court is not persuaded that an award of attorney’s fees is permissible, let alone warranted. “Under the bedrock principle known as the ‘American Rule,’ each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 382 (2013) (internal citations and quotation marks omitted). Notwithstanding the American Rule, the City points to the U.S. Supreme Court’s purported recognition that federal courts sitting in equity possess the power to award attorney’s fees in “exceptional cases and for dominating reasons of justice.” See ECF No. 315 at 10–11 (quoting Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 167 (1939)); see also Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 19 of 23 64 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 64 of 74 20 Sprague, 307 U.S. at 164 (explaining that awards of attorney’s fees and costs in appropriate situations, aside from those costs contemplated by statute, “is part of the historic equity jurisdiction of the federal courts”). By contrast, Open argues that the City’s request for attorney’s fees is premised on a misreading of Sprague, which more narrowly permitted “the trustee of a fund or other property” to recover attorney’s fees in equity “from the fund or property itself or directly from the other parties enjoying the benefit.” See ECF No. 321 at 10–11 (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257–58 (1975) (construing Sprague)). According to Open, the trustee exception identified in Sprague is one of the few “judicially fashioned exceptions to the general rule against allowing substantial attorney’s fees,” and it does not extend to any and all actions in equity.14 Id. at 10 (quoting Alyeska Pipeline, 421 U.S. at 259–60); see Alyeska Pipeline, 421 U.S. at 260 (Congress has not “extended roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted”). A careful reading of the Supreme Court’s jurisprudence in this area would tend to support Open’s position. Although the Court presently sits in equity to determine restitution amounts in a case in which Open was found to have acted fraudulently, the Court is “not free to fashion drastic new rules with respect to the allowance of attorney’s fees to the prevailing party in federal litigation.” Alyeska Pipeline, 421 U.S. at 269. Aside 14 Other “judicially fashioned exceptions” to the American Rule recognized by the Supreme Court have included assessment of attorney’s fees “for the willful disobedience of a court order . . . as part of the fine to be levied on the defendant,” or “when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Alyeska Pipeline, 421 U.S. at 258–59 (collecting cases). The City does not invoke these exceptions here. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 20 of 23 65 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 65 of 74 21 from the few judicially recognized exceptions to the American Rule noted above, Congress has “reserved to itself” the power “to carve out specific exceptions to [the] general rule that federal courts cannot award attorney’s fees.” Id. Thus, absent a specific statute or a valid contractual provision authorizing an award of attorney’s fees, the Court declines to grant any.15 Marx, 568 U.S. at 382. For these reasons, the Court declines to award the City its attorney’s fees and costs in connection with this action. 6. Pre-judgment interest Finally, the City seeks pre-judgment interest (PJI) on the restitution categories identified above, to be calculated on a compound annual basis from April 15, 2023, through the date of final judgment. See ECF No. 315-2; see also ECF No. 315 at 5–6 (PJI for project costs), 7 (PJI for third-party consultant costs), 8–9 (PJI for labor costs), 10 (PJI for lost net revenue).16 An award of pre-judgment interest “rests firmly within the sound discretion of the trial court.” E.E.O.C. v. W. Trading Co., Inc., 291 F.R.D. 615, 621 (D. Colo. 2013) (quoting Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1287 (10th Cir. 2002)). “A two -step analysis governs the determination of such an award.” Id. (quoting Caldwell, 287 F.3d at 15 Even assuming that attorney’s fees were authorized, the Court sees little reason to award them as a matter of equity. In particular, the City unnecessarily prolonged this litigation this by refusing to elect among its available remedies until forced to do so by the Court. Had the City chosen either to rescind or affirm the Agreements much earlier in the case, the parties’ trial likely would have been half as long, and the issues half as complex. The Court is not inclined to reward the City’s counsel for this strategery. See Kline Hotel Partners v. Aircoa Equity Interests, Inc., 729 F. Supp. 740, 743 (D. Colo. 1990). 