Case Document1 Filed 10/08/03 :Page 1 of 15 HLED lil IN THE UNITED STATES DISTRICT COURT UCI 8 2003 (R) FOR THE NORTHERN DISTRICT OF ER THOMS, wi ATLANTA DIVISION 2 I cm FIDELITY AND DEPOSIT I COMPANY OF MARYLAND, Plaintiff, v. CIVIL ACTION FILE No. ENTERTAINMENT FILM WORKS, JAMES T. NORMA Defendants. COMPLAINT Fidelity and Deposit Company of Maryland ("Surety") files this Complaint against Entertainment Film Works, Inc. James T. Duffy, Norma L. Duffy, and John J. Duffy (collectively "Indemnitors") and shows the Court the following: I. Jurisdiction and Venue 1. Defendant EFW is a corporation formed under the laws of the State of Georgia with its principal place of business in Atlanta, Georgia. 2. Defendant James T. Duffy is a resident of the Northern District in the State Consent lv US Mag. I lille VH NTC I Case Document 1 Filed Page 2 of 15 of Georgia. 3. Defendant Norma L. Duffy is a resident of the Northern District in the State of Georgia. 4. Defendant John J. Duffy is a resident of the Nortliem District in the State of Georgia. 5. Surety is a corporation formed under the laws of the State of Maryland with its principal place of business in the State of Maryland and is licensed to do business in the State of Georgia. 6. This matter concems an amount in controversy greater than $75,000.00, exclusive of interest and costs. 7. There is complete diversity of state citizenship between the Plaintiff and each of the Defendants. 8. This Court has jurisdiction of this matter under 28 U.S.C. l332(a), and venue is proper in this District under 28 U.S.C. l391(a). Case Document 1 Filed 10/08/03 Page 3 of 15 Il. Indemnification for Costs and Expenses 9. The Surety issued several Bonds on behalf of EFW in favor of Florida Power Light Company, Georgia Power Company, Orlando Utilities Commission, Rochester Gas and Electric Corporation, Tampa Electric Company, and Twentieth Century Fox Film Corporation, among others. 10. In consideration of the Surety's issuing Bonds on behalf of EFW and other good and valuable considerations, Indemnitors executed a General Indemnity Agreement ("Iudenmity Agreement") in favor of the Surety, an accurate copy of which is attached hereto as Exhibit A. 11. EFW has failed to pay the companies identified in paragraph 9 above for obligations covered by the Bonds issued by Surety. 12. Under the Indemnity Agreement, Indenmitors agreed, among other things, to indemnify the Surety from and against any and all liability, loss, costs, damages, attomeys' fees and expenses, of whatever kind or nature, which the Surety may sustain or incur by reason of having executed the Bonds, in making any investigation on account of any Bond, in defending or prosecuting any action Case Document1 Filed 10/08/03 Page 4 of 15 brought in connection with any Bond, and in enforcing the Indemnity Agreement, among other things. 13. The Surety has received numerous claims against the Bonds from the bond obligees. 14. The Surety has sul1`ered losses and has incurred costs, expenses, and attomey's fees in investigating the claims made against the Bonds, in administering such claims, in settling such claims, and in seeking indemnification from Indemnitors, including the initiation and prosecution of this action, in a net amount exceeding $135,000.00 These losses, costs, expenses, and attorney's fees continue to accrue and will be shown more fully on motion or at the trial or hearing of this matter. 15. Indemnitors are liable to the Surety for such costs, expenses, and attorney's fees, all for which the Surety demands judgment against Indemnitors. WHEREFORE, the Plaintiff, Fidelity and Deposit Company of Maryland, prays for a judgment in favor of Plaintiif and against the Indemnitors, jointly and severally, as follows: Case Document 1 Filed 10/08/03 Page 5 of 15 In an undetermined amount exceeding $135,000.00 for the costs, expenses, and attomey's fees that the Surety has sustained and continues to sustain as a result of its having issued Bonds on behalf of EFW, which amount will be shown more fully at trial or at hearing or by motion; and For all other relief that this Court deems just and appropriate. Respectfully submitted, this day of October, 2003. GREGO VEAL Georgia . 726615 W. RANDAL BRYANT Georgia Bar No, 092039 Attorneys for Plaintyj" BOVIS, KYLE BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 Case-1:03-cv-03073-ODE Document'I Fi|ed10/08/03 Page6of"I5 h?b?t A Fi|ed10/O8/O3 General Indemnity Agreement norm me ussnrox mnsmucncm mens ALL MEN BY THESE PRLGENTS: WHEREAS. upcn :he rrquesl mule by Film Works. Inc.. 5910 Rowell lhud, Atlanta, GA 30328, .lumen T. md L. Duffy, 990 Drive, Allaah, GA 2l0J2ll and -Falun J. und Duffy, 1690 S. Ferry Ruud. Atlanta, GA 30319 (heraluafler enlled wherlzer rllere be one or more). at il evidenced by the ligning hereof] and upon the express Ibis insnumenr bv executed. FIDELITYAND DEPOSHCOMPMY or a ofthe Slate of Maryland, with lla oflice in the City nl' Bellimore. my lhereol2 lhelr and (hurulnehsr culled has execuled, or the execuliua ull and muy, time tn time ll?filml' execute, or ppm,-rgrg the execurlon of honda, luldemlcinn uhilgntious or gumnlee ln the same or in different penalties ull the sam: ur different conditions uni./or pruvlrlans, and in favor ofrhe :une nr different obligees [each of such bends. and nbligeuvns bein: herelnelizr culled bond orbonds) onlxhalfufz the [|1demlItnr nm! any ln which (hu sell mms. nr in or ln perl, eunuelling lnzerell. whether erlillng or hereafter nn! any rnldent representative. WHEREAS, U54 have .1 subsurulnl. rmrerlel and bencliclal lumen in :he obrnudng of due band or band: or in the Cunrp:ny'| Earn cancelling said lrond or bands. AND NOW, THEREFORE, ln of lbe premlsee and the :um of one dollar, :he recelpr ur which ix hewby the and ual: of rhem. for cull at helre, exeerunrs. successors and mlgu|.joimly and severally, db hereby covenlnr und IZYEC with :be Company the FIRST: Ta pay on the Compu-ly, ln advance, the premium or premium! fur my meh bond ur bonds. ln ofmer attached la or In be nnaehed hereto, ns long as lilbilily lbemunder shall e?nrinue, :md unrll evldence, :Ire Cumpmy. eflbc termination ofxuch liability shall he it at iu bums nfliee: I SECOND: Tn iudemnily the Company and ugalnsr my and lon. carts. damages, uxomeye' leer und eepenm, kind oz menus or sumlned or by me reason, or ln eunseqnmee nflre execurlng any meh bond ar baud.: |s mrery or co-surety, or prucuriug the execmiun rlaemat ln rmking any investigation Un :mount ur my such band nr bonde. in defending ae pmeeuxfng any urria-n. sul! ur ache: which may be brought ln oormeeriun in my ofdre herein eenuined. and in obtaining a releue ll-nm und: my meh bend or buude; and to the CUUIDIITY lo the Ml of lilbilily, Lou, cash, dmum, nltomeyv' fees and us niufvald, ofany reirmrancu Ihr! may be curled nn my such band er bands; 'nllf tha C0 I shall ll/lil! rhe and is hereby authorized, but not required; (1) In llulill, uenle or cumprumise FW my dcnuzvis. will orjudnments upun any meh bond or bvudl. unless lhe lndenmleure shall requelr ll Ln eunh :lun-.ls nr demenrlr, or U1 delluul such ll-lil! er to Evm such judgments. md mall :he Company BBTUNDIDIY collurerel. md It fburendered, mreresl, emu, npexuee arneyg In ssacnr xv any change whsmaem Ln muy :wh bond or bonds md/or :my euulnet ur eumncm :eltn-ed rn la any such band ar bands mdlar in :ln general plans and/or epoeihemdune said enaeruez or eomreele md to bands mcllar in :he gmenl cundlduns. md/or epecillcarlons uid contract or and IB men! lo or like any Ur to exeeune or consent ra the summon of my cxleneluns ar renewalexecute arty or wbrzimles therefor, with the same or ohllgees und with the same or 'd 'lhnul uri ro er lmwlerlge nf me ll belng expressly mul larger Ur :Il uflbe nfarevsr wr Tl :greed me the lndumnimrr shall remain bound under the renm ufrhie lun:-umenl even my such men.: byrhe Cempuny does ne miglxl the lillbiliry nfnuid ru mach lrernru schedule of mes md copy or enples army such l` bond or lmuds, ua 611 up any lett herein. and lo comer any enum ln up my blanks herein. or in rehedu mm, mashed, ixbeing berelry :greed dm such schedule end such copy nrmpics, when ro and chu: such nr eormetlcme, when nu rude. shall beprlmajzcre umecl; FOURTH: hemunder :hall extend m. and in:lude_ the full emwnt nf :my und all money: paid by the Company in rmflement ur ol' any suits md judgrnenrs rn gund under the bellef dur xr was Ilxlale r/W 'Ill 6, W3 \0\7 case Fited 2>f`i5w' therefor, whether liable or wt, ea well an ofeny md all disbtuaamenu on account nfeoslr. at1orney|' fees und expenses as aforesaid. which may he made under the such were necessary, whether or nat; 1'lF'l`Ht Tw. In the evmt ofpaymanr, settlement or compromise of liability, loss, costa, dernnges. anomeyf Im. expenxea, elaima. demands. outta nrjwigmenu ax aforesaid, in connection with any such bond or honda, an itemized ttatan-:nt tlwreolj :worn to by any omecr or omcm ofthe or tho voucher or vouchers. or other evidence of such paymenr, sertle or eonpzomiae, :bull beprlmajhcre of the (set and extent linbllity ofthe lndemdlton in any and :ll elalrns ar min hereunder; That nothing herein contained :hall be considered or consented ro waive, at-:ridge or diminish any right or remedy which due Company rnighthove instrument were not executed; SEVENTH: To waive, and dn hereby waive, ell right to claim any ofdteir property, including hnmcateads, aa exempt [rum levy, exeaurion, or role or other legal process, under the laws nf any note nr stares; 'Dt in the Indemoltar: than fail to execute Bda instrument or in one any ofthe lndemnitxm, who EIGHTH: at, use any execute dai: shall not be bound for any mann, the other Index-nmton altall nevertheless be bound hereunder for the Gall a-mount lou, duugaa, anomeye' fear and expert-.ee ae aforesaid; NINTH: To waive. and dn hereby waive, notice ofany breach ot breathes ofuty meh hand or bonds, Of ofeny ld Of delkult that rrtay give rise to elelm hezeuadm TENTH: insmunent ehaiitaa so ns to fully prof/:et the Company; ELEVENTH: Ttaet suim my be brought hereunder es :autos ofnction may accrue, and the bringing ornna or more suits, or the recovery therein shall not prqudice or bar the bringing of .ruin upon other nausea ot' notion. whether thetrmforo or thereafter arising; Thai the Company does nat guarantee the prompt issuance ufany such or bands. DY neecptl-me thereof by the oblige: or obligees therein nemed, and that the Cmpany shall have the absolute right to decline tu execute ntty auch bond nr bonds; 'l'Hl'R'.l'Fl9fTH- That in the event the Company ptueuru the execution ofmy eueh bond or bonds by some other surety or urettoa execute: auela bond or with other aurery or mutter ee or relneoree any ponirm nfauelt bond or bends a or w'h'h ntlrer mzety or aureriu aa reinmrm, then all the terms and conditions of this inauurnent ahotl inure to the benefit ot' any auch nutty or aurotiel, including the right tn eclion hctnuttderi Thu the lndemnirar: shall continue In remain bound undo: the temu ol' tlxia irutnenaut an ofuny such bond ur bonds even though the Company may from time to time hereafter, with or without oodce to or itnnvAedge of the Lodemzdtora, accept other or additional agreement# nr iadetrmiry un similar or other fomts to indemnify lr in connection with the or afaay meh band nr honda. it being herebyexpreaaly tmdenttood and agreed by the Inclemnitnu that any ond all other righu wlaldt the may have or acquire against' the othert under any such other far additional agreements ofinden-mity ahnil be tn addition ta, and not in lieu oil the rights al'l`oxded by the Company under titta instrument. FIFIBENTH: Whereas, surety has hezetofem executed bonds on the express condition. promise and understanding, that the ioderrmiror vill pmvide and in further eunaiderndon ofthe sutcry's agreement to execute other bend: (subject in Pantgtoplt Twelfth uftbis this i-ndervmiry shall apply in any nrbondn executed on or after May 21, in aecardaocz with Section Hn-ide Sramt-at 'My Fmun -ho and with lnseurtp injure. d-shud. or dum: any mmef ma at tmtemrm atelaim or an :onnln-he any Disc. lnsanulete. or misleading larorrnatlat la witty are felony tn me mira damn." Signed, sealed and dated this g/7" dey of ,?gr1df__, Filed 10/os/03 Ar! Ente ICS, Inc a Pl J. . Setfflury 1 71 Dub. Egdiat w' 1 T, nu 1 L. Duffy, 'vid Jo uf.ia1 Ws' 5 Wi . .11 man, 1-u hEu=Du y,1m1iva_ B1 EACH INDEMNTTOB MUST AC KNOWLEDGE THIS INSTRUMENT .. Document1 Filed1O/08/O3 Page1Oof15 A Far A:tnowled|men! by Individual STATE DF 55: couwrv as On thi: any af 0 gov( before me. lb= lubember. pezsnully appeared to me bwwn. and Icnuvm In be dz: pmuu dascribcd in. :md wha exmxred, che fofegolng and sum: to and deed. my hand and ofiiridl seal. hblary Public My Commlanun Expifen 1 /17 9 1-'ur Individual Indemnlrars STATE OF ev 7 A SS: Ondais 7" dayaf (96516 5/f 40? befure me, the nppeucd _[gg ru rr: described ln, and wha executed, famgolng and acknawledged um: to hc_g__ an md dccd. Wim: my :md ma ml. MyCanm:Jse|an Expu-cl For by lrulemnuan STATE OF 6: ss= CXJUNTYUP 'vui 5-451 ?f mm ma. nw wmnw. personally nppemd xo me known, andlmawnby UI he d:scn"bed in. md who exacubed, lhe farcgning and um: ra be hi; :cz md Ami Wimus my hand and ultlnial seal. . Nolnry Publi: My Expirci gli ?1"'Zf Case Document 1 Filed 10/08/03 Page 12 of 15 -140 (Rcv. IOI93) Summon: in a Civil Action UNITED STATES DISTRICT COURT NORTHERN Disuimof GEORGIA Fidelity and Deposit Co. of Maryland SUMMONS IN A CIVIL CASE V. ENTERTAINMENT FILH WORKS, JAHES NORHA L. and JOHN J. CASEHUMBER: T01 (Name and address of Defendant) ENTERTAINMENT FILM WORK, INC. c/o James T. Duffy 990 Edgewater Dr. N.W. Atlanta, GA 30328 YOU ARE HEREBY SUMMONED and required to serve upon ATTORNEY (name and aodress) Gregory R. Veal, Esq. W. Randal Bryant, Esq. Bovis, Kyle Burch, LLC 53 Perimeter Center East Third Floor Atlanta, GA 30346-2298 (770) an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive ofthe dayofservice. Ifyou fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You must also tile your answer with the Clerk of this Court within a reasonable period of time after service. LUTHER D. THOMAS OCT 0 3 3093 CLERK DATE (By) DEPUTY CLERK Case Document 1 Filed 10/08/03 Page 13 of 15 QAO 440 (Rev. 50193) Summons in a Civil UNITED STATES DISTRICT COURT NORTHERN Fidelity and Deposit Co. of Maryland SUMM0 NS IN A CIVIL CASE V. FILH WORKS, nic.; JAMES NORHA L. CASE TOS (Name and ol`Del'endam) JAMES T. DUFFY 990 Edgewater Dr. N.W. Atlanta, GA 30328 YOU ARE HEREBY SUMMONED and required to serve upon PLAINTIFPS ATTORNEY (name and address) Gregory R, Veal, Esq. W. Randal Bryant, Esq. Bovis, Kyle Burch, LLC 53 Perimeter Center East Third Floor Atlanta, GA 30346-2298 (770) 391-9100 an answer to the complaint which is herewith served upon YOU, within 20 days after service of this summons upon you, exclusive ofthe dayofservice. Ifyou fail to do so,judgment bydefaull will be taken against you for the relief demanded in the complaint. You must also file your answer with the Clerk ofthis Court within a reasonable period of time alien' service. LUTHER D. THOMAS DCT 0 2903 CLERK DATE (By) DEPUTY CLERK Case Document 1 Filed 10/08/03 Page 14 of 15 I ?nA0 440 (Rev. Summons ln a Action UNITED STATES DISTRICT COURT NORTHERN District of GEORGIA Fidelity and Deposit Co. of Maryland SUMMONS IN A CIVIL CASE V. EHTERTAIIMENT FILM WORKS, JAMES T. NORHA L. CASE T02 (Name and address of Dcfetdant) NORMA L. DUFFY 990 Edgewater Dr. N.W. Atlanta, GA 30328 YOU ARE HEREBY SUMMONED and required to serve upon ATTORNEY (name and adams) Gregory R. Veal, Esq. W. Randal Btyant, Esq. Bovis, Kyle Burch, LLC 53 Perimeter Center East Third Floor Atlanta, GA 30346-2298 (770) 391-9100 an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive ofthe dayofservice. lfyou fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You must also file your answer with the Clerk of this Court within rt reasonable period oftime atter service. LUTHER UTHOMAS DCT 0 8 2003 CLERK one (By) DEPUTY CLERK Case Document 1 Filed 10/08/03 Page 15 of 15 0440 (R 10/93) Summons In CIVIIA non to ORIGINAL UNITED STATES DISTRICT COURT NORTHERN Dish-jctof GEORGIA Fidelity and Deposit Co. of Maryland SUMMONS IN A CIVIL CASE V. ERTERTAIMIENT FILM WORKS, .mms I.. CASE NUMBER: TOC (Name and of Defmdant) JOHN J. DUFFY 1690 S. Johnson Ferry Road Atlanta, GA 30319 YOU ARE HEREBY SUMMONED and required to serve upon ATTORNEY (name and address) Gregory R. Veal, Esq. W. Randal Bryant, Esq. Bovls, Kyle Burch, LLC 53 Perimeter Center East Third Floor Atlanta, GA 30346-2298 (770) 391-9100 an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive ofthe day ofservice. lfyou fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You must also tile your answer with the Clerk of this Court within a reasonable period oftime after service. LUTHER D. THOMAS Ocr 0 0 zona . CLERK DATE (By) DEPUIY CLERK Case 1:03-cv-03073-ODE Document 2 Filed 11/24/03 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, vs. ORIC'~`l AL "' C! ERK'S OFF!CE NOV 24 700 ~ I CNIL ACTION erk ~r~CCf~~G ~; (?f?puty Clerk z. ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, NORMA L. DUFFY, and JOHN J . DUFFY, Defendants . FILE NO. 1 :03-CV-3073 ANSWER OF JOHN J. DUFFY AND REQUEST FOR JURY TRIAL First Defense The Complaint is subject to the defense of statute of frauds . Second Defense The alleged signature of John J . Duffy on the document attached as Exhibit "A" to Plaintiff's Complaint is a forgery to the best of Defendant, John J. Duffy's, knowledge and belief. Third Defense The document attached as Exhibit "A" to Plaintiffs Complaint has been materially altered in favor of the Plaintiff to the best of Defendant, John J . Duffy's, knowledge, information and belief. Fourth Defense COMES NOW Defendant, John J. Duffy and responds to the individually numbered allegations of Plaintiffs Complaint as follows : V Case 1:03-cv-03073-ODE Document 2 Filed 11/24/03 Page 2 of 4 1. Defendant, John J. Duffy, admits the allegations of paragraph 1 of Plaintiff's Complaint. 2. Defendant, John J. Duffy, admits the allegations of paragraph 2 of Plaintiff's Complaint. 3. Defendant, John J. Duffy, admits the allegations of paragraph 3 of Plaintiff's Complaint. 4. Defendant, John J. Duffy, admits the allegations of paragraph 4 of Plaintiff's Complaint. 5. Defendant, John J . Duffy, is without sufficient knowledge to either admit or deny the allegations of paragraph 5 of Plaintiffs Complaint. 6. Defendant, John J . Duffy, denies the allegations of paragraph 6 of Plaintiff's Complaint as written . 7. Defendant, John J. Duffy, is without sufficient knowledge to either admit or deny the allegations of paragraph 7 of Plaintiff's Complaint. 8. Defendant, John J. Duffy, denies the allegations of paragraph 8 of Plaintiff's Case 1:03-cv-03073-ODE Document 2 Filed 11/24/03 Page 3 of 4 Complaint as to jurisdiction as written. Defendant admits that venue is proper . 9. Defendant, John J. Duffy, admits the allegations of paragraph 9 of Plaintiff's Complaint on information and belief. 10 . Defendant, John J . Duffy, denies the allegations of paragraph 10 of Plaintiff's Complaint as written. 11 . Defendant, John J . Duffy, denies the allegations of paragraph 11 of Plaintiff's Complaint as written. 12. Defendant, John J . Duffy, denies the allegations of paragraph 12 of Plaintiffs Complaint as written. 13. Defendant, John J. Duffy, is without sufficient knowledge to either admit or deny the allegations of paragraph 13 of Plaintiff's Complaint. 14 . Defendant, John J . Duffy, denies the allegations of paragraph 14 of Plaintiffs Complaint as written. 15 . Defendant, John J . Duffy, denies the allegations of paragraph 15 of Plaintiff's Complaint as written. Case 1:03-cv-03073-ODE Document 2 Filed 11/24/03 Page 4 of 4 JURY DEMAND COMES NOW Defendant, John J. Duffy, and hereby demands a jury trial with respect to this case. WHEREFORE, Defendant, John J. Duffy, denies any liability to Plaintiff and requests that all costs be cast upon the Plaintiff and this action with respect to John J. Duffy be dismissed. ,' l RNARD, III :ndant, John J. Duffy 054850 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 Attorney for Georgia Bar Case 1:03-cv-03073-ODE Document 3 ORIGINAL Filed 11/24/03 Page 1 of 5 r~rr,K'S OFFI :E . . . P.!!9n`.a IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff; VS. ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, NORMA L. DUFFY, and JOHN J. DUFFY, Defendants . CIVIL ACTION FILE N0.1 :03-CV-3073 P ;^V 2'~ ~? 6 r k. yv lerk DEFENDANT, JOHN J . DUFFY'S, RESPONSES TO INITIAL DISCLOSURES COMES NOW, Defendant, John J. Duffy, and hereby serves his responses to Initial Disclosures: 1. If the Defendant is improperly identified, state Defendant's correct identification and state whether Defendant will accept service of an amended summons and complaint reflecting the information furnished in this disclosure response. Resuonse : The Defendant, John J. Duffy, is not improperly identified . 2. Provide the names of any parties whom Defendant contends are necessary parties to this action, but who have not been named by Plaintiff. If Defendant contends that there is a question of misjoinder of parties, provide the reasons for Defendant's contention . Case 1:03-cv-03073-ODE Document 3 Filed 11/24/03 Page 2 of 5 Response : Defendant states that there is not specifically a question of misjoinder, but rather that the Defendant did not execute the indemnity agreement attached to Plaintiff's Complaint as Exhibit "A". 3. Provide a detailed factual basis for the defense or defenses and any counterclaims or crossclaims asserted by Defendant in the responsive pleading. Response : Defendant, John J. Duffy, contends that first and foremost he did not sign the document which is attached hereto as Exhibit "A". Secondly, on information and belief Defendant, John J . Duffy, believes that the document in question has been materially altered as to the date that it was to apply to. Thirdly, based on the second defense, Defendant, John J. Duffy, states that the amounts claimed in the Complaint would not be applicable to any indemnitor, since the contract document has been altered in a fashion more favorable to the Plaintiff. 4. Describe in detail all statutes, codes, regulations, legal principles, standards and customs or usages, and illustrative case law which Defendant contends are applicable to this action . Resaonse : The statute of frauds, O.C .G .A. ?13-5-30 would require that this Defendant have signed in writing, the promise to answer for the debt default or miscarriage of another. There may be additional matters which would apply and Defendant will supplement as this matter proceeds through discovery. Case 1:03-cv-03073-ODE Document 3 Filed 11/24/03 Page 3 of 5 5. Provide the name and, if known, the address and telephone number of each individual likely to have discoverable information that you may use to support your claims or defenses, unless solely for impeachment, identifying the subjects of the information. Attach witness list to Responses to Initial Discovery as Attachment "A". Response : The other Defendants to this action, Entertainment Film Works, Inc ., James T. Duffy and Norma L. Duffy, the addresses of which are known to the Plaintiff. Also, Dale O'Bracay, whose current address is unknown to this Defendant, a list is attached hereto as Exhibit "A". 6. Provide the name of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence . For all experts described in Fed.R.Civ.P. 26(a)(2)(B), provide a separate written report satisfying the provisions of that rule . (Attach expert witness list and written reports to Responses to Initial Disclosures as Attachment `B" .) Response : At this time Defendant, John J. Duffy, has no expert witness who may be used at the trial to present evidence . He expects that an expert witness may be used at trial with respect to handwriting and signatures and this will be supplemented . 7. Provide a copy of, or description by category and location of, all documents, data compilations, and tangible things in your possession, custody, or control that you may use to support your claims or defenses unless solely for impeachment, identifying the Case 1:03-cv-03073-ODE Document 3 Filed 11/24/03 Page 4 of 5 subjects of the information. (Attach document list and descriptions to Responses to Initial Disclosures as Attachment "C".) Response : Defendant, John J. Duffy, has no documents and files currently in his possession, custody or control. Defendant John J. Duffy, is no longer affiliated with Defendant, Entertainment Film Works, Inc., and to the best of his knowledge and belief all the materials that would be generally used would be in possession of either the Plaintiff or the corporate Defendant. 8. In the space provided below, provide a computation of any category of damages claimed by you. In addition, include a copy of, or describe by category and location of, the documents or other evidentiary materials, not privileged or protected from disclosure on which such computation is based, including materials bearing on the nature and extent of injuries suffered, making such documents or evidentiary material available for inspection and copying under Fed.R .Civ .P. 34. (Attach any copies and descriptions to Responses to Initial Disclosures as Attachment "D" .) Response : None at this time . 9. If Defendant contends that some other person or legal entity is, in who or in part, liable to the Plaintiff or Defendant in this matter, state the full name, address, and telephone number of such person or entity and describe in detail the basis of such liability . Case 1:03-cv-03073-ODE Document 3 Filed 11/24/03 Page 5 of 5 Response : At this time Defendant, John J. Duffy, can make no such contentions. After further discovery into this matter, Defendant may become aware of information that would be responsive to this disclosure . 10. Attach for inspection and copying as under Fed.R.Civ .P. 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in this action or to indemnify or reimburse for payments to satisfy the judgment . (Attach copy of insurance agreement to Responses to Initial Disclosures as Attachment "E".) Response : There are no such documents known to this Defendant. Respec),f'ull su ..fitted, 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 MAURICE J K1~jlARD, III Attorney for Defer~flant, John J . Duffy BE Georgia Bar No. J~54850 uKIVIi~IAL Case 1:03-cv-03073-ODE Document 4 Filed 12/02/03 Page 1 of 2 FILED 1Pd C.LE~;!('S,G~ tAA0440(Rev .1019115ummnr' :aCivil qri~; ~ :u.5.?.~~1`.' DEC h -. I I RETURN OF SERVICE ~ Scn ice of th e Summons and co lam was made 6 me"' 1 1 1 ~Ne,ME CF ~.. GF iFlirTrTj ~]~v,~.~-~n,in ~1r .cYl? .f Served pers DAB T~~ 1~b~F.SCvxv~~ (' 1 1 . 3.-otov3 wT (~ Y"RiESF_ ~t .. ; ,. .., . ) ~JJ :Iti~~l ~~C~E~ .Deouiy ~P- Y" fwl (l upon ehe Third-nartydefsnAant . ?I~s where send : 303 1 S ~G U ~. S o y~v~SG~n u Left copies thereof at the defendant's dwelling house or usual place of abode with s person of suitable age and discretion den residing therein . Name of person with whom the summo ns and complaint were left : G Returned unexecumd : -~ / L, O Other (specify) . STATEMENT OF SERVICE FEES es !~D . Old DECLA RATION OF SERVER So. co t declare under penaltyof perjury undue the laws of the United States of America tha the foregoing information contained. in the Return of Service and Statement of Service Fees is true and c ect. Executed on 13 Da (3 `^~> Sig. ' . 0- Box S(X~?~ .~~ 3~1~"0 Af'rtrj-V\A-e .~ [ ~wv ~-~ JSenu ~~~- Los-a3`~U e~+. U (1) As m who may serve a summons uc Rule 4 of (he Federal Rules of Civil Procedure. DUPLIU"tii E Case 1:03-cv-03073-ODE Document 4 Filed 12/02/03 Page 2 of 2 ono4ao (Rev . _103) sturan<<,s ;n .ci vil Action ._ . ~ . UNITED STATES DISTRICT COURT NORTHERN Districtof GEORGIA Fidelity and Deposit Co. of Maryland V. ENTERTA7MMNT FILM WORKS, INC. ; JAM T. DIIFFY ; NORMA L. DUFFR ; and JOHN J . DIIFPY ; SUMMONS IN A CIVIL CASE CASE NUMBER : 1 : 03-C v-3073 TO : Name end address of Defendant) 1690 S. Johnson Ferry Road Atlanta, GA 30319 JOHN J. DUFFY YOU ARE HEREBY SUMMONED and required to serve upon PLAINTIF'F'S ATTORNEY (oam ,oa eaaRS,) Gregory R. Veal, Esq. W. Randal Bryant, Esq. Bovis, Kyle 8 Burch, lLC 53 Perimeter Center East Third Floor Atlanta, GA 30346-2298 (770) 391-9100 an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service . If you fail to do so, judgment by default will betaken against you for the relief demanded in the complaint . You must also file your answer with the Clerk of this Court within a reasonable period of time after service . Lt1TfiE'x D .TI?UU:1S CLERK OCT u o zooa DATE (By) DEPUTY CLERK CG~~ ' Case 1:03-cv-03073-ODE Document 5 'k,AO4C0IRe~.101971 Summon'. : .-.~CiviIArlion Filed 12/08/03 Page 1 of 3 RETURN OF SERVICE Service u( the Sunvnons end co mplaint was made b me"' DATE ORIGINAL rPI< J Orup , N W FILED IN CLERK'S OFFICE of ^ E n "' sR "FM' v17 i Ai t-1 ' RoJ oN OM~Lc 2 G~k 3o 3a$ P(o ~~)ao (a o~~3 I 'V L (~LRt,.~0 .~'~ Served personally upon the third-oartydekodanr. P[?~! whe"_ s.^.cd: A~i~Y.~a, 0 Left copies thereof at the defendant's dwelling house or usual place of abode wide a person of suitable age and discretion den residing therein . Z Name of person with whom the summons and complaint were lefty / J u Returned unexecutcd : / `l Other (spcci(y): ?RAVEL STATEMENT OF SERVICE FEES 5-0 - 00 DECLARATION OF SERVER S-b- CID 1 declare under penalty of ner;urv undo !he laws Of t-, United Stars Of America that the foregoing information conromcd in the Return of ScMcc and Statement u ervice Fees is cruc and c Cot, Executed on ~ ~)1O 0 to C, 0 Sio ?~n fc.rver ~ ~ 1", U, ~~IU~4~G A, 0"?,4 .d n l~~X SVU~1~ X10-X65-G~q 1) ( 1 ) As m who may serve a so mmons see Rule 4 of t he Federal hulas oCG vJ Procedure . Case 1:03-cv-03073-ODE Document 5 SAO 440 (Rev. 1003) Summon: I : a Ci vi I Artian FILED IN C . . . . -u Filed 12/08/03 Page 2 of 3 s.D :Z , ;I RETURN OF SERVICE Service u( the Sumrtion : and complaint was made by me"' . . .0 . S ERVEn (FniIrTJ I7'fRE ORIGINAL D Served Personally upon the third -party defendant Placewhcr,eserrd : u Left copies thereof at the dcfendam's dwelling house or usual place of abode wide a person of suitable age and discretion den residing therein . Name of person with whom the summons and complaint were left : u Returned unexecuted : ri STATEMENT OF SERVICE FEES DECLARATION OF SE RVER 5o.W ;ury uncle the laws of the United Sate of America that the foregoing information 1 declare under penalty u(ner contained in she Return of Service and Seatcmem of S ice Fees is [rue an7C 11 a ct Executed on Dale (1:3tz . Se, Si6naR Q. v. ~,_ Addrcs,s of Server KjK", 70 - ~a5 - C~S`+ 0 I,sv ~ ( [ ) As lc who may serve a summons see Rile 4 of she Fcdeal Rules a( Ci nl Procedure. i Case 1:03-cv-03073-ODE Document 5 .A04iD (It". 101911 Summnr :c a C-61 Ariion ~ Filed 12/08/03 Page 3 of 3 O rllLU m v~ " .. . U.S .D .C. Auenta RETURN OF SERVICE DATE Semcc of the Summons and complaint was made 6y me"' OF ScnVERjPRiir'n ~toNA-~NI~cJ ~A~Lcc~ ~ 77(1.E ~~o4~s1oral P(-otess ~..~r D Served personally upon the third-partydctendanr . pi= ._ where sen-ed: Left copies thereof at thede(endant's dwelling house or usual place of abode wide e person of suitable age and discretion lien residing therein. X Name of person with whom the summons and complaint were IeR : u Returned unexecuted : V GY<,CS T .. 0 Other (specify): STATEMENT OE SERVICE FEES DECLARATION OF SERVER S-0 . CD I declare under penalty of perjury unde the laws of the ;:nit ;d States of Aincrica that the foregoing information contained in the Re[urn of Service and Seatemcnt of ervice Fees is we an corn Execuied on I a Da ou3 a. Sign ~:~o ~ ~3-X s~o7~y ~.rv~ v -vw~v~ - AC :-cu c; server ~'t't'l 0 rZC. . . G ~"1 J 1 }s o - ~15S-0~q 0 120 . 0 . l ) As :o who may serve a su minions see Rule d of the Federal Rules of Ci vil Procedure J Case 1:03-cv-03073-ODE Document 6 Filed 12/10/03 Page 1 of 5 FJ LC;V i7~~ OFFlC~' ORIGINAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DEC 1 0 2003 LUT tc FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, vs. ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, NORMA L. DUFFY, and JOHN 7. DL7FFY, Defendants . U ~~~  5, Clark 9" ftk CIVIL ACTION FILE NO. 1 :03-CV-3073 P ANSWER OF .JAMES T. DUFFY, NORMA L. llUFFY AND ENTERTAINMENT FILM WORKS, INC. AND REQUEST FUR JURY TRIAL First Defense The Complaint is subject to the defense of statute of frauds and fraud in the inducement . Second Defense The actual amount owing pursuant to any indemnification falls below the jurisdictional limits of this action and the same should he dismissed for lack of subject matter jurisdiction to the best of Defendants' knowledge and belief. Third Defense The document attached as Exhibit "A" to Plaintiffs Complaint has been materially altered in favor of the Plaintiff to the best of Defendants' knowledge, information and belief. Fourth Defense COMES NOW Defendants, James T. DufYy, Nurma L. Duffy and Entertainment Case 1:03-cv-03073-ODE Document 6 Filed 12/10/03 Page 2 of 5 Film Works, Inc . and responds to the individually numbered allegations of Plaintiffs Complaint as follows : 1. Defendants admit the allegations of paragraph 1 of Plaintiffs Complaint. 2. Defendants admit the allegations of paragraph 2 of Plaintiffs Complaint. 3. Defendants admit the allegations of paragraph 3 of Plaintiffs Complaint. 4. Defendants admit the allegations of paragraph 4 of Plaintiff's Complaint . 5. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 5 of Plaintiffs Complaint . 6. Defendants deny the allegations of paragraph 6 of Plaintiff's Complaint as written. 7. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 7 of Plaintiff's Complaint . 8. Defendants deny the allegations of paragraph 3 of Plaintiffs Complaint as to jurisdiction as written. Defendant admits that venue is proper . 9. Defendants admit the allegations of paragraph 9 of Plaintiffs Complaint on Case 1:03-cv-03073-ODE Document 6 Filed 12/10/03 Page 3 of 5 information and belief. 10. Defendants deny the allegations of paro-raph In of Plaintiffs Complaint as written . 11 . Defendants deny the allegations of paragraph 11 of Plaintiffs Complaint as written. 12 . Defendants deny the allegations of paragraph 12 of Plaintiffs Complaint as written. 13 . Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 13 of PlainufPs Complaint . 14 . Defendants deny the allegations of paragraph 14 of Plaintiffs Complaint as written. 15 . Defendants deny the allegations of paragraph 15 of Plaintiffs Complaint as written. JURY DEMAND COMES NOW Defendants and hereby demand a jury trial with respect to this case . Case 1:03-cv-03073-ODE Document 6 Filed 12/10/03 Page 4 of 5 WHEREFORE, Defendants deny liability to Plaintiff in the amounts stated and request that all costs be cast upon the Plaintiff and this action be dismissed for want of subject matter jurisdiction . 