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HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 137 - City Mot RestrictIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 21-cv-02063-CNS-MEH CITY OF FORT COLLINS, Plaintiff/Counterclaim Defendant, v. OPEN INTERNATIONAL, LLC Defendant/Counterclaim Plaintiff, and OPEN INVESTMENTS, LLC, Defendant. PLAINTIFF CITY OF FORT COLLINS’S UNOPPOSED MOTION TO RESTRICT ACCESS The City of Fort Collins (the “City”), by and through its undersigned counsel, respectfully submits a redacted version of its Reply in Support of Motion to Amend [Dkt. 119], and requests that the Court maintain Level 1 restrictions on supporting Exhibits 14-16 and 21-22 [Dkts. 119-1, 119-2, 119-3, 119-8, and 119-9]. CERTIFICATION PURSUANT TO D.C.COLO.L.CivR 7.1 Undersigned counsel conferred with counsel for Defendants. Open does not oppose the provisional sealing order requested by the City, consistent with the Court’s August 12, 2022 Order, Dkt. 96 at 2. Open reserves the right to oppose permanent sealing in connection with a final determination of filing restrictions at a later date. Case 1:21-cv-02063-CNS-MEH Document 137 Filed 12/22/22 USDC Colorado Page 1 of 5 2 ARGUMENT 1. This Court entered the parties’ Stipulated Protective Order on October 14, 2021 [Dkt. 32]. This Order provides that information related to the parties’ alleged business are either subject to a “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” designation in order to shield them from public disclosure. 2. The City filed several Motions to Restrict Access in 2022 [Dkts. 50, 53, 66, 69, 79, and 85]. 3. During the parties’ August 12, 2022 Discovery Conference, Judge Hegarty provisionally granted all of the Motions to Restrict Access [see Dkt. 96], stating that the Court would likely do the same for future motions as well. 4. On December 12, 2022, the City filed its Reply in Support of Motion to Amend [Dkt. 119] (the “Reply”) and supporting exhibits at Level 1 access. 5. Pursuant to D.C.COLO.LCivR 7.2, the City hereby moves to retain Level 1 restriction to Exhibits 14-16 and 21-22 attached to the Reply, and further submits a redacted version of the Reply that removes any references to confidential material contained in those exhibits. 6. The City requests the above restrictions in order to comply with the parties’ Protective Order and because good cause exists to restrict the documents from public access, as they refer to and consist of confidential strategic and business information. See Brill v. Correct Care Sols., LLC, Civil Action No. 16-cv-03078-WJM-NYW, 2018 U.S. Dist. LEXIS 240409, at *6 (D. Colo. Mar. 5, 2018) (granting motion to restrict professional services agreement where it was not otherwise publicly available and where dissemination of proprietary business information Case 1:21-cv-02063-CNS-MEH Document 137 Filed 12/22/22 USDC Colorado Page 2 of 5 3 within could give competitors an unfair advantage); Cahey v. IBM, Civil Action No. 20-cv-00781- NYW, 2021 U.S. Dist. LEXIS 212793, at *4-5 (D. Colo. Apr. 2, 2021) (internal compensation structure was confidential and proprietary, the disclosure of which would harm the party seeking to restrict access); SBM Site Servs., LLC v. Garrett, Civil Action No. 10-cv-00385-WJM-BNB, 2011 U.S. Dist. LEXIS 41527, *9 (D. Colo. Apr. 12, 2011) (granting motion to restrict “business materials containing information that may be confidential” because it could harm litigant’s competitive standing). 7. Exhibits 14 and 15 [Dkts. 119-1 and 119-2] are documents produced during discovery and marked as Confidential, and further designated as Confidential when used as deposition exhibits, pursuant to the parties’ Stipulated Protective Order. 8. Exhibit 16 [Dkt. 119-3] is the October 24, 2022 Expert Report of Open’s retained expert, John Hutchinson. It is designated as Confidential pursuant to the Stipulated Protective Order and contains confidential business and strategic information of the parties. 