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To read comments to this article, go here
Canopy and Noordas' Motion to Consolidate (Yarro et al v. Canopy et al) - as text
Sunday, February 20 2005 @ 11:51 PM EST

Here we find the Canopy Group Defendants, as they call themselves, (as in Mr. Mustard, the Noordas -- as individuals and as trustees of the Noorda Family Trust, the Noorda Family Trust, Val Kreidel, Terry Peterson, John Does 1 through 10, and the Canopy Group, as Intervenor/Defendant) presenting the court with a Motion to Consolidate the dueling lawsuits. They would like Yarro/Mott/Christensen's lawsuit consolidated with theirs against them, on the grounds that the parties and the facts involved are basically the same. And here is their Memorandum in Support of Motion to Consolidate.

You will notice that the header is different than what we normally have seen so far in the Canopy et al v. Yarro et al lawsuit. That is because this motion is not being filed in the Canopy Group's lawsuit against Yarro, Mott and Christensen. It's being filed in the Yarro et al v. Kreidel et al lawsuit, asking Judge Schofield to consolidate it with Canopy's litigation, so it can all get hashed out at once, instead of dual tracking the dueling lawsuits. It cuts down on duplicative discovery, motions, etc. for one thing, and sometimes there are strategy reasons behind such a request, too.

There's a comical Freudian slip, I think, in the Memorandum. In setting forth their reasons why consolidation would be appropriate, they argue that it would cut down on "duplicitous" discovery requests. I suspect they intended to write "duplicative" and in their mistake we get a peek at their inner thoughts. But hey, maybe they said precisely what they meant.

You may be asking, what is an intervenor? Here's the definition of intervention from Law.com:

"intervention
n. the procedure under which a third party may join an on-going lawsuit, providing the facts and the law issues apply to the intervenor as much as to one of the existing contestants. The determination to allow intervention is made by a judge after a petition to intervene and a hearing on the issue. Intervention must take place fairly early in the lawsuit, shortly after a complaint and answer have been filed and not just before trial since that could prejudice one or both parties who have prepared for trial on the basis of the original litigants. Intervention is not to be confused with joinder, which involves requiring all parties who have similar claims to join in the same lawsuit to prevent needless repetitious trials based on the same facts and legal questions, called multiplicity of actions."

If you look at any of the documents in the Yarro et al v. Kreidel et al lawsuit, such as this affidavit, you will see that Canopy isn't listed as a defendant. In other words, Canopy Group (along with the Noordas, as trustees of the Noorda Family Trust) is suing Yarro, Mott and Christensen, but not the reverse. They didn't name Canopy Group, just the others listed here as Canopy defendants. So that is why Canopy lists itself here, here meaning in the Yarro et al v. Kreidel et al lawsuit, as intervenor-defendant, along with the other regular defendants, all of whom are named by plaintiffs Yarro, Mott and Christensen. Canopy has already been granted intervenor-defendant status in this case.

Heaven only knows I hope the judge says yes to this request for consolidation, so we have less transcribing to do! It would be so much easier explaining things too. Dear Judge Schofield, please say yes. There's so much litigation in Utah already, we are plain tuckered out.

Only kidding. He will do whatever he thinks is best, and we'll just keep on chugging, no matter what.

Our thanks go to Frank Sorenson, who got these from the courthouse and scanned them in for us all to enjoy. I'd appreciate it if someone has time to carefully proof against the PDFs, because I'm throwing this up as fast as I can, and I have more documents to go. Thanks.

********************************

David B. Watkiss, Esq. (#3401)
Anthony C. Kaye, Esq. (#8611)
James W. Stewart, Esq. (#3959)
Boyd L. Rogers (#10095)
Craig H. Howe, Esq. (#7552)
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
[address, phone, fax]

Attorneys for Defendants Raymond J. Noorda
and Lewena Noorda, as Trustees of the Noorda
Family Trust; William Mustard; and Defendant-
Intervenor, The Canopy Group, Inc.

________________________________

IN THE FOURTH JUDICIAL DISTRICT COURT
UTAH COUNTY, STATE OF UTAH

________________________________

RALPH J. YARRO III, an individual,
DARCY G. MOTT, an individual, and
BRENT D. CHRISTENSEN, an individual,

Plaintiffs,

vs.