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 /MAU CE J BE~ Attorney for De f~~dai Georgia Bar No. 054E III (678) 530-0900 Case 1:03-cv-03073-ODE Document 6 Filed 12/10/03 Page 5 of 5 CERTIFICATE OF SERVICE This is to certify that I have served a copy of the within and foregoing ANSWER OF JOHN J. DUFFY upon the following counsel and depositing a true copy of same in the United States Mail, with adequate postage affixed thereon, addressed as follows: Gregory R. Veal, Esq. W. Randal Bryant, Esq. Bovis, Kyle & Burch, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 This 10 day of December, 2003 . MAURICE J RI~(ARD, III Attorney for Defeyldarit, John J. Duffy BE Georgia Bar No.,654850 3717 Chamblec Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 Case 1:03-cv-03073-ODE Document 7 Filed 12/17/03 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FILED IN FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. DEC I 0"*oI+;k ENTERTAINMENT FILM WORKS, INC .; JAMES T. DLTFFY ; NORMA L. DUFFY; and JOHN J. DUFFY ; Defendants . CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE CONSENT ORDER IT APPEARING to the Court that the Fed. R. Civ. Proc. 26(f) conference in this action is due to be completed by December 10, 2003 ; that the parties' initial disclosures under Fed . R. Civ . Proc . 26(a)(1) are due to be served by December 24, 2003 ; that the Joint Certificate of Interested Persons and Joint Preliminary Report are due to be filed on December 24, 2003 and Discovery Plan are due to be filed by December 24, 2003 ; that only one of the Defendants, John J . Duffy, has served an Answer to the Complaint of this action as of December 4, 2003 ; that the Plaintiff has consented to extend to December 12, 2003 the time to answer, move, or otherwise respond to the Complaint on the pan of Defendants Entertainment Film Works, Inc ., James T. Duffy, and Norma L. Duffy; and that the parties have consented to an Order extending the time to conduct the Rule 26(f) conference - I- ",A Case 1:03-cv-03073-ODE Document 7 Filed 12/17/03 Page 2 of 3 until January 9, 2004, the time to serve initial disclosures until January 16, 2004, and the time in which to file the Joint Certificate of Interested Persons and Joint Preliminary Report and Discovery Plan until January 16, 2004; IT IS HEREBY ORDERED that the time to answer, move, or otherwise respond to the Complaint on the part of Defendants Entertainment Film Works, Inc ., James T. Duffy, and Norma L . Duffy is hereby extended through December 12, 2003 ; the time for the parties to conduct the Rule 26(fl conference is hereby extended through January 9, 2004; the time for the parties to serve initial disclosures is extended through and including January 16, 2004 ; and the time for the parties to file the Joint Certificate of Interested Persons and Joint Prelinunary Report and Discovery Plan is hereby extended through January 16, 2004 . This N, day of December, 2003 . Orinda D. Evans, Chief Judge U.S. District Court Submitted and consented to by: Consented to by: (Gregory . Ve 1 Lej 24i,~ Georgia B .726615 W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff Maurice J Bernard, III Georgia Bar No . 054850 Attorney for Defendants ~'l~in 2- Case 1:03-cv-03073-ODE Document 7 Filed 12/17/03 Page 3 of 3 BOVIS, KYLE & BURGH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346 (770) 391-9100 (770) 688-0878 Facsimile 2717 Chamblee Dunwoody Rd . Atlanta, Georgia 30341 (678) 530-0900 (678) 530-0099 Facsimile 92276 -3- Case 1:03-cv-03073-ODE Document 8 Filed 01/16/04 Page 1 of 10 Fli-t`'`, . . .ICE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, .~1 Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY; and JOHN J. DUFFY ; CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE Defendants . JOINT PRELIMINARY REPORT AND DISCOVERY PLAN 1. Description of Case : (a) Describe briefly the nature of this action: This is an action seeking indemnification from the Defendants based upon an indemnification agreement executed in connection with the issuance of bonds on behalf ofEntertainment Film Works, Inc. ("EFW') . (b) Summarize, in the space provided below, the facts of this case. The summary should not be argumentative nor recite evidence . Fidelity and Deposit Company of Maryland (`surety ~ issued surety bonds on behalf of EFW in favor of several obligees, including City of Orlando and/or Orlando Utilities Commission, Florida Power & Light Company, Georgia Power Case 1:03-cv-03073-ODE Document 8 Filed 01/16/04 Page 2 of 10 Company, Rochester Gas and Electric Corporation, Tampa Electric Company, and Twentieth Century Fox Film Corporation. In consideration of the Surety's issuance of bonds on behalf of EFW, Defendants entered into a General Indemnity Agreement in which they agreed to indemnify the Surety from all liability, loss, costs, damages, attorneys' fees, and expenses sustained or incurred as a result of having issued bonds on behalf of EFW. (The Defendant John J. Duffy claims that he did not sign the Genera! Indemnity Agreement that is attached as Exhibit A to Surety's Complaint, and the Defendants claim that that agreement was materially altered) . The Surety has received numerous claims against these bonds and has incurred losses, costs, and expenses, including attorney's fees, for which it seeks indemnification by the Defendants. Surety. (c) The Defendants have not indemnified the The legal issues to be tried are as follows : Whether the Defendants breached the General Indemnity Agreement by not indemnt&ing the Surety, whether John J. Duffy is a signatory to the agreement, and whether the agreement was materially altered. (d) The cases listed below (include both style and action number) are: (1) None. Pending Related Cases : 2 Case 1:03-cv-03073-ODE Document 8 Filed 01/16/04 Page 3 of 10 (2) None. 2. Previously Adjudicated Related Cases: This case is complex because it possesses one (1) or more of the features listed below (please check): (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) Unusually large number of parties Unusually large number of claims or defenses Factual issues are exceptionally complex Greater than normal volume of evidence Extended discovery period is needed Problems locating or preserving evidence Pending parallel investigations or action by government Multiple use of experts Need for discovery outside United States boundaries Existence of highly technical issues and proof 3. Counsel : The following individually-named attorneys are hereby designated as lead counsel for the parties: Plaintiff W Randal Bryant, Esq. . Bovis, Kyle & Burch, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346 Maurice J Bernard, III, Esq. 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 Defendant: 3 Case 1:03-cv-03073-ODE Document 8 Filed 01/16/04 Page 4 of 10 4. Jurisdiction : Is there any question regarding this court's jurisdiction? Yes X No if "yes", please attach a statement, not to exceed one (1) page, explaining the jurisdictional objection. When there are multiple claims, identify and discuss separately the claim(s) on which the objection is based. Each objection should be supported by authority. 5. Parties to This Action : The following persons are necessary parties who have not been (a) joined: All necessary parties have been joined. (b) None. The names of the following parties are either inaccurately stated or (c) necessary portions of their names are omitted: None. (d) The parties shall have a continuing duty to inform the court of any contentions regarding unnamed parties necessary to this action or any contentions regarding misjoinder of parties or errors in the statement of a party's name. 6. Amendments to the Pleadings : The following persons are improperly joined as parties : Amended and supplemental pleadings must be filed in accordance with the 4 Case 1:03-cv-03073-ODE Document 8 Filed 01/16/04 Page 5 of 10 time limitations and other provisions of Fed.R.Civ.P. 15 . regarding amendments are contained in LR 15 . Further instructions (a) List separately any amendments to the pleadings which the parties anticipate will be necessary: The Plaintiff may need to seek leave to amend its Complaint to add the notary and a witness to the General Indemnity Agreement as parties to this action. The Plaintiff will need to conduct discovery before it can determine whether or not it will move for leave to amend the Complaint to add such parties. (b) Amendments to the pleadings submitted LATER THAN THIRTY (30) DAYS after the preliminary planning report is filed, or should have been filed, will fiet be accepted for filing, w Mess other-wise p ^i*"?aby '^w if and when the Court grants a motion for leave to amend a pleading. Due to possible claims arising out of the execution of the General Indemnity Agreement involved in this action  the Court should permit the parties to move for leave to amend the pleadings to add claims/parties until March 10, 2004. 7. Filing Times for Motions : All motions should be filed as soon as possible. The local rules set specific filing limits for some motions. These times are restated below. ?he Court will allow the Plaintiff to file motions for leave to amend its complaint until March 10, 2004. All other motions must be filed WITHIN THIRTY (30) DAYS after the beginning of discovery, unless the filing party has obtained prior permission of the court to file later. Local Rule 7.1A(2) . (a) Motions to Compel: before the close of discovery or within the extension period allowed in some instances . Local Rule 37 .1 . (b) Summary Judgment Motions: within twenty (20) days after the close of discovery, unless otherwise permitted by court order. Local Rule 56 .1 . 5 Case 1:03-cv-03073-ODE Document 8 Filed 01/16/04 Page 6 of 10 (c) Other Limited Motions: Refer to Local Rules 7 .2 ; 7 .213, and 7 .2E, respectively, regarding filing limitations for motions pending on removal, emergency motions, and motions for reconsideration. (d) Motions Objecting to Expert Testimony : Daubert motions with regard to expert testimony no later than the date that the proposed pretrial order is submitted. Refer to Local Rule 7 .2F . 8. Initial Disclosures : The parties are required to serve initial disclosures in accordance with Fed.R.Civ.P.26 . If any party objects that initial disclosures are not appropriate, state the party and basis for the party's objection . No party objects that initial disclosures are inappropriate. 9. Request for Scheduling Conference: Does any party request a scheduling conference with the Court? If so, please state the issues which could be addressed and the position of each party. The parties do not require a scheduling conference . 10. Discovery Period: The discovery period commences thirty (30) days after the appearance of the first defendant by answer to the complaint . As stated in LR 26 .2A, responses to initiated discovery must be completed before the expiration of the assigned discovery period. Cases in this court are assigned to one of the following three (3) discovery tracks: (a) zero (0)-months discovery period, (b) four (4)-months discovery period, and (c) eight (8)-months discovery period. A charge showing the assignment of cases to a discovery track by filing category is contained in Appendix F. The track to which a particular case is assigned is also stamped on the complaint and service copies of the complaint at the time of filing. 6 Case 1:03-cv-03073-ODE Document 8 Filed 01/16/04 Page 7 of 10 Please state below the subjects on which discovery may be needed: Questions concerning the execution of the General Indemnity Agreement and alteration of the General Indemnity Agreement. If the parties anticipate that additional time beyond that allowed by the assigned discovery track will be needed to complete discovery or that discovery should be conducted in phases or be limited to or focused upon particular issued, please state those reasons in detail below: time. 11 . The parties do not anticipate at this time the need for additional discovery Discovery Limitation : What changes should be made in the limitations on discovery imposed under the Federal Rules of Civil Procedure or Local Rules of this Court, and what other limitations should be imposed. The parties do not anticipate the needfor any limitations on discovery other than those imposed under the Federal Rules of Civil Procedure. 12. Other Orders: What other orders do the parties think that the Court should enter under Rule 26(c) or Rule 16(b) and (c)? The parties do not believe that any such orders are necessary. 13. Settlement Potential: (a) Lead counsel for the parties certify by their signatures below that they conducted a Rule 26(f) conference that was held on January 9, 2004, and that they 7 Case 1:03-cv-03073-ODE Document 8 Filed 01/16/04 Page 8 of 10 participated in settlement discussions. Other persons who participated in the settlement discussions are listed according to party. For plaintiff: Lead counsel (signature): Other participants: None. by W. Randal?$ryant, with express permission ,o . R-0,r-ok~k a, ~i~ For defendant: Lead counsel (signature) : 2_ En A ~~A . -711 Other Participants : None. (b) All parties were promptly informed of all offers of settlement and following discussion by all counsel, it appears that there is now : A possibility of settlement before discovery . A possibility of settlement after discovery. A possibility of settlement, but a conference with the judge is needed. No possibility of settlement. (c) Counsel QL) do or (-) do not intend to hold additional settlement ) conferences among themselves prior to the close of discovery. The proposed date of the next settlement conference is April 26, 2004. The following specific problems have created a hindrance to (d) settlement of this case . None. 14. Trial by Magistrate Judge : Note : Trial before a Magistrate Judge will be by jury trial if a party is otherwise entitled to a jury trial. 8 Case 1:03-cv-03073-ODE Document 8 Filed 01/16/04 Page 9 of 10 (a) The parties (-) do consent to having this case tried before a Magistrate Judge of this Court . A completed Consent to Jurisdiction by a United States Magistrate Judge form bas been submitted to the Clerk of Court this day , of 2004 . (b) The parties (_2L) do not consent to having the case tried before a Magistrate Judge of this ourt. w, eaalfl Counsel for Plaintiff (by W. Randal Bryant with express permission) Counsel for Defendants yrk-A~~ g~ tea, rTr- 9 Case 1:03-cv-03073-ODE Document 8 Filed 01/16/04 Page 10 of 10 SCHEDULING ORDER Upon review of the information contained in the Joint Preliminary Report and Discovery Plan completed and filed by the parties, the court orders that the time limits for adding parties, amending the pleadings, filing motions, completing discovery, and discussing settlement are as set out in the Federal Rules of Civil Procedure and the Local Rules of this Court, except as herein modified : The parties are permitted to file motions for leave to amend the pleadings and/or to add parties until March 10, 2004. IT TS SO ORDERED, this day of 2004. UNITED STATES DISTRICT JUDGE -10- Case 1:03-cv-03073-ODE Document 9 Filed 01/20/04 Page 1 of 2 FILED IN CLERKS U.S. D .C. -Atlanta OCCIvEE : JAN 2 0 2004 PP FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY; and JOHN J. DUFFY; Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE IIN THE U-NITED S I A I JES DISTRICT COURT [IN LUTHER D T#4nwo .~-~. CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS This is to certify that I have this day served a true and correct copy of the Plaintiffs Initial Disclosures upon counsel of record by depositing same in the United States mail, in an envelope with sufficient postage to ensure delivery, addressed as follows: Maurice J Bernard, III 3717 Chamblee Dunwoody Road Atlanta, Georgia 30346 -1- Case 1:03-cv-03073-ODE Document 9 Filed 01/20/04 Page 2 of 2 This ~~ day of January, 2004 . W. RANDAL BRYANT Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Thud Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 W_ P-,A,".ol.AA -z- Case 1:03-cv-03073-ODE Document 10 02j 6-1N+1,. Filed 01/22/04 Page 1 of 1 AILED IN IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, VS. JAN 2 2 Z0M LIjTHER D. ENTERTAINMENT FILM WORKS, INC ., JAMES T. DUFFY, NORMA L . DUFFY, and JOHN J . DUFFY, Defendants . CIVIL ACTION FILE NO. 1 :03-CV-3073 CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS This is to certify that I have served a copy of the within and foregoing DEFENDANTS' RESPONSES TO MANDATORY DISCLOSURES upon the following counsel and depositing a true copy of same in the United States Mail, with adequate postage affixed thereon, addressed as follows: W. Randal Bryant, Esq. Bovis, Kyle & Burch, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 This Q dy of January, 2004 . 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 Attorney for Dei Georgia Bar No . III 0 Case 1:03-cv-03073-ODE Document 11 c Filed 01/28/04 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. i  j' I 6 2604 } ENTERTAINMENT FILM WORKS, INC.; JAMES T. DUFFY ; NORMA L. DUFFY ; and JOHN J. DUFFY; Defendants . CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE JOINT PRELIMINARY REPORT AND DISCOVERY PLAN 1. Description of Case: (a) Describe briefly the nature of this action: This is an action seeking indemnification from the Defendants based upon an indemnification agreement executed in connection with the issuance of bonds on behalf ofEntertainment Film Works, Inc . ("EFW'). (b) Summarize, in the space provided below, the facts of this case. The summary should not be argumentative nor recite evidence. Fidelity and Deposit Company of Maryland ('Surety 9 issued surety bonds on behalf of EFW in favor of several obligees, including City of Orlando and/or \i Orlando Utilities Commission, Florida Power & Light Company, Georgia Power \ Case 1:03-cv-03073-ODE Document 11 r Filed 01/28/04 Page 2 of 2 t SCHEDULING ORDER Upon review of the information contained in the Joint Preliminary Report and Discovery Plan completed and filed by the parties, the court orders that the rime limits for adding parties, amending the pleadings, filing motions, completing discovery, and discussing settlement are as set out in the Federal Rules of Civil Procedure and the Local Rules of this Court, except as herein modified: " The parties are permitted to file motions for leave to amend the pleadings and/or to add parties until March 10, 2004 . IT IS SO ORDERED, this _" day of ~ , 2004. ---UNITED STATES DISTRICT JUDGE ~~,pFFICE POP -10- Case 1:03-cv-03073-ODE Document 12 Filed 02/20/04 Page 1 of 2 F1LED IN CLERK'S U.S.D.C. -Mar FEB 2 0 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, VR D. THOMA Depu+r ., Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY ; NORMA L. DUFFY; and JOHN J. DUFFY ; Defendants . CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE This is to certify that I have this day served a true and correct copy of the Notice to Take Deposition ojAnne B. Horner and the Subpoena directed to Anne B . Homer issued on February 19, 2004 upon counsel of record by depositing same in the United States mail, in an envelope with sufficient postage to ensure delivery, addressed as follows : Maurice J Bernard, III 3717 Chamblee Dunwoody Road Atlanta, Georgia 30346 -1- Case 1:03-cv-03073-ODE Document 12 Filed 02/20/04 Page 2 of 2 This ~qtb day of February, 2004 . W. RANDAL BRY T Georgia Bar No . 092039 Attorney for Plaintiff W . P-O".da.3 BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile : (770) 668-0878 -2- Case 1:03-cv-03073-ODE Document 13 Filed 02/26/04 Page 1 of 2 FILED IN CLERK'S OFFICE U.SD.C. - Atlanta IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ~~RD THOrnas .Cl ATLANTA DIVISION ~ ~ obi FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. FEB 2 6 204 ` ` ENTERTAINMENT FILM WORKS, INC.; JAMES T. DUFFY; NORMA L. DUFFY; and JOHN J. DUFFY; Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS I hereby certify that I have this day served the foregoing Notice to Take Deposition of Dale A. Obracay and Subpoena directed to Dale A. Obracay issued on February 25, 2004, upon counsel of record by depositing copies of the same in the United States Mail in envelopes with adequate postage affixed thereto, addressed as follows: Maurice J Bernard, III, Esq . 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 I J Case 1:03-cv-03073-ODE Document 13 Filed 02/26/04 Page 2 of 2 This 2 0 day of February, 2004 . w ,R.a.V'jw a~ W. RANDAL BRYANT Georgia Bar No . 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile: (770) 668-0878 Case 1:03-cv-03073-ODE Document 14 Filed 03/02/04 Page 1 of 1 FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN THE UNITED STATES DISTRICT COURT FILED IN CLERK'S OF U .S.D.C, Manta UAD E 1r FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, vs. - 2 2D04 e Clerk LUTHER a. THOMAS, By: iI ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, NORMA L. DUFFY, and JOHN J. DUFFY, Defendants . CNIL ACTION FILE NO . 1 :03-CV-3073 CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS This is to certify that I have served a copy of the within and foregoing DEFENDANTS' REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF upon the following counsel and by hand delivering a true copy of same to : W. Randal Bryant, Esq . Bovis, Kyle & Burch, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 This 15` day of March, 2004. 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 ` MAURICE J BE ARL III Attorney for Defe darts Georgia Bar No . 54850 r Case 1:03-cv-03073-ODE Document 15 Filed 03/03/04 Page 1 of 2 RED IN etFRx~,~ MAR 3 wnhsfl a r ~,,~, 0~,' IN THE UNITED STATES DISTRICT COUR o4WGOk FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY ; and JOHN J. DUFFY; Defendants . CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE CONSENT ORDER MODIFYING SCHEDULING ORDER IT APPEARING to the Court that its Scheduling Order entered on January 28, 2004 provides that the parties in the above-referenced case are permitted to file motions for leave to amend the pleadings and/or to add parties until March 10, 2004; that the parties have scheduled the deposition of a witness to the indemnity agreement at issue for March 15, 2004 in Tampa, Florida; that said witness's testimony is needed for the parties to decide whether or not to seek leave to amend the pleadings and/or to add parties ; and that the parties have consented to a modification of the Scheduling Order, providing that the parties may file motions for leave to amend the pleadings and/or to add parties until March 24, 2004; Page 1 of 2 Case 1:03-cv-03073-ODE Document 15 Filed 03/03/04 Page 2 of 2 IT IS HEREBY ORDERED that the time the parties are permitted to file motions for leave to amend the pleadings and/or to add parties is hereby extended through March 24, 2004 . This ~3 day of ,,`  Ma 1 2004 . LL;~ Orinda D. Evans, Chief Judge United States District Court Submitted and consented to by: Gregory R. Veal Georgia Bar No. 726615 W. Randal Bryant Georgia Bar No. 092039 Attorneys for Plaint u1 . R.~~ r~..,a~ Maurice J Bern d, III Georgia Bar 054850 Attorney for fendants Bovis, Kyle & Burch, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346 (770) 391-9100 (770) 688-0878 Facsimile (678) 530-0900 2717 Chamblee Dunwoody Rd. Atlanta, Georgia 30341 (678) 530-0099 Facsimile Page 2 of 2 Case 1:03-cv-03073-ODE Document 16 Filed 03/04/04 Page 1 of IN CLERK'S OFFICE FILED 2 U.S.D.C. -Atlanta MAR 0 4 LUTH~R D. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY; and JOHN J. DUFFY; Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS I hereby certify that I have this day served the foregoing Amended Notice to Take Deposition of Dale A. Obracay and Subpoena directed to Dale A. Obracay issued on March 3, 2004, upon counsel of record by depositing copies of the same in the United States Mail in envelopes with adequate postage affixed thereto, addressed as follows : Maurice J Bernard, III, Esq . 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 Case 1:03-cv-03073-ODE Document 16 Filed 03/04/04 Page 2 of 2 This 3P-4 day of March, 2004 . W . Rd.~daA ~'1?'~ W. RANDAL BRYANT Georgia Bar No . 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile : (770) 668-0878 Case 1:03-cv-03073-ODE Document 17 Filed 03/17/04 Page 1 of 2 FILED IN CLtiRO) OFFICE R:iania U .S .D .C . , CI k FOR THE NORTHERN DISTRICT OF GEO~~Q,~TH~O~M~A ATLANTA DIVISION BY' '~(~ t~bputt' Clerk U IN THE UNITED STATES DISTRICT COURT MAR 17 2004 FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY ; and JOHN J. DUFFY; Defendants . CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS I hereby certify that I have this day served the Second Amended Notice to Take Deposition of Dale A. Obracay and Subpoena directed to Dale A. Obracay issued on March 16, 2004, upon counsel of record by depositing copies of the same in the United States Mail in envelopes with adequate postage affixed thereto, addressed as follows : Maurice J Bernard, III, Esq . 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 Case 1:03-cv-03073-ODE Document 17 Filed 03/17/04 Page 2 of 2 This -1(,A day of March, 2004 . W . Q'VNJ\-4 W. RANDAL BRYA Georgia Bar No . 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile : (770) 668-0878 Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 1 of 21 (~ C`  ,_ ~,~h. ciefk IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY; and JOHN J . DUFFY ; Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE MOTION FOR ORDER EXTENDING DISCOVERY PERIOD AND THE TIME FOR FILING MOTIONS FOR LEAVE TO AMEND THE PLEADINGS AND/OR TO ADD PARTIES Plaintiff hereby moves the Court to extend the discovery period through June 28, 2004 and to extend the time in which the parties may file motions for leave to amend the pleadings and/or to add parties through May 4, 2004. This motion is supported by the Memorandum of Law ire Support of Motion for Order E.rteiiding Discovery Period and the Time for Filing Motions for Leave to Amend the Pleadings and/or to Add Parties, filed concurrently with this motion . 1- Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 2 of 21 Respectfully submitted this 2S~ day of March, 2004. W .2a.r~clo.~ GREGORY R. VEAL Georgia Bar No. 726615 W . RANDAL BRYANT Georgia Bar No . 092039 Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, 3`d Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -2- Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 3 of 21 CERTIFICATE OF SERVICE I certify that I have this day served the foregoing Motion for Order Extending the Discovery Period and the Time for Filing Motions for Leave to Amend the Pleadings and/or to Add Parties, along with the Memorandum of Law in Support of Motion for Order Extending Discovery Period and the Tune for Filing Motions for Leave to Amend the Pleadings and/or to Add Parties, on the following counsel of record by depositing a copy thereof in the United States mail in a properly addressed envelope with adequate postage thereon, directed to : Maurice J Bernard, III, Esq. 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 This ;tK4 day of March, 2004. W. RANDAL BRYANT Georgia Bar No. 092039 BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, 3`d Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile : (770) 668-0878 3- Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 4 of 21 I{ .Jl~ . .ti 1. . f : ('.fR ,, 7 1J O N O IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC .; JAMES T. DUFFY; NORMA L. DUFFY; and JOHN J. DUFFY ; Defendants . CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR ORDER EXTENDING DISCOVERY PERIOD AND THE TIME FOR FILING MOTIONS FOR LEAVE TO AMEND THE PLEADINGS AND/OR TO ADD PARTIES Plaintiff files this memorandum of law in support of its motion for an order extending the discovery period through June 28, 2004 and the time in which the parties may file motions for leave to amend the pleadings and/or to add parties through May 4, 2004, showing the Court the following: Statement of Facts Under the Court's Scheduling Order entered on January 28, 2004, the parties were permitted to file motions for leave to amend the pleadings and/or to add Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 5 of 21 parties until March 10, 2004 . In its Consent Order Modifying Scheduling Order, the Court extended the time the parties may file such motions through March 24, 2004. As set forth in the Consent Order, the parties had scheduled the deposition of a witness to the indemnity agreement at issue in this case for March 15, 2004 in Tampa, Florida, and that witness's testimony was needed for the parties to decide whether or not to seek leave to amend the pleadings and/or to add parties. The witness referred to in the Court's Consent Order is Dale Obracay, whose name is signed as the witness to the signatures of John J. Duffy and Caroline Duffy on the indemnity agreement. (Complaint, Exhibit A) . Plaintiff prepared a subpoena directed to Dale Obracay, scheduling his deposition on March 15, 2004 in Tampa, Florida. (Exhibit A). Plaintiff delivered this subpoena to be served on Mr. Obracay to William Day, a Certified Process Server, on February 26, 2004 . (Return of Service, attached hereto as Exhibit B). Mr. Day reported that he was unable to serve the subpoena on Mr. Obracay in Tarpon Springs, Florida and that the Tarpon Spring's address was the residence of Mr . Obracay's wife, who had stated that she and Dale Obracay were separated and that Mr. Obracay was living in Fort Myers. Plaintiff subsequently identified Mr. Obracay's address in Fort Myers, Florida, and prepared another subpoena scheduling Mr. Obracay's deposition for -Z- Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 6 of 21 March 15 in Fort Myers . (Exhibit C). This subpoena was delivered to South Florida Legal Services of Naples on March 4, 2004 to effectuate service on Dale Obracay. On March 11, 2004, the process server completed a return of service, reporting that he was unable to effectuate service on Mr. Obracay. (Exhibit D). Mary Prickett, a paralegal employed by Plaintiff's counsel, spoke to Mr. Obracay on March 10, 2004, telling him that Plaintiff needed to take his deposition in this action, that his deposition had been scheduled for March 15, 2004, and that Plaintiff needed to serve a subpoena on him. (Affidavit of Mary Prickett, attached hereto as Exhibit E, paras. 2, 3). Mr. Obracay told Ms . Prickett that he was currently in Cleveland, Ohio and would not be back in Fort Myers, Florida until the late evening on March 15, 2004. Id. at para. 3 . He told her that he would be willing to have his deposition taken on either March 15 or 17 in Fort Myers . Id. After Plaintiff's counsel contacted Defendants' counsel concerning rescheduling Mr. Obracay's deposition, Ms . Prickett called Mr. Obracay's cell phone number to discuss scheduling his deposition for March 16, 2004. Id . at para. 4. She called that phone number on March 11, March 12, March 15, and March 16, 2004 and left approximately six voice mails, asking Mr . Obracay to call her back . Id. To date, Mr. Obracay has not returned her phone calls . Id . As a result of Mr. Obracay not returning Ms . Prickett's phone calls and the -3- Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 7 of 21 Plaintiff not being able to serve a subpoena on Mr. Obracay, his deposition did not take place on either March 15 or March 16, 2004 . Id. at para. 5 . Plaintiff has currently rescheduled Mr. Obracay's deposition for April 20, 2004, to provide time to effectuate service of a subpoena upon Mr. Obracay. Defendants' counsel proposed seeking a discovery extension to Plaintiff's counsel and indicated that he would consent to extensions of the discovery period and the time for filing motions for leave to amend the pleadings and/or to add parties. Defendants' counsel has been unavailable to speak to Plaintiff's counsel since Monday, March 22, 2004, so Plaintiff's counsel has been tenable to obtain his express consent concerning the dates for the proposed extensions . As soon as Plaintiff's counsel can confer with Defendant's counsel, however, Plaintiff anticipates submiting a proposed consent order providing for the requested extensions . Citation of Authority Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, a scheduling order may be modified "upon a showing of good cause and by leave of the district judge ." As shown in the Consent Order Modifying Scheduling Order, Mr . Obracay's deposition testimony is needed for the parties to determine whether or not to seek leave to amend the pleadings and/or to add parties. The Plaintiff has -4- Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 8 of 21 acted diligently in attempting to take Mr. Obracay's deposition, but has been unable to serve a subpoena on him, and he has failed to return Plaintiff's calls to schedule his deposition . Under these circumstances, an extension of the time in which the parties may seek leave to amend the pleadings and/or to add parties is warranted. An extension through May 4, 2004 should allow Plaintiff to serve a subpoena on Mr. Obracay for his deposition . An extension of discovery through June 28, 2004 will allow the parties sufficient time to deternune whether other parties should be added to this action. (If parties are ultimately added to this action, additional discovery time may be requested to allow discovery to be exchanged between the existing parties and the new parties .) Mr. Obracay's deposition may also reveal matters for which this additional discovery time will be needed. Therefore, the Court should extend the discovery period through June 28, 2004, pursuant to Local Rule 26 .2(B). Conclusion For the foregoing reasons, the Court should extend the discovery period through June 28, 2004 and the time in which the parties may file motions for leave to amend the pleadings and/or to add parties through May 4, 2004. -5- Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 9 of 21 Respectfully submitted, this a `l4 day of March, 2004. W P.an,~ 8~~ GREGORY R. VEAL Georgia Bar No. 726615 W. RANDAL BRYANT Georgia Bar No . 