9. Exhibits 21 and 22 [Dkts. 119-8 and 119-9] are excerpts of deposition transcripts which have also been designated as Confidential pursuant to the Stipulated Protective Order. Although the Stipulated Protective Order is not an independent basis for restricting the Exhibits, these deposition exhibits and transcripts were designated as such pursuant to the Stipulated Protective Order because they contain confidential information regarding the parties’ agreements and this dispute. See Nichols v. Denver Health & Hosp. Auth., Civil Action No. 19-cv-02818- DDD-KLM, 2020 U.S. Dist. LEXIS 260696, at *12-13 (D. Colo. Oct. 29, 2020) (finding that documents produced pursuant to protective order and designated as confidential that were attached to nondispositive motions were not subject to the common-law right of access). Case 1:21-cv-02063-CNS-MEH Document 137 Filed 12/22/22 USDC Colorado Page 3 of 5 4 10. Redaction of Exhibits 14-16 and 21-22 is not a reasonable or practical alternative because they consist almost entirely of confidential information. However, the City submits a redacted version of the Reply itself which removes references to confidential material. CONCLUSION Wherefore, the City respectfully requests that the Court enter the redacted Reply (attached hereto as Exhibit A) and maintain Level 1 Restriction on Exhibits 14-16 and 21-22 [Dkts. 119-1, 119-2, 119-3, 119-8, and 119-9], and for such further relief as this Court deems just and proper. Respectfully submitted this 22th day of December, 2022. DORSEY & WHITNEY LLP s/ Maral J. Shoaei Case Collard Andrea Ahn Wechter Maral J. Shoaei Nora O. Cooke 1400 Wewatta Street, Suite 400 Denver, Colorado 80202-5549 Telephone: (303) 629-3400 Fax: (303) 629-3450 E-mail: collard.case@dorsey.com E-mail: wechter.andrea@dorsey.com E-mail: shoaei.maral@dorsey.com E-mail: cooke.nora@dorsey.com Attorneys for Plaintiff City of Fort Collins Case 1:21-cv-02063-CNS-MEH Document 137 Filed 12/22/22 USDC Colorado Page 4 of 5 5 CERTIFICATE OF SERVICE I hereby certify that on December 22, 2022, I caused the foregoing document to be electronically filed via CM/ECF system which will send notification of such filing to the following: Alexander D. White Paul D. Swanson Hannah E. Armentrout Anna C. Van de Stouwe Alexandra E. Pierce HOLLAND & HART LLP 555 17th Street, Suite 3200 Denver, CO 80202 Telephone: (303) 295-8578 adwhite@hollandhart.com pdswanson@hollandhart.com hearmentrout@hollandhart.com acvandestouwe@hollandhart.com aepierce@hollandhart.com Attorneys for Defendants s/ Stacy Starr Dorsey & Whitney LLP Case 1:21-cv-02063-CNS-MEH Document 137 Filed 12/22/22 USDC Colorado Page 5 of 5 Exhibit A Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 21-cv-02063-CNS-MEH CITY OF FORT COLLINS, Plaintiff/Counterclaim Defendant, v. OPEN INTERNATIONAL, LLC Defendant/Counterclaim Plaintiff, and OPEN INVESTMENTS, LLC, Defendant. PLAINTIFF CITY OF FORT COLLINS’S REPLY IN SUPPORT OF MOTION TO AMEND [DKT. 101] Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 1 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 2 of 14 1 The City should be permitted to amend its pleadings to include a negligent misrepresentation claim and to avoid further dispute regarding its appropriations arguments. Open’s March 2018 RFP Response induced the City to enter into the MPSA in August 2018. The RFP Response included Open’s detailed assessment of the functionalities of its software, which Open gave letter grades, “A” for functionality already offered by its base software, “B” through “G” for functionalities of various levels of development or availability. Open’s RFP Response included information about both its present capabilities and the functionalities it had in development or could develop in the future. Open was working on Version 8, a new iteration of its software. It had a duty to carefully evaluate its capabilities, including those already built and those in development for Version 8. Instead, Open says it graded its software based on the functionality it hoped or believed Version 8 would have in the future. As a consequence, Open falsely graded its software to indicate that it had capabilities which were in development or not yet developed. At the very least, these false representations, which were made because Open did not accurately evaluate its capabilities, were negligent .1 Open tries to buttress its position by arguing that 1) it did not make a misrepresentation because it said its RFP Response included Version 8 (which was in development), 2) its misrepresentation is not actionable under the economic loss rule or because it was a future promise, or 3) the City discovered problems with the software in 2019, so its claim is untimely. The Court should reject these arguments. First, the City has alleged a negligent 1 The City believes Open’s explanation for mis-grading the software is an ex post facto justification, and that Open intentionally misrepresented its software. Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 2 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 3 of 14 2 misrepresentation that was previously unknown, and disclosing the use of Version 8 is not the same as disclosing the RFP Response’s inaccurate grading scheme. Second, the misrepresentation of a software’s capability is neither a future promise nor barred by the economic loss rule. Third, the City’s did not discover that Open’s software was not working abruptly on a specific date in 2019 and Open actively hid the source of the problem and, as its principals acknowledge, the City could not have discovered the misrepresentation during the parties’ relationship. The City moved to amend promptly when it was uncovered through discovery. Open also argues that the City’s appropriations defense to Open’s counterclaims should be rejected as futile. But, as Open’s Response acknowledges, the City need not plead affirmative defenses already in its contract, and the contracts’ references to appropriations raise this defense (as do the affirmative defenses already included in the City’s pleadings). Additionally, Open’s claim that an appropriations defense is futile relies on a statutory exemption related to physical construction projects which is inapplicable to the parties’ present dispute. Finally, Open will not be prejudiced by these amendments which were requested before discovery closed. Open has already taken discovery on these issues. Any alleged injury can be ameliorated by additional discovery. The City should be permitted to amend its pleadings. ARGUMENT I. The Court Should Allow the City to Add a Negligent Misrepresentation Claim A. The City’s Claim stems from Newly Discovered Information. 1. Open Misrepresented the Present Status of Version 8. Open’s Response presents its factual counter-narrative concerning the grading of the Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 3 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 4 of 14 3 Functional Matrix. But Open’s factual arguments are irrelevant—all facts are construed in the City’s favor for purposes of this motion. Bituminous Cas. Corp. v. Hartford Cas. Ins. Co., Civil Action No. 12-cv-00043, 2013 U.S. Dist. LEXIS 178103, at *6 (D. Colo. Dec. 18, 2013). Open misrepresented the present status of its software when it submitted its RFP Response by grading based on the functionality it hoped would eventually be available in Version 8. Open’s Response tries to mitigate its mis-grading by citing references to Version 8 in its RFP Response. These references did not put the City on notice of the mis-grading, because Version 8 could—and indeed should—have been included and accurately graded in the RFP Response. Version 8 was in development, and presumably both included some functionalities which were part of the base code (grade A), and some which were still being created but would be included in the final version (grade B). Open should have graded Version 8 (and the rest of its software) based on the functionalities in existence on March 12, 2018. As a consequence, references to Version 8 did not disclose that Open would submit an inaccurate RFP Response. Unfortunately, Open did not grade its software accurately. The software grading system in the RFP had seven grade levels, A through G, with A as the most developed functionalities and G as the least developed. See Dkt. 104 at 5. Functionalities which were “[n]ot [c]urrently in the system, but will be fully vetted, tested and present in the system prior to launch” should have received “B” grades. Id. Grade “A” was only supposed to be used for functionality which, unlike Grade “B,” was “[p]rovided as part of base system [and] achieved through configuration [as] part of base Code.” Id. Open should have investigated the present functionalities of its software on March 12, 2018 so that it could differentiate between those it had finished developing, either in Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 4 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 5 of 14 4 Version 8 or in any previous version (i.e., those which were part of the base code), and those which were “not currently in the system.” Instead, Open incorrectly assigned “A” grades to functionalities which were “not currently in the system,” were not presently part of the “base code,” and that thus should have been graded “B.” Dkt. 105-1 at 163:3-13; Dkt. 105-2 at 71:18-23. Open did this because, instead of investigating its present functionalities, it assigned grades in its RFP Response based on the aspirational functionalities it hoped Version 8 would have. Dkt. 105-1 at 165:12-166:12. Even giving this explanation the benefit of the doubt, falsely grading functionalities as “A” without investigating whether or not they had been developed is negligent. 