VAL NOORDA KREIDEL, an individual,
TERRY PETERSON, an individual,
WILLIAM MUSTARD, an individual,
THE NOORDA FAMILY TRUST, a Trust,
RAYMOND J. NOORDA, an individual,
and a trustee of the Noorda Family Trust,
LEWENA NOORDA, an individual and a
trustee of the Noorda Family Trust, and
JOHN DOES 1 THROUGH 10,

Defendants.

THE CANOPY GROUP, INC.,

Intervenor/Defendant.

________________________________

MOTION TO CONSOLIDATE

Civil No. 050400245
Honorable Anthony W. Schofield

______________________________

Pursuant to Rule 42 of the Utah Rules of Civil Procedure, Defendants Raymond J. Noorda and Lewena Noorda, in their capacity as Trustees of the Noorda Family Trust, William Mustard, and Intervenor-Defendant, The Canopy Group, Inc. (collectively, the "Canopy Defendants"), through their counsel, respectively move that the Court consolidate this action with a related civil action, The Canopy Group, Inc. et al v. Ralph J. Yarro III et al., Fourth Judicial District Court, Utah County, State of Utah, Civil No. 050400245 (the "Canopy Action"), which is also pending before the Honorable Anthony W. Schofield. This Motion is supported by the accompanying Memorandum in Support of Motion to Consolidate. For the reasons set forth in the accompanying Memorandum, the Canopy Defendants respectfully request that the Court enter an order granting this Motion and consolidating this action with the Canopy Action.

DATED this 14th day of February 2005.

___[signature]___
David B. Watkiss, Esq.
Anthony C. Kaye, Esq.
James W. Stewart, Esq.
Boyd L. Rogers, Esq.
Craig H. Howe, Esq.
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
Attorneys for Defendants The Noorda Family
Trust, Raymond J. Noorda, Lewena Noorda and
Intervenor/Defendant The Canopy Group, Inc.


CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing MOTION TO CONSOLIDATE was served on the following this 14th day of February 2005, in the manner set forth below:

Via Hand Delivery:

Stanley Preston
Michael R. Carlston
Maralyn M. Reger
SNOW, CHRISTENSEN & MARTINEAU
[address]

Via First Class Mail, Postage Prepaid:

Jeffrey S. Factor, Esq.
Shearman & Sterling LLP
[address]

Blake D. Miller, Esq.
Miller & Guymon, P.C.
[address]

Blaine J. Benard, Esq.
Eric G. Maxfield, Esq.
Holme Roberts & Owen, LLP
[address]

___[signature]___


********************************

David B. Watkiss, Esq. (#3401)
Anthony C. Kaye, Esq. (#8611)
James W. Stewart, Esq. (#3959)
Boyd L. Rogers (#10095)
Craig H. Howe, Esq. (#7552)
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
[address, phone, fax]

Attorneys for Defendants Raymond J. Noorda
and Lewena Noorda, as Trustees of the Noorda
Family Trust; William Mustard; and Defendant-
Intervenor, The Canopy Group, Inc.

________________________________

IN THE FOURTH JUDICIAL DISTRICT COURT
UTAH COUNTY, STATE OF UTAH

________________________________

RALPH J. YARRO III, an individual,
DARCY G. MOTT, an individual, and
BRENT D. CHRISTENSEN, an individual,

Plaintiffs,

vs.

VAL NOORDA KREIDEL, an individual,
TERRY PETERSON, an individual,
WILLIAM MUSTARD, an individual,
THE NOORDA FAMILY TRUST, a Trust,
RAYMOND J. NOORDA, an individual,
and a trustee of the Noorda Family Trust,
LEWENA NOORDA, an individual and a
trustee of the Noorda Family Trust, and
JOHN DOES 1 THROUGH 10,

Defendants.

THE CANOPY GROUP, INC.,

Intervenor/Defendant.