092039 Attorneys for Plaintiff BOVIS, KYLE & BURGH, LLC 53 Perimeter Center East, 3`d Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -6- Case1:O3-cv-03073-ODE Document18 Filed Page1O of 21 h?b't A Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 11 of 21 OAOBB IRtv_11491$ubvaem in a CJUl Case MIDDLE UNITED STATES DISTRICT COURT DISTRICT OF Issued by the FLORIDA Fidelity and Deposit Company of Maryland V. Entertainment Film Works, Inc, et al SUBPOENA IN A CIVIL CASE 1 :30-CV-3073-ODE Case Number :' TO : Dale A. Obracay 328 Moorings Cove Drive Tarpon Springs, Florida 34689 Pending in the U .S . District Court for the Northern District of Georgia, Atlanta Division O YOU ARE COMMANDED to appear in the United States District court at the place, date, and time specified below to testify in the above case . PLACE OF TESTIMONY COURTROOM DATEANDTIME Q' YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case . PLACE OF DEPOSITION 101 East Kennedy Boulevard, Suite 3350 Tampa, Florida 33602 DATE AND TIME 3/15/2004 10 :00 am D YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects) : PLACE DATE AND TIME D YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below . PREMISES DATE AND TIME Any organization nod e party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify . Federal Rules of Civil Procedure, 30(b)(6) . ISSUING OFFICER'S SIGNATURE AND TITLE (MDICAiE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) I DA W. Randal 8ryank Bovis, Kyle 8 Burch, LLC; 53 Perimeter Center East, Third Floor, Atlanta, GA 30346-2298 (77 0) 391-9100 (See Rule /3, Federal Rules of C~vd Procedure, Parts C k Don rain page) If anion is pending in district ocher thin district of issuance, sine district undo case number . Case1:O3-cv-03073-ODE Document18 Filed Page12 of 21 Exh 'b 't Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 13 of 21 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DNISION State of Florida IN THE FIDELITY AND DEPOSIT CO. OF MARYLAND VS . CASE NUMBER DIVISION: 1 :30-CV-3073-ODE Plnintifj/ Petitioner ENTERTAINMENT FILM WORKS, INC., ET AL Defendant lRespondent TYPE OF WRIT: Subpoena in a Civil Case and Letter RETURN OF SERVICE COUNTY OF PINELLAS I received this process on 2/26/2004, to be served on: Dale A. Obracav 328 Moorings Cove Dr., Tarpon Springs, FL 34689 Being duly sworn, I depose and say that at 4:00 PM on Thursday, March 11, 2004 Was unable to serve the above-referenced process for the reason that, after diligent search and inquiry, I failed to find either the above-referenced individual or entity, or information to allow further search. REMARKS: The above address is the defendants wifes address who stated that they are seperated and he lives in Fort Mvers. I am a Certified Process Server, over the age of eighteen, and have no interest in the above action . Under penalties of perjury, I declare that I have read the foregoing return of service and that the facts stated in it are true . William Day Administrative Appointment # APS25972 Appointed in accordance with State Statutes . 76193 NOTARY NOT REQUIRED PURSUANT TO F .S . 92 .525 Case1:O3-cv-03073-ODE Document18 Filed Page14 of 21 h'bit Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 15 of 21 . ie,AQflE (Rev 11941 Subpoena n a Civ 1 Ca e MIDDLE UNITED STATES DISTRICT COURT DISTRICT OF Issued by the FLORIDA Fidelity and Deposit Company of Maryland V. Entertainment Film Works, e1 al TO: Dale A.Obracay SUBPOENA IN A CIVIL CASE x :30-CV-3073-ODE Case Number : 14817 Laguna Drive, Apt. 103 Fort Myers, Florida 33908-2173 Pending in the U.S. District Court for the Porthern District of Georgia, Atlanta Division D YOU ARE COMMANDED to appear in the United Slates District court at the place, date, and time specified below to testify in the above case . PLACE OF TESTIMONY COURTROOM DATE AND TIME YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. PLACE OF DEPOSITION 2069 First Street, Suite 201 Fort Myers, Florida 33901 DATE AND TIME 3/15/2004 10 :00 am O YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects): PLACE O YOU ARE COMMANDED to permit inspection of the following premises at the dale and time specified below. PREMISES Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or ocher persons who consent to testify on its behalf, and may set forth, (or each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(6)(6) . 'S SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) [DATE ISSUING OFFICER'S NAME, 31310 W. Randal Bryant, Bovis, Kyle 8 Burch, LLC, 53 Perimeter Center East, Third Floor, Atlanta, GA 30346-2298 (770) 391-9100 IS ., Rule 45 . Federal Rubs o(Civil Procedure, Pans C & D on ncu page) Ifaaion is pending in disloa other than district or issuance, sale district under case number . Case1:O3-cv-03073-ODE Document18 Filed Page16 of 21 Exh 'b 't Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 17 of 21 AFFIDAVIT OF SERVICE UNITED STATES DISTRICT COURT DISTRICT District of FLORIDA Case Number: 1 :30-CV-3073-ODE Plaintiff : FIDELITY AND DEPOSIT COMPANY OF MARYLAND vs. Defendant : ENTERTAINMENT FILM WORKS, ET AL. For: W. Randal Bryant BOVIS KYLE 8 BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, GA 30346 Received by SOUTH FLORIDA LEGAL SERVICES OF NAPLES on the 4th day of March, 2004 at 11 :36 am to be served on DALE A. OBRACAY, 14817 LAGUNA DRIVE, APT . 103, FT. MYERS, FL. 33908 I, DUSTY MCGONIGAL JR ., being duly sworn, depose and say that on the 11th day of March, 2004 at 12:00 pm, I: DISCONTINUED ATTEMPTING SERVICE of the SUBPOENA IN A CIVIL CASE for the reasons detailed in the comments below . I am over the age of eighteen, and have no interest in the above action . bed and Sworq to 2004 by the af{ian me on the 11th day of is personally known to jlwty- DUSTY MCGONIGAL JR. Process Server SOUTH FLORIDA LEGAL SERVICES OF NAPLES P .O. Box 2647 Ft. Myers, FL 33902-2647 (239) 332-7000 Our Job Serial Number : 2004003266 EXPIRES: August 18 . 2065 9~ 7Mu Notary PuOlic UMeniiqrs JANEfM.LOWDERMILK MY COMMISSION k DD 042930 9D 19933001 Database Services . Inc . ~ Process Servers Toolbox V5 .51 Case1:O3-cv-03073-ODE Document18 Filed Page18 of 21 Exh 'b 't Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 19 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY ; NORMA L. DUFFY ; and JOHN J. DUFFY ; Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE AFFIDAVIT OF MARY PRICKETT NOW COMES Mary Prickett, who after being duly sworn, testifies as follows: 1. My name is Mary Prickett, I am over the age of 18 years, and I make the following statements based upon my personal knowledge and know them to be true . Page 1 of 3 Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 20 of 21 2. I am a paralegal employed by Bovis, Kyle & Burch, LLC . 3. On March 10, 2004, I called the cell phone number of Dale Obracay and spoke to him. I told him that we needed to take his deposition for the abovereferenced action, that we had scheduled his deposition for March 15, 2004, and that we needed to serve a subpoena on him . He informed me that he was currently in Columbus, Ohio and that he would not be back in Fort Myers, Florida until late on March 15, 2004. He told me that he would be willing to have his deposition taken on either March 16 or March 17, 2004 in Fort Myers, Florida. 4. After conferring with W. Randal Bryant concerning the date and time for Mr. Obracay's deposition, I called Mr. Obracay's cell phone number to discuss scheduling his deposition for March 16, 2004. I called that phone number on March 11, March 12, March 15, and March 16, 2004 and left approximately six voice mails, asking Mr. Obracay to call me back . To date, Mr. Obracay has not returned my calls . Page 2 of 3 Case 1:03-cv-03073-ODE Document 18 Filed 03/24/04 Page 21 of 21 5 As a result of Mr . Obracay not returning my phone calls and the Plaintiff not being able to serve a subpoena on Mr . Obracay, his deposition did not take place on either March 15 or March 16, 2004 . MAAY #-WCKETT Sworn to rd subscribed before me this -,~-V day of March, 2004 . o ary Public L i G~ Notary Public, Dekalb County, Georgia My Commission Expires July 13, 2007 Page 3 of 3 Case 1:03-cv-03073-ODE Document 19 Filed 03/26/04 Page 1 of 2 AID N ca.EWs IN THE UNITED STATES DISTRICT COURT LUNE FOR THE NORTHERN DISTRICT OF GEORGIA ~~ _ , ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. MAR 2 G Rp, , J ,7..` ~4~ ENTERTAINMENT FILM WORKS, INC.; JAMES T. DUFFY; NORMA L. DUFFY; and JOHN J. DUFFY; Defendants . ) CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE CONSENT ORDER EXTENDING DISCOVERY PERIOD AND THE TIME FOR FILING MOTIONS FOR LEAVE TO AMEND THE PLEADINGS AND/OR TO ADD PARTIES HAVING CONSIDERED the Motion to Extend Discovery Period and the Time for Filing Motions for Leave to Amend the Pleadings and/or to Add Parties and the materials tiled therewith, and it appearing to the Court that under its Scheduling Order entered on January 28, 2004 and Consent Order Modifying Scheduling Order entered on March 3, 2004, the discovery period in the abovereferenced case is set to expire on April 26, 2004 and the parties are permitted to file motions for leave to amend the pleadings and/or to add parties until March 24, 2004 ; that the parties have consented to an extension of the discovery period Page 1 oft `` Case 1:03-cv-03073-ODE Document 19 Filed 03/26/04 Page 2 of 2 through June 28, 2004 and an extension of the time in which they may file motions for leave to amend the pleadings and/or to add parties through May 4, 2004 ; and that good cause has been shown for such extensions ; IT IS HEREBY ORDERED that the time the parties are permitted to file motions for leave to amend the pleadings and/or to add parties is hereby extended through April 28, 2004 and that the discovery period is extended through June 28, 2004 . This Q4 day of Mc .` , 2004. Orinda D. Evans, Chief Judge United States District Court Submitted and consented to by: W. ~~al ~.,a.,od Gregory R . Veal Consented to by: V'1a~ B Maurice J Be ard, 111, by W. Randal Bryant with express permission Georgia Bar No . 054850 Georgia Bar No. 726615 W. Randal Bryant Georgia Bar No. 092039 Attorneys for Plaintiff Attorney for Defendants 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346 (770) 391-9100 (770) 688-0878 Facsimile Bovis, Kyle & Burch, LLC 2717 Chamblee Dunwoody Rd. Atlanta, Georgia 30341 (678) 530-0900 (G78) 530-0099 Facsimile Page 2 of 2 Case 1:03-cv-03073-ODE Document 20 Filed 03/29/04 Page 1 of 2 F1LED 11V MAR 2 9 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ~` ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY; and JOHN J. DUFFY; Defendants . CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS I hereby certify that I have this day served Plaintiff's First Interrogatories, Request for Production of Documents, and Request for Admissions to Defendants upon counsel of record via hand delivery and addressed as follows : Maurice J Bernard, III, Esy. 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE U Case 1:03-cv-03073-ODE Document 20 Filed 03/29/04 Page 2 of 2 This 'AG'-6 day of March, 2004 . W. RANDAL BRYANT Georgia Bar No . 092039 Attorney for Plaintiff' BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770)391-9100 Facsimile: (770) 668-0878 Case 1:03-cv-03073-ODE Document 21 Filed 03/31/04 Page 1 of 2 FILED IN CLE~t'~S AUo. U.S .D .C . IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA MAR 3 1 ATLANTA DIVISION _ . _~ .. _. ., FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v By' x'111 Welcentv Clerk ENTERTAINMENT FILM WORKS, INC . ; JAMES T. DUFFY ; NORMA L. DUFFY; and JOHN J. DUFFY; Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS I hereby certify that I have this day served the Third Amended Notice to Take Deposition of Dale A. Obracay and Subpoena directed to Dale A. Obracay issued nn March 30, 2004, upon counsel of record by depositing copies of the same in the United States Mail in envelopes with adequate postage affixed thereto, addressed as follows : Maurice J Bernard, III, Esq . 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 Case 1:03-cv-03073-ODE Document 21 Filed 03/31/04 Page 2 of 2 This 30+x' day of March, 2004 . W. W .RANDAL BRYAN Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (770)391-9100 Facsimile : (770) 668-0878 Case 1:03-cv-03073-ODE Document 22 Filed 04/01/04 Page 1 of 2 FILED IN CLERKS .C . Atla U .S .D FOR THE NORTHERN DISTRICT OF GEORG~ y ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY ; NORMA L. DUFFY; and JOHN J. DUFFY; Defendants. IN THE UNITED STATES DISTRICT COURT APR U 12004 Th ~~ AS, ult ~putyCledc CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS I hereby certify that I have this day served the foregoing Plaintiff's Objections and Responses to Defendants' Request for Production of Documents upon counsel of record by depositing copies of the same in the United States Mail in envelopes with adequate postage affixed thereto, addressed as follows : Maurice J Bernard, III, Esq . 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 -1- j Case 1:03-cv-03073-ODE Document 22 Filed 04/01/04 Page 2 of 2 This 3 ~4 day of March, 2004 . Vi . 2, .ANJ-4S1 &~ W. RANDAL BRYANT Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BLJRCH, LLC 53 Perimeter Center Fast Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile : (770) 668-0878 2- Case 1:03-cv-03073-ODE Document 23 Filed 04/07/04 Page 1 of 2 FILED IN CLERKAtlS OFFICE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA APR 0 ? ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. LUTHER D. V Clerk ENTERTAINMENT FILM WORKS, INC .; JAMES T. PUFFY ; NORMA L . DUFFY ; and JOHN J. DUFFY ; Defendants . CIVIL ACTION FILE NO . 1 :03-CV-3073-ODE CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS I hereby certify that I have this day served the Forth Amended Notice to Take Deposition of Dale A. Obracay and Subpoena directed to Dale A. Obracay issued on April F, 2004, upon counsel of record by depositing copies of the same in the United Steles Mail in envelopes with adequate postage affixed thereto, addressed as follows : Maui-ice J Bernard, III, Esq . 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 J Case 1:03-cv-03073-ODE Document 23 Filed 04/07/04 Page 2 of 2 This 6141 day of April, 2004 . W. W. RANDAL BRYA?` Georgia Bar No . 092039 .4ttoriaev ./br Plnirtlijf BOVIS, KYLE & I3URCH, LLC 53 Perimeter Center Fast Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 663-0R78 Case 1:03-cv-03073-ODE Document 24 Filed 04/22/04 Page 1 of 2 FILED IN CLERKS U.S .D .C. Atlas IN THE UNITED STATES DISTRICT COURT APR 2 2 20 FOR THE NORTHERN DISTRICT OF GEORGIA LUT ER D .~T~ ':v^r,4A ATLANTA DIVISION Faj FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ) ) fi,hiBR ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY ; and JOHN J. DUFFY; Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS I hereby certify that I have this day served all parties with copies of the Fifth Amended Notice to Take Deposition of Dale A. Obracay, Subpoena directed to Dale A. Obracay issued on April 21, 2004, Notice to Take Deposition of David Obracay, Subpoena directed to David Obracay issued on April 21, 2004, Notice to Take Deposition of Theater Entertainment Developers, Inc., and Subpoena directed to Theater Entertainment Developers, Inc . issued on April 21, 2004, along with a copy of this Certificate of Service, by depositing the same in the United States Mail in an envelope with adequate postage affixed thereto, addressed as follows: Case 1:03-cv-03073-ODE Document 24 Filed 04/22/04 Page 2 of 2 Maurice J Bernard, III, Esq. 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 This a ~s day of April, 2004 . r W. RANDAL BRYA T Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURGH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile : (770) 668-0878 Case 1:03-cv-03073-ODE Document 24 Filed 04/22/04 Page 1 of 2 FILED IN CLERKS U.S .D .C. Atlas IN THE UNITED STATES DISTRICT COURT APR 2 2 20 FOR THE NORTHERN DISTRICT OF GEORGIA LUT ER D .~T~ ':v^r,4A ATLANTA DIVISION Faj FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ) ) fi,hiBR ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY ; and JOHN J. DUFFY; Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE CERTIFICATE OF SERVICE OF DISCOVERY MATERIALS I hereby certify that I have this day served all parties with copies of the Fifth Amended Notice to Take Deposition of Dale A. Obracay, Subpoena directed to Dale A. Obracay issued on April 21, 2004, Notice to Take Deposition of David Obracay, Subpoena directed to David Obracay issued on April 21, 2004, Notice to Take Deposition of Theater Entertainment Developers, Inc., and Subpoena directed to Theater Entertainment Developers, Inc . issued on April 21, 2004, along with a copy of this Certificate of Service, by depositing the same in the United States Mail in an envelope with adequate postage affixed thereto, addressed as follows: Case 1:03-cv-03073-ODE Document 24 Filed 04/22/04 Page 2 of 2 Maurice J Bernard, III, Esq. 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 This a ~s day of April, 2004 . r W. RANDAL BRYA T Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURGH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile : (770) 668-0878 Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 1 of 31 ORIGINAL FL . . ~ ,Cr IN THE UNITED STATES DISTRICT COUR4F 28 lueU; FOR THE NORTHERN DISTRICT OF GTA1tf,I ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE erk ENTERTAINMENT FILM WORKS, INC . ; JAMES T. DUFFY ; NORMA L. DUFFY; and JOHN J. DUFFY ; Defendants. MOTION TO ADD PARTY AND FOR LEAVE 1'O AMEND COMPLAINT Plaintiff hereby moves the Court to add Dale A . Obracay as a Defendant to this action end to permit Plaintiff to amend its Complaint to assert claims against Mr . Obracay, pursuant to Rule 15(a) and Rule 21 of the Federal Rules of Civil Procedure. This motion is supported by the Memorandum of Lan, in Support of Motion to Add Party and for Leave to Amend Complaint, filed concurrently with this motion . WHEREFORE, Plaintiff prays that the Court grant its Motion to Add Party and for Leave to Amend Complaint . -1- X Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 2 of 31 Respectfully submitted this -;tbi4 day of April, 2004 . vj . ti, ... .1 .~ GREGORY R. VEAL Georgia Bar No . 726615 W. RANDAL BRYANT Georgia Bar No . 092039 Altorne),sjbr Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile : (770) 668-0878 _2_ Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 3 of 31 CERTIFICATE OF SERVICE I certify that I have this day served the foregoing Motion to Add Party and for Leave to Amend Complaint, along with the Memorandum of Law in Support of Motion to Add Party and for Leave to Amend Complaint, on the following counsel of record by depositing a copy thereof in the United States mail in a properly addressed envelope with adequate postage thereon, directed to : Maurice J Bernard, III, Esq . 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 This -a56, day of April, 2004 . w . R.~~l ,1~~~.~s W. RANDAL BRYANT Georgia Bar No . 092039 BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile : (770) 668-0878 -3- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 4 of 31 ORIGINAL IN THE UNITED STATES DISTRICT COUIRQY ~" 13 FOR THE NORTHERN DISTRICT OF G~0.RGIA '- '- " ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v r_1 _ r'a ENTERTAINMENT FILM WORKS, INC . ; JAMES T . DUFFY ; NORMA L. DUFFY ; and JOHN J. DUFFY; Defendants . CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE MEMORANDUM OF LAW IN SUPPORT OF MOTION TO ADD PARTY AND FOR LEAVE TO AMEND COMPLAINT The Plaintiff, Fidelity and Deposit Company of Maryland, submits this memorandum of law in support of its Motion to Add Party and for Leave to Amend Complaint filed pursuant to Rule 15(a) and Rule 21 of the Federal Rules of Civil Procedure, showing the Court the following : Statement of Facts Surety commenced this action on October 8, 2003, seeking indemnification and collateral security from the defendant- indemnitors pursuant to an indemnity agreement . (Complaint). Surety issued surety bonds on behalf of Entertainment -I- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 5 of 31 Film Works, Inc . ("EFW") in favor of several obligees, including City of Orlando and/or Orlando Utilities Commission, Florida Power & Light Company, Georgia Power Company, Rochester Gas and Electric Corporation, Tampa Electric Company, and Twentieth Century Fox Film Corporation . In consideration of the Surety's issuance of bonds on behalf of EFW, Defendants entered into a General Indemnity Agreement (`Indemnity Agreement") in which they agreed to indemnity the Surety from all liability, loss, costs, damages, attorneys' fees, and expenses sustained or incurred as a result of having issued bonds on behalf of EFW.' Surety has received numerous claims against these bonds and has incurred losses, costs, and expenses, including attorney's fees, for which it seeks indemnification by the Defendants . In response to Surety's Complaint, the Defendant John J. Duffy denied signing the Indemnity Agreement and claimed the alleged signature of John J . Daffy was a forgery . See Answer of John J . Daffy, Second Defense . The Indemnity Agreement also contains a signature for Caroline Daffy . Caroline Daffy, who is not a party to this action, previously denied signing the Indemnity Agreement. See letter from Caroline Daffy, attached hereto as Exhibit 2 . Surety's proposed First Amended Complaint is attached to this Memorandum as Exhibit I, and a copy of the Indemnity Agreement is attached to the First Amended Complaint as Exhibit A. Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 6 of 31 As a result of John J. Duffy and Caroline Duffy denying that they signed the Indemnity Agreement, Surety sought to depose Dale A. Obracay, who signed the Indemnity Agreement as a witness to the signatures of John and Caroline Duffy. After several unsuccessful attempts to serve Mr. Obracay with a subpoena and schedule his deposition, Surety was finally able to take Mr. Obracay's deposition on April 26, 2004 . During the deposition, Mr. Obracay admitted that he signed the Indemnity Agreement as a witness to John and Caroline Duffy's signatures, but stated that he did not actually see John or Caroline Duffy sign the agreement and that he could not verify their signatures . (Deposition of Dale A . Obracay, p . 13, attached hereto as Exhibit 2) .3 As a result of this testimony, Surety seeks to add Mr . Obracay as a party to this action to assert claims against him for fraud and negligent misrepresentation, as set forth in Surety's proposed First Amended Complaint . (Exhibit 1). Upon obtaining Mr. Obracay's deposition testimony on April 26, 2004, Surety has acted promptly to seek permission to amend its Complaint and add Mr . Obracay as a See Memorandum of Law in Support of Motion for Order Extending Discovery Period and the Time for Filing Motions for leave to Amend the Pleadings and/or to Add Parties . Because Dale Obracay's deposition was just taken on Monday, April 26, 2004, Surety's counsel has not yet received the entire transcript . Once the entire deposition transcript has been received, Surety will file it with the Court. -3- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 7 of 31 defendant . There is no indication that Surety's proposed amendment would cause any prejudice to the current defendants. Citation of Authority The Court should add Dale A. Obracay as a party-defendant to this action and allow Surety to amend its Complaint to assert claims against him . Rule 21 of the Federal Rules of Civil Procedure provides in pan that "[p]anies may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such teens as are just ."`' Federal Rule of Civil Procedure 15(a) provides that after a responsive pleading has been served, "a party may amend the party's pleading only by leave of court . . . and leave shall be freely given when justice so requires ." The standards for deciding a motion to amend a complaint to add a parry are the same under Rule 15 and Rule 21 : In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, Because Surety's claims against Dale A. Obracay arise: out of the same transaction or occurrence (the execution of the Indemnity Agreement), he is a proper party to this action under Rule 20 of the Federal Rules of Civil Procedure. Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 8 of 31 futility of amendment, etc.--the leave sought should, as the rules require, be "freely given." Loggerhead Turtle v . County Council of Volusia County, 148 F .3d 1231, 1255 (11 " Cir. 1998), quoting Forman v. Davis, 371 U.S . 178, 182 (1962) . None of these reasons for denying leave to amend are present here . Surety seeks to assert claims against Dale A. Obracay for fraud and negligent misrepresentation in connection with the execution of the Indemnity Agreement at issue in this case . (Exhibit 1). Surety has acted promptly in seeking this amendment, having just obtained Mr. Obracay's deposition testimony that he signed the Indemnity Agreement as a witness even though he did not in tact witness any signatures to the agreement. Because allowing Surety to pursue its claims against Mr. Obracay in this action will serve the interest of judicial economy, and because leave to amend pleadings should be freely given, the Coup should add Dale A . Obracay as a defendant to this action and allow Surety to amend its Complaint to assert claims against him . Respectfully submitted, this 2g'1 day of April, 2004 . GREGORY R. VEAL Georgia Bar No. 726615 W. RANDAL BRYANT Georgia Bar No. 092039 Attorneys for Plaintiff -5- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 9 of 31 BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, 3`? Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile : (770) 668-0878 6- Case1:O3-cv-03073-ODE Document 25 Filed Page1O of 31 h?b?t 1 Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 11 of 31 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY ; NORMA L . DUFFY ; JOHN J. DUFFY ; and DALE A. OBRACAY; Defendants. CIVIL ACTION FILE NO. ~ :p3-GV-3oZ3-O10~ FIRST AMENDED COMPLAINT Fidelity and Deposit Company of Maryland ("Surety") files this Complaint against Entertainment Film Works, Inc. ("EFW '), James T. Duffy, Norma L. Duffy, and John J. Duffy (collectively "Indemnitors") and Dale A. Obracay and shows the Court the following: I. Jurisdiction and Venue 1. Defendant EFW is a corporation formed under the laws of the State of Georgia with its principal place of business in Atlanta, Georgia. -1- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 12 of 31 2. Defendant James T . Duffy is a resident of the Northern District in the State of Georgia . 3. Defendant Norma L. Duffy is a resident of the Northern District in the State of Georgia. 4. Defendant John J. Duffy is a resident of the Northern District in the State of Georgia. 5. Defendant Dale A. Obracay is a resident of the State of Florida, but is subject to service of process and this Court's personal jurisdiction under Rule 4(k) of the Federal Rules of Civil Procedure and O.C.G.A. ? 9-10-91 . 6. Defendant Dale A. Obracay owns real property within the State of Georgia . 7. Defendant Dale Obracay committed the tortious acts or omissions within the State of Georgia, as set forth below . -Z- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 13 of 31 8. Surety is a corporation formed under the laws of the State of Maryland with its principal place of business in the State of Maryland and is licensed to do business in the State of Georgia . 9. This matter concerns an amount in controversy greater than $75,000.00, exclusive of interest and costs. 10 . There is complete diversity of state citizenship between the Plaintiff and each of the Defendants . 11 . This Court has jurisdiction of this matter under 28 U.S .C . ? 1332(a), and venue is proper in this District under 28 U.S .C . ? 1391(a) . II. Indemnification for Costs and Expenses 12 . The Surety issued several Bonds on behalf of EFW in favor of Florida Power & Light Company, Georgia Power Company, Orlando Utilities Commission, Rochester Gas and Electric Corporation, Tampa Electric Company, and Twentieth Century Fox Film Corporation, among others. -3- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 14 of 31 13 . In consideration of the Surety's issuing Bonds on behalf of EFW and other good and valuable considerations, Indemnitors executed a General Indemnity Agreement ("Indemnity Agreement') in favor of the Surety, an accurate copy of which is attached hereto as Exhibit A. 14 . EFW has failed to pay the companies identified in paragraph 9 above for obligations covered by the Bonds issued by Surety . 15 . Under the Indemnity Agreement, Indemnitors agreed, among other things, to indemnify the Surety from and against any and all liability, loss, costs, damages, attorneys' fees and expenses, of whatever kind or nature, which the Surety may sustain or incur by reason of having executed the Bonds, in making any investigation on account of any Bond, in defending or prosecuting any action brought in connection with any Bond, and in enforcing the Indemnity Agreement, among other things. 16 . The Surety has received numerous claims against the Bonds from the bond obligees . -4- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 15 of 31 17 . The Surety has suffered losses and has incurred costs, expenses, and attorney's fees in investigating the claims made against the Bonds, in administering such claims, in settling such claims, and in seeking indemnification from Indemnitors, including the initiation and prosecution of this action, in a net amount exceeding $135,000.00 . These losses, costs, expenses, and attorney's fees continue to accrue and will be shown more fully on motion or at the trial or hearing of this matter. 18 . Indemnitors are liable to the Surety for such costs, expenses, and attorney's fees, all for which the Surety demands judgment against Indemnitors . III . Fraud 19. Surety restates and realleges each and every allegation set forth above as if they were set forth verbatim herein. 20 . On or about October 11, 2001 in Atlanta, Georgia, Defendant Dale A. Obracay signed the Indemnity Agreement as witness to the signatures of John J. -5- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 16 of 31 Duffy and Caroline Duffy, when he in fact did not witness them sign the Indemnity Agreement . 21 . In so signing the Indemnity Agreement, Defendant Dale A. Obracay falsely and fraudulently and with intent to defraud Surety represented to Surety that he had witnessed John J . Duffy and Caroline Duffy sign the Indemnity Agreement . 22 . Those representations were false in fact and known to be false by Defendant Dale A. Obracay at the time they were made. 23 . Surety justifiably relied on these representations and was thereby induced to issue Bonds on behalf of EFW. If Surety had known that Defendant Dale A. Obracay had not witnessed John J. Duffy and Caroline Duffy sign the Indemnity Agreement, it would not have issued Bonds on behalf of EFW. 24 . By reason of Defendant Dale A. Obracay's misrepresentations, Surety has suffered damages in a net amount exceeding $135,000 .00, as described in paragraph 17, above. Defendant Dale A . Obracay is jointly and severally liable with the Indemnitors for these damages . -6- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 17 of 31 IV. Negligent Misrepresentation 25 . Surety restates and realleges each and every allegation set forth above as if they were set forth verbatim herein. 26 . On or about October 11, 2001, in signing the Indemnity Agreement as a witness to the signatures of John J. Duffy and Caroline Duffy, Defendant Dale A. Obracay informed Surety that John J. Duffy and Caroline Duffy signed the Indemnity Agreement . 27 . Defendant Dale A. Obracay provided this information to Surety in the course of his employment with EFW. 28. Surety reasonably relied on this information in issuing bonds on behalf of EFW. If Surety had known that either John J . Duffy or Caroline Duffy had not signed the Indemnity Agreement, it would not have issued Bonds on behalf of EFW . 29. Surety has alleged that Defendant John J. Duffy entered into the Indemnity -7 - Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 18 of 31 Agreement, while Defendant John J. Duffy has claimed that he did not sign the Indemnity Agreement. If John J . Duffy in fact did not sign the Indemnity Agreement, then Defendant Dale A. Obracay negligently misrepresented to Surety that John J. Duffy signed the Indemnity Agreement and is liable for Surety's resulting damages in a net amount exceeding $135,000 .00, as described in paragraph 17, above . 30 . Caroline Daffy has claimed that she did not sign the Indemnity Agreement . If she in fact did not sign the Indemnity Agreement, then Defendant Dale A. Obracay negligently misrepresented to Surety that Caroline Daffy signed the Indemnity Agreement and is liable for Surety's resulting damages in a net amount exceeding $135,000,00, as described in paragraph 17, above. WHEREFORE, the Plaintiff, Fidelity and Deposit Company of Maryland, prays for a judgment in favor of Plaintiff and against the Indemnitors and Defendant Dale A. Obracay, jointly and severally, as follows: (a) In an undetermined amount exceeding $135,000 .00 for the costs, expenses, and attorney's fees that the Surety has sustained and continues to sustain as a result of its having issued Bonds on behalf of -8- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 19 of 31 EFW, which amount will be shown more fully at trial or at hearing or by motion; and (b) For all other relief that this Court deems just and appropriate. Respectfully submitted, this a4`lk day of April, 2004. GREGORY R . VEAL Tpw,.,ft~~ Georgia Bar No. 726615 W. W. RANDAL BRY T Georgia Bar No. 092039 Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East ALw`c'k\ ~ y'~~]o v wR a ,a ~ Q.c p re~8 Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile: (770) 668-0878 -9- Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 20 of 31 General Indemnity Agreement ti0T i0 RF USED FOR CO%STTkLCT:ONBONDS KNOW .4LL IfEN BY THESE P12ES6NTStt'HEREAS, upon the request made by Entertainment Film Works, Eric., 5910 RasweU Road, Atlanta, GA 30328, James T. And Normp 1., putty, 990 Edtewrter Drim A[;aats, GA 30326 and Jukn J, and Carolina Dutty, 1690 S. Johnson Ferry Road, Atlanta, CA 30314 ihercinaner called cnaemn< long is l:ebi:cey ttirarunder iAal( continue, and until ev;d?ae:, iutisiw:tozy to the Company, of the Termination of su:b liability shah be furnished to it at its home office : S?CO\'A: To iademaiCy the Company from and against any end ail liability, toss, costs, damages, ?aurnty.' fees and expentei, of whatever tied of nature, heretofore or hereafter suaainai or incurred by the Compenyby reason, or in consequence of its exocueiap any such bond or bonds as ouery or co-surety, or procuring the execution thereof in making any invemranon on swoons of any Rich bead at bonds, in defeadiag of prasscuiin ; any action, suit or other proceeding which may be brought in connection thrncwich, in enforcing say of Cue agrwttru: hrre;a contained, and m obulnmg a release tYom liabitiry undue any +ueh hand at bonds, and to indemnify the Company w the full amount of liability, loss, costs, damages, attorneys' tees and cxpanaea u afrursaid . regardless of any reinsurance that may be carried on any such bond or bands ; T}3SR4: Thuttw Company stall hove the fight and is Fvrby authonxd, but nut rcquuc4 ; (s) to adjust, settl? Of comprouira it" claims, demands, suits orJndgmrnts upon say Such bard or bands, witess lilt fndamaiears s1ia1', request it to litigate such claims of demands, or w defend such suite or co appall from such ,udZiaenti, sad shall depa.a wish the Company satisfactory collateral, sufficient to pay wy f udwtneRi nr judgmeaca, rendered or that tray be rendered, with interest, costs, expanAea and aw7meyc' F~ep; (b) to aesrnt so any change whatsoever in any such bond or bonds aid+ar my contract of contracts referred m is any such bond or bola usdror in the geruni eoaQidann, plane andror specifications accompanying said contract or contracts and to barkd5 and/or in the gauzat conditions, plans anGor apecifxanons accompaiayicg sail cantracr or contracts and to assent to or take any assignment at resiawnents, m executo a consent co the execution of spy comlqnedons, txtana3ons o: renewal; of any such bcrad or bonds end to execut, any ivhsrirace or Febatiwks therefor, ulds the same or 4:iTercm conditions, provisiors and o6tigas and with the same or larger or smaller peaaLdes, aft of the aforesaid without mace to or knowledge of ;let lndetnattars, it being exptesily understood And *Srcud :lest the indemnitots shell remain bound under the mmn of this instrument won though any auch ascot by the Company dcxN ac might suh3mrtiaity increase the liability of said tndemiu :oa: Jc) to ansch 7:rrew a schedule of TIM sad copy or copiu: of any web li=d or bonds. m fill up any bunts left herein. and to oortrct any snore in filling up any blanks herein, or in tbr. xhrdcle of tarts stitched, it being lxreby Agned that such athrdu!e end su:h copy or copies, when so aUxhed, and chat auk insertion or conections, uhcn so nude, shall be pristatf4ou correct; FOURTH That tisbilicy hereunder shall extend to, And include. the hit' amount of any and ell moneys paid by die Company u+ il:c settlement or coucprormec of any chime, suits and iudgmrnts thereupon, .n food faith, under Lhc belief ti;ac it vcu bible EXHISIT p" 1 ii : h')C;HARD f\> ON' -11 1 .IIH :ICase.41:03-cv-03073-ODE Document 25 Filed-EL ' .''a .) .]n' 04/28/04 Page 21 of 31 7 ~1i~3 uxmfoi, whether liable or rob as well as of arty ant al : disburbemenu on account of costs, attemeys' fees and axpensea os afomsaid, which may be made under the hcliet that such were necessary, whether necessary us nor; FIFTH; That, in the event of payment, settlement ac compromise of liability. loss, costs, damages, attorneys' fees, expenses, claims, Jemjutds, suits or jwtynnents as, aCoreraid, m connection With any such bond or bonds, et itemized scetement thereof, sworn ;a by any officer or officers of the Company, or the voucher or vouchers, or other evidence of such payment, same or compromise, iheU ha primq jade :vid ;nce of the fxt and extent of the liability of the lndemnicon sn any and all claims or suits hereunder; SIXTH: That nothing herein contained shall be considered or :onstnxd to wai~r, abridge or diminish any right or remedy which (6e Co;upray might hove if this inmmrnc were not executed; SEVENTH: To waive, apd do hereby waivr, all right to claim any of rhea properly, includinz homesteads, ns exempt finite levy, exe :urion, or sale or odor legal process, under the laws of any state or states ; : EIGHTH Thai, in case my of the Indemnifors shall fail to execute Us iasttumaat, or is eras any of aid IndemnUors, who eAecute this iaseumeni, shell not be bound for any reason, the uchu Indemwton shall nev=rt}wless he how:d hereunder for the Fill amount of liability, loss, costs, damegey, attorneys' fees and expenses a& aforesaid, NINTH. To waive. and do hereby waive, nonce of any breach or breaches of any such bond or bonds, or of any e-r or dofaulr that mss give use to claim hereunder; TENTH: That this iu?muInent shall be liberally construed, so as to !ally promo the Company; E?