2. The City could not Know of this Misrepresentation until Discovery in this Dispute The City could not have known of Open’s misleading and negligent grading scheme until it conducted extensive discovery. The Functional Matrix gave the City no way to discern this fact. Dkt. 105-1 at 163:15-164:15 . The City did not know the truth until it deposed Open representatives. See Dkt. 105-2. Open argues that the City should have discovered Open’s misrepresentations when the software did not perform as intended at the time it was delivered in 2019. Resp. at 16. This conflates knowledge of the harm (the unexpected poor performance of Open’s software) with knowledge of its cause (Open’s misrepresentations). But discovery of a claim is tied to the source of a harm, not the resulting injury. See, e.g., United States Welding, Inc. v. Tecsys, Inc., No. 1:14- Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 5 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 6 of 14 5 cv-00778-REB-MEH, 2016 U.S. Dist. LEXIS 193130 *10 (D. Colo. Sept. 6, 2016) (discovery of software flaws and request for additional resources did not constitute discovery of the “misrepresentations tied to th[o]se events”); Deneffe v. Skywest, Inc., 14-cv-00348-MEH, 2015 U.S. Dist. LEXIS 5517, *10 (D. Colo. Jan 16, 2015) (granting motion to amend based on newly discovered evidence even though injury, that plaintiff had been denied a job, would have been obvious the entire time). The discovery relevant to this amendment was not knowledge of the poor software, but knowledge of how defendants’ misrepresented information to the City. B. The City’s Misrepresentation Claim is not Futile 1. The Economic Loss Rule does not Apply Open claims the City’s claim should be barred by the economic loss rule. Resp. at 12-15. But the economic loss rule “does not bar [] claims . . . premised on pre-contractual misrepresentations” which are made “to induce the formation of the contract itself.” Levin v. Five Corners Strategies, 541 F. Supp. 3d 1262, 1270 (D. Colo. 2021). Open misrepresented its present software functionalities when it submitted its RFP Response in 2018. See Supra at A.1. This misrepresentation “wrongfully induce[ed] a contract,” and arose “independent from [the duties] created by the contract.” Id. Because Open’s misrepresentation predated, and indeed induced, the MPSA, the City’s misrepresentation claim is not barred by the economic loss rule. Open points to the integration clause in the MPSA, but this does not impact whether the economic loss rule applies. Under Colorado law, an integration clause prevents reliance on prior misrepresentation claims only when it contains “clear and specific language” concerning the misrepresentation. See Re/Max, LLC v. Motto Franchising, LLC, 295 F. Supp. 3d 1963, 1171-72 Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 6 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 7 of 14 6 (D. Colo. 2018); Pensford Fin. Grp. LLC v. 303 Software Inc., 1:18-cv-03286-RM-SKC, 2019 U.S. Dist. LEXIS 79436, *6 (D. Colo. May 10, 2019) (integration clause spoke generally of superseding prior communications but that was not “clear and specific” enough to trigger economic loss rule).2 The MPSA integration clause at issue is not specific. It says the MPSA: “constitutes the final, complete and exclusive agreement between the Parties with respect to the subject matter of this Agreement, and supersedes any prior or contemporaneous agreement, proposal, warranties and representations. . . . Dkt. 6 at 41 of 426. Because this integration clause does not specifically address the representations in Open’s RFP Response (regarding functionality of the product), the integration clause does not prevent the City from bringing a misrepresentation claim. 2. The City’s Claims are not Barred by the Statute of Limitations Open argues the City should have known that the state of the product was misrepresented once Open finally released Version 8 in February 2019 and that, as a consequence, the City’s claim is barred by Colorado’s two-year statute of limitations. Resp. at 15-17. A negligent misrepresentation claim accrues on the date when the party discovered, or should have discovered, that the representation was false. Bank of Choice v. Crossroads Commer. Ctr., Ltd., LLLP, 2010CV5138, 2011 U.S. Dist. LEXIS 99133, *7-8 (D. Colo. April 13, 2011). The City did not discover the truth about Open’s misrepresentation because Open actively concealed it.3 Additionally, the deposition testimony of Mike Beckstead and CFC_119556 do not 2 For example, the clause in Steak N Shake referenced the “independent investigation” of financial data by the franchisee which was the basis for the misrepresentation claim. Steak N Shake v. Globex Co., LLC, 110 F. Supp. 1057, 1068, 1082-83 (D. Colo. 2015). 