________________________________

MEMORANDUM IN SUPPORT OF
MOTION TO CONSOLIDATE

Civil No. 050400245
Honorable Anthony W. Schofield

______________________________

1

Defendants Raymond J. Noorda and Lewena Noorda, in their capacity as Trustees of the Noorda Family Trust, William Mustard, and Intervenor-Defendant, The Canopy Group, Inc. (collectively, the "Canopy Defendants"), through their counsel, hereby submit this Memorandum in support of their Motion requesting that the Court consolidate this action with a related civil action, The Canopy Group, Inc. et al. v. Ralph J. Yarro III et al., Fourth Judicial District Court, Utah County, State of Utah, Civil No. 050400245 (the "Canopy Action"), which is also pending before the Honorable Anthony W. Schofield. For the reasons set forth below, the Canopy Defendants respectfully request that the Court enter an order granting this Motion and consolidating this action with the Canopy Action.

ARGUMENT

I. THIS COURT SHOULD CONSOLIDATE THE CANOPY ACTION WITH THIS
ACTION BECAUSE THEY INVOLVE COMMON QUESTIONS OF LAW AND
FACT PENDING BEFORE THE COURT.

Rule 42(a) of the Utah Rules of Civil Procedure provides that when "actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Because there are common questions of law and fact pertaining to the claims alleged by the parties in this action and in the Canopy Action, this Court should consolidate the actions.

In this action, plaintiffs assert claims for, among other things, breach of contract relating to a certain Shareholder Agreement purportedly executed by Canopy, breach of fiduciary duty, a declaration that plaintiffs' employment was not terminated, and tortious interference with

2

contract and economic relations relating to plaintiffs' employment with Canopy. The Complaint in the Canopy Action, which was filed by Canopy and the Noordas, as Trustees of the Noorda Family Trust, assert claims for, among other things, breach of fiduciary duty of loyalty, removal of Yarro as a director pursuant to Utah Code Ann. 16-10(a)-809, constructive trust, and breach of the same Shareholder Agreement at issue in this action. The claims in both actions arise out of the business operations of Canopy and involve substantially the same individuals and entities as parties. Consolidating these actions will streamline discovery and other pretrial proceedings in both cases by avoiding duplicitous discovery requests, depositions, and other matters. 1 Further, consolidating the trial of both actions will promote judicial efficiency because the claims asserted in both actions constitute many of the defenses advanced by the respective parties in response to the Complaints. Thus, this Court should consolidate this action with the Canopy Action for all purposes, including all discovery, pretrial proceedings, and trial.

CONCLUSION

For the reasons set forth above, the Canopy Defendants respectfully request that the Court enter an order granting this Motion and consolidating this action with the Canopy Action, Civil No. 050400425.

3

DATED this 14th day of February 2005.

___[signature]___
David B. Watkiss, Esq.
Anthony C. Kaye, Esq.
James W. Stewart, Esq.
Boyd L. Rogers, Esq.
Craig H. Howe, Esq.
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
Attorneys for Defendants The Noorda Family
Trust, Raymond J. Noorda, Lewena Noorda and
Intervenor/Defendant The Canopy Group, Inc.


1 In the Canopy Action, Canopy and the Noordas, as Trustees, have filed a Motion seeking the removal of Yarro as a director of Canopy, pursuant to Utah Code Ann. 16-10a-809, and have requested that the Motion be heard at the same time as the hearing on the Motion for Preliminary Injunction commencing on March 8, 2005, in this action. Consolidation will facilitate the Court's consideration of both Motions at the hearing shceduled to commence on March 8, 2005.

4

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing MEMORANDUM IN SUPPORT OF MOTION TO CONSOLIDATE was served on the following this 14th day of February 2005, in the manner set forth below:

Via Hand Delivery:

Stanley Preston, Esq.
Michael R. Carlston, Esq.
Maralyn M. Reger, Esq.
SNOW, CHRISTENSEN & MARTINEAU
[address]

Via First Class Mail, Postage Prepaid:

Jeffrey S. Factor, Esq.
Shearman & Sterling LLP
[address]

Blake D. Miller, Esq.
Miller & Guymon, P.C.
[address]

Blaine J. Benard, Esq.
Eric G. Maxfield, Esq.
Holme Roberts & Owen, LLP
[address]

___[signature]___

5


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