-EVE\"fH: Tut :u[s may be brought hereunder a: causes of action may accrue, end the bringing of one or more suit, or the recovery of judgment m judgments therein shall not prejudice oi bar the bringing of aura upo? other causes of action. Whaker ihecerofnre or thmeaAer arising: TWELFTH: That the Company riot; not guarantee the prompt issuance of any such hand or hoods, or the acceptance thereof 6y the obligee or obligees therein named, end that the Company shall have the absolute right to decline to execute any such baud Or bonds; THIRTEENTH ; Thai in the event the Company procures the avrcueiun of any each bond or bonds by some other serety or sureties, of rcaeuies such bond or bonds with other surety or sureties e: co-aureries, at reinsures any portion of such hone or bones pith other surety or sureties as rrinsmme, then X11 the terms and conditions of this Instrument shall inure co the beaofit of any such ; surety or sureties, including the right to briny action hereunder FOURTEENTH : That the Inlecmutan shall continue to remain bound under die terms of this instrument op account of any each bond at bonds even though the Company may from urtK to time hereafter, with or without notice to v: lmowladge of Che Indartailors, accept other or additional agreements or inderrniry en similar or other farms to indemnify it in connection with the eucution of procurement of say such bond or bond, it being hereby expressly inderstuod end agreed by the Iadertuutur+ the[ any end all other rights which the Company may have or acquire agaiusl the tudemnimrs eeeLbr otherv wrier any such other or additions`. oareemeau of indoarnity shall be u> addition co, and not in li :u of, t he rights afforded 65 the Company under this instrument. FIFTEENTH : Whereas, surety has heroLo[ere executed bonds on the express conditinn, promise sad under3tendine, [tint tie Indamniror will provide indemnity therefore. and m further consideration of the surety's agreemen[ [o mature other bond : (subject to Pereg:aph Twelfth of this agreement) this indemnity shall apply w any bond or bonds executed on (it alter May ]Z, 7001 m aewraun.e W+tn swoon en ]511)1h). Fl~Oa 5ruw:vr "AnY Cmuv who knowinpy aid Fith inan: so injira, defraud, or dicene ocp InAumi idcA u iwlercni of Claim ut M :pp~icuion conuimni ony h~u, trKCnplc :o. or m:ilcuJini; mfarmcim i, pMy of i tclnny n this :Aini iegr:." 1 Signed, sealed and rimed this -- /W" day of ~!cr~ ., e 2 , .111710% >>7-94 EJC ;H .-,iD I!iz. CGT .-ll ) :ITH':I 11 .4 Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 22 of 31 p N4 Attea Q Entenainmerl Fi! J. Ai ~ , Sxreray 611, W' ~~ ~ ~ s T. Dy(jy, Fresidenr r ' ks, Inc_ YU !/Y ~ 1 ~ ! C _ .t.t /'Y~.Q ~--V J es T. pufTy Ind,_ `nI -~r ~divid L - 7 Zm 7 W~ 99' ' )o uffy, I i tal P44 Z2Z Witrt CaoJine Duff'y, individual' / Ii .c - ,n EACH LNDRIKA'ITQR MUST ACKNOWLEDGE THIS WSTRUMENT J117NM,741 ~f,T ~11' ) . ITH .I II :~ E~)I; .'H .;3C ISO . Case 1:03-cv-03073-ODE Document 25 Filed-EL 04/28/04 Page 23 of 31 F 01.1 5 STATE OP ~? F-' 1 } V For Aeknowled1ment 6y Indivlduul Indamnlton SS : COUNTY OF ~-! w ' n .. . ~ /I On this ~~ day of before nx, the suhecnber, personally appeared lames T Duffy to me personally known, and known by me w 6e the person dasrnbed i:4 and who executed, the foregoing insUaLnent eud acknowledged come w be -hu. act and dud. / Wimees my land and official seal ~ f` ~ . ~Ya ti)l k' 'N hbtgry Public l ;/a ~. -? o" 4 My Commissioa Expires 7 C y~ !~ ~ o l-Y.u . nn -/I,- Far .4eknowledgment by Individual Indermt1rors SS : STATE OF COUNTY Of j I , ,1 E o / On this 11 r y -day of C-- e 7-C,_1 r 6" before me, the subscriber, ppeonolly appeared Nnrma L. Dufy w me described in, and who executed, the foregoing uuuumam and personally known, and known 6y me to he the person acimowledged sans: to be her _ acs and deed Witness my hand and official leaf . MyCammlsslopExpires . -` For Acknowiedemcor by Individual lademsillors 1,17 T'orari Public /'/ '???7` STATE OF OOUNTY OF `-7 v . n n~ SS: 11T'1 `~ C -~" 3 ~ 2 ~ ~ c' / On tLu day of before me, the sabsmbez, personally Appeared john J. Dliffy _.- to me personally known, and known 6y me to be the person deacnbed m, and who executed, the foreoo :ng instmunent and acknowledged . game ca be his pct gad deed . Witness my blvd and officio! sea) . My Commission Expires l~ Notary Public e J Jl]76,tA1, 744 Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 24 of 31 F C~ - /, STATE OF ~aL,2 nr 71, On this -Y / personally appeared CDLlN7YOF' For Acknowledgment by Individual Ndcrunibars l SS . ) day of e c reva Caroline Duffv before described iq and personally Imown, and known by me to 6e the petsor acknowledged ;acne to he her- act and deed. Witness my hand and official seat, to me tlte foregoing inytrwnnnt and me. le subscriber. 7V~,~'r ~ My Commission Expires ~,J ,~f Oc " A0rory Public STATE Of COUA'TY O C FarAdnowledement by Corporate Indemnimrk "i /( n .;1 . n n c tZI S5: VCTC "3i !c' , - .2c c /- before me, die subscriber, ` x day of peteopally appeared limes T Du[Ty to me personally known, who, being duly sworn, did depose and say that he ccmdes in the city of , din: he President of Encertaiemeat Film )yorld . Inc, the corporation is the described in, and which executed, the within instrument ; that he knows the seal of said corporation ; Whet the seal a`nxed to said instrument is such Corporate Sell ; that it was so atYud by order of the Hoard of Directors of said cnrporaticis. and that he signed his nay thereto by like order ; and the deponent further said that ha is acquainted with John 7 Duffy and knows that be is Ore Sec[e4ry of said corparerion and thac,he sub{arifxd his aanu to the w:th:n instrument 6y a like order of the said Board of Directors, and in Vie presence of the deponent On this Witness my band and official seal MyCommission Expucs Nomry Public ~-V. /4 / J117M)M . ^"94 Case1:O3-cv-03073-ODE Document 25 Filed Page 25 of 31 h?b?t 2 Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 26 of 31 1690 South Johnson Ferry Road Northeast Atlanta, Georgia 30319 June 17, 2003 Caroline N. DutTy S & FS JUN 2 4 2003 CU Ms. Harriet Kalanzi Collection Specialist, Surety & Financial Claims Zurich North America 3910 Keswick Road, 5'h Floor (21211 ) Post Office Box 17069 Baltimore, Maryland 21297-1069 Re: Claim No: Claim No : Claim No: Claim No : 638 638 638 638 0034074 0034421 00353405 0035329 RECEIVED surety & Em. 52fV Claim linit_nallaF; JU N Claim No: 638 0033930 Claim No: 638 0033929 Claim No: 638 0034714405 Dear Ms. Kalanzi: Enclosed is my letter to you of May 12, 2003, which includes my signature. For some reason your return correspondence on May 29 referenced that my letter was unsigned, which was not the case. I appreciate your sending a copy of the General Indemnity Agreement related to the above-referenced claims. The signature shown on this document is not mine . As stated in my earlier correspondence, I have no knowledge of this indemnity agreement or any other business matters related to Entertainment Film Works. At no time have I ever had an ownership interest in Entertainment Film Works, nor have I ever been an employee or an officer of this company. I have fumed this matter over to my attorney for investigation . Th ank -you, Caroline Duffy Cc: David C . Nutter, Esq. Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 27 of 31 May 12, 2003 Ms. Harriet Kalanzi Zurich North American Surety& Financial Claims 3910 Keswick Road, 5"' Floor (21211) Post Office Box 17069 Baltimore, MD 21297-1069 Dear Ms. Zalanzi : I received your May 6 letter outlining the following claims against Entertainment Film Works : Claim No : 638 0034074 Claim No: 638 0033930 Claim No : 638 0034421 Claim No : 638 0033929 Claim No : 638 00353405 Claim No : 638 0034714405 Claim No: 638 0035329 At no time have I ever been employed by, bad an ownership interest in, or been associated with Entertainment Film Works. I have no knowledge of the disputes that you reference or the General Indemnity Agreement mentioned in your letter. If you have evidence that someone has purported to use my signature or name on any Entertainment Film Works documents, I request that you produce this information to me as soon as possible . I intend to prosecute any such illegal and unauthorized use of my signature or name to the fullest extent of the law. I respectfully request that you remove my name from any future correspondence on this subject. Si C Cc: r y, me Duffy David C. Nutter, Esq. Case 1:03-cv-03073-ODE Document 25 Filed 04/28/04 Page 28 of 31 _r. . .. ervice - MAIL RECEIPT . "- " m ~` _. _ ._ . .__..--I flamm ntcelPt Fau fE(Wur.snmlMrzdl - - -- . ___ .~ 0 Fiulrioc<] U?bvJry Fsu ~Enta'err..:nIR~QUIra[~ .2 - I I ~ Ilav rCI Sen T . ~~ ~ ' ~ 7/ u FU bu NO O Ifcity, state, _ . . o ZIP StreB7, Apt Nn. ; r~,tnN1n _ ._ _ .. .. ~~ r1 ~y _..- .< . ... " Complete items 1, 2, and 3 . Also complete item 4 if Restricted Delivery Is desired. " Print your name and address on the reverse so that we can return the card to you . " Attach this card to the back of the mailpiece, or on the front if space permits . 7. Article Addressed W: X B. ReceNeG by (PnMed Name) O Agent ' C. Date MDelivery 13 YW O No ~Iy .~AK~ETr{aL/~z D. Is delivery address different from hem 1? N YES, enter delivery address below: ~colJSuS t ~ YAW, sum 4 F~L-zu&w39 ;O Kc,wicK W!Nu ~'ot~r: nab 2. Article Number (Transfer from service label) 2UKfcs-! Nv" AV~GK ~ ,MV Z1z47~1oLe),7 ~~ r 3. Service Type D Cerlilled Mail D Registered O Ineured Mail O Express Mail D Return Receipt for Merchandise O C.O. D. O yes ~ ~ r 4. Restricted Delivery? (E;rtratee) IA , ; ~ -~L j PS Form 3811, August 2001 Domestic Return Receipt c2~0(o (oP~ , 4 3Z zwcvma3r-emi Case 1:03-cv-03073-ODE Document 25 4 5 ~. Filed 04/28/04 Page 29 of 31 q+Y; . F,(; i. 1690 Johnson Ferry Atlanta, Georgia 30319 111111111111111111111111111111111111 ownmsierra aoarm sn~as 701 1940 0006 6837 7449 0000 V U .S . POSTAGE . . . . PAID ~, . I IIIIIII IIIIII 3U392uJuGiM0UNT03 oooaioes-o ; 2! 291 Ms . Harriet Kalanzi Collection Specialist, Surety & Financial Claims Zurich North America 3910 Keswick Road, 5th Floor (21211) Post Office Box 17069 Baltimore, Maryland 21297-1069 ~12~7TSb5 ; 6i I11IfIIIIIIII If III lif l1 Case1:O3-cv-03073-ODE Document 25 Filed Page 30 of 31 Exhib 't 2 04/28/2084 13 :34 1:03-cv-03073-ODE Case Document MCGINNIS AND AF 25 Filed 04/28/04 Page 31 of 31 PAGE 02/03 MC GINNIS & ASSOCIATES, INC . 614.431 .1344 COLUMBUS, OHIO 800A98.2451 Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR . Q. A. MR . BRYANT : If the Court Reporter -- If you could hand Mr . Exhibit A . Obracay what is marked as THE WITNESS : BRYANT : I got it . Do you recognize this document? T don't remember . I remember something like this, Q. but I don't remember this document . labeled General it says, Indemnity Agreement . It's Underneath that "Not to be used for first paragraph, and it construction bonds ." says, In the "Entertainment Film Works . . .James T . Duffy . . .John T . Norma L . is and Caroline Duffy . . ." ; that correct? A. Q. That's what this document says . On Page 3 of the document there is a list of signatures . A. the page . Q. Is your signature on that page? last two signatures on I witnessed the The answer is yes . Okay . Did you see John Duffy and or the original? think r saw Caroline Duffy sign this document A. I don't remember -them sign it, I don't no . either one of Q. document? Was anybody present when you signed this WWW.MCGINNLSCOURTREPORTERS .COM Case 1:03-cv-03073-ODE Document 27 Filed 05/21/04 Page 1 of 1 E11ED IN CLERK'S IN THE UNITED STATES DISTRICT COURT 0 FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION MAY 120 FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff v. ENTERTAINMENT FILM WORKS, INC . ; JAMES T . DUFFY ; NORMA L . DUFFY ; AND JOHN J . DUFFY, Defendants :CIVIL ACTION NO . 1 :03-cv-3073-ODE .TMp~C U Gbrk ORDER This civil diversity action is currently before the Court on Plaintiff's unopposed motion to add party and for leave to amend complaint 26, filed April 28, 2004 . By consent order entered March 2004, the parties were "permitted to file motions for leave to amend the pleadings and/or to add parties . . . through April 28, 2004 ." to Accordingly, Plaintiff's motion to add party and for leave complaint [125] is hereby GRANTED and the Clerk is amend directed to file the proposed amended complaint submitted with the motion this date . SO ORDERED, this ~~ day of May, 2004 . ORINDA D . EVANS UNITED STATES DISTRICT JUDGE U,-,~D- ~P~ Case 1:03-cv-03073-ODE Document 29 ?iA0 4 40 (Rev . 810)) Summons in a Cicil Action Filed 06/09/04 Page 1 of 2 UNITED STATES DISTRICT COURT NORTHERN Fidelity and Deposit Company of Maryland V. Entertainment Film Works District of GEORGIA SUMMONS IN A CIVIL ACTION CASE NUMBER: 46-3073-ODE TO : (Name and address o(Defendant) Dale A. Obracay 14817 Laguna Drive, Apt . 103 Fort Myers, FL 3390&2173 YOU ARE HEREBY SUMMONED and required to serve on PLAINTIFF'S ATTORNEY (name and address) W. Randal Bryant, Esq. Bovis, Kyle R Burch, LLC 53 Perimeter Center East, 3rd Floor Atlanta, GA 30346-2298 20 days :after service an answer to the complaint which is served nn you with this summons, within of this summons nn you, exclusive of the day of service . If you fail to do so, judgment by default will betaken against you for the relief demanded in the complaint . Any answer that you serve on the parties to this action must be filed with the Clerk of this Court within a reasonable period of time after service . IMIM D. Tfi0llAs CLERK _ DATE .NlN 9 - m By) DEPUTY ERK Case 1:03-cv-03073-ODE Document 29 FaAO 440 (Rev . 8101 ) Summons in a Civil Action Filed 06/09/04 Page 2 of 2 UNITED STATES DISTRICT COURT NORTHERN Fidelity and Deposit Company of Maryland V. Entertainment Film Works District of GEORGIA SUMMONS IN A CIVIL ACTION CASE NUMBER : 1 :3g-CV-3073-ODE TO : (Name and address of Deftndano Dale A . Obracay 328 Moorings Cove Drive Tarpon Springs, FL 34689 YOU ARE HEREBY SUMMONED and required to serve on PLAINTIFF'S ATTORNEY (name and address) W. Randal Bryant, Esq . Bovis, Kyle 8 Burch, LlC 53 Perimeter Center East, 3b Floor Atlanta, GA 30346-2298 20 an answer to the complaint which is served on you with this summons, within days after service of this summons on you, exclusive of the day of service . If you fail to do so. judgment by default will betaken against you for the relief demanded in the complaint . Any answer that you serve on the parties to this action must be filed with the Clerk of this Court within a reasonable period of time after service . L{1THBB D. THOMAS CLERK 1 I ' DATE ,UN 8 - 20114 (By) DEPUT CLERK II. . '. II Case 1:03-cv-03073-ODE Document 32 Filed 07/02/04 Page 1 of 8 X11 411 Ihl l~l rn_~,n . .~~.... FOR' T17-11E N70iULTHER THE UNITED STATES DISTRICT COURT A i LA Nr A D I ) 1 MT S I LAIN 0~ ~"~r A !! !i U U, FIDELITY AND DEPOSIT Plaintiff, v. -A ~1 A D"'i S 1~T :1~' COMPANY v : . 11THER J. . n~~MAS CIVIL ACTION FILE iyn, : 1:03-CV-3073-ODE i ? 1 ) ) 1 ) ) ) ) ) 1 aePuty Clerk ENTERTAINMENT FILM WORKS, INC.; JAMES T . DUFFY; NORMA L. DUFFY; JOHN J. DUFFY; AND DALE A. OBRACAY; Defendants . ANSWER OF DEFENDANT, DALE A. OBRACAY Comes now, Dale A. Obracay, Defendant, and shows the court as follows : FIRST DEFENSE Plaintiff fails to state a claim upon which any relief can be granted . SECOND DEFENSE Process and service of process were insufficient . THIRD DEFENSE Plaintiff's action is barred by the applicable statute of limitations . Case 1:03-cv-03073-ODE Document 32 i1 i I Filed 07/02/04 Page 2 of 8 I - ii I FOURTH DEFENSE All a.leQations and claims not specifically admitted are denied ; including those to which Defendant lacks sufficient i :ufermation and knowledge !e either admit or deny. FIFTH DEFENSE The only Complaint that svgs left at ! ;P_faadanYs door vas the First Amended Complaint and this Defendant has not been served with or seen any pleading entitled Complaint. SIXTH DEFENSE 1. Paragraph 1 refers to another Defendant, and this Defendant is without sufficient information and knowledge to either admit or deny paragraph 1. 2. Paragraph 2 refers to another Defendant, and this Defendant is without sufficient information and knowledge to either admit or deny paragraph 2. 3. Paragraph 3 refers to another Defendant, and this Defendant is without sufficient information and knowledge to either admit or deny paragraph 3. 2 II Case 1:03-cv-03073-ODE Document 32 Filed 07/02/04 Page 3 of 8 II 4. Paragraph 4 refers to another Defendant, and this Defendant is without sufficient information and knowledge to either admit or deny paragraph 4. 5. Defendant admits paragraph 5. 6. Defendant admits paragraph 6. 7. Defendant denies paragraph 7. 8. Paragraph 8 refers to the Plaintiff, and this Defendant is without sufficient information and knowledge to either admit or deny this paragraph. 9. Defendant is without sufficient information and knowledge to either admit or deny paragraph 9. 10. Defendant is without sufficient information and knowledge to either admit or deny paragraph 10 . 3 II Case 1:03-cv-03073-ODE Document 32 Filed 07/02/04 Page 4 of 8 I I' 11 . Defendant is without sufficient information and icnowieage to eiiner admit or dent/ paragraph 11 . 12. Defendant is without sufficient information and knowledge to either admit ar d? .^.y rz:ag:aph ?2 . 13. Defendant is without sufficient information and knowledge to either admit or deny paragraph 13. 14 . Defendant is without sufficient information and knowledge to either admit or deny paragraph 14. 15. Defendant is without sufficient information and knowledge to either admit or deny paragraph 15. 16. Defendant is without sufficient information and knowledge to either admit or deny paragraph 16. 4 Case 1:03-cv-03073-ODE Document 32 Filed 07/02/04 Page 5 of 8 i I i 17. jj Defendant is without sufficient information and knowlerige to either admit j or deny paragraph IT 18. Paragraph 18 refers to the other Defendants, and this Defendant is without CC ' f 4.......,~' .. Suuliiciu 4 . uviauu :~ .. .3 :1 a L . .^i`! 1 ' .. ... . .?Q^~8 ~., ~.:1ha~ ., ~. the r .Inii_t r . :-rv ~= .rasr~.nh .$ .,.F _ J ~.__ _ 19. Defendants previous answers and defenses are incorporated herein in response to paragraph 19. 20 . Paragraph 20 is denied . 21. Paragraph 21 is denied. 22. Paragraph 22 is denied . 23. Paragraph 23 is denied, and Defendant further shows that he is without sufficient information and knowledge either to admit or deny the actions of the Plaintiff. 5 Case 1:03-cv-03073-ODE Document 32 Filed 07/02/04 Page 6 of 8 E 24. Pa en=raph 24 is denied . 25. Defendant incorporates his previous defenses and answers in response to paragraph 25. 26. Paragraph 26 is denied . 27. Paragraph 27 is denied . 28. Paragraph 28 is denied, and this Defendant further shows that he is without sufficient information and knowledge to either admit or deny the actions of the Plaintiff. 29. Paragraph 29 is denied . 30. Paragraph 30 is denied. 6 I. I. Case 1:03-cv-03073-ODE Document 32 Filed 07/02/04 Page 7 of 8 II Wherefore, having answered the First Amended Complaint. Defendant prays ?hat the same be dismissed, !hat all costs be assessed against the Plaintiff, and that he recover his reasonable attorney's fees and expenses . Law Offices Stanley M. Lefco, P.C. Stanley ICY L . Attorney for 7 Case 1:03-cv-03073-ODE Document 32 !i II Filed 07/02/04 Page 8 of 8 = l ('FRTiFiC'A TF OF SERVICE . .l Certify' :ildf 1 i1 .1 :'C . . . .~ Qdi' iiii5 i= .... .. __+Po- moo .. ..~ . :lh 3 ~:0~'y' .t . the au .rhca Answer :F ll`F`ra~~f H. . deposit' ^ : .h in the United States Mail a copy of same in a properly addressed envelope with adequate postage thereon addressed as follows : W. Randal Bryant, Esq . Ba . 53 Perimeter Center East, 3rd . Floor Atlanta, GA 30346-2298 . . s, "'y le W Bu :ca., ~C This 1st day of Tuly , 2004. Law Offices Stanley M. Lefco, F:C, 8 Case 1:03-cv-03073-ODE Document 33 ~fiVECIV CI FEK'S OFf1L~ RECEn"" IN CLERK'S OFFICE p .C . Atlanta Filed 07/07/04 Page 1 of 2 VC4 ~,"fHe~? .. My : I : :. . ;,-, clerk JUN 3 0 2004 ,.. FNra P-1- DePLAV C18IN THE UNITED 'S~ATES DISTRICT COURT ,. , Clerk C Qa- -.~ru ~~CE JUL "' l 2o04 , FOR THE NORTHERN DISTRICT OF GEORG~~ ATLANTA DIVISION CcEq ) ) ~` FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY; JOHN J. DUFFY; and DALE A. OBRACAY ; Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE ORDER EXTENDING DISCOVERY PERIOD WHEREAS, this Court has allowed the Plaintiff to amend its Complaint and add Dale A. Obracay as a party Defendant ; WHEREAS, the original parties to this action have proceeded diligently with discovery but have been unable to complete discovery within the time allocated, the current period set to expire on June 28, 2004; WHEREAS, time has not yet expired for Dale A. Obracay to have filed an answer, since this Defendant was just recently served; and WHEREAS, the parties are in the process of pursuing discovery and taking depositions; -t- 0 Case 1:03-cv-03073-ODE Document 33 Filed 07/07/04 Page 2 of 2 WHEREAS, neither Dale A . Obracay nor his counsel have yet made an appearance; WHEREAS, there would be no purpose in conducting multiple depositions; and WHEREAS, the original parties have jointly moved the our! iur a1, extension of the discovery period through August 30, 2004 and have shown good cause for such an extension; IT IS HEREBY ORDERED that the time for the parties to conduct discovery is hereby extended through August 30, 2004. This ~ day of v 12004. Orinda D. Evans, Chief Judge United States District Court Submitted and consented to by: W - ew-d.oA 8-w,.V..7b W. Randal Bryant i Maunce J Bi Georgia Bar Attorney for Georgia Bar No. 092039 Attorney for Plaintiff Bovis, Kyle & Burch, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346 (770) 391-9100 (770) 688-0878 Facsimile 054850 Entertainment Film Works, Inc., James T. Duffy, Normal L. DuJjy, and John J. Duffy 2717 Chamblze Dunwoody Rd . Atlanta, Georgia 30341 (G78)530-0900 (678) 530-0099 Facsimile -2- Case 1:03-cv-03073-ODE Document 37 Filed 07/30/04 Page 1 of 4 FILED IN CLERK'S OFFICE THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC.; JAMES T. DUFFY; NORMA L. UUFFY; JOHN J. DUFFY; AND DALE A. OBRACAY; IJ .5 .D .C . Atlanta JUL 3 0 2004 .; ) } LIJT 'Fe~~ 1 ) ) ) 1 } ) J ~ CIVIL ACTION FII NO.: 1:03-CV-3073-()DE Defendants. ) DEFENDANT'S., DALE QBRACAY, INITIAL DISCLOSURES (1) Defendant is properly identified. (2) Defendant is unaware at this time of any necessary parties, who have not been named by the Plaintiff except for possibly Anne Brower Harner. Since this Defendant was only recently served in this action, he has not at this dime had an opportunity to investigate all the facts. This action apparently was initiated in October, 2003 . Defendant was allegedly served on June 17, 2004 aid he answered on July 1, 2004. (3) The signatures of the parties to the General Indemnity Agreement were apparently witnessed by a notary public . Due to his medical condition, Defendant Case 1:03-cv-03073-ODE Document 37 Filed 07/30/04 Page 2 of 4 is uncertain whether he witnessed John Duffy aid Caroline Duffy sign the said Agreement. Defendant was not a party to the said Agreement and acted only in the capacity of a witness. Defendant was not personally served with the Complaint . (4) Defendant at this tine has not had an opportunity to determine all applicable statutes, codes, regulations, legal principles, standards and customs or usages, and case law since he has only recently been allegedly served in this action. In respect to service, FRCP Rules 4(e) and 4(k) apply. (5) Defendant i5 unaware at this time of any other individuals, who have discoverable information, other than the named defendants and Anne Horner, 6511 Vernon Woods Drive, Atlanta, Georgia 30328. (b) Defendant may have Dr. Allen Sichelman testify about his medical, including mental, condition and medications he is taking . (7) Defendant may use prescriptions for medications and a diagnosis of his medical condition. 2 Case 1:03-cv-03073-ODE Document 37 Filed 07/30/04 Page 3 of 4 (8) Defendant is not seeking any damages at this time. (9) The other Defendants named in this action are liable to the Plaintiff since they signed the General Indemnity Agreement. (1o) There is no insurance agreement, which would satisfy any judgment entered against this Defendant . Law Offices Stanley M. Lefco, P.C. By: ftnle M. co Attorney for DeE Dale A. Obracay d t, 444800 State Bar of Geor ' 4651 HOSWELT. ROAD SUITE G - 602 ATLANTA, GEORGIA 3034 . (404) 843-9668 3 Case 1:03-cv-03073-ODE Document 37 Filed 07/30/04 Page 4 of 4 CERTIFICATE OF SERVICE This is to certify that I have this day served counsel far the Plaintiff and other Defendants in the foregoing matter with a copy of the attached Defendant's, Dale Obracay, Initial Disclosures, by depositing in the United States Mail a copy of same in a properly addressed envelope with adequate postage thereon addressed as follows : W. Randal Bryan, Esq. Bvvis, Kyle & Bunch, LLC 53 Perimeter Center East, 3rd. Floor Atlanta, GA 3Q346-2298 Maurice J. Bernard, Esq. 3717 Chamblee Dunwoody Road Chamblee, GA 30341 This 'e) 9 day of July 2004. Law Offices Stanley M. Lefco, P.C. Dale A. Obracay State Bar of GeorL)#4448Q0 4651 ROSWELL ROAD SUITE G - 602 ATLANTA, GEORGIA 30342 (404) 843-9666 4 Case 1:03-cv-03073-ODE Document 37 Filed 07/30/04 Page 1 of 4 FILED IN CLERK'S OFFICE THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC.; JAMES T. DUFFY; NORMA L. UUFFY; JOHN J. DUFFY; AND DALE A. OBRACAY; IJ .5 .D .C . Atlanta JUL 3 0 2004 .; ) } LIJT 'Fe~~ 1 ) ) ) 1 } ) J ~ CIVIL ACTION FII NO.: 1:03-CV-3073-()DE Defendants. ) DEFENDANT'S., DALE QBRACAY, INITIAL DISCLOSURES (1) Defendant is properly identified. (2) Defendant is unaware at this time of any necessary parties, who have not been named by the Plaintiff except for possibly Anne Brower Harner. Since this Defendant was only recently served in this action, he has not at this dime had an opportunity to investigate all the facts. This action apparently was initiated in October, 2003 . Defendant was allegedly served on June 17, 2004 aid he answered on July 1, 2004. (3) The signatures of the parties to the General Indemnity Agreement were apparently witnessed by a notary public . Due to his medical condition, Defendant Case 1:03-cv-03073-ODE Document 37 Filed 07/30/04 Page 2 of 4 is uncertain whether he witnessed John Duffy aid Caroline Duffy sign the said Agreement. Defendant was not a party to the said Agreement and acted only in the capacity of a witness. Defendant was not personally served with the Complaint . (4) Defendant at this tine has not had an opportunity to determine all applicable statutes, codes, regulations, legal principles, standards and customs or usages, and case law since he has only recently been allegedly served in this action. In respect to service, FRCP Rules 4(e) and 4(k) apply. (5) Defendant i5 unaware at this time of any other individuals, who have discoverable information, other than the named defendants and Anne Horner, 6511 Vernon Woods Drive, Atlanta, Georgia 30328. (b) Defendant may have Dr. Allen Sichelman testify about his medical, including mental, condition and medications he is taking . (7) Defendant may use prescriptions for medications and a diagnosis of his medical condition. 2 Case 1:03-cv-03073-ODE Document 37 Filed 07/30/04 Page 3 of 4 (8) Defendant is not seeking any damages at this time. (9) The other Defendants named in this action are liable to the Plaintiff since they signed the General Indemnity Agreement. (1o) There is no insurance agreement, which would satisfy any judgment entered against this Defendant . Law Offices Stanley M. Lefco, P.C. By: ftnle M. co Attorney for DeE Dale A. Obracay d t, 444800 State Bar of Geor ' 4651 HOSWELT. ROAD SUITE G - 602 ATLANTA, GEORGIA 3034 . (404) 843-9668 3 Case 1:03-cv-03073-ODE Document 37 Filed 07/30/04 Page 4 of 4 CERTIFICATE OF SERVICE This is to certify that I have this day served counsel far the Plaintiff and other Defendants in the foregoing matter with a copy of the attached Defendant's, Dale Obracay, Initial Disclosures, by depositing in the United States Mail a copy of same in a properly addressed envelope with adequate postage thereon addressed as follows : W. Randal Bryan, Esq. Bvvis, Kyle & Bunch, LLC 53 Perimeter Center East, 3rd. Floor Atlanta, GA 3Q346-2298 Maurice J. Bernard, Esq. 3717 Chamblee Dunwoody Road Chamblee, GA 30341 This 'e) 9 day of July 2004. Law Offices Stanley M. Lefco, P.C. Dale A. Obracay State Bar of GeorL)#4448Q0 4651 ROSWELL ROAD SUITE G - 602 ATLANTA, GEORGIA 30342 (404) 843-9666 4 Case 1:03-cv-03073-ODE Document 41 Filed 08/11/04 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FILED IN CLWS OFFICE FOR THE NORTHERN DISTRICT OF GEORGIA ~~`~''~'~ Aflania ATLANTA DIVISION ) ) ) ) ) ) ) ) FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, vs . ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, NORMA L. DUFFY, and JOHN J. DUFFY, Defendants. AUG 1. 1 1004 Crwk s . d CIVIL ACTION FILE NO. 1 :03-CV-3073 ANSWER OF JOHN J. DUFFY TO FIRST AMENDED COMPLAINT AND REQUEST FAR JURY TRIAL First Defense The Complaint is subject to the defense of statute of frauds . Second Defense The alleged signature of John J . Daffy an the document attached as Exhibit "A" to Plaintiff's Complaint is a forgery to the best of Defendant, John J. Duffy's, knowledge and belief. Third Defense The document attached as Exhibit "A" to Plaintiffs Complaint has been materially altered in favor of the Plaintiff to the best of Defendant, John J. Duffy's, knowledge, information and belief. Fourth Defense COMES NOW Defendant, John J . Daffy and responds to the individually numbered allegations of Plaintiff's Complaint as follows: Case 1:03-cv-03073-ODE Document 41 Filed 08/11/04 Page 2 of 7 1. Defendant admit the allegations of paragraph 1 of Plaintiffs Complaint . 2. Defendant admit the allegations of paragraph 2 of Plaintiffs Complaint. 3. Defendant admit the allegations of paragraph 3 of Plaintiffs Complaint. 4. Defendant admit the allegations of paragraph 4 of Plaintiff's Complaint. 5. Defendant is without sufficient knowledge to either admit or deny the allegations of paragraph 5 of Plaintiffs Complaint. 6. Defendant is without sufficient knowledge to either admit or deny the allegations of paragraph 6 of Plaintiff's Complaint. 7. Defendant is without sufficient knowledge to either admit or deny the allegations of paragraph 7 of Plaintiff's Complaint. $. Defendant is without sufficient knowledge to either admit or deny the allegations of paragraph $ of Plaintiff's Complaint. 9. Defendant denies the allegations of paragraph 9 of Plaintiff's Complaint on information and belief. Case 1:03-cv-03073-ODE Document 41 Filed 08/11/04 Page 3 of 7 10. Defendant is without sufficient knowledge to either admit or deny the allegations of paragraph 10 of Plaintiff's Complaint . 11 . Defendant denies the allegations of paragraph 11 of Plaintiff's Complaint as to jurisdiction as written. Defendant admits that venue is proper. 12. Defendant admits the allegations of paragraph 12 of Plaintiff's Complaint on information and belief. 13. Defendant denies the allegations of paragraph 13 of Plaintiff's Complaint as written. 14 . Defendant denies the allegations of paragraph 14 of Plaintiff's Complaint as written. 15. Defendant denies the allegations of paragraph 15 of Plaintiff's Complaint as written. 16. Defendant is without sufficient knowledge to either admit or deny the allegations of paragraph 16 of Plaintiff's Complaint. Case 1:03-cv-03073-ODE Document 41 Filed 08/11/04 Page 4 of 7 17. Defendant denies the allegations of paragraph 17 of Plaintiff's Complaint as written. 18 . Defendant denies the allegations of paragraph 1$ of Plaintiff's Complaint as written. 19. Defendant restates and realleges each and every response set forth above in response to the numbered allegations of Plaintiffs Complaint as if they were set forth verbatim herein. 