3 See, e.g., Exh. 14, Dep. Exh. 251 Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 7 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 8 of 14 7 support Open’s contention that the City should have known the basis of this claim all along (see Resp. at 9). Rather, these documents show that the City was aware that it would be the first installation of Version 8 and Open’s first North American customer. Exh. B to Resp. at 5 (listing risk as being “Open’s 8th generation software 1st install” and “risk with Open being first North American customer”); Exh. C. to Resp. at 240:11-241:13 (same). Accordingly, the City could not discover the truth of Open’s grading scheme until the parties engaged in discovery. The claim is not untimely, and the City has acted diligently to pursue it. 3. Open’s RFP Representations were Present Promises, not Future Promises Open also argues that its RFP Response was a future promise, rather than a present representation. Courts have repeatedly rejected this position. See, e.g., Solutia Inc. v. FMC Corp., 385 F. Supp. 2d 324, 342-343 (S.D.N.Y. 2005) (plaintiff stated valid misrepresentation claim based on a present representation that “misrepresented [the software’s] present technological capability and concealed material information”).4 Open’s RFP Response was a misrepresentation of the present capabilities of its software and whether it would meet the City’s needs. C. Open will not be Prejudiced by the Delay Finally, Open will not be prejudiced by the amendment. Despite its claim that it has not ); Exh. 15, Dep. Exh. 583 . 4 See also J&R Elecs., Inc. v. Business & Decision N. Am., Inc., 12 Civ. 7497 2013 U.S. Dist. LEXIS 132249, *26 (S.D.N.Y. Sept. 16, 2013) (misrepresentation claim supported by misrepresentation of software’s ability to be easily transferred to an upgraded software product); Cent. DuPage Health v. 3M, No. 05 C 0241, 2005 U.S. Dist. LEXIS 26042, *7-8 (N.D. Ill. Oct. 26, 2005) (“allegations by [purchaser] describe [software provider]'s present software capabilities rather than future promises, and dismissal is not warranted on this basis”). Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 8 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 9 of 14 8 developed discovery regarding the reasonableness or industry standard for responding to CIS/OSS RFPs (Resp. at 18), Open already submitted an expert report that spent more than twenty pages opining on this industry standard. See Exh. 16, Excerpt of October 24, 2022 Expert Report of John Hutchinson. Open noticed five 30(b)(6) topics related to the RFP, including one focused on the City’s consideration of Open’s RFP Response and another which addressed the City’s due diligence into Open. See Exh. 17 at topics 3, 4, 5, 6, and 15.5 Even if more discovery were needed, the pre-trial conference for this case is set for four months from now and no trial date has been set, leaving ample time to allow any necessary discovery. See Pumpco, Inc., the Concrete Pumping Co. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (allowing late amendment because trial date had not been set so “any prejudice which might arise” was “capable of being cured”). II. Appropriations The parties agree that the City is entitled to raise an appropriations defense based on the language of the MPSA. Resp. at 19; Mot. at 18. As a consequence, if this Court finds that the MPSA codifies or includes limitations based on appropriations, then the parties agree that no affirmative defense is necessary. The MPSA expressly says that the City shall “have no obligation to continue the Agreement in any fiscal year for which on such supporting appropriation has been made.” Dkt. 6 at 35. The Amendment specifically states that, if the City did not appropriate funds to support the contract, the City “reserved the right to void” the agreement. Id. at 426. This should 5 Open also sought written discovery on these topics, including Interrogatories 3, 18, and 19. See Exh. 18, City’s Responses to Open’s First and Third Set of Discovery Requests. For example, interrogatory 19 asked the City to identify each functional matrix requirement the City contended Open improperly graded as “A.” Id. Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 9 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 10 of 14 9 end the Court’s inquiry. There is no dispute that this contract clause is sufficient to raise the issue. Open’s damages are therefore limited to the amount the City appropriated. On top of this, Open has been on notice of the appropriation limitations throughout this litigation. The City’s affirmative defenses address limitations on Open’s damages by stating that Open’s counterclaims seek damages it is not entitled to receive. See Dkt. 30 at 34-35 (First Affirmative Defense). Open’s executives were aware that appropriations were a prerequisite to payments under the parties’ agreement. See Dkt. 105-4 at 97:13-23; Dkt. 106-4 at 478:5-480:8. Moreover, the City timely disclosed the specific appropriation defense much earlier than Open acknowledges. For example, on August 4, 2022, in response to Open’s second set of discovery requests, the City explained that it had not paid some amounts to open because “the City was not permitted to spend funds in excess of amounts appropriated in the adopted budget and payments required under the MPSA were subject to annual appropriation by the Fort Collins City Council per Section 13.4 of the MPSA.” Exh. 19 at 13-14. Open incorrectly suggests that amendment is futile because C.R.S. § 24-91-103.6(4) would allow Open to recover beyond the appropriated amounts. But this exception deals with “public works contracts,” which is defined in the preceding section, C.R.S. § 24-91-103.5(1)(b), as construction contracts for physical structures. This definition, and the case law applying it relate solely to physical infrastructure projects. See, generally, Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Rec. Dist., 271 P.3d 587, 591 (Colo. App. 2011) (work on a light pole); Town of Alma v. Azco Constr. Inc., 985 P.2d 56, 57-59 (Colo. App. 1999) (improvements to town’s water distribution). In contrast, the City and Open contracted for a software billing solution, a far cry Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 10 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 11 of 14 10 from the type of physical construction project that the statute contemplates. See generally Dkt. 6; Exh. 20, Hernando Parrott 12/2/22 ROUGH Dep. Tr. at 44:2-45:10 . The City’s appropriations defense is not futile. To the extent that any additional steps are required to put Open on notice that the City intends to raise an appropriations defense, including amending the City’s affirmative defenses, the City should be allowed to take these steps. Open argues that it would be prejudiced by the introduction of an appropriations defense. Open also had an opportunity to raise this in both its discovery responses and its expert reports. Dkt. 106-3, October 3, 2022 letter sent before the City’s 30(b)(6) deposition. Open has also already sought deposition testimony on this topic. Exh. 21, Gerry Paul 10/5/22 30(b)(6) Dep. Tr. at 10:24-11:25. If there is any prejudice to Open, it can be easily mitigated, to the extent it has not already been mitigated. CONCLUSION The City seeks to have its disputes with Open evaluated on its merits. The Court should allow the City to add a negligent misrepresentation claim and find that the City’s contention regarding appropriation issues has been adequately disclosed. If necessary, the City respectfully requests that it be allowed to amend its Reply to Open’s Counterclaims to add it as an affirmative defense. Respectfully submitted this 12th day of December, 2022. Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 11 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 12 of 14 11 DORSEY & WHITNEY LLP s/ Case Collard Case Collard Andrea Ahn Wechter Maral J. Shoaei Nora O. Cooke 1400 Wewatta Street, Suite 400 Denver, Colorado 80202-5549 Telephone: (303) 629-3400 Fax: (303) 629-3450 E-mail: collard.case@dorsey.com E-mail: wechter.andrea@dorsey.com E-mail: shoaei.maral@dorsey.com E-mail: cooke.nora@dorsey.com Attorneys for Plaintiff City of Fort Collins Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 12 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 13 of 14 12 CERTIFICATE OF SERVICE I hereby certify that on December 12, 2022, I caused the foregoing document to be electronically filed via CM/ECF system which will send notification of such filing to the following: Alexander D. White Paul D. Swanson Hannah E. Armentrout Anna C. Van de Stouwe Alexandria E. Pierce HOLLAND & HART LLP 555 17th Street, Suite 3200 Denver, CO 80202 Telephone: (303) 295-8578 adwhite@hollandhart.com pdswanson@hollandhart.com hearmentrout@hollandhart.com acvandestouwe@hollandhart.com aepierce@hollandhart.com Attorneys for Defendants s/ Stacy Starr Dorsey & Whitney LLP Case 1:21-cv-02063-CNS-MEH Document 119 Filed 12/12/22 USDC Colorado Page 13 of 13Case 1:21-cv-02063-CNS-MEH Document 137-1 Filed 12/22/22 USDC Colorado Page 14 of 14