16 As discussed above, the Court in its discretion has declined to award any amounts in connection with the City’s lost net revenue. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 21 of 23 66 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 66 of 74 22 1286). In exercising its discretion, “[t]he district court must first determine whether the award of pre-judgment interest will serve to compensate the injured party. Second, even if the award of pre-judgment interest is compensatory in nature, the district court must still determine whether the equities would preclude the award of pre -judgment interest.” Id. Here, the Court finds that awarding PJI to the City would be compensatory rather than punitive. As noted by the Tenth Circuit in Caldwell, “the rule in this circuit is that pre- judgment interest is generally available to compensate the wronged party for being deprived of the monetary value of his loss from the time of the loss to the payment of the judgment.” Caldwell, 287 F.3d at 1286 (citation omitted). Awarding PJI on the City’s project costs, third-party consulting costs, and labor costs would simply put the City in the position it would have been but for Open’s fraudulent conduct; as such, PJI in this case would serve to compensate the City rather than punish Open. Similarly, the Court finds that awarding PJI to the City would not be inequitable. The Tenth Circuit has held that “pre-judgment interest should normally be awarded on successful federal claims.” W. Trading Co., 291 F.R.D. at 621 (citations omitted). Nothing in this case removes it from the norm; therefore, the Court concludes that the equities weigh in favor of granting PJI in this case. Therefore, the Court awards the City PJI for its project costs, third-party consulting costs, and labor costs discussed above. III. CONCLUSION Consistent with the foregoing analysis, the Court ORDERS as follows: (1) Defendants’ Motion for Judgment Under Rule 52(c), ECF No. 314, is DENIED; Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 22 of 23 67 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 67 of 74 23 (2) The Clerk of Court is directed to enter final judgment in favor of the City in the following amounts, as well as post-judgment interest at the rate set by 28 U.S.C. § 1961: a. $8,756,659 in project costs; b. $456,024 in third-party consulting costs; c. $4,376,969 in labor costs; and (3) Within 10 days of this Order, the City shall file a supplement to Mr. Seigneur’s pre- judgment interest calculations in ECF No. 315-2, setting forth the amounts of pre- judgment interest due on the City’s project costs, third-party consulting costs, and labor costs from April 15, 2023, through the date of final judgment. The Court will enter a separate Order awarding these pre -judgment interest amounts accordingly. DATED this 21st day of March 2024. Case 1:21-cv-02063-CNS-SBP Document 327 Filed 03/21/24 Page 23 of 23 68 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 68 of 74 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:21-cv-02063-CNS-SBP CITY OF FORT COLLINS, a Colorado home rule municipality, Plaintiff, v. OPEN INTERNATIONAL, LLC, a Florida limited liability company and OPEN INVESTMENTS, LLC, a Florida limited liability company, Defendants. FINAL JUDGMENT In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a), the following Final Judgment is hereby entered. This action was tried before a jury of eight duly sworn to try the issues herein with United States District Judge Charlotte N. Sweeney presiding, and the jury has rendered a verdict. Pursuant to the jury verdict, orders issued during the trial, and the Order entered on March 21, 2024, [ECF No. 327] it is ORDERED that judgment is entered in favor of the plaintiff, City of Fort Collins, and against the defendants, Open International, LLC