20. On information and belief Defendant admits the allegations of paragraph 20 of Plaintiff's Complaint. 21 . Defendant admits that Defendant Obracay did not witness the signatures of John J. Daffy and Caroline Daffy. Defendant is without sufficient knowledge to either admit or deny the remaining allegations of paragraph 21 of Plaintif s Complaint. 22. Defendant admits that these representations were false in fact. Defendant is without sufficient knowledge to either admit or deny the remaining allegations of paragraph 22 of Plaintiffs Complaint. Case 1:03-cv-03073-ODE Document 41 Filed 08/11/04 Page 5 of 7 23. Defendant is without sufficient knowledge to either admit or deny the allegations of paragraph 23 of Plaintiff s Complaint. 24. Defendant is without sufficient knowledge to either admit ox deny the allegations of paragraph 24 of Plaintiff's Complaint. 25 . Defendant restates and realleges each and every response to the numbered allegations of Plaintiffs Complaint set forth above as if they were sit forth verbatim herein. 26. Defendant is without sufficient knowledge to either admit or deny the allegations of paragraph 26 of Plaintiff's Complaint. 27. Defendant admits that John J. Duffy and Caroline Daffy did not sign the indemnity agreement. Defendant is without sufficient knowledge to either admit or deny the remaining allegations of paragraph 27 0f Plaintiff's Complaint. 2$. Defendant is without sufficient knowledge to either admit or deny the allegations of paragraph 28 of Plaintiffs Complaint. 29. Defendant admits that he did not sign his name. Case 1:03-cv-03073-ODE Document 41 Filed 08/11/04 Page 6 of 7 Defendant is without sufficient knowledge to either admit or deny the remaining allegations of paragraph 29 of Plaintiffs Complaint. 30. Defendant admits that Caroline DuFfy did not sign the indemnity agreement. Defendant is without sufficient knowledge to either admit or deny the remaining allegations of paragraph 30 of Plaintiff's Complaint. JURY DEMAND COMES NOW Defendant, John J. Duffy, and hereby demands a jury trial with respect to this case. WHEREFORE, Defendant, John J. Daffy, denies any liability to Plaintiff and requests that all costs be cast upon the Plaintiff and this action with respect to John J. Daffy be dismissed. F,r MAURICE J BI Attorney for De Georgia Bar No 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 ant, John J. Daffy 4850 RD, III . Case 1:03-cv-03073-ODE Document 41 Filed 08/11/04 Page 7 of 7 CERTIFICATE OF SERVICE This is to certify that I have served a copy of the within and foregoing ANSWER OF JOHN J. DUFFY TO FIRST AMENDED COMPLAINT AND REQUEST FOR JURY TRIAL upon the following counsel and depositing a true copy of wane in the United States Mail, with adequate postage affixed thereon, addressed as follows: Bovis, Kyle & Burch, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Law Offices of Stanley M. Lefco, P.C . 4651 Roswell Road, Suite G-602 Atlanta, Georgia 30342 Gregory R. Veal, Esq. W. Randal Bryant, Esq. Stanley M. Lefco, Esq. This 9~' day of August, 2004 . MAUIZiCE J BI Attorney for De Georgia Bar No 3717 Chamblee Dunwaody Road Atlanta, Georgia 30341 1~RD, III ant, John J. Duffy 4850 {678} 530-0900 Case 1:03-cv-03073-ODE Document 42 Filed 08/11/04 Page 1 of 7 FILED IN CLERK'S OFFICE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ll .S .Q .C . Atlanta AUG 112004 LUTHER D. T110i'V-S, Crerk ,h, , 11A ty if Ckrk FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, vs. ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, NORMA L. DUFFY, and JOHN J. DUFFY, Defendants . ) ) ) } ) ) ) ) CIVIL ACTION FILE NO. 1 :03-CV-3073 ANSWER OF JAMES T. DUFFY NORMA L. DUFFY AND ENTERTAINMENT FILM WORKS, INC. TO FIRST AMENDED COMPLAINT AND REQUEST FOR JURY TRIAL First Defense The Complaint is subject to the defense of statute of frauds and fraud in the inducement. Second Defense The actual amount owing pursuant to any indemnification falls below the jurisdictional limits of this action and the same should be dismissed for lack of subject matter jurisdiction to the best of Defendants' knowledge and belief. Third Defense The document attached as Exhibit "A" to Plaintiff's Complaint has been materially altered in favor of the Plaintiff to the best of Defendants' knowledge, information and belief. Case 1:03-cv-03073-ODE Document 42 Filed 08/11/04 Page 2 of 7 Fourth Defense COMES NOW Defendants, James T. DuF?y, Norfna L. Daffy and Entertainment Film Works, Inc. and responds to the individually numbered allegations of Plaintiffs Complaint as follows : 1. Defendants admit the allegations of paragraph 1 of Plaintiff s Complaint. 2. Defendants admit the allegations of paragraph 2 of Plaintiff's Complaint. 3. Defendants admit the allegations of paragraph 3 of Plaintiff's Complaint. 4. Defendants admit the allegations of paragraph 4 of Plaintiff s Complaint. 5. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 5 of Plaintiffs Complaint . 6. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 6 of Plaintiff's Complaint. 7. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 7 of Plaintiff's Complain . s. Defendants are without sufficient knowledge to either admit or deny the Case 1:03-cv-03073-ODE Document 42 Filed 08/11/04 Page 3 of 7 allegations of paragraph 8 of Plaintiff's Complaint. 9. Defendants deny the allegations of paragraph 9 of Plaintiffs Complaint on information and belief. 10. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 10 of Plaintiff's Complaint. 11 . Defendants deny the allegations of paragraph 11 of Plaintiff's Complaint as to jurisdiction as written . Defendant admits that venue is proper. 12 . Defendants admit the allegations of paragraph 12 of Plaintiffs Complaint on information and belief. 13 . Defendants deny the allegations of paragraph 13 of Plaintiff's Complaint as written. 14. Defendants deny the allegations of paragraph 14 of Plaintiffs Complaint as written. 15 . Defendants deny the allegations of paragraph 15 of Plaintiff's Complaint as written. Case 1:03-cv-03073-ODE Document 42 Filed 08/11/04 Page 4 of 7 16. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 16 of Plaintiff s Complaint. 17. Defendants deny the allegations of paragraph 17 of Plaintiffs Complaint as written. 18 . Defendants deny the allegations of paragraph 18 of Plaintiff's Complaint as written. 19. Defendants restate and reallege each and every response set forth above in response to the numbered allegations of Plaintiff's Complaint as if they were set forth verbatim herein . 20. On information and belief Defendants admit the allegations of paragraph 20 of Plaintiff's Complaint. 21 . Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 21 of Plaintiff's Complaint. 22. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 22 of Plaintiff's Complaint. Case 1:03-cv-03073-ODE Document 42 Filed 08/11/04 Page 5 of 7 23 . Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 23 of Plaintiff s Complaint. 24. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 24 of Plaintiff's Complaint. 25. Defendants restate and reallege each and every response to the numbered allegations of Plaintiff's Complaint set forth above as of they were set forth verbatim herein . 26. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 26 of Plaintiff s Complaint. 27. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 27 of Plaintiff's Complaint. 2$ . Defendants are without sufficient knowledge to either admit or deny tie allegations of paragraph 28 of Plaintiffs Complaint. 29. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 29 of Plaintiff s Complaint. Case 1:03-cv-03073-ODE Document 42 Filed 08/11/04 Page 6 of 7 30. Defendants are without sufficient knowledge to either admit or deny the allegations of paragraph 30 of Plaintiff's Complaint. JURY DEMAND COMES NOW Defendants and hereby demand a jury trial with respect to this case . WHEREFORE, Defendants deny liability to Plaintiff in the amounts stated and request that all costs be cast upon the Plaintiff and this action be dismissed for want of subject matter jurisdiction . 3717 Chamblee Duzlwoody Road Atlanta, Georgia 30341 Georgia Bar No. 054850 {678} 530-0900 Case 1:03-cv-03073-ODE Document 42 Filed 08/11/04 Page 7 of 7 CERTIFICATE OF SERVICE This is to certify that I have served a copy of the within and foregoing ANSWER OF JAMES T. DUFFY, NORMA L. DUFFY AND ENTERTAINMENT FILM WORKS, INC. TO FIRST AMENDED COMPLAINT AND REQUEST FOR JURY TRIAL upon the following counsel and depositing a true copy of same in the United States Mail, with adequate postage affixed thereon, addressed as follows: Atlanta, Georgia 30346-2298 Stanley M. Lefco, Esq. Law Offices of Stanley M. Lefco, P.C . 4651 Raswell Road, Suite G-602 Atlanta, Georgia 30342 Bovis, Kyle & Buxch, LLC 53 Perimeter Center East Third Floor Gregory R. Veal, Esq. W. Randal Bryant, Esq. This 9`h day of August, 2004 . 3 BEkNARD, III /MAURICE Attorney for Dfendants Georgia Bar I1b . 054850 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 Case 1:03-cv-03073-ODE Document 46 Filed 08/27/04 Page 1 of 6 FILED IN CLEM OFFICE THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEO~ '~ 2004 aATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v, ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L, DUFFY; JOHN J. DUFFY ; and DALE A. OBRACAY; Defendants. } } }, ) ) ) ) ) ) ) Deputy dierk U.S .D .C, Atlanta CIVIL ACTION FILE NO.: 1 :03-CV-3073-4DE MOTION FOR ORDER EXTENDING DISCOVERY PERIOD COMES NOW, Dale A. Qbracay, Defendant, and moves the Court as follows: To extend the discovery period for thirty (30) days through September 30, 2004 . Law Offices Stanley M. Lefco, P.C. 4631 &OSWELL ROAD SUITE G - 602 ATLANTA, GEORGIA 30342 (404) 843-9666 State Bar of Georgia #444$00 Case 1:03-cv-03073-ODE Document 46 Filed 08/27/04 Page 2 of 6 FOR THE NORTHERN DISTRICT OF GEORGIA UG 2'~ 2004 ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, } } FILED ilk ~? ~~!:`S o~~ICE U .j? .Ce Fala~ta THE UNITED STATES DISTRICT COURT LUTHER q. THOMAS, Clef ..pptY ale D0 CIVIL ACTION FILE v. ENTERTAINMENT FILM WORKS, INC .; JAMES T. DUFFY; NORMA L. DUFFY; JOHN J. DLIFFY; and DALE A. OBRACAY ; Defendants. } } } } } } N4. : 1 :03-CV-3073-ODE BRIEF IN SUPPORT OF MOTION FOR ORDER EXTENDING DISCOVERY PERIOD This action was initiated in October, 2003 . Defendant was not added as a party until June 17, 2004, when he was served with the Complaint . Defendant answered the Complaint an July 1, 2004 . Defendant has only had sixty (60) days for discovery . Defendant has not had sufficient time since answering the Complaint to complete discovery. The expiration of the discovery period is set fog August 30, 2004. An extension of discovery for thirty (30) days through September 30, 2044, will allow Defendant sufficient time to complete discovery pursuant to Civil Local 4651 ROSWELL ROAD SUITE c - sos ATLANTA, GEORGIA 30342 (404) 843 .9666 Rule 26 .2(B). Case 1:03-cv-03073-ODE Document 46 Filed 08/27/04 Page 3 of 6 Law Offices Stanley M . Lefco, P.C. By : StIqley M. I Attorney or Def cc I - /A Dale A. 4bracay State Bar of Georgia #444800 4651 ROSWELL ROAD SUITE G - 642 ATLANTA, GEORGIA 30342 (404) 843-9666 1~ .~.~-? ` . fi Case OFFICE 1:03-cv-03073-ODE Document 46 Filed 08/27/04 Page 4 of 6 AUG 2 7 poty Clerk clerk THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ) ) ) ) } ) ) ) ) FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC . ; JAMES T. DUFFY; NORMA L. DUFFY; JOHN J. DUFFY ; and DALE A. OBRACAY; Defendants. CIVIL ACTION FILE NO.: 1 :03-CV-3073-4DE CONSENT ORDER EXTENDING DISCOVERY PERIOD HAVING CONSIDERED the Motion For Extending the Discovery Period and it appearing that the discovery period in the above referenced case is set to expire on August 30, 2004; that the parties have consented to an extension of the discovery period for thirty (30) days through September 30, 2004 ; and that good cause has been shown for such extension; THEREFORE, it is hereby ordered that the discovery period is extended for thirty (30) days through September 30, 2004 . This clay of , 2004 . (signatures on next page) Case 1:03-cv-03073-ODE Document 46 Filed 08/27/04 Page 5 of 6 Qrinda D. Evans, Chief Judge United Stated District Court consented to by: Consented to by: V `~~ i. ` St ey . Lefco Attorney for Deft Dale A. 4bracay State Bar of Ge4 W. Randal Bryant U Attorney for Plaintiff #444800 ss ~v~ State Bay of Georgia #092039 v-,Wff k Lt Maurice J. B ard, III Attorney for Defendants State Bar of Georgia #054$, z Case 1:03-cv-03073-ODE Document 46 Filed 08/27/04 Page 6 of 6 ~1~.6..r~',r A 4IL1 A .3 SISV Q 7 ,YE AflenM CERTIFICATE OF SERVICE AUG ~ ~` 20~ LUTHER D . Tos, clerk $y.- This is to certify that I have this day served counsel for the PlairitMpk other Defendants in the foregoing matter with a copy of the Motion and Brief In Support Of Extension of Discovery Period, by depositing in the United States Mail a copy of same in a properly addressed envelope with adequate postage thereon addressed as follows : W. Randal Bryant, Esq. Bovis, Kyle & Burch, LLC 53 Perimeter Center East, 3rd . Floor Atlanta, GA 3036-2298 Maurice J. Bernard, Esq. 371? Chamblee Dunwoody Road Chamblee, GA 30341 This ' daY of ./ 2004 Law Offices Stanley M. Lefco, P.C . B A Attorney for D endant . Dale A. Qbracky State Bar of Georgia #444800 tame M. Lefk~ 4651 ROSWELL ROAD SUITE G - 60R ATLANTA, GEORGIA 30342 (404) 843-9666 Case 1:03-cv-03073-ODE Document 50 Filed 09/03/04 Page 1 of 10 THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ) ) } ) CIVIL ACTION FILE NO.: 1 :03-CV-3073-ODE FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM } WORKS, ANC. ; JAMES T. DUFFY;} NORMA L. DUFFY ; JOHN J. ) I3UFFY; and DALE A. OBRACAY;) FILED 1N CLERKS OFFICE U.S. D.G. -Atlanfa SEP a 3 ZQO4 LUTHER a:. 'THCftS, Defendants. ) DEFENDANT'S, DALE OBRACAY, MOTION FOR JOINDER OF PERSON NEEDED FOR JUST ADJUDICATION OR, IN THE ALTERNATIVE MOTION TO DISMISS THE PROCEEDINGS AGAINST DEFENDANT COMES NOW, Dale Obracay, Defendant, and moves, pursuant to Federal Rule of Civil Procedure 19(a) and (U), this Court as follows: 1. That it loin Ann B . Homer as an indispensable party to this action since the disposition with her absence would heave Defendant at a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Case 1:03-cv-03073-ODE Document 50 Filed 09/03/04 Page 2 of 10 In the alternative, the Court should dismiss the proceedings against this Defendant if Homer cannot be made a party, since her absence as a party defendant would be highly prejudicial and unjust to Defendant. Wherefore, Defendant moves this Court to join Anne B . Homer as a Defendant or dismiss Defendant from this law suit since Anne B. Homer is an indispensable party Law Offices Stanley M. Lefco, P.G . Stanley 117I . Dale abracay State Bar of Georgia 4651 ROSWELL ROAD SUITE G - 602 ATLANTA, GEORGIA 30942 (404) 843-9666 Case 1:03-cv-03073-ODE Document 50 Filed 09/03/04 Page 3 of 10 THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. } ) } ) CIVIL ACTION FILE NO. : x :03-CV-3073-ODE ENTERTAINMENT FILM } WORKS, INC.; JAMES T. DUFFY ;) NORMA L. DUFF'; JOHN J. ) DUFFY; and DALE A. OBRACAY;) Defendants. DEFENDANT'S, DALE QSRACAY, BRIEF IN SUPPORT OF MOTION FOR J4INDER OF PERSON NEEDED FOR JUST ADJUDICATION OR, IN THE ALTERNATIVE, MOTION TO DISMISS THE PROCEEDINGS AGAINST DEFENDANT I. STATEMENT OF FACTS Defendant Ohracay was joined as a party defendant in Plaintiff's First Amended Complaint . Plaintiff alleges that 4braeay falsely and fraudulently and with intent to defraud the Plaintiff represented to Plaintiff that he had witnessed John J. Duffiy and Caroline Duffy sign the General Indemnity Agreement ("Indemnity Agreement") . (First Amended Complaint, para. 21) 1 Case 1:03-cv-03073-ODE Document 50 Filed 09/03/04 Page 4 of 10 Plaintiff also alleges that he negligently misrepresented to Plaintiff that John J . Duffy and Caroline Duffy signed the Indemnity Agreement. (First Amended Complaint, paras. 29 and 30) Plaintiff alleges, "If Surety had known that Defendant Dale A. Qbracay had nod witnessed John J. Daffy and Caroline Daffy sign the Indemnity Agreement, it would not have issued bonds on behalf of EFW." (First Amended Complaint, pare. 23) Obracay was an unofficial witness to the Indemnity Agreement of which the validity is being disputed between the Plaintiff and co-Defendants. The Indemnity Agreement was notarized by Ann Brower Homer, a notary public in Gwinnett County, Georgia . As noted, Ubracay signed as an unofficial witness to the signatures of John J. Duffy and Caroline Daffy after Ann Homer signed the Agreement notarizing all of the signatures. (Attached hereto are the specified pages of the deposition of Dale A. Obracy; See Deposition of Obracay, p. 20) As notary, she confirmed the identity of the document signers based on personal knowledge or on satisfactory evidence . (See Exhibit A, Attached to First Amended Complaint) Obracay will be unfairly prejudiced without the joinder of Homer as a party defendant pursuant to F .R.C.P . 19(a)(2)(ii) . 2 Case 1:03-cv-03073-ODE Document 50 Filed 09/03/04 Page 5 of 10 II. ARGUMENT AND CITATION OF AUTHORITY Rule 19(a) of the Federal Rues of Civil Procedure allows a person, who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject mater of the action, shall be joined as a party in the action if (1), in the person's absence, complete relief cannot be accorded among those already parties, or (2) the person clams an interest rebating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest . Ann Homer is a resident of the Northern District in the State o#' Georgia. (Attached hereto are the specified pages of the deposition of Anne B . Homer; See Deposition of Homer, p . 5) There is complete diversity of state citizenship between the Plaintiff and each of the Defendants, even after adding Homer as a party defendant. In Laker-AiFVVays, Inc. v. British Airways, PLC, 182 F . 3d 843 (11hCir. 1999), the Court affirmed the district court's dismissal of Laker's complaint, because Laker failed to join an indispensable party within the meaning of Rule 3 Case 1:03-cv-03073-ODE Document 50 Filed 09/03/04 Page 6 of 10 19 . FRCP 19 sets forth a two-part analysis. First, the court must determine whether the person in question should be joined. If the person should be joined, but for some reason cannot be, the court must analyze the factors outlined in Rule 19(b) to determine whether "in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person thus regarded as indispensable." Fed.R.Civ .P. 19(b). A party is considered necessary to the action if the court determines either that complete relief cannot be granted with the present parties or the absent party has an interest in the disposition of the current proceedings. Furthermore, Haas v. Jefferson National Bank, 442 F . 2d 394 (5th Cir. 1971), held that a joint tortfeasor will be considered a necessary party when the absent party "emerges as an active participant" in the allegations made in the complaint that are "critical to the disposition of the important issues in the litigation ." In the present case, Homer witnessed and signed the Indemnity Agreement in her official capacity as a notary public for all of the signers on the Agreement. Following her notarization, Qbracay signed as the unofficial witness next to the signatures of John J. Duffy and Caroline Duffy. (Deposition of abracay, p. 20) Plaintiff is claming that Obracay falsely and fraudulently represented and negligently misrepresented that he had witnessed Case 1:03-cv-03073-ODE Document 50 Filed 09/03/04 Page 7 of 10 John J. Duffy and Caroline Duffy sign the Indemnify Agreement. Homer actively participated in these actions alleged in the Complaint against 4bracay by notarizing all of the signatures on the Indemnity Agreement. (Deposition of Homer, pp . 7-1.7) IfPlaintiff relied on Obracay's signature, it surely relied on Homer's signature, if not more so, since she, as a notary public, confirmed the identity of the document signers based on her personal knowledge or on satisfactory evidence . If Plaintiff alleges that the unofficial witness is liable for fraud and negligent misrepresentation, obviously the official witness is as well. If a necessary party cannot be joined, the court must then proceed to Rule 19(b) and consider whether in "equity and good conscience," the suit should proceed without the necessary party . The court balances four factors in this analysis : (1) how prejudicial a judgment would be to the nonjoinder and joined parties, (2) whether the prejudice could be lessened depending on the relief fashioned, (3) whither the judgment without jainder would be adequate, and (4) whether the plaintiff would have any alternative remedies were the case dismissed for nonjoinder. Wymbs v. Republican State Executive Comm., 719 F .2d 1072 (11"' Cir. 1983). Judgment against Obracay, as unofficial witness to the Indemnity Agreement, would be prejudicial and unjust if Homer is not added as a party Case 1:03-cv-03073-ODE Document 50 Filed 09/03/04 Page 8 of 10 defendant . She signed and notarized the Indemnity Agreement, violating her duties under 4_C_G .A. ?45-17-8{e}, which states, "in performing any notarial act, a notary public shall confirm the identity of the document signer, oath taker, or affirmant based on personal knowledge or nn satisfactory evidence ." Homer did not see any of the parties sign the Agreement or did not have personal knowledge that the parties signed the Agreement . (Deposition of Homer, pp. 10-17) If the Court determines that Homer cannot be made a party, the Court should dismiss Defendant Obracay from the proceeding as veil, because it would be unfairly prejudicial and unjust to hold him liable as an unofficial witness if the official witness is not being held liable for misleading the Plaintiff. O.C.G.A. X45-17-8(f) states: "The signature of a notary public documenting a notarial act shall not be evidence to show that such notary public had knowledge of the contents of the document so signed, offer than those specific contents which constitute the signature, execution, acknowledgment, oath, affirmation; affidavit, verification, or other act which the signature of the notary pubic documents, nor is a certification by a notary public that a document is a certified or true copy of an original document evidence to show that such notary public had knowledge of the contents of the document so certified ." If a notary public's signature does rat evidence that 6 Case 1:03-cv-03073-ODE Document 50 Filed 09/03/04 Page 9 of 10 the notary had knowledge of the contents of the document, then the notary should not be held liable for the contents of the document. It is then logical to conclude that if an official witness is not held liable for the contents of the document, an unofficial witness surely should not be held liable for the contents of the document. If the Court dismisses the Complaint against Obracay, Plaintiff still has an adequate remedy against the other party Defendants since they are parties to the Indemnity Agreement: CONCLUSION The Court should grant Defendant's Motion to loin Ann B. Homer as an indispensable party defendant or, in the alternative, dismiss the action against Defendant Qbracay . Law Offices Stanley M. Lefco, P.C. lras~-- n . vul away State Bar of Georgia #444800 4631 ROSWELL ROAD SUITE G - 602 ATLANTA, GEORGIA 30342 (404 843-9666 Case 1:03-cv-03073-ODE Document 50 Filed 09/03/04 Page 10 of 10 CERTIFICATE 4F SERVICE This is to certify that I have this day served counsel for the Plaintiff and other Defendants in the foregoing matter with a copy of the attached Defendant's, Dale A. Obracay, Motion and Brief In Support of Motion For Joinder of Person Needed For Just Adjudication 4r In The Alternative Morton to Dismiss The Proceedings Against Defendant by depositing in the United States Mail a copy of same in a properly addressed envelope with adequate postage thereon addressed as follows: W. Randal Bryant, Esq. Bovis, Kyle & Bunch, LLC 53 Perimeter Center East, 3rd. Floor Atlanta, GA 30346-2298 Maurice J. Bernard, Esq. 3717 Chamblee Bunwoody Road Chamblee, GA 30341 This f ~ day of, 2404 . Law Offices Stanley M. Lefeo, P.C. M. Dale A. Obracay State Bar of Georgia #4448d0 4651 ROSWELL ROAD SUITE G - 602 ATLANTA, GEORGIA 30342 (404) 843-9666 8 Case 1:03-cv-03073-ODE Document 52 Filed 09/14/04 Page 1 of 2 THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. } } 3 } ) CIVIL ACTION FILE NO. : 1 :03-CV-3D73-ODE ENTERTAINMENT FILM ) WORKS, INC.; JAMES T. DUFFY;) NORMA L. DUFFY; JOHN J. } DUFFY; and DALE A. OBRACAY;} Defendants. FILW I!V C+S us:a.c. -~~r~CL . SEP .I 4 2004 St`b. T#om,qg, DEFENDANT'S, DALE A. UBRACAY, AMENDMENT TO ANSWER Comes now, Dale A. Obracay, Defendant, and withdraws his Second Defense which states: Process and service of process were insufficient. Law Offices Stanley M. Lefco, P.C. By: M. Dale A. 4bracay State Bar of Georgia #444800 Case 1:03-cv-03073-ODE Document 52 Filed 09/14/04 Page 2 of 2 CERTIFICATE OF SERVICE. This is to certify that I have this day served counsel for the Plaintiff and other Defendants in the foregoing matter with a copy of the attached Defendant's, Dale A. Obracay, Amendment to Answer by depositing in the United States Mail a copy of same in a properly addressed envelope with adequate postage thereon addressed as follows: W. Randal Bryan, Esq. Bovis, Kyle & Burch, LLC 53 Perimeter Center Easy, 3rd . Floor Atlanta., GA 30346-2298 Maurice J. Bernard, Esq. 3'717 Chamblee Dunwoody Road Chamblee, GA 3034 10th day of September _ -, 2004 . This Law Offices Stanley M. Lefca, P.C. By State Bar of Georgia #444800 4651 ROSWELL ROAD SUITE G - 602 ATLANTA, GEORGIA &0342 (404) 843-9666 Case 1:03-cv-03073-ODE Document 53 Filed 09/21/04 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, IN CT SEP t I Z8W ~.~. ftws,FaStk rc~ CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY; and JOHN J. DUFFY; Defendants. PLAINTIFF'S RESPONSE IN OPPOSITION TO MOTION FOR JOINDER/MOTION TO DISMISS COMES NOW the Plaintiff, Fidelity and Deposit Company of Maryland, and responds to Defendant's, Dale Obracay, Motion for Joinder of Person Needed for Just Adjudication or, in the Alternative, Motion to Dismiss the Proceedings Against Defendant. Plaintiff respectfully asks that the Court deny this Motion for JoinderlMotion to Dismiss, because Anne B . Homer, the party whom Dale Obracay seeks to add to this action under Federal Rule of Civil Procedure 19, is not a necessary or indispensable party. Anne B. Homer is merely a joint tortfeasor, and complete relief can be accorded without her joinder. She has no claims against -I - Case 1:03-cv-03073-ODE Document 53 Filed 09/21/04 Page 2 of 3 to any of the existing parties, and no interest to be prejudiced if she is not added this action. This motion is supported by the Plaintiffs Response Brief in Opposition to Motion fog Joinder/Motion to Dismiss, filed concurrently with this motion . Respectfully submitted this -~ +1 day of September, 2004 . GREGORY R. VEAL Georgia Bar No . 726615 W. RANDAL BRYANT Georgia Bar No . 092039 Attorneys for Plaintiff BOVIS, KYLE & BURGH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 34346-2298 Telephone: (770) 391-9100 Facsimile : (770) 668-087$ t~J . Case 1:03-cv-03073-ODE Document 53 Filed 09/21/04 Page 3 of 3 CERTIFICATE OF SERVICE Response in I certify that I have this day served the foregoing Plaintiffs Opposition to Motion for JoinderlMotion to Dismiss, along with Plaintiffs to Dismiss, on the Response Brief in Opposition to Motion fog JoinderlMotion following counsel of record by depositing a copy thereof in the United States mail to : in a properly addressed envelope with adequate postage thereon, directed Maurice J Bernard, III, Esq. 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 Stanley M. Lefco, Esq. 4651 Roswell Road Suite G-602 Atlanta, Georgia 30342 This a yt6- day of September, 2004 . W. RANDAL BRYANT Georgia Bar No. 092039 BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (774) 391-910 Facsimile : (770) 668-0878 -3- Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRACT OF GEORGIA ATLANTA DIVISION X11 C FIDELITY AND DEPOSIT COMPANY 4F MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L . DUFFY ; JOHN J. DUFFY ; and DALE A. OBRACAY ; Defendants . PLAINTIFF'S RESPONSE BRIEF IN OPPOSITION TO MOTION FOR JOINDERIMOTION TO DISMISS COMES NOW the Plaintiff, Fidelity and Deposit Company of Maryland {"F&D"}, and files this response brief in opposition to Defendant's, Dale Obracay, Motion far Joinder of Person Needed for Just Adjudication ox, in the Alternative, Motion to Dismiss the Proceedings Against Defendant. FBzD respectfully shows the Court the following: Statement of Facts F&D brought this action, seeking indemnification from the defendantindemnitors {Entertainment Film Works, Inc. ("EFW"), Jams T. Duffy, Norma L. US-i),C -Atlanta SEP 2 12004 ~ D, THp1wq5; Clerk CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE jerk -1- Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 2 of 11 Duffy, and John J. Duffy)' based upon an indemnity agreement. F&D issued several surety bonds (primarily utility bonds) on behalf of EFW, a movie theater company. (James Duffy Depo., pp. 4-9) . In consideration of F&D's issuance of these bonds, the defendant-indemnitars entered into a General Indemnity Agreement ("Indemnity Agreement") in which they agreed to indemnify F&D from all liability, loss, costs, damages, attorneys' fees, and expenses sustained or incurred as a result of having issued bonds on behalf of EFW. (First Amended Complaint, Exhibit A) . F&D received numerous claims against these bonds and has incurred losses, costs, and expenses, including attorney's fees, far which it seeks indemnification. In response to F&D's Complaint, the Defendant John J. Duffy denied (for the first time) that he signed the Indemnity Agreement and claimed the alleged signature of John J. Duffy was a forgery. ( See Answer of John J. Duffy, Second Defense) . The Indemnity Agreement also contains a signature for Caroline Duffy, John J. Duffy's wife. (John Duffy Depo., p. 5) . Caroline Duffy, who is not a party ' James T. Duffy is the president and CEO of EFW. (Deposition of James T. Duffy, pp . 4-5, 14-15 ; the cited portions of this deposition are attached hereto as Exhibit 1). His wife, Nortna L. Duffy, also served as a president for EFW. (James Duffy Depo., pp. 4, 13-14) . John J. Duffy is Jams T . Duffy's brother and was the secretary and vice president of real estate and franchise for EFW. (Deposition of John J. Duffy, pp. 6-7, 48; the cited portions of this deposition are attached hereto as Exhibit 2). -2- Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 3 of 11 to this action, previously denied (and still denies) that she signed the Indemnity Agreement. (Deposition of Caroline N. Duffy, pp . 7, 9-10, Exhibit 4; the cited portions of this deposition are attached hereto as Exhibit 3) . As a result of John J. Duffy and Caroline Duffy denying that they signed the Indemnify Agreement, F&D deposed Anne B . Homer, the notary for the indemnitors' signatures on the Indemnity Agreement. Homer, a widow, is employed as a receptionist at Harry Norman Realtors in Atlanta, Georgia. (Deposition of Anne Brower Homer, p. 5 ; the cited portions of this deposition are attached hereto as Exhibit 4). She testified that James Duffy came to her office with several people (both men and women) and asked her to notarize the Indemnity Agreement. (Homer Depo ., pp . 8-9). She notarized the signatures for the indemnitors on the Indemnity Agreement, even though she did not actually see the indemnitors sign that document. (Homer Depo., pp . 7-8). Although James Duffy was personably known to her, Homer did not know Nortna Duffy, John Duffy, or Caroline Duffy and did not require any identification from them. (Homer Depo., pp . 16-17). Instead, Homer notarized the document based on James Duffy telling her that the people that were with him were the people who had signed the Indemnity Agreement. (Homer Depo ., p. 11, 16-17). -3- Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 4 of 11 After taking Homer's deposition, F&D proceeded to depose Dale A. Obracay, who signed the Indemnity Agreement as a witness to the signatures of John and Caroline Duffy . Dale Obraeay served as vice president of development and operations with EFW and was responsible for obtaining bonds for the company . (James Duffy Depo., pp. 7-8). During his deposition, Obracay admitted that he signed the Indemnity Agreement as a witness to John and Caroline Duffy's signatures, but staffed that he did not actually see John or Caroline Duffy sign the agreement and that he could not verify their signatures . (Deposition of Dale A. Obracay, pp . 18, 21, 36; the cited portions of this deposition are attached hereto as Exhibit 5). As a result of that testimony, F&D sought to add Mr. Obracay as a party to this action to assert claims against him for fraud and negligent misrepresentation. 2 The Court granted F&D permission to assert these claims against Obracay in its Order entered on May 21, 2004 . Obracay was served with F&D's First Amended Z Qbracay misapprehends F&D's allegations against him when he contends he should not be held liable for the contents of the Indemnity Agreement. (See Obraeay's Brief, p . 7) . F&D is not claiming that Obracay should be required to indemnify it pursuant to the Indemnity Agreement, but rather should be liable for fraudulently telling F&D that he witnessed John and Caroline DufFy sign the Indemnity Agreement when he had not done so . -4- Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 5 of 11 Complaint on June 17, 2004 (see Return of Service filed with Court on July 7, 2004), and he filed his Answer on July 2, 2004 . Obracay served his Motion for 3oinder of Person Needed for Just Adjudication or, in the Alternative, Motion to Dismiss the Proceedings Against Defendant on September 1, 2004 . Obracay asks the Court to join Anne B. Homer as an indispensable party or, in the alternative, to dismiss the claims against him in this action, pursuant to Federal Rule of Civil Procedure 19(a) and (b). Argument and Citation of Authorities The Court should deny Dale Obracay's motion for joinder/motion to dismiss because Anne B . Homer is not a necessary party to this action under Rule 19 of the Federal Rules of Civil Procedure . Rule 19(a) provides : A person who is subject to service of prates and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest . -S- Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 6 of 11 Thus, a party is considered "necessary" to an action if "complete relief cannot be granted with the present parties or the absent party has an interest in the disposition of the current proceedings. Laker Airwa s Inc. v. British Airwa s PLC, 182 F.3d 843 (1 lth Cir . 1999). Obracay is correct that Anne B . Homer violated O.C .G.A. ? 45-17-8 in failing to confirm the identities of the signers of the General Indemnity Agreement. She is also liable for fraud for representing to F&D that the signatories to the Indemnity Agreement were personally known to her and acknowledged that the Indemnity Agreement had been executed by them. (First Amended Complaint, Exhibit A) . The fact that Homer, like Obracay, is liable to F&D does not make Homer a necessary party under Rule 19. She is merely a joint tortfeasor3 and a permissive If the separate and independent acts of several persons "combine naturally and directly to produce a single indivisible injury, and a rational basis does not exist from an apportionment of damages, the actors are joint tortfeasors." Clyde v. Peterson, 232 Ga. App. 589, 590, 502 S.E.2d 524, 525 . Here, Obracay and Homer are joint tortfeasors because their separate acts combined to cause F&D's damages . F&D fully relied on 4bracay's representations that he had witnessed John and Caroline Duffy sign the Indemnity Agreement. If F&D had known that Obracay's representations were false, it would not have issued any more bonds on behalf of EFW, and it would have canceled bonds that had already been issued on behalf of EFW. Therefore, it would not have had to pay any losses under those bonds . Similarly, if F&D had known the document had not been properly notarized by Homer, it would not have issued any mare bonds for EFW, and it would have canceled the existing bonds, avoiding losses under the bonds. -6- Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 7 of 11 party under Rule 20. F&D has decided not to pursue its claims against Homer at this time, and Obracay cannot force F&D to sue her. It is a well-settled rule that a joint tortfeasor is not a necessary party under Rule 19(a) to an action against another party with similar liability. Temple v. SynthesCorp., 498 U.S . 5, 7 (1990) ; Samaha v. Presbyterian Hos ., 757 F .2d 529, 531 (2?d Cir. 1985) ; Austin v. Unarco Industries, Inc . , 705 F.2d 1, 5 (1St Cir. 1983). "A tortfeasor considered to have `joint-and-several" Liability is simply a permissive party to an action against another with like liability." (1990) . An analysis of the Rule 19(a) factors confirms that Homer {and joint tortfeasors in general} are not necessary pies . Rule 19(a)(1) is not implicated, Temple , 498 U.S . at 7 because this case can be completely resolved and relief can be granted without adjudicating F&D's claims against Homer, Homer also does not claim "an interest relating to the subject of this action" under Rude 19(a){2) . She apparently has no claims against the Defendants, so her absence from this action will not subject the Defendants "to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations ." Fed. R. Civ. Proc. 19(a)(2) . Obracay has notably failed to show how Homer's absence would put him at risk of incurring such obligations. _7_ Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 8 of 11 In the case of Haas v. Jefferson National Bank, 442 F .2d 394 (Sty' Cir. 1971), cited by Obracay, the Fifth Circuit considered a joint tortfeasor to be a necessary party because he "emerge[d] as an active participant" in the allegations made in the complaint that were "critical to the disposition of the important issues in the litigation ." In Haas , the plaintiff sought an injunction against the bank to issue shares of stock to him. Haas asserted that he and Charles Glueck had purchased shares in the bank jointly, and that the bank knew of his interest but nevertheless (at Glueck's request) transferred the shares to a second bank as collateral for a loan. The court held that Glueck was a party to be joined if feasible, partly because transfer of the stock to Haas would prejudice Gluecks's ownership and control of the shams, implicating Rule 19(a){2}(i). The court also found that the criterion of Rule 19(a)(2)(ii) way satisfied because a judgment in favor of Haas could leave the bank open to doubly liability; Glueck, who could not be bound by the judgment, could later sue the bank in a separate action and win. The present case is readily distinguishable. Homer is not an "active participant" in the allegations of the complaint. Although she committed fraud by representing that she personally knew Norma L. Duffy, John J . Uuffy, and Caroline Duffy (and that those individuals acknowledged that the signatures on the Indemnity Agreement were theirs), her fraud is separate and distinct from that -S- Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 9 of 11 committed by Obracay, and there is no need for her to be joined as a party for this the existing parties, case to be fully adjudicated . She has no claims against any of and no interest to be prejudiced if she is not added to this action. The relief that F&D seeks here "can be accorded from the defendants named of in the complaint, these defendants are not left subject to a substantial risk the incurring double, multiple or otherwise inconsistent obligations by reason of claimed interest of [Anne Homer], and [Homer is not] so situated that disposition of this action might as a practical matter impair or impede [her] ability to protect [her] interests ." He ich v. Wallace, 430 F .2d 792, 817 (5t' Cir. 1970) . Therefore, Rule 19(a)(1)-(2) does not require Homer to be joined as a party, and the Court need not consider the applicability of Rule 19(b) .4 See , e .g-, Snag-4n Tools Cori)_ v. Mason, 18 F .3d 1261, 1267 n.5 (5th Cir . 1994) (holding it is unnecessary for court to address Rule 19(b) standards when joinder is not required under 19(a)) . 4 If the requirements of Rule 19(a)(1)-(2) are met, but the person cannot be joined because his joinder would defeat jurisdiction or venue, the Court must consider the facts listed in Rule 19(b) and decide "whether in equity and good conscience" the action should continue with the existing parties or be dismissed . Fed. R. Civ . Proc. 19(b) . Rule 19 "was not meant to unsettle the well-established authority to the effect that joint tortfeasors or coconspirators aye not persons whose absence from a case will result in dismissal for nonjoinder." Herpieh v . Wallace, 430 F.2d 792, 817 (5t' Cir. 1970). -9- Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 10 of 11 Conclusion the Motion for For the foregoing reasons, the Court should deny JoinderlMotion to Dismiss of Dale Obracay. :h . Respectfully submitted, this ;Z44 day of September, 2004 GREGORY R. VEAL Georgia Bar No. 726615 W. RANDAL BRYANT Georgia Bar No . 092039 Attorneys for Plaintiff BOVIS, KYLE & BURGH, LLC 53 Perimeter Center East vi - Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile : (770) b6$-0878 -10- Case 1:03-cv-03073-ODE Document 53-1 Filed 09/21/04 Page 11 of 11 Certificate of Comp liance Rule S .1B of the I hereby certify, pursuant to Local Rule 7 .1D and Local brief United States District Court, Northern District of Georgia, that the foregoing was prepared in 14 point Times New Roman font. This 2f1!~ day of September, 2004 . ~,J. I~~,l. f~ W. RANDAL BRYANT -11- Case 1:03-cv-03073-ODE Document 53-3 Filed 09/21/04 Page 1 of 5 1 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 27 22 23 24 25 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Pl aintiff, Vs . ENTERTAINMENT FILM WORKS, INC ., et al ., Defendants . ) } ) } ) ) CIVIL ACTION FILE N0 . 1 :30-CV-3073-OBE DEPOSITION OF JOHN JA DUFFY August 5, 2004 2 :00 p .m . 3717 Chamblee Dunwoody Road Atlanta, Georgia Danelie S . Reddy, CCR-B-2340 o WN INC, ~*eq 1740 Peschtree St, N.W Atlanta, GA 30309 404-875-8979 Case Document 53-3 Filed Page sometimes. Q. A. Q. A. Q. Noah Married. who are you married to? Caroline Duffy. Does she have a middle name? No. Her maiden initial she uses what is that? Her maiden name, Nutter. Have you been married before? No. Do you have any children? Yes. what are their names and ages? Irrelevant but Charles Nicholas and where does Charles N1cholas live? with his parentsyour other ch1ld? Nine what 15 your Soc1al Security number? nay 4th 1949 5 James what is your date of birth? A. Case 1:03-cv-03073-ODE Document 53-3 Filed 09/21/04 Page 3 of 5 s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 251 Q. A. Q. A. Q. estate? A. Q. of work? MR . question . testimony . BERNARD : You may need to rephrase the 25 years . What is the name and address of your place What is your occupation? Real estate agent . Do you have an employer? No . Independent contractor . How long have you been involved in real I don't think it coincides with his You may want to ask him where his but he's self-employed, so . . . office is located, Q. A. Q. A. Q. (By Mr- . Bryant) Where is your office? 1690 Johnson Ferry Road . Do you have any other offices? No . What name or names do you operate your business under? A. Q. A. Q. A. Q. My personal name : Any other names? No . Do you have any employees? No . What was your involvement with Jake Duffy . Case 1:03-cv-03073-ODE Document 53-3 Filed 09/21/04 Page 4 of 5 7 Entertainment Film Works? 09 A. I was secretary and vice president of real estate and franchise . a Q. Real estate and franchise . Was that a division of Entertainment Film Works? A. 7 8 9 10 11 '! 2 13 14 15 16 17 18 19 20 21 22 23 24 25 Probably department . How long did you work for Entertainment Q. Film Works? A. Q. Approximately two years . And what were the dates of that employment approximately? A. Q. January 2004 through October 1st, 2001 . Did you leave Entertainment Film Works an 2001? October 1st, A. Q. A. Q. A. Q. Gave my resignation that date . Why did you resign? Difference of opinion . What was the difference of opinion? Probably management . Well, specifically what were the -- management issues that A. Q. A. People . What people? I think there was a variety of people who were put in roles that T didn't not see eye to eye Case 1:03-cv-03073-ODE Document 53-3 Filed 09/21/04 Page 5 of 5 48 1 2 3 4 5 B 7 8 9 10 11 12 13 14 15 16 'I 7 18 19 Za 21 22 23 24 25 A. Q. Not that I recap, no . I know this is going back several years, but do you have any idea where you were on October 11th, 20U1? A. traveling, I did -- I have done very little Georgia, so I presume I was in Atlanta, Thanks for asking . that month of October . Q. Do you know of anyone who could verify where you were on that particular date? A. Q. No . Have you made any investigation on your own to .determine who apparently or allegedly signed your signature to Exhibit 1? A. Q. Duffy? A. Q. October 1, Brother . When you wrote Exhibit 5, 2002 letter, which is the No . What is your relationship to James T . to Zurich North American Insurance Company, do you recall whether at the time you wrote that letter you had in your possession the general indemnity agreement dated October 11, MR . BERNARD : 2001? I think that was actually asked by -MR . LEFCO : I don't recall if it was Case 1:03-cv-03073-ODE Document 53-5 Filed 09/21/04 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, VS . ) ) ) ) CIVIL ACTION FILE N0 . 1 :03-CV-3073-ODE ENTERTAINMENT FILM WORKS, ) INC . ; JAMES T . DUFFY ; NORMA L .) DUFFY ; and JOHN J . DUFFY, Defendants . ) Deposition of ANNE BROWER HORNER March 1, 2004 10 :01 a .m . BOVIS, KYLE & BURGH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346 THERESA B . KRAMER, RPR, B--1601 PRECISION REPORTING, INC . Certified Shorthand Reporters 2724 Harvest Drive, Conyers, Georgia 30013 770-602-2830 Phone / 770-602--2840 Fax 866-602-2830 Toll Free pricsr@bellsouth,net a2322e5'1-027o-4634-9e87-7 B2c3b3bf2ab Case 1:03-cv-03073-ODE Document 53-5 Filed 09/21/04 Page 2 of 8 FIDELITY AND DEPOSIT COMPANY OF MARYLAND vs, ENTERTAINMENT FILM WORKS, INC ., JA[vIES T. pLIFFY, NORMA L. UUFFY AND JOHN J . DUFFY DEPOSITION OF ANNE BROWER HORNER - 31112004 Ann Hrower And your Hornet . 1 2 3 A Q A Q address? Atlanta, 30328 . 6511 Vernon Woods Drive, What is your marital status? 5 6 7 8 9 10 11 12 13 14 15 15 7 18 19 20 21 22 23 24 25 A Q A Q A Q A Q A Q basis? A Q A Q Widowed . Are you currently employed? Yes . By wham? Harry Norman Realtors . And what's your position? Receptionist . How long have Since 1981 . Do you work on a full-time or part-time you worked there? Full time . the address of your employer? Atlanta, 30328 . or What's 5920 Raswall Road, And what's the name H-120, of your supervisor supervisors? A Q A Q A Rick Hrinkman, And what's S-r-i-n-k-m-a-n . with the company? has position Visa-president . Do you know James T . Duffy? the I believe he ores the guy that rare Page S PRECISION REPORTING, INC . 770-b42-2830 a2322e51-027c-4634-9e97-16200bf2ab Case 1:03-cv-03073-ODE Document 53-5 Filed 09/21/04 Page 3 of 8 FIDELITY AND DFPOSR COMPANY OF MARYLAND vs . ENTERTAINMENT FILM WORKS, INC., JAMES T. DLlFFY, NORM .4 L . DUFFY AND JOHN J. DUFFY DEPOSITION OF ANNE BROWER HORNER - 311120D4 a notary . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't get paid to be notary . So My company pays my 3o I don't I've never charged anybody . keep any documents . Q concerning A Okay . this No . (Whereupon, Plaintiff's Exhibit 2 was marked So you have no documents whatsoever company or these individuals? for identification .) Q marked as A Q A Q A Q five, A Q A Q A Q notarizing A Do you recognize the document that's been Exhibit 2? No . would you turn (Complies) . Is that your signature on the fourth page? to the fourth page, please . Uh-huh Okay . (affirmative) . If you'll look on pages of Ann B . dour and there are four Right . signatures Horner . Did you sign Uh-huh Do Oh, all five of those places? (affirmative) . this document? you remember signing yeah . explain to document . and had been me Please this how you came about Ha coma in -- Mr . Duffy, I Page 7 PRECISION REPORTING, INC. 77p-Gp2-2830 a2322e51-027-4634-9e$7-1B2c3b3bf2ab Case 1:03-cv-03073-ODE Document 53-5 Filed 09/21/04 Page 4 of 8 FIDELITY AND DEPOSIT COMPANY OF MARYLAND vs. ENTERTAINMENT r1LM WORKS, INC ., JAMES T- DUFFY, NOItMA L . DUFFY ANSI JOHN J. DUFFY DEPOSITION OF ANNE BRQWER HORNER - 31112004 whichever one he is on this one . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 guess Duffy, -- James I believe -to notarize had come up some several times and asked ma papers . in, he shaved me his And then he The first time he camp driver's license and I notarized them . came back several times and asked me papers, which I did . to notarize Arid then one day he came in with several people and asked ma to notarize . it . I honestly don't remember . Q 2001 . A came in . Q he brought A Q in Is Now, that If this document is dated October you 11th, this? I'm assuming this is the day James Duffy brought it, that's I put that date on the day he Yes . When was the first time approximately that you something to T don't remember . Do you know to yours? If he eras in where notarize? Jams Duffy's office was relation A Na . the theater, if his office was in the theater, it was in the lower level of our shopping center . Q A The He first time he came came, did he just ask you? in and asked if we had a notary available and I told him I was . Page 8 PRECISION REPORTING, INC. 770-602-2$30 a2322e51-027c-4634-9e87-162c3b3bf2ab Case 1:03-cv-03073-ODE Document 53-5 Filed 09/21/04 Page 5 of 8 FIDELITY AND DEPOSIT COMPANY OF MARYLAND vs. ENTEf[TAPVMF.NT FILM WORK, INC., TAMES T. PUFFY, NORMA L . D13FFY AND JOHN J. DUFFY DEPOSITION OF ANNE BROWER HORNER - 31112004 Now, as on this day when he Q 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 29 25 that brought you what's a been marked number A Q A remember . Q A Q A Q A Q Exhibit 2, him? did you say there were of people with Yes . How many? I don't remember . I promise you, I don't Were Yea . there women and men? You were Uh-huh -when working at Harry Norman Realtors -- (affirmative) . you notarized this document? Yes . On page three, there's ten signatures ; is correct? A Q Uh-huh When (affirmative) . agreement were all you notarized this present? ten signatures A seeing -- z don't know because I don't remember the only thing -- he came as I in and asked me to remember -- and notarize and he had -- as well say this is three years ago . I don't know . these were signed even I went do the place cohere these . and then notarized just looking at I don't remember anything else . Page 9 PRECISION REPORTING, INC . 774-602-283Q a2322e51-027c-4634-9e87-162c3b3bf2ab Case 1:03-cv-03073-ODE Document 53-5 Filed 09/21/04 Page 6 of 8 FIDELITY AVD DEPOSIT COMPANY OF MARYLAND vs . ENTERTAINMENT FILM WORKS, INC ., JAMES T . DUFFY, NOAM11 L . DUFFY ANTI JOHN t . HUFFY DEPOSITION OF ANNE BR4WER HORNER - 31112004 And ha said these are the people with him . 1 2 3 4 5 6 7 $ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on hard him . Q A Q who were A you? . A that -how ha hid several people many he Q people A Q A I don't remember had with him even . Bud he that said the people with him were the signed this agreement? Uh-huh Did you No, (affirmative) . require any kind of identification? 1 Bud hg signed I know him when he walked in . wouldn't recognize him now if he walked in . had been in on numerous occasions to get papers and notarized . Q So James Duff y, was he personally known to Just by coming in to ask me to notarize for And you had required his ID On the first occasion, on -- right . the people Dad James Duffy introduce you to with him? No . I'm on the switchboard and, you know, answer it's the to meet people when you're this too . Daffy tell trying to phone and do 4 this Did James you that the signatures agreement were valid? Page 11 PRECISION REPORTING, INC. 770-fi02-283p a2322e51-027c-4634-9e87-962c3b3bf2ab Case 1:03-cv-03073-ODE Document 53-5 Filed 09/21/04 Page 7 of 8 FIDELITY AND DEPOSIT COMPANY OF MARYLAND vs . ENT?RTAlNN[E1+1T FSLM WORKS, INC ., JAMES T . OUFFY, NORIvIA L . Dl1FFY AND JOHN t . D[JFFY DEPOSITION OF ANNE BROWER HORNER - 3112004 Right . Or I presume if they were 1 2 3 4 5 6 7 8 9 A Q presence . signed in your 2f they had been signed in your presence, you would have notarized it . A Q Right . Is that the same for these witness signatures, A the attest signature? No . 10 11 12 Q A 5o you wouldn't have required -But I -as well as I remember -I just think they were all there . 13 34 15 16 17 1$ 19 20. 21 22 23 24 25 them? I just -- I know there were not ten people -- he brought this in . I is that office the day this can guarantee you that, Q almost . Was Norma Duffy personably known to you when you notarized this agreement? A No . The only one I know by -- that had been in ores James Duffy . Q So you didn't Duffy? know Norma Duffy, John Duffy, or Caroline A Q No . And you did not require identification from Page 16 PRECISION REPORTING, ANC. 770-b02-2830 a2322e51-027c-4634-9e87-962c3b3bf2ah Case 1:03-cv-03073-ODE Document 53-5 Filed 09/21/04 Page 8 of 8 FIDELITY AND DEPOSIT COMPANY OF MARYLAND vs . ENTERTAINMENT FILM WORKS, INC ., JAMES T. DLFFY, NORMA L . DUFFY AND JOIN J . DUFFY DEPOSITION OF ANNE BFtOWER HORNER - 31112004 No . Z 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 7 1$ 9 20 21 22 23 29 25 have were . A Because he told me that's mho they Q about this A Is there anything else you'd like to say at this point? No, MR . SRYANT : That's all -- A What's ho done? MR . BRYANT : I could tell you after we get far now . off the record . MR . Bernard . BERNARD : That's all Ms . I have Horner, my name is Maurice the Defendants in I actually represent this action who are entertainment Film Works, James T . Duff y . EXAMINATION BY MR . Q BERNARD : Can you recap what people looked like an signed? Duffy, Norms L. Duffy, and John J . the day that this was A Q Na . And you've already indicated that you don't any documents that you keep as doing this . A Q No . Would it be fair to say that you don't remember what any of the people other than Jams T . Duffy looked like on that day? Page 17 PRECISION REPORTING, INC . 770-602-2830 a2322e51-427o-4634-9e87-162c3b3bf2ab Case 1:03-cv-03073-ODE Document 54 Filed 09/24/04 Page 1 of 2 FILED IN CLERKS OFFICE U.S.C.C. - matb SEP 2 4 2004 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC ., et al,, Defendants. PLAINTIFF'S CONSENT T4 AMENDMENT TO ANSWER The Plaintiff hereby provides its written consent, within the meaning of Federal Rule of Civil Procedure 15(a), to the Defendant's, . Dale A: Obracay, Amendment to Answer that was filed with the Court on September 14, 2004. CIVIL ACTION FILE NO. 1 :03-CV-3[173-ODE LEIT MAS,rClerk . .: . .?!~ This a 3r? day of September, 2004. GREGORY R. VEAL Georgia Bar No . 726615 W. RANDAL BRYANT Georgia Bar No . 092039 Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-229$ Telephone : (770) 391-9100 Facsimile: (770) 668-0878 Case 1:03-cv-03073-ODE Document 54 Filed 09/24/04 Page 2 of 2 CERTIFICATE OF SERVICE I certify that I have this day served the foregoing Plaintiffs Consent to Amendment of Answer on the following counsel of record by depositing a copy thereof in the United States mail in a properly addressed envelope with adequate postage thereon, directed to : Maurice J Bernard, III, Esq. 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 Stanley M. Lefco, Esq. 4651 Roswell Road Suite G-602 Atlanta, Georgia 30342 This day of September, 2044 . W. RANDAL BRYANT Georgia Bar No. 092039 BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile : (770) 668-0878 Case 1:03-cv-03073-ODE Document 55 Filed 09/27/04 Page 1 of 3 FILED IN CLERK'S OFFICE U.S .P .C. -Atlanta SEP 2 7 200 A t' I' ~ ..- . ., ~ /~'' LJ. 1~1VIYV1ti7J~/9lk '` IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT Off` GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC.; JAMES T. DUFFY; NORMA L . DUFFY; JOHN J. DUFFY ; and DALE A. OBRACAY; Defendants. CIVIL ACTION FILE NO. 1 :Q3-CV-3073-ODE O*qdOIi . MOTION TO EXTEND DISCOVERY PERIOD Plaintiff hereby moves the Court to extend the discovery period through November 29, 2004 . Counsel for the Defendants have consented to an extension of the discovery period through November 29, 2004 . This motion is supported by the Memorandum of Law in Support of Motion to Extend Discovery Period and the proposed Consent Order Extending Discovery Period, filed concurrently with this motion. -1- Case 1:03-cv-03073-ODE Document 55 Filed 09/27/04 Page 2 of 3 Respectfully submitted this -;?q-t6 day of September, 2004. GREGORY R. VEAL ' Georgia Bar No. 726615 W. RANDAL BRYANT Georgia Bar No. 092039 Attorneys for Plaintiff B4VIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile: (770) 668-0878 -2- Case 1:03-cv-03073-ODE Document 55 f Filed 09/27/04 Page 3 of 3 CERTIFICATE 4F SERVICE I certify that I have this day served the foregoing Motion to Extend the Discovery Period, along with the Memorandum of Law in Support of Motion to Extend Discovery Period and proposed Consent Order Extending Discovery Period, on the following counsel of record by depositing a copy thereof in the United States mail in a properly addressed envelope with adequate postage thereon, directed to: Maurice J Bernard, III, Esq. 3717 Chambiee Dunwoody Road Atlanta, Georgia 30341 Stanley M . Lefco, Esq . 4651 Roswell Road Suite G-b02 Atlanta, Georgia 30342 This a 'l-b- day of September, 2004 . J . ~~~ Sma .2~A W. RANDAL BRYA T Georgia Bar No. 092039 BQVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (774) 391-900 Facsimile : (770) 668-0878 -3- Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 1 of 12 FILED IN CLERKS OFFICE U.S.L1.C. -Atlanta SAP 2 7 2004 um-r~~~n. VioMA,s, cft IN THE UNITED STATES DISTRICT COURT", . FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. CIVIL ACTION FILE ENTERTAINMENT FILM WORKS, INC.; JAMES T. DUFFY; NORMA L. DUFFY ; JOHN J. DUFFY; and DALE A. OBRACAY ; Defendants . No. 1:03-CV-3073-ODE MEMORANDUM OF LAW IN SUPPORT OF MOTION TO EXTEND DISCOVERY PERIOD Plaintiff, Fidelity Deposit Company of Maryland ("F&D"), files this memorandum of law in support of its motion to extend the discovery period through November 29, 2004. The Defendants have consented to the requested extension, as shown by the proposed Consent Order Extending Discovery Period fled with F&D's motion and memorandum. F&D respectfully shows the Court the following: _I W Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 2 of 12 Statement of Facts I. Background Facts Concerning this Litigation. F&D brought this action, seeking indemnification from the defendantindemnitors (Entertainment Film Works, Inc. {"EFW"}, James T. Duffy, Norma L. Duffy, and John J . Duffy)1 based upon an indemnity agreement . F&D issued several surety bonds (primarily utility bonds) on behalf of EFW, a movie theater company. Games Duffy Depo., pp. 4-9). In consideration of F&D's issuance of these bonds, the defendant-indemnitors entered into a General Indemnity Agreement ("Indemnity Agreement") in which they agreed to indemnify F&D from all liability, loss, costs, damages, attorneys' fees, and expenses sustained or incurred as a result of having issued bonds on behalf of EFW. (Exhibit 1). F&D received numerous claims against these bonds and has incurred losses, costs, and expenses, including attorney's fees, for which it seeks indemnification . ' James T. DuFfy is the president and CEO of EFW. (Deposition of James T. Duffy, pp . 4-5, 14-15; the cited portions of this deposition were attached to Plaintiff's Response Brief in Opposition to Motion for JoinderlMotion to Dismiss ("Motion for Joinder Response Brief') as Exhibit 1). His wife, Norma L, Duffy, also served as a president for EFW. (James Duffy Depo., pp. 4, 13-i4). John J. Duffy is James T. Duffy's brother and was the secretary and vice president of real estate and franchise for EFW. (Deposition of John J. Duffy, pp . 6-7, 4$; the cited portions of this deposition are attached to the Motion for Joinder Response Brief as Exhibit 2, unless otherwise indicated herein) . -2- Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 3 of 12 In response to F&D's Complaint, the Defendant John J. Duffy stated (for the first time) that he did not sign the Indemnity Agreement and claimed the alleged signature of John J. Duffy was a forgery . (See Answer of John J . Duffy, Second Defense) . The Indemnity Agreement also contains a signature for Caroline Duffy, John J . Duffy's wife . (John Duffy Depo., p. 5). Caroline Duffy, who is not a party to this action, previously denied (and still denies) that shy signed the Indemnity Agreement. (Deposition of Caroline N. Duffy, pp. 7, 9-10, Exhibit 4).2 Dale A. Obracay signed the Indemnity Agreement as a witness to the signatures of John and Caroline Duffy. Dale Obracay served as vice president of development and operations for EFW and was responsible for obtaining bonds for the company. (James Duffy Depo., pp . 7-8). During his deposition, Obracay admitted that he signed the Indemnity Agreement as a witness to John and Caroline Duffy's signatures, but stated that he did not actually see John or Caroline Duffy sign the agreement and that he could not verify their signatures. (Deposition of Dale A. Obracay, pp. 18, 21, 36).3 As a result of that testimony, F&D added claims against Obracay in this action for fraud and negligent misrepresentation . 2 The cited portions of this deposition are attached to the Motion for Joinder Response Brief as Exhibit 3 . 3 The cited portions of this deposition are attached to Motion for Joinder Response Brief as Exhibit 5 . -3- Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 4 of 12 II. Facts Concerning Discovery. Discovery in this action is currently set to expire on September 30, 2004 . The parties need additional time to conduct the following discovery : (1) F&D needs to designate its forensic document expert and for its expert to examine copies of the Indemnity Agreement retained by the Defendants and to finalize his report, (2) F&D needs to conduct the deposition of Robin Mauney (the witness to the signatures of James and Norma Duffy on the Indemnity Agreement), (3) EFW, James Duffy, Norma Duffy, and John Duffy would like to depose Todd McWhiTter of Bouchard Insurance (the insurance agency responsible for sending the Indemnity Agreement to EFW for execution), and (4) Dale Obracay has served interrogatories and a request for production of documents, and the time for F&D's response falls outside of the current discovery period. Other discovery may be needed after the designation of F&D's expert and the depositions of Mauney and McWhirter. A. Document Expert. F&D took steps to retain a document expert after the depositions of James and Norma Duffy on July 28, 2004, at which time they claimed that the Indemnity Agreement had been materially altered after they signed it by the addition of the May 22, 2001 date in paragraph 15 . (See Exhibit 1). An expert was needed not -4- Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 5 of 12 only to inspect the May 22, 2001 date, but also to examine the questioned signatures for John and Caroline Duffy. F&D hired an expert, but has not yet designated him pursuant to Federal Rule of Civil Procedure 26(a)(2), waiting for him to analyze the Indemnify Agreement and to prepare his report. Although Caroline Duffy provided F&D with signature exemplars at her deposition and "course of business" records containing her signatures shortly thereafter, John J. Duffy initially refused to provide F&D with examples of his signature. F&D asked for signature exemplars from John J. Duffy at his deposition on August 5, 2004, but he refused to provide them. (John J . Duffy Depo., pp . 4143, attached hereto as Exhibit 2). F&D also served a subpoena on John J. Duffy, calling for the production of documents containing examples of Duffy's signature. F&D's counsel wrote to John J. Duffy's attorney on August 1$, 2004, citing eases requiring signature exemplars . (Exhibit 4). The letter also noted that F&D had not received the subpoenaed documents containing John J . Duffy's signatures. (The subpoena had called far their production on August 13, 2444.) F&D's counsel noted that the delay in getting the signature exemplars and the subpoenaed documents was delaying its ability to designate a handwriting expert and to The subpoena and the Acknowledgment of Service for the same are attached hereto as Exhibit 3 . -5- Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 6 of 12 provide a written report. (Exhibit 4). The letter asked for the subpoenaed documents by August 20, 2004 and the signature exemplars by August 23, 2004 . John J. Duffy finally provided the signature exemplars on September 7, 2004 . He still had not produced any documents responsive to the subpoena, however, prompting F&D's counsel to write a letter on September S, 2004 (Exhibit 5), reminding John J . Duffy that the holdup in providing the requested documents was preventing its expert from preparing his report. Duffy finally produced documents containing examples of his signature on September 14, 2004. F&D provided the General Indemnity Agreement, the signature exemplars, and "course of business" records to its expert, who proceeded to analyze the same and to prepare his written report. While the expert was in the process of finalizing his report, EFWIJames T. Duffy produced a copy of an Indemnity Agreement (Exhibit 6) on September 17, 2004, which did not contain the May 22, 2001 date or the facsimile transmittal information contained on the original Indemnity Agreement retained by F&D. (See Exhibit 1). EFW and James T. Duffy claim that the document attached as Exhibit 6 is a copy of the Indemnity Agreement that was signed by James and Norma Duffy. With the recent production of this document, F&D needs its expert to analyze any and all copies of the General Indemnity Agreement retained by the -6- Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 7 of 12 Defendants .5 After examining these documents, he will need to include his findings in his report, and F&D will need to designate the expert aid provide his report to the Defendants, giving them sufficient time to depose him and designate their own expert(s) . B. Robin MauneY. F&D served Robin Mauney with a subpoena (Exhibit 9) for her deposition and for the production of documents on August 13, 2004. Her deposition was originally scheduled for August 23, 2004 in Melbourne Beach, Florida. On that date, Maurice J Bernard (attorney for EFW, James T . Duffy, Norma L . Duffy, and John J. Duffy) contacted F&D's counsel and told him that Mauney had spoken to James T. Duffy and told him that she was in New Orleans and would be unable to attend her deposition . As a courtesy to Mauney, F&D rescheduled her deposition 5 F&D had previously asked the original Defendants to produce any and all documents rebated to the Indemnity Agreement and the Defendants' material alteration defense in Plaintiff's First Interrogatories, Request for Production of Documents, and Request for Admissions to Defendants served on March 26, 2004. (See Interrogatory Nos . 4 and 6 and RFPD No. 1 ; a copy of these discovery requests and the Certificate of Service of Discovery Materials axe attached hereto as Exhibit 7). Although the Defendants served responses to the discovery requests (Exhibit 8), they did not produce a copy of a signed Indemnity Agreement until September 17, 2004. 