and Open Investments, LLC, as to fraudulent inducement in the following amounts: a. $8,756,659 in project costs; b. $456,024 in third-party consulting costs; c. $4,376,969 in labor costs. It is Case 1:21-cv-02063-CNS-SBP Document 329 Filed 03/26/24 Page 1 of 2 69 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 69 of 74 2 FURTHER ORDERED that post-judgment interest shall accrue in accordance with 28 U.S.C. § 1961 at a rate of 5.02% from the date of entry of this Judgment. It is FURTHER ORDERED that the plaintiff is awarded its costs, to be taxed by the Clerk of the Court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1. It is FURTHER ORDERED that this case is closed. Dated: March 26, 2024. FOR THE COURT: Jeffrey P. Colwell, Clerk By s/ J. Dynes J. Dynes, Deputy Clerk Case 1:21-cv-02063-CNS-SBP Document 329 Filed 03/26/24 Page 2 of 2 70 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 70 of 74 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:21-cv-02063-CNS-SBP CITY OF FORT COLLINS, a Colorado home rule municipality, Plaintiff, v. OPEN INTERNATIONAL, LLC, a Florida limited liability company and OPEN INVESTMENTS, LLC, a Florida limited liability company, Defendants. AMENDED FINAL JUDGMENT In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a), the following Final Judgment is hereby entered. This action was tried before a jury of eight duly sworn to try the issues herein with United States District Judge Charlotte N. Sweeney presiding, and the jury has rendered a verdict. Pursuant to the jury verdict, orders issued during the trial, and the Orders entered on March 21, 2024, and March 28, 204, [ECF Nos. 327 and 331] it is ORDERED that judgment is entered in favor of the plaintiff, City of Fort Collins, and against the defendants, Open International, LLC and Open Investments, LLC, as to fraudulent inducement in the following amounts which include pre-judgment interest: a. $12,245,881 in project costs; b. $578,280 in third-party consulting costs; c. $7,067,286 in labor costs. It is Case 1:21-cv-02063-CNS-SBP Document 332 Filed 03/28/24 Page 1 of 2 71 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 71 of 74 2 FURTHER ORDERED that post-judgment interest shall accrue in accordance with 28 U.S.C. § 1961 at a rate of 5.02% from March 26, 2024, the date of the Final Judgment [ECF No. 329]. It is FURTHER ORDERED that the plaintiff is awarded its costs, to be taxed by the Clerk of the Court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1. Dated: March 28, 2024. FOR THE COURT: Jeffrey P. Colwell, Clerk By s/ J. Dynes J. Dynes, Deputy Clerk Case 1:21-cv-02063-CNS-SBP Document 332 Filed 03/28/24 Page 2 of 2 72 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 72 of 74 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 21-cv-02063-CNS-SBP CITY OF FORT COLLINS, Plaintiff/Counterclaim Defendant, v. OPEN INTERNATIONAL, LLC, Defendant/Counterclaim Plaintiff, and OPEN INVESTMENTS, LLC, Defendant. NOTICE OF APPEAL Pursuant to Rules 3(a)(1) and 4(a)(1)(A) of the Federal Rules of Appellate Procedure, Defendants Open International, LLC and Open Investments, LLC file this Notice of Appeal to the United States Court of Appeals for the Tenth Circuit from the Final Judgment entered on March 26, 2024 (Dkt. No. 329), the Amended Final Judgment entered on March 28, 2024 (Dkt. No. 332), and all adverse rulings subsumed therein. Case 1:21-cv-02063-CNS-SBP Document 340 Filed 04/17/24 Page 1 of 2 73 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 73 of 74 Respectfully Submitted, /s/ Jeffrey Sandman Laurie.Daniel@webbdaniel.law Jeff.Sandman@webbdaniel.law WEBB DANIEL FRIEDLANDER LLP 75 14th Street NE Suite 2450 Atlanta, Georgia 30309 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that on this April 17, 2024, the foregoing was electronically filed with the Clerk of Court using the Court’s electronic filing system and that a copy of the foregoing was sent to all counsel of record via same in compliance with the Federal Rules of Civil Procedure and the Local Rules of this Court. /s/ Jeffrey Sandman WEBB DANIEL FRIEDLANDER LLP Case 1:21-cv-02063-CNS-SBP Document 340 Filed 04/17/24 Page 2 of 2 74 Case No. 1:21-cv-02063-CNS-SBP Document 341-1 filed 04/18/24 USDC Colorado pg 74 of 74