6 A copy of the Affidavit of Service for this subpoena is included in Exhibit 9 . -7- Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 8 of 12 for September 7, 2004 and sent her a letter of August 23, 2004 (Exhibit 10) providing for the same. On September 7, 2004, Mauney once again asked for her deposition to be rescheduled, again going through James T. Duffy and his counsel . F&D's attorney sent Mauriey a letter on the same day {Exhibit 11), rescheduling the deposition for September 14, 2004. Later that week, Obracay's attorney requested that Mauney's deposition be rescheduled due to a scheduling conflict, so F&D informed Mauney that her deposition would take place on September 21, 2004 in a letter dated September 10, 2004. (Exhibit 12). On September 21, 2004, approximately 20 minutes before the scheduled time for Mauney's deposition, Maurice J Bernard contacted F&D's attorney, reporting that Mauney had told James T . Duffy that she was not in Florida and would not be attending her deposition . As a result of the lade notice that she would not be appearing at her deposition, F&D incurred an appearance fee from the court reporter . Obviously, Mauney does not take the subpoena seriously, having failed to contact F&D to request that it be rescheduled and having made plans to be out of town on her depositions dates without contacting FBLD. F&D will be sending a letter to Mauney, advising her of the seriousness of the subpoena she has taken so -8- Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 9 of 12 lightly and providing another dale for her deposition. If Mauney fails to show up for her deposition, F&D will need to move the U.S. District Court for the Middle District of Florida to hold Mauney in contempt and to require her attendance at her deposition. C. Todd McWhirter's Deposition and Dale Ubraca 's Written Discovery. EFW, James Duffy, Norma Duffy, and John Duffy would like to take the deposition of Todd McWhirter of Bauchard Insurance (the insurance agency responsible for sending the Indemnity Agreement to EFW for execution) . Because McWhirter resides in Clearwater, Florida, it will take longer for the Defendants to arrange for his deposition than it would to arrange a typical deposition . Obracay served Defendant's, Dale A. Qbracay, Second Interrogatories to Plaintiff (Exhibit 13) on August 30, 2004 and served his First Notice to Produce and Request for Production of Documents to Plaintiff {Exhibit 14} on September 1, 2004, both via United States Mail.B The responses to these discovery requests ' The subpoena directed to Mauney was issued by the U.S. District Court for the Middle District of Florida pursuant to Rule 4S(a)(2) of the Federal Rules of Civil Procedure . {Exhibit 8}. Copies of the appropriate Certificate of Service of Discovery Materials are included in Exhibits 11 and 12 . -9- Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 10 of 12 would be due on October 4, 2004, after the date on which the discovery period is currently set to expire. Other discovery may be needed after the referenced depositions are taken and after the designation of F&D's forensic document expert. The parties may wish to depose other witnesses involved in the preparation and execution of the Indemnity Agreement at issue, and additional written discovery may also be needed. Citation of Authori Pursuant to Rule l6(b) of the Federal Rules of Civil Procedure and Rule 26.2(B) of the Civil Local Rules of Practice for the United States District Court far the Northern District of Georgia, the Court may extend the discovery period. The parties have proceeded diligently with discovery, having exchanged written discovery and having taken several depositions. Despite these efforts, the parties need additional time to complete discovery . An extension of the discovery period is warranted to allow F&D sufficient time to obtain all of the Defendants' copies of the Indemnity Agreement and to allow its expert to examine them and provide his report concerning his findings. (The Defendants did not produce a copy of an executed Indemnity Agreement until September 17, 2004.) A discovery extension is also needed to allow the -10- Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 11 of 12 Defendants to depose F&D's expert and to designate their own expert(s), should they so desire. Additional discovery time is also needed for the parties to conduct the depositions of Todd McWhirter and Robin Mauney . Other discovery may also be necessary. .An extension of the discovery period is also justified due to the relatively recent addition of Dale A. Obracay as a party. Obracay filed his Answer in this case on July 2, 2004 and has only had approximately three months to engage in discovery, as opposed to the four-month period that would normally be provided for under Local Rule 26.2(A). Obracay served Defendant's, Dale A. Obracay, Second Interrogatories to Plaintiff on August 30, 2004 and served his First Notice to Produce and Request for Production of Document to Plaintiff on September 1, 2004, both via United States Mail . Under Rules 6(e), 33(b)(3), and 34(b), the time for which F&D's responses would be due to these discovery requests falls on October 4, 2004, after September 30, 2004, the date that discovery is currently set to expire. Additional discovery time is needed to require F&D's responses to Obracay's discovery requests . An extension of discovery through November 29, 2004 should allow the parties sufficient time to complete discovery. All of the parties consent to this Case 1:03-cv-03073-ODE Document 55-1 Filed 09/27/04 Page 12 of 12 extension . Therefore, F&D respectfully requests the Court to extend the discovery period through November 29, 2004 pursuant to Local Rule 26.2(B) . Respectfully submitted, this ~~ day of September, 2004 . w. GREGORY R. VEAL Georgia Bar No . 726615 W. R.ANDAL BRYANT Georgia Bar No . 092039 Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone : (770) 391-9100 Facsimile: (770) 668-0878 ----- Certificate of Compliance I hereby certify, pursuant to Local Rule 7 .1 D and Local Rule 5 .1 B of the United States District Court, Northern District of Georgia, that the foregoing brief was prepared in 14 point Times New Roman font. This a ~ day of September, 2004. W. RANDAL BRYA T -12- Case 1:03-cv-03073-ODE Document 55-3 Filed 09/27/04 Page 1 of 4 In The Matter Of: FIDELITY & DEPOSIT COMPANY OF MARYLAND ENTERTAINMENT FILM WORKS, INC., et al. v. JOHN,j. DUFFY August S, 2004 ATLANTA, AUGUSTA, COLUMBUS, MACON, ROME & SAVANNAH 1740 PEACHTREE STREET, N. BROWN REPORTING, INC. (404) 8768979 or (800) 637-0293 Original File OS0SDUF2. VI, 61 Pages Min-U-Scripts Fife ID.'2162d29519 ATLANTA, GA USA 30309 Word Index included with this Min-U-Scripta Case 1:03-cv-03073-ODE Document 55-3 Filed 09/27/04 Page 2 of 4 41 1 2 3 4 5 identification .) Q. financial "John J . document . (By Mr . Bryant) Exhibit 17 is a personal statement apparently for SunTrust the name Dutfy" 7s signed to the bottom of that Is that your signature, Mr . huffy? Again, s 7 this is a copy . A. I don't recall submitting this . Is that my signature? 9 10 11 72 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. and paste, possible . r don't recall signing this . Does that hook like your signature to you? I would say no . Could it be your signature? Without seeing the original and with cut anything is as most attorneys would know, But I would say that is once again it's not how I make my "Y"s or "D"s on the signature . Q. These are 25 blank pages of the signature . I'd like samples of your signature . MR . MR . MR . question . MR . MR . BRYANT : BERNARD : Well, it's -I can understand if BERNARD : BRYANT : BERNARD : 25? Yes . I'm not sure that's a I mean, you want one, MR . but for 25? Well, this is for handwriting BRYANT : Case 1:03-cv-03073-ODE Document 55-3 Filed 09/27/04 Page 3 of 4 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 99 analysis and there are cases saying that when a witness is testifying you can get samples of their signature . pages . I need him to do 7t on 25 And T need you to sign under "attest ." Dufify, below the name "John J, individual" I'd like you to sign Caroline N . "Caroline N . Duffy ." Duffy's name under THE WITNESS : Why would I sign? T don't care if I'm under penalty of death, I would not sign my wife's signature -- unless it's penalty of death . MR . MR . do is -I'm not doing it . BRYANT : BERNARD : I'll We have it on the record . One of the things we have to -I'm be very blunt about it going to want authority from you, then submit it if it is required . require direction from the Court . point comes up, and we will And we may Until that I'm not sure that's a proper format for a deposition . MR . BRYANT : You know we can seek an order ao 21 22 23 24 25 one . from the Court . MR . MR . BERNARD : BRYANT : I'm thinking . I'm confident we will get I'm going to want him to sign it either in front of me or maybe in front of a handwriting Case 1:03-cv-03073-ODE Document 55-3 Filed 09/27/04 Page 4 of 4 43 1 2 3 expert . MR . we will I don't want BERNARD : -have to do is Again, that's What we will have to work that out . not a question . 5 6 7 8 9 10 11 12 13 94 15 16 17 18 19 20 21 Zz 23 24 25 that . MR . BRYANT : Well, it's proper for a deposition . for that . MR . MR . MR . this what I can provide you with authority BERNARD : BRYANT : BERNARD : Do you have it? Not with me . Solely for the purpose of I want do make sure I've actually object to If I'd like to do, about that . It's not a point that researched at this point . it . But I will And then if need be we can come back . that's you choose to have a court reporter, fine . If it's proper then it will be with you present . MR . BRYANT : Okay . We can wait to do I reserve the right to move to compel . MR . BERNARD : I understand . I'm not have saying that . I think this is one we will to -- and by the way, MR . MR . BRYANT : BERNARD : I'm opt of town next week . Okay . They don't take leaves of court unless you're going to absence in federal Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, vs. ENTERTAINMENT FILM WORKS, INC ., JAMES T. DUFFY, NORMA L. DUFFY, and JOHN J. DUFfiY, ) ) ) ) } } ) CIVIL ACTION FILE NO . 1 ;03-CV-3073 Defendants . ) DEFENDANTS ENTERTAINMENT FILM WORKS INC. AND JAMES T. DUFFY'S RESPONSES TO PLAINTIFF'S FIRST INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS, AND REQUEST FOR ADMISSIONS TO DEFENDANTS COMES NOW, Defendants in the above-styled matter and pursuant to O.C .G.A. ?9-11-34 responds to Plaintiff's First Interrogatories, Request for Production of Documents and Request far Admissions to Defendants as follows: INTERROGATORIES Interrogatory No. 1 : For any Request for Admission that you deny, (a) state specifically why the request is denied, (b) identify any persons on. whose knowledge the denial is based, and (c) identify any documents farming part of the basis for that denial . Response : (a) Admissions 1 through S were denied on the basis that the document signed by these Defendants was materially altered and is not the document attached to Plaintiff's Complaint as the appropriate exhibit . Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 2 of 16 (b) (c) This information is based upon information known to James T. Duffy . A copy of the original document is tendered to these Defendants and reflects the typed portion of the document as actually submitted. Interco ator No. 2: Identify each person whom you array call as an expert witness at trial and, for each such expert witness, summarize the subject matter of the expected testimony, the substance of facts anal opinions to which the expert is expected to testify, and the grounds on which any such opinions are based. Response : At this time Defendants have made no determination as to whom Defendants will call as an expert at the trial of this case. Tnterro,gataryNo 3: Identify each person whom you have retained or specially employed in anticipation of litigation or in preparation for trial and wham you do not expect to call as a witness at trial . Response : Defendants object to Interrogatory No. 3 on the grounds that the same exceeds the scope of permissible discovery. Defendants further abject on the grounds that Plaintiff is seeking attorney work product and trial preparation materials and it is too early to determine these matters in any event. Interrogatory No. 4: Identify each person who you know or believe has information about the General Indemnity Agreement and your obligations thereunder, outline the substance of what you 2 Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 3 of 16 know or believe to be his or her knowledge, and identify any documents relating to any such person's information. Re~ onse: James T. Daffy, Dale Obracey. James T. Daffy has knowledge concerning the original document tendered and the contents of that document . knowledge of dealings with Souchard Insurance and Todd McWhirter. Dale Obracey has Interrogatory 5: If you have denied or partially denied any averment of F&D's Complaint in this action, for each such denial please (a) state specifically why the averment is denied and if you contend the averment is untrue, the way(s) in which the averment is untrue, (b) identify any persons on whose knowledge the denial is based, and (c) identify any documents farming part of the basis for that denial . Response : Defendants have denied the allegations of Plaintiff's Complaint based on a Agreement number of matters. Defendants contend that the original General Indemnity informed that the was materially altered as to the date of its application. Defendants were behalf of General Indemnity Agreement was to apply to those bonds issued on Entertainment Film Works, Inc. and no other related entities . Tnterzo ato No . 6: that the Identify any and all documents you contend support your allegations altered; identify document attached as Exhibit "A" to F&D's Complaint was materially substance of what any persons with knowledge of such material alterations, providing the where, and how you you know ox believe to be his or her knowledge; specify when, 3 Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 4 of 16 contend the document was materially altered (specifying how you contend the document was changed) ; identify who made said alterations(s), and identify all who were present when said alterations(s) was (were) made. Response : The original General Indemnity Agreement was dated October 11, 2001 . This was the date upon which it was to be effective for all subsequently issued hands. These were to apply to bonds initiated on or after that date. The document attached to Plaintiffs Complaint shows the date of May 22, 2001 as the date which it would apply. This was added after the execution of this document by all of the signatories thereto. Defendants do not know who changed the bond. However, said change was not authorized by the Defendants and was made without the Defendants' permission or consent. The original document as executed by the Defendants answering these interrogatories did not include that language . Intercogatou No . 7 : Identify the relationship of Robin Mauney, Phi! Dincecco, Tony Koudouna, Sonya White, Roger Bourchard, acid P. Todd McWhirter to Entertainment Film Works, Inc., specifying the positions held by these individuals with Entertainment Film Works, Inc. and the dates they served in such positions, and identify their current addresses, phone numbers, and employers . Response : Robin Mauney Director of Operations Cinema Grill Systems 6260 Busch Blvd . Columbus, Ohio 43229 (614) 430-9208 Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 5 of 16 Phil Dincecco Senior Vice President Restaurant Entertainment Group 13881 Wellington Trace Wellington, Florida 33414 (561) 792-4448 Tony Koudouna Vice President of Operations 13881 Wellington Trice Wellington, Florida 33414 (561) 792-4448 Roger Bouchard Owner of Bouchard Insurance 18167 U.S. Highway 19 N. Clearwater, Florida 33'164 (727) 447-6481 P. Todd McWhirter Vice President Bouchard Insurance 10 1 Starcrest Drive Clearwater, Florida 33765 (727) 447-6481 Sonya White, Administrator Restaurant Entertainment Group 40 Harris Drive Marietta, Georgia 30067 (347) 710-4815 Interrogatory No. 8: If you contend that John J. Duffy and Caroline Duffy did not sign the General Idemnity Agreement, identify who signed the names of John 1. Duffy and Caroline Duffy to the General Indemnity Agreement and specify when said names were signed and why the persons) signing those names did so . 5 Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 6 of 16 Response : Defendants, Entertainment Film Works, Inc. and James T. Duffy, upon information and belief understand that John J . Duffy and Caroling Duffy did not sign the General Indemnity Agreement based upon information subsequently provided. Defendants do not know when said names revere signed or who signed those names. Interrogatory No. 9: Identify any person who participated in the preparation of your responses to these interrogatories, including a listing of the interrogatory responses to which each such person contributed. These Response : James T. Daffy and Maurice J Bernard, III participated in the responses of these Defendants . REQUEST FOR PRODUCTION OF DOCUMENTS Request No. 1 : That are or are requested to be identified in response to the above interrogatories. Response : Attached please find a copy of the original General Indemnity Agreement as submitted to these Defendants and which was signed by these Defendants. Request No. 2 -. Constituting the report or other current memorialization of the observations, action. findings, opinions, or conclusions of any testimonial expert retained by you in this Response : to Defendants, Entertainment Film Works, Inc . and James T. Daffy, object 6 Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 7 of 16 Request for Production No . 2 on the grounds that the same is over broad acid encompasses attorney work product as well as attorney/client privileged information. Subject to this objection without waiving same, there are no such reports at this time. REQUEST FOR ADMISSIONS Request for Admission No- I James T. Duffy signed the General Indemnity Agreement both individually and on behalf of Entertainment Film Works, Inc. Response : Denied. The General Indemnity Agreement attached to Plaintiff's Complaint has been materially altered . Request for Admission No. 2: Norms L . Duffy signed the General Indemnity Agreement. Response : Denied. The General Indemnity Agreement attached to Plaintiffs Complaint has been materially altered . Request far Admission No. 3 : John J . Duffy signed the General Indemnity Agreement, directly under the printer works "John J. Duffy, Individual ." Response : Denied. The General Indemnity Agreement attached to Plaintiffs Complaint has been materially altered . Request for Admission No . 4: John 1 . Daffy signed the General Indemnity Agreement, directly above the printed 7 Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 8 of 16 words "John J. Duffy, Secretary ." Response : Denied. The General Indemnity Agreement attached to Plaintiffs Complaint has been materially altered . Req uest for Admission No. S: John 1. Daffy witnessed James T . Daffy signed the General Indemnity Agreement. Response : Denied: The General Indemnity Agreement attached to Plaintiffs Complaint has been materially altered . Request for Admission No. 6: All of F&D's payments of claims under the Bonds it issued on behalf of Entertainment Film Works, Inc . were reasonable . Response : Defendants can neither admit nor deny the statement contained in Request for Admission No. 6 on the grounds that the information available to Defendants at this time is insufficient . Plaintiff has not provided information other than amounts as to the status of the payments of claims made under the bonds. Imit;ed, `' f .'r~ { J 3717 Chamblee Dunwoody Roach Atlanta, Georgia 30341 (678) 530-0900 ivfAvR.iCE J BE Attorney for Def Georgia Bar No. ARD, III 8 Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 9 of 16 D General Indemnity Agreement NOT TO BF USED FOR CONSTRUCTION BONDS KNOW ALL MEN BY THESE PRESENTS: (hereinafter called Indemnitars, whethcr there be one or more), as is evidenced by the WHEREAS, upon the request made by signing hereat and upon the express condition that this instrument be executed, FinELrrY AND DEpOSrr COtvtpANY of MARYLAND, a corporation of tie State of Maryland, with its principal office in the City of Baltimore, any subsidiary thereof their successors and assigns, (hereinafter called Company), has executed, or procured the execution of~ and may, from time to time hereafter execute, or procure the execution of bonds, undertakings andlar obligations of suretyship or guarantee in the same or in different penalties and with the same or different conditions and/or provisions, and in favor of the same or different obligees (each of such bonds, -undertakings and obligations being hereinafter called bond or bonds) on behalf of the Tndemnitar and any corporation in which the said Indemnitor owns, directly or indirectly, in whole or in part, a controlling interest, whether existing or hereafter acquire, and any resident representative. WHEREAS, the Indemnitors have a substantial, material and beneficial interest in the obtaining of the bond or bonds or in the Company's refraining from cancelling said bond or bonds. AND NOW, THEREFORE, in consideration of the premises and the sum of one dollar, the receipt of which is hereby acknowledged, the Indemnitors, and each of them, for themselves, each of their heirs, executors, administrators, successors and assigns, jointly and severaliy, do hereby covenant and agree with the Company as follows : FIRST- To gay to the Company, in advance, the premium or premiums for any such bond or bonds, in accordance with tie schedule of rates attached to or to be attached hereto, as long as liability thereunder shall continue, and until evidence, satisfactory to the Company, of the termination of such liability shah be furnished to it at its home office : and SECOND : To indemnify the Company from and against any and all liability, lass, costs, damages, attorneys' fees hereafter sustained or incurred by the Company by reason, ox in consequence of its expenses, of whatever kind or nature, heretofore or thereof, in making any investigation nn account of executing any such bond or bonds as surety or co-surety, or procuring the execution which may be brought in connection any such bond or bonds, in defending or prosecuting any action, suit or other proceeding liability under any such bond or bonds ; therewith, in enforcing any of the agreements herein contained, and in obtaining a release from attorneys' fees and expenses as aforesaid, and to indemnify the Company to the full amount of liability, loss, costs, damages, bonds; regardless of any reinsurance that nay be carried on any such bond or authorized, but not required: (a) to adjust, settle or compromise THIRD : That the Company shall have the right and is hereby unless the lndemnitors shall request it to litigate such claims or any claims, demands, suits or judgments upon any such bond or bonds, and shall deposit with the Company satisfactory collateral, datinands, or to defend such suits or to appeal from such judgments, that may be rendered, with interest, costs, expenses and attorneys' fees ; (b) sufficient to pay any judgment or judgments, rendered or contract or contracts referred to in any such bond or bonds to assent to any change whatsoever in any such bond or bonds and/or any said contract or contacts and to bonds and/or in the and/or in the general conditions, plans and/or specifications accompanying or contracts and to assent to or take any assignment or general conditions, plans and/or specifications accompanying said contract extensions or renewals of any such bond or bands and to assignments, to execute or consent to the execution of any continuations, provisions and obligees and with the same as execute any substitute or substitutes therefor, with the same or different conditions, the Indernnitors, it being expressly understood and larger or smaller penalties, all of the aforesaid without notice to or knowledge of instrument even though any such assent by the Company does agreed that the Indemnitors shall remain bound under the terms of this schedule of rates and copy or copies of any such or might substantially increase the liability of said Indemnitors; (c) to attach hereto a in filling up any blanks herein, or in the schedule of rates bond or bonds, to fill up any blanks left herein, and to correct any errors when so attached, and that such insertion or corrections, attached, it being hereby agreed that such schedule and such copy or copies, why so made, shall be prima facie correct ; amount of any and all moneys paid by the Company FOURTH: That liability hereunder shall extend to, and include, the full liable thereupon, in good faith, under the belief that it was in the settlement or compromise of any claims, suits and judgments as aforesaid, disbursements on account of costs, attorneys' fees and expenses therefor, whether liable or not, as well as of any and all necessary, whether necessary or not ; which may be made under the belief that such were a1 17n-3m, 7-94 Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 10 of 16 damages, attorneys' fees, expenses, FIFTH: That, in the event of payment, settlement or compromise of liability, loss, casts, such bond or bonds, an itemized statement thereof sworn to claims, demands, suits or judgments as aforesaid, in connection with any payment, settle or compromise, shall by any officer or officers of the Company, or the voucher or vouchers, or other. evidence of such liability of tie Indemnitors in any and all claims or suits hereunder; be prima facie evidence of the fact and extent of the SIXTH : That nothing herein contained shall be considered or construed to waive, abridge or diminish any right or remedy which the Company might have if this instrument were not executed ; SEVENTH: To waive, and do hereby waive, a!1 right to claim any of their property, including homesteads, as exempt from levy, execution, or sale or other legal process, under the laws of any state or states ; EIGHTH : That, in case any of the Indemnitors shall fail to execute this instrument, or in case any of the Indemnitars, who execute this instrument, shall not be bound for any reason, the other Indemnitors shall nevertheless be bound hereunder for the full amount of liability, loss, costs, damages, attorneys' fees and expenses as aforesaid; NINTH: To waive, and do hereby waive, notice of any breach or breaches of any such bond or bonds, or of any act or default that may give rise to claim hereunder; TENTH: That this instrument shall be liberally construed, so as to fully protect the Company ; ELEVENTH : That suits may be brought hereunder as causes of action may accrue, and the bringing of one or mare suits, or the recovery of judgment or judgments therein shall not prejudice or bar the bringing of suits upon other causes of action, whether theretofore or thereafter arising; TWELFTH: That the Company does not guarantee the prompt issuance of any such bond or bonds, or the acceptance thereof execute any such bond or by the obligee or obligees therein named, and that the Company shall have the absolute right to decline to bonds; other surety or bond or bonds by some THIRTEENTH : That in the event the Company procures the execution of any such surety or sureties as co-sureties, or reinsures any portion of such bond or bands sureties, or executes such bond or bands with other this instrument shall inure to the benefit of any such with other surety or sureties as reinsurers, then all the terms and conditions of ; surety or sureties, including the right to bring action hereunder of any bound under the terms of this instrument on account FOURTEENTH: That the Indemnitors shall continue to remain with or without notice to or knowledge of the from time to time hereafter, such bond or bonds even though the Company may forms to indemnify it in connection with the agreements or indemnity on similar or other Indemnitors, accept other or additional by the Indemnitors that any and it being hereby expressly understood and agreed execution or procurement of any such bond or bonds, others under any such other or additional or acquire against the Indemnitors and/or all other rights which the Company may have Company under this instrument. and not in lieu ot the rights afforded by the agreements of indemnity shall be in addition to, and understanding, that the executed bonds on the express condition, promise FTFTEENTH: Whereas, surety has heretofore to execute other bonds (subject to consideration of the surety's agreement Indeninitor will provide indemnity therefore, and in further on or after shall apply to any bond or bonds executed Paragraph Twelfth of this agreement) this indemnity or deceive any insurer tiles a statement ntent who knowingly and with intent to injure, defraud, accordance with Section 817.23(lxb), Florida Statutes : "Any person is guilty of a felony in the tha'd degee." false, incomplete, or misleading infomration of claim wan application containing any Signed, sealed and dated this day of J1 17b-3M, 7-94 Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 11 of 16 Attest : Attest : Attest : Attest : Attest : EACH INDEMNITOR MUST ACKNOWLEDGE THIS INSTRUMENT al iyb-3m, 7-9a Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 12 of 16 For Acknowledgment by Individual Indemnitors STATE OF COUNTY OF SS : subscriber, to me described in, and who executed, the foregoing instrument and before me, the On this day of personally appeared personally known, and known by me to be the person acknowledged same to be act and deed. Witness my hand and official seal . Notary Public My Commission Expires For Acknowledgment by Individual Indemnitors STATE OF COUNTY OF SSsubscriber, to me described in, and who executed, the foregoing instrument and before me, the On this day of personally appeared personally known, and known by the to be the person act and deed. acknowledged same to be Witness my hand and official seal . My Commission Expires Far Acknowledgment by Individual Iademe9tars Notary Public STATE OF COUNTY Off' SS: subscriber, to me executed, the foregoing instrument and described in, and who before me, the day of On this personally appeared personally known, and known by me to be the person act and deed. acknowledged same to be Witness my hand and official seal. Notary Public My Commission Expires J1inn-3M, 7-sa Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 13 of 16 For Acknowledgment by Individual Indemnitors STATE OF COUNTY Off' SS : subscriber, to me described in, and who executed, the foregoing instrument and before me, the day of On this personally appeared personally known, and known by me to be the person act and deed . acknowledged same to be Witness my hated and official seal . My Commission Expires For Acknowledgment by Corporate Indemnitors STATE OF COUNTY OF S8 : Notary Public subscriber, -_ before me, the day of On this to me appeared personally that he who, being duly swam, did depose and say that he resides in the city of personally known, the President of _ is the he knows the seal of said corporation` that the seal affixed to corporation described in, and which executed, the within instrument ; that of the Board of Directors of said corporation, and that he signed said instalment is such corporate seal ; that it was so affixed by order he is acquainted with his name thereto by like order; and the deponent further said that the within instrument bar Secretary of said corporation and that he subscribed his name to and knows that he is the presence of the deponent. a like order of the said Board of Directors, and ire. the Witness my hand and official seal. My Commission Expires Notary Public 31 17b-3M, 7-94 Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 14 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, V5 . ) ) CIVIL ACTION ) ) ) } ENTERTAINMENT FILM WORKS, INC ., JAMES T. DUFFY, NORMA L . DUFFY, and JOHN J. DUFFY, Defendants . FILE NO. 1 :03-CV-3073 VERIFICATION COMES NOW, Defendant, James T. Duffy, states that he has reviewed Defendant's Responses to Plaintiffs First Interrogatories and states that those responses are true and carted to the best of his knowledge, information and belief. ~----_ ~3ames T. Duffy 7/7 <- Sworn and subscribed before me this ~4O'- day of April, 2004. Notary Public My commission expires: PptifN G' AR Y \ ~~8$ Cd~ Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 15 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, VS . ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, NORMA L. DUFFY, and JOHN J. DUFFY, Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073 VERIFICATION COMES NOW, Defendant, Entertainment Film Works, Inc ., by and through its corporate officer, and states that he has reviewed Defendant's Responses to Plaintiffs First Interrogatories and states that those responses are true and correct to the best of his knowledge, information and belief. ,, r---~ 'James T. Duffy, CEO;` -Entertainment Film Wb-r1ES, Sworn and subscribed before me thisday of April, 2004 . Notary Public c. My commission expires : -3, aCL u Case 1:03-cv-03073-ODE Document 55-9 Filed 09/27/04 Page 16 of 16 CERTIFICATE OF SERVICE This is to certify that I have served a copy of the within and foregoing T. DEFENDANTS ENTERTAINMENT FILM WORKS, INC. AND JAMES DUFFY'S RESPONSES TO PLAINTIFF'S FIRST INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS, AND REQUEST FOR ADMISSIONS TO DEFENDANTS upon the following counsel and depositing a true copy of same in the United States Mail, with adequate postage affixed thereon, addressed as follows : Gregory R. Veal, Esq. W. Randal Bryant, Esq. 53 Perimeter Center East, Third Floor Atlanta, Georgia 34346-2298 This _..J day of May, 2004 . Bovis, Kyle & Burch, LLC ARI `MAURICE J B Attorney for Defendants Georgia Bar No. -054850 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 9 Case 1:03-cv-03073-ODE Document 56 Filed 10/01/04 Page 1 of 2 FUD IN CORK'S OFf1CE U.B .D .C.-,Attents IN THE UNITED STATES DISTRICT COURT OCT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION wnHsM, FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY ; JOHN J. DUFFY; and DALE A. OBRACAY ; Defendants . CONSENT ORDER EXTENDING DISCOVERY PERIOD CIVIL ACTION FILE NO. 1 :03-CV-3473-ODE 2004 oMAs, cLERK EMply Clark HAVING CONSIDERED the Motion to Extend Discovery Period and the materials filed therewith, and it appearing to the Court that the discovery period in the above-referenced case is set to expire on September 30, 2004 ; that the parties have consented to an extension of the discovery period through November 29, 2004; and that good cause has been shown for such an extension ; IT IS HEREBY ORDERED that the discovery period is extended through November 29, 2004. ~` s ~~ JV-4.~ Page 1 of 2 tJ G~i 5 ~DJ~_ Case 1:03-cv-03073-ODE Document 56 r Filed 10/01/04 Page 2 of 2 0 This l day of CLM,. -, , 2004, Orinda D. Evans, Chief Judge United States District Court Submitted and consented to by: to by; GREGORY R. VEAL Georgia Bar No . 726615 W. RANDAL BRYANT Georgia Bar No . 092039 Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346 (770) 391-9100 {770} 688-0878 Facsimile Consented t~ by : , tI MAURICE J BE Georgia Bar No 54850 Attorney for D eodants Entet~tainment Film Works, c., James T. Duffy, Norma L. Duf,f~, and John J. Duffy 2717 Chamblee Dunwoody Rd. Atlanta, Georgia 30341 {678} 530-0900 (678) 530-0099 Facsimile S NLEY E 4 Geor ' No. 4 4 00 Attorney for Defen ant Dale A 4bracay 4651 Rosweil Road Suite G-602 Atlanta, Georgia 30342 (404) 843-9666 (404) 843-9667 Facsimile Page 2 of 2 Case 1:03-cv-03073-ODE Document 58 Filed 11/01/04 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE MOTION TO COMPEL DISCOVERY RESPONSES AND TO SHORTEN TIME FOR FILING RESPONSE Plaintiff hereby moves the Court to (1) compel the Defendants Entertainment Film Works, Inc., James T. Duffy, Norma L. Duffy, and John J. Duffy ("Indemnitors") to produce copies of any and all documents related to the General Indemnity Agreement by November 9, 2004; (2) compel the Indemnitors to produce copies of their documents responsive to Plaintiff's Second Request for Production of Documents to Defendants Entertainment Film Works, Inc., James T. Duffy, Norma L. Duffy, and John J. Duffy by November 9, 2004; (3) compel Indemnitors to make the above-referenced documents (including all originals and -1- Case 1:03-cv-03073-ODE Document 58 Filed 11/01/04 Page 2 of 3 copies) available for inspection by Plaintiff and its forensic document expert on November 10-12, 2004; (4) require the Defendants to serve and file any response to this motion by November 5, 2004; and (5) award Plaintiff its reasonable costs and attorney's fees in bringing this motion in the amount of $784.00, pursuant to Rule 37(a)(4) of the Federal Rules of Civil Procedure. This motion is supported by the Brief in Support of Motion to Compel Discovery Responses and to Shorten Time for Filing Response filed concurrently with this motion. Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -2- Case 1:03-cv-03073-ODE Document 58 Filed 11/01/04 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on November 1, 2004, I served the foregoing Motion to Compel Discovery Responses and to Shorten Time for Filing Response, along with the Brief in Support of Motion to Compel Discovery Responses and to Shorten Time for Filing Response, by hand-delivery to the following addresses: Maurice J Bernard, III, Esq. 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 Stanley M. Lefco, Esq. 4651 Roswell Road, Ste. G-602 Atlanta, Georgia 30342 I also certify that on November 1, 2004, I electronically filed the abovereferenced motion and brief with the Clerk of Court using the CM/ECF system. Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 E-mail: rbryant@boviskyle.com -3- Case 1:03-cv-03073-ODE Document 58-1 Filed 11/01/04 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE BRIEF IN SUPPORT OF MOTION TO COMPEL DISCOVERY RESPONSES AND TO SHORTEN TIME FOR FILING RESPONSE Plaintiff, Fidelity Deposit Company of Maryland ("F&D"), files this brief in support of its motion to compel discovery responses and to shorten the time for filing response briefs. F&D respectfully shows the Court the following: Statement of Facts F&D has previously set forth the facts concerning the background of this litigation and facts concerning discovery in its Memorandum of Law in Support of Motion to Extend Discovery Period ("Extension Brief") and rather than reiterating those facts here, incorporates that brief by reference. As shown in its Extension -1- Case 1:03-cv-03073-ODE Document 58-1 Filed 11/01/04 Page 2 of 8 Brief, Plaintiff needed additional discovery time to have its forensic document expert analyze any and all copies of the General Indemnity Agreement retained by the Defendants and provide his written report Plaintiff asked Entertainment Film Works, Inc., James T. Duffy, Norma L. Duffy, and John J. Duffy ("Indemnitors") to produce any and all documents related to the Indemnity Agreement and their material alteration defense in Plaintiff's First Interrogatories, Request for Production of Documents, and Request for Admissions to Defendants served on March 26, 2004. (See Interrogatory Nos. 4 and 6, RFPD No. 1; these discovery requests are attached to the Extension Brief as Exhibit 7). The Indemnitors served responses on May 5, 2004 and did not make any objections to Interrogatory Nos. 4 and 6 and RFPD No. 1. (Extension Brief, Exhibit 8). The only document produced by the Indemnitors at the time of their discovery responses was a copy of an uncompleted, unexecuted indemnity agreement. (Extension Brief, Exhibit 8). The Indemnitors did not produce a copy of an executed Indemnity Agreement until September 17, 2004. This document (Extension Brief, Exhibit 6) did not contain the May 22, 2001 date in paragraph 15 or the facsimile transmittal information contained on the original Indemnity Agreement retained by F&D. (Extension Brief, Exhibit 1). -2- Case 1:03-cv-03073-ODE Document 58-1 Filed 11/01/04 Page 3 of 8 F&D's counsel wrote the Indemnitors' attorney on October 5, 2004 (Exhibit A), asking for some dates during the week of October 11-15, 2004 for its forensic document expert to inspect any and all documents constituting or related to the General Indemnity Agreement. The letter further provided: In Plaintiff's Interrogatories, Request for Production of Documents, and Request for Admissions to Defendants served on March 26, 2004, F&D asked your clients to produce any and all documents related to the Indemnity Agreement and the Defendants' material alteration defense. So far, you have only produced two documents: an uncompleted, unexecuted General Indemnity Agreement form that does not identify any indemnitors and the document you produced on September 17, 2004. I ask that you provide any other documents related to the Indemnity Agreement, including (but not limited to) any copies retained by your clients and any correspondence your clients received related to the Indemnity Agreement, at our meeting next week and, in any event, no later than October 15, 2004. The letter also noted that F&D had not received any response to its Second Request for Production of Documents served on July 30, 20041 and asked that the documents requested therein be produced no later than October 15, 2004. The Indemnitors' attorney contacted F&D's counsel on October 14, 2004, stating that he could not provide the documents by October 15, 2004 and that he 1 Copies of this Request for Production of Documents, seeking documents received by Entertainment Film Works' fax machines on certain dates, and the Certificate of Service of Discovery Materials are attached hereto as Exhibit B. -3- Case 1:03-cv-03073-ODE Document 58-1 Filed 11/01/04 Page 4 of 8 had not yet communicated with his clients concerning the document requests. The undersigned wrote Indemnitors' counsel on October 18, 2004, insisting that he produce copies of the requested documents by October 20, 2004 and provide a time for F&D's expert to inspect the originals. (Exhibit C). The undersigned stated that he needed the copies of the documents by October 20, 2004 so he could review them before the deposition of Robin Mauney2 and further noted that the failure to provide a date and time for F&D's expert to inspect the documents was delaying F&D's ability to provide the expert's written report. The Indemnitors' attorney telephoned the undersigned on the afternoon of October 20, 2004, stating that he would be unable to produce the documents by the end of the day, but that he would produce them the following week. The undersigned wrote Indemnitors' counsel on October 22, 2004, informing him that Robin Mauney's deposition had to be rescheduled once again due to the Indemnitors' failure to produce the documents. (Exhibit D). The undersigned asked that copies of the documents be provided no later than October 28, 2004, along with a time for F&D's expert to inspect the originals and any copies. 2 Robin Mauney was a witness to the signatures of James T. Duffy and Norma L. Duffy on the Indemnity Agreement. (Extension Brief, Exhibit 1). -4- Case 1:03-cv-03073-ODE Document 58-1 Filed 11/01/04 Page 5 of 8 October 28, 2004 came and went without any response from the Indemnitors concerning the requested documents. Despite repeated requests to inspect any and all documents related to the General Indemnity Agreement and the Indemnitors' material alteration defense and those responsive to F&D's Second Request for Production of Documents, the Indemnitors still have not produced these documents and there is no indication that they will do so without Court action. The discovery period is currently set to expire on November 29, 2004. In its Consent Order Extending Discovery Period filed on October 1, 2004, the Court indicated that there would be no further extensions of discovery. Argument and Citation of Authority The documents sought in F&D's requests for production of documents are undoubtedly relevant and discoverable because they relate to the claims and defenses at issue in this case. Fed. R. Civ. Proc. 26(b)(1). The Indemnitors did not make any objection to the requests for production at issue and notably failed to respond whatsoever to F&D's Second Request for Production of Documents. F&D's request to have its expert inspect any and all originals and copies of the requested documents is clearly authorized under Federal Rule of Civil Procedure 34. Despite several attempts at resolving this matter without involving the Court, -5- Case 1:03-cv-03073-ODE Document 58-1 Filed 11/01/04 Page 6 of 8 F&D has been unable to secure the requested documents.3 (See Certficate of Good Faith Effort to Resolve Discovery Dispute, attached as Exhibit E). Because of the Indemnitors' repeated failures to produce the requested documents and to allow F&D's expert to inspect all originals and copies of the same, F&D asks the Court to compel the Indemnitors to produce any and all documents related to the General Indemnity Agreement and any and all documents responsive to Plaintiff's Second Request for Production of Documents by November 9, 2004. F&D also requests the Court to require the Indemnitors to make all originals and copies of the requested documents available for inspection by F&D and its expert on November 10-12, 2004.4 Given that discovery is set to expire on November 29, 2004 and that F&D will need time to depose Robin Mauney and submit its expert's written report after the inspection of the documents, F&D asks that the Court require Defendants to serve and file any response to F&D's motion to compel by November 5, 2004.5 The undersigned has verified the facts in this brief related to his attempts to resolve this discovery dispute in the Affidavit of W. Randal Bryant, para. 5. The Affidavit is attached hereto as Exhibit F. 3 4 F&D anticipates that its expert will need approximately 3 hours to inspect the documents. 5 If the Court allows the Defendants the normal 10-day period to respond to F&D's motion, F&D asks that the Court extend the discovery period to allow F&D -6- Case 1:03-cv-03073-ODE Document 58-1 Filed 11/01/04 Page 7 of 8 The Indemnitors have acted in bad faith in refusing to provide the documents requested by F&D, precluding F&D from obtaining information relevant to this action and from having its expert prepare his written report. The Indemnitor's failure to sufficiently respond to F&D's discovery requests is without substantial justification, entitling F&D to recover its reasonable expenses incurred in making its motion to compel, including attorney's fees, under Federal Rule of Civil Procedure 37(a)(4)(A). F&D has incurred $784.00 in reasonable expenses in preparing this motion and supporting papers (Affidavit of W. Randal Bryant, attached hereto as Exhibit F), and asks the court to order the Indemnitors and their attorney to pay this amount to F&D. Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 sufficient time to designate its expert and comply with the provisions of Local Rule 26.2(C). -7- Case 1:03-cv-03073-ODE Document 58-1 Filed 11/01/04 Page 8 of 8 Certificate of Compliance I hereby certify, pursuant to Local Rule 7.1D and Local Rule 5.1B of the United States District Court, Northern District of Georgia, that the foregoing brief was prepared in 14 point Times New Roman font. s/ W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 E-mail: rbryant@boviskyle.com -8- Case 1:03-cv-03073-ODE Document 59 Filed 11/02/04 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND Plaintiff v. ENTERTAINMENT FILM WORKS, INC ., ; JAMES T . DUFFY ; NORMA L . DUFFY ; JOHN J . DUFFY ; and DALE A OBRACAY Defendants CIVIL ACTION N0 . ;1 :03-cv-3p73-ODE ORDER This Plaintiff's civil action is currently before the Court an Motion to Compel Discovery Responses 2004 . and to Shorten Time far Filing Response, The response . Court GRANTS the Filed November 1, request file to shorten time for by filing of Defendants 5, this shall their response close business November SO ORDERED, 2004 . day of ~O fir, 2004 . ORINDA D . EVANS UNITED STATES DISTRICT JUDGE Case 1:03-cv-03073-ODE Document 60 Filed 11/05/04 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE REPLY BRIEF IN SUPPORT OF MOTION TO COMPEL DISCOVERY RESPONSES AND REQUEST FOR ATTORNEY'S FEES Plaintiff, Fidelity Deposit Company of Maryland ("F&D"), files this reply brief in support of its motion to compel discovery responses and its request for attorney's fees, replying to the Brief in Opposition to Plaintiff's Motion to Compel Discovery Responses ("Response Brief") submitted by Entertainment Film Works, Inc., James T. Duffy, Norma L. Duffy, and John J. Duffy ("Indemnitors"). F&D replies as follows: In their Response Brief, the Indemnitors concede that (until today) they failed to comply with F&D's numerous requests for the documents discussed in -1- Case 1:03-cv-03073-ODE Document 60 Filed 11/05/04 Page 2 of 9 F&D's motion to compel. The only excuse for not previously producing the documents is that they have "just located" the documents. Their failure to make any effort to locate these documents at an earlier date is inexcusable. The Indemnitors' contention that F&D did not seek the requested documents before the deposition of Robin Mauney is false. That deposition was originally scheduled for August 13, 2004, and F&D had sought the documents related to the General Indemnity Agreement in Plaintiff's First Interrogatories, Request for Production of Documents, and Request for Admissions to Defendants served on March 26, 2004.1 The deposition of Robin Mauney was rescheduled several times. After the Indemnitors produced a copy of an executed Indemnity Agreement on September 17, 2004, F&D insisted that the Indemnitors allow its expert to inspect all documents related to the agreement. (See Motion to Compel Brief, pp.3-4). The undersigned specifically advised the Indemnitors' counsel that copies of the requested documents were needed before the deposition of Robin Mauney in letters of October 18 and 22, 2004. (Motion to Compel Brief, Exhibits C, D). The deposition is now scheduled for November 11, 2004, and F&D has still received no 1 The Subpoena directed to Robin Mauney is attached to F&D's Memorandum of Law in Support of Motion to Extend Discovery Period ("Extension Brief") as Exhibit 9, and Plaintiff's First Interrogatories, Request for Production of Documents, and Request for Admissions to Defendants is attached to the Extension Brief as Exhibit 7. -2- Case 1:03-cv-03073-ODE Document 60 Filed 11/05/04 Page 3 of 9 assurance that all of the requested documents have been produced. The Indemnitors' counsel delivered some documents to F&D earlier today. The Indemnitors state that these documents contain "fax materials received or responsive to Plaintiff's Second Request for Production of Documents" and "those copies, believed to be the originals, of the General Indemnity Agreement that is in the corporation's possession that indicates the original General Indemnity Agreement that was submitted without the date of May 22, 2001." Although F&D certainly appreciates the production of these new documents (that notably were not provided until after F&D filed its motion to compel), it is not clear whether or not the Indemnitors have produced all of the requested documents. The Response Brief only indicates that they provided copies of the indemnity agreement which indicate that the agreement was submitted without the May 22, 2001 date. It does not state that they are providing copies of all the documents related to the Indemnity Agreement and their material alteration defense, as requested in Plaintiff's First Interrogatories, Request for Production of Documents, and Request for Admissions to Defendants. (See Interrogatory Nos. 4 and 6, RFPD No. 1, Extension Brief, Exhibit 7). Because of the Indemnitors' delay in producing any of the requested documents, and because of the uncertainty surrounding the extent to which the -3- Case 1:03-cv-03073-ODE Document 60 Filed 11/05/04 Page 4 of 9 requested documents have been produced, F&D asks the Court to order the Indemnitors to produce any and all documents related to the General Indemnity Agreement and their material alteration defense by November 9, 2004 and require the Indemnitors to make all originals and nonconforming copies of those documents available for inspection by F&D and its expert on November 10-12, 2004. F&D asks the Court also to order that each of the Indemnitors provide a signed verification to F&D by November 9, 2004, confirming that they have reviewed their records related to Entertainment Film Work, Inc. and the General Indemnity Agreement and that they have produced "any and all documents related to the General Indemnity Agreement and their material alteration defense (including all originals and any nonconforming copies) and that there are no other responsive documents within their possession, custody, or control."2 The Indemnitors ask the Court to deny F&D's request for attorney's fees, claiming that they have not acted in "bad faith." Federal Rule of Civil Procedure 37(a), however, does not condition the award of attorney's fees upon bad faith: If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the Given their piecemeal production of documents to date, F&D is concerned that the Indemnitors have not produced all of the requested documents and does not want to be surprised by the production of new documents at a later date. The requested order would guard against this. 2 -4- Case 1:03-cv-03073-ODE Document 60 Filed 11/05/04 Page 5 of 9 court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust. Fed. R. Civ. Proc. 37(a)(4)(A). The Indemnitors have not shown that their failure to provide the requested documents was substantially justified. Although they now state that Norma L. Duffy and John J. Duffy have limited access to the requested documents, they offer no reason as to why they did not provide a response to F&D's Second Request for Production of Documents or previously state that they did not have the documents. Although James T. Duffy states that a personal friend of his passed away on October 22, 2004 (implying that that was why the documents had not previously been produced), he does not provide a reasonable explanation as to why he did not provide documents originally requested in March and July, 2004 until November. The Indemnitors did not take F&D's document requests seriously and did not bother to even look through their documents until F&D filed its motion to compel. Because the requested discovery was not provided until after F&D's -5- Case 1:03-cv-03073-ODE Document 60 Filed 11/05/04 Page 6 of 9 motion was filed (and because it is still not clear that the Indemnitors have reviewed their documents and produced all of those responsive to F&D's discovery requests), the Court should award F&D its attorney's fees of $1,064.00 ($784.00 as originally requested, plus $280.00 for the preparation of this reply brief). (See Supplemental Affidavit of W. Randal Bryant, attached hereto as Exhibit A). The undersigned spent much more time communicating with Indemnitors' counsel in attempts to secure the documents without Court action to no avail. An award of $1,064.00 for the time spent in preparing the motion to compel and supporting briefs in certainly warranted in this case. For the foregoing reasons and those shown in F&D's Brief in Supoprt of Motion to Compel Discovery Responses, F&D respectfully asks that the Court order: (1) That the Indemnitors produce any and all documents related to the General Indemnity Agreement and their material alteration defense to F&D's counsel by November 9, 2004; (2) That the Indemnitors make any and all originals and nonconforming copies of those documents available for inspection by F&D and its expert on November 10-12, 2004; -6- Case 1:03-cv-03073-ODE Document 60 Filed 11/05/04 Page 7 of 9 (3) That each of the Indemnitors provide a signed verification to F&D's counsel by November 9, 2004, stating that they have reviewed their records related to Entertainment Film Work, Inc. and the General Indemnity Agreement and that they have produced "any and all documents related to the General Indemnity Agreement and their material alteration defense (including all originals and any nonconforming copies) and that there are no other responsive documents within their possession, custody, or control;" and (4) That the Indemnitors and their attorney pay F&D $1,064.00 for its reasonable expenses in bringing the motion to compel. Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -7- Case 1:03-cv-03073-ODE Document 60 Filed 11/05/04 Page 8 of 9 Certificate of Compliance I hereby certify, pursuant to Local Rule 7.1D and Local Rule 5.1B of the United States District Court, Northern District of Georgia, that the foregoing brief was prepared in 14 point Times New Roman font. s/ W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 E-mail: rbryant@boviskyle.com -8- Case 1:03-cv-03073-ODE Document 60 Filed 11/05/04 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that on November 5, 2004, I served the foregoing Reply Brief in Support of Motion to Compel Discovery Responses and Request for Attorney's Fees by depositing copies of the same in the United States Mail, in envelopes with the appropriate postage thereon, addressed as follows: Maurice J Bernard, III, Esq. 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 Stanley M. Lefco, Esq. 4651 Roswell Road, Ste. G-602 Atlanta, Georgia 30342 I also certify that on November 5, 2004, I electronically filed the abovereferenced motion and brief with the Clerk of Court using the CM/ECF system. Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 E-mail: rbryant@boviskyle.com -9- Case 1:03-cv-03073-ODE Document 61 Filed 11/05/04 Page 1 of 7 01.0 ICS t;LERK'6 OfFQ IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ) ) ) ) ) } } ) NOV 5 ` 2004 FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, vs. ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, NORMA L. DUFFY, and JOHN J. DUFFY, Defendants . LL1THE#~ By: AG,NiAS, t,ieTk (s~l u irk CIVIL ACTION FILE N0. 1 :03-CV-3073 -(> ~J C BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES COME NOW, Defendants, Entertainment Film Works, Inc ., James T. Duffy, Norma L. Daffy, and John J. Daffy and respond to Plaintiffs Motion to Compel as follows: STATEMENT OF FACTS Plaintiff has previously made numerous requests as outlined in Plaintiff's brief for documents. Entertainment Film Works, Inc. is no longer an active or viable company. Its offices were closed and its records have either been discarded where possible or stored . Defendant Norma L. Daffy is the spouse of James T. Daffy and has previously testified in her deposition that her contacts with the company and its actual day-to-clay operations were limited. Defendant John J. Daffy is the brother of James T. Daffy. He resigned from Entertainment Film Works at some time prior to its actual closing. Defendant John J. Daffy has almost no records of the company Entertainment Film Works, Inc. in his possession . To the extent that Plaintiffs lave requested faxed copies Case 1:03-cv-03073-ODE Document 61 Filed 11/05/04 Page 2 of 7 and copies of the Indemnification Agreement, John J. Duffy has no such records in his possession to the best of his knowledge. Defendant, Norma L. Duffy, relies upon her spouse, James T. Duffy, for any information concerning the operation of Entertainment Film Works, Inc. James T. Duffy has been able to provide limited responses to discovery. As Plaintiff indicates on September 17, 2004, James T. Duffy was able to provide a copy of the General Indemnity Agreement that did not have the date that appears in the Plaintiff's copy of said Indemnity Agreement. Plaintiff has requested all copies of this document from the Defendants. At this time Defendants have just located these documents. Defendants have come up with copies of facsimiles on or near the date requested by Plaintiff in their second request for production of documents. Once again, this is now a defunct corporation. Its records to the extent that they are available are maintained by James T. Duffy. Entertainment Film Works, Inc. has no employees and any review and examination of records devolves upon James T. Daffy. The deposition of Robin Mauney has been scheduled on numerous occasions . The first several occasions were postponed due to the hurricane activity in Florida where Ms . Mauney resides . These schedulings were done by Ms. Mauney and Plaintiff made no request that the document which Plaintiff now seeks before the deposition of Robin Mauney be produced before those depositions that were preciously scheduled . This is the first time that Plaintiff has linked the copy of the Entertainment Film Works, Inc. General Indemnity Agreement that lacked a specific date an page 2 to the deposition of Robin Mauney . Defendants have provided Plaintiff with the fax materials received or responsive to Plaintiff's Second Request far Production of Documents as of Friday, November 5, 2 Case 1:03-cv-03073-ODE Document 61 Filed 11/05/04 Page 3 of 7 2004. Further, as of November 5, 2004, Defendants have also provided those copies, believed to be the originals, of the General Indemnity Agreement that is in floe corporation's possession that indicates the original General Indemnity Agreement was submitted without the date of May 22, 2001 . The provisions under Federal Rules of Civil Procedure 37(a) provide for the imposition of attorney's fees where the parties have acted in bad faith. Were this corporation an ongoing entity with staff and offices, Plaintiffs argument far the imposition of fees would be reasonable . However, under the circumstances presented to this court, a defunct corporation where two of the individual Defendants have no contact with the specific records and the third individual Defendant has stored records for the defunct entity, such allegation of bad faith is not as reasonable . Defendants would respectfully request that the application far attorney's fees be denied . See Exhibit "A" Affidavit of James T. Duffy. This 5h day of November, 2004 . 3 717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 534-0900 MAURICE J BI Attorney for De Georgia Bar No III 850 3 Case Document 61 Filed Page 4 of 7 EXHIBIT Case 1:03-cv-03073-ODE Document 61 Filed 11/05/04 Page 5 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, VS. ENTERTAINMENT FILM WORKS, INC ., JAMES T. DUFFY, NORMA L. DUFFY, and JOHN J. DUFFY, Defendants . CIVIL ACTION FILE NO . 1 :03-CV-3073 AFFIDAVIT OF JAMES T. DUFFY Personally appeared before the undersigned attesting officer duly authorized to administer oaths in this state came JAMES T. DUFFY who first being duly sworn, deposes and states as follows : i. I am James T. Duffy. I am Defendant in the action that is styled abase . I make this affidavit upon personal knowledge . 2. Entertainment Film Works, Inc., tie Defendant corporation, is a corporation in which I had an ownership interest . 3. Entertainment Film Works, Inc. ceased business operations effective by the end of the year 2042. The records of the corporation are for the most part in the possession of the undersigned . Case 1:03-cv-03073-ODE Document 61 Filed 11/05/04 Page 6 of 7 4. The corporation no longer has any staff and it is up to me to go through the retards to find documents. The records are in boxes and are not easily accessible as a result of that . S. On October 22, 2004 a close personal friend passed away. It was up to me to take care of funeral arrangements and other matters in connection with her death. This individual was Cathy Nelson who died in North Georgia and her body was brought back to Stone Mountain and I took care of the funeral arrangements . 6. The documents that Plaintiff has requested had been made available to counsel and it is my understanding they will be delivered to Plaintiff as of November 5, 2004 . 7. The delay in obtaining these documents was not because of a lack of willingness. It was rather a mixture of having to get to files again to locate materials in storage that are not readily indexed. It was a cumbersome task . FURTHER YOUR DEPONENT SAYETH NOT. This 5'h day of November, 2004 . DAMES T. DUFFY Sworn to and subscribed before me this 5th day of November, 2004. expires: a3 ~ Case 1:03-cv-03073-ODE Document 61 Filed 11/05/04 Page 7 of 7 CERTIFICATE OF SERVICE This is to certify that Y have served a copy of the within and foregoing BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES upon the following counsel by hand delivering a true copy of same addressed as follows: 53 Perimeter Center East, Third Floor Atlanta, Georgia 3034G-2298 and a copy forwarded via U.S . Mail with adequate postage thereon addressed to : Stanley M. Lefco, Esq. Law Offices of Stanley M. Lefco, P.C . 4651 Roswell Road, Suite G-602 Atlanta, Georgia 30342 This 5th day of November, 2004 . W. Randal Bryant, Esq. Bovis, Kyle & Burch, LLC Georgia Bar No. -054850 :3717 Chamblee Dunwooc3y Road .Atlanta, Georgia 30341 (678) 530-0900 4 Case 1:03-cv-03073-ODE Document 64 Filed 11/22/04 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE MOTION FOR EXTENSIONS OF TIME TO IDENTIFY AND DEPOSE EXPERT WITNESSES AND FOR FILING DISPOSITIVE MOTIONS Plaintiff (with the consent of the Defendants) hereby moves the Court to extend the time for the parties to identify and depose experts and for filing dispositive motions. The parties have consented to the following deadlines: (1) The parties shall have until December 20, 2004 to serve the written disclosure required under Federal Rule of Civil Procedure 26(a)(2) for any expert who may be used at trial. (2) If any party discloses an expert as provided above, the other parties shall have until January 10, 2005 to depose the expert, to designate -1- Case 1:03-cv-03073-ODE Document 64 Filed 11/22/04 Page 2 of 3 their own experts, and to serve the written disclosure required under Federal Rule of Civil Procedure 26(a)(2). (3) If any expert is designated by a party under the preceding paragraph, the other parties shall have until January 24, 2005 to conduct the deposition of any such expert. (4) All other discovery shall be completed by November 29, 2004, as previously ordered. (5) Any dispositive motions must be filed by January 15, 2005. This motion is supported by the Brief in Support of Motion for Extensions of Time to Identify and Depose Expert Witnesses and for Filing Dispositive Motions (which sets forth the reasons for the requested extensions) and the proposed Consent Order, filed concurrently with this motion. Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -2- Case 1:03-cv-03073-ODE Document 64 Filed 11/22/04 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on November 22, 2004, I electronically filed the foregoing Motion for Extensions of Time to Identify and Depose Expert Witnesses and for Filing Dispositive Motions, along with the Brief in Support of Motion for Extensions of Time to Identify and Depose Expert Witnesses and for Filing Dispositive Motions and the proposed Consent Order, with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Stanley M. Lefco I hereby certify that on November 22, 2004 I mailed these documents by the United States Postal Service to the following non-CM/ECF participant: Maurice J Bernard, III 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -3- Case 1:03-cv-03073-ODE Document 66 Filed 12/15/04 Page 1 of 8 FlLEI) jeL~ R~ THE UNITED STATES DISTRICT` COURT .~~p~~_ r~C~~`~ FOR THE NORTHERN DISTRACT OF GEORGIA DEC 15 2004 ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. } ) ) ) ~~eD. rrao CIVIL ACTION FILE NO. : 1 :03-CV-3073-ODE } ENTERTAINMENT FILM WORKS, INC. ; JAMS T. DUFFY;) ) 1'd4R1VIA L, DUFFY s JOHN J, DUFFY; and DALE A. ORBRACAY ;) Defendants. DEFENDANT'S DALE A. OBRACAY ATTORNEY REQUEST TO WITHDRAW The undersigned attorney for the Defendant, Dale A. Obracay, respectfully requests permission to withdraw from this case . withdraw. Such nonce to Defendant was given at least tin (10) days prior to this request. Due written notice has been given to the Defendant of this intention to WHEREFORE, Defendant's attorney respectfully requests the court to grant this request . Case 1:03-cv-03073-ODE Document 66 Filed 12/15/04 Page 2 of 8 Law Offices Stanley M. Lefeo, P.C . By: State Bar of Georgia Case 1:03-cv-03073-ODE Document 66 Filed 12/15/04 Page 3 of 8 THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff,, v. ) ) ) CIVIL ACTION FILE N4. : 1 :D3-CV-3073-ODE ENTERTAINMENT FILM j WORKS, INS., JAMES T. DUFFY;) } NURMA L. DUFFY; JOHN J. DUFFY; and DALE A. QBRACAY;) Defendants. ) NOTICE 4F DEFENDANT'S , DALE A. 011RACAY, ATTORNEY INTENTION TO WITHDRAW I. Defendant's, Dale A. Obracay, attorney wishes to withdraw from this case. 2. This Court retains jurisdiction of this action. 3. Defendant has the burden of informing the Court where notices, pleadings, or other papers may be served upon him. Case 1:03-cv-03073-ODE Document 66 Filed 12/15/04 Page 4 of 8 4. Defendant has the obligation to prepare for trial or hire other counsel to prepare for trial when the trial date has been set. 5. If the Defendant fails or refuses to meet these burdens, he may suffer adverse consequences . 6. The dates of any scheduled proceedings, including trial, will not be affected by the withdrawal of counsel. ?. Service of notice may be made upon the Defendant at his last known address as set forth herein . Mr. Dale A. Obracay 14817 Laguna Dr. Suite 103 Ft. Meyers, FL 33948 8. Defendant shall have ten (10) days from tae date of this notice to object to counsel's withdrawal . Case 1:03-cv-03073-ODE Document 66 Filed 12/15/04 Page 5 of 8 Law Offices Stanley NI. Lefco, P .C. By: Stanl M. Leo Attorne Defend; Bar of Georgia State Case 1:03-cv-03073-ODE Document 66 Filed 12/15/04 Page 6 of 8 THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION } ) } ) FIDELITY AND DEPOSIT COMPANY 4F MARYLAND, Plaintiff, v. CIVIL ACTION FILE NO.: 1 :03-CV-3073-ODE ) ENTERTAINMENT FILM T. DUFFY;} WORKS, INC.; JAMES } N4RMA L. DUFFY ; JOHN J. DUFFY ; and DALE A. OBRACAY;) Defendants . NOTIFICATION CERTIFICATE Defendant's attorney has met the notification requirements of Rule 83 .1 E of the U.S . District Court, Northern District, Civil Local Rules with respect to his intention to withdraw. Defendant has been served by mail at: Mr. Dale A. Obracay 14817 Laguna Dr . Suite 103 Ft. Meyers, FL 33908 Law offices Stanley M. Lefco, P .C. By: M. State Bar of Georgia Case 1:03-cv-03073-ODE Document 66 Filed 12/15/04 Page 7 of 8 CERTIFICATE OF S VICE This is to certify that I have this day served Defendant, Dale A. Obracay, counsel for Defendants, Entertainment Film Works, James T . Duffy, Norms L . Daffy, and John J. Daffy, and counsel for the Plaintiff with a copy of the attached Defendant's, Dale A. Obracay, Attorney Request to Withdraw, Nonce of Defendant's, Dale A. Obracay, Attorney Intention to Withdraw, and Notification Certificate by depositing in the United Mates Mail copies of same in a properly addressed envelope with adequate postage thereon addressed as follows: Mr. Dale A. 4bracay 14817 Laguna Dr . Suite 103 Ft. Meyers, FL 3390$ W. Randal Bryant, Esq. Bovis, Kyle & Burch, LLC 53 Perimeter Center East, 3rd. Floor Atlanta, GA 30346-2298 Mauriee J. Bernard, Esq. 3717 Chaniblee Dunwoody Road Chamblee, GA 30341 This ~ day of AaLVJ~, X004 . Law Offices ey M. Lefco, P .C. St ey . Lef o Att ' y for Defen t State Bar of Georgia 444800 Case 1:03-cv-03073-ODE Document 66 Filed 12/15/04 Page 8 of 8 THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, } v. 3 CIVIL ACTION FILE NO. : 1:03-CV-3073-ODE j ENTERTAINMENT FILM WORKS, INC.; JAMES T. DUFFY;) ) NORiVIA L. DLTFFY ; JOHN J. DUFFY; and DALE A. OBRACAY;) I?ee~.gf ndants. Q~tDER Defendant's, Dale A. Obracay, attorney Request to Withdraw hamming come before this Court for consideration and. Defendant not having objected, within ten days from the date of notice ; IT IS HEREBY ORDERED AND ADJUDGED that the Request is granted Defendant, Dale A. 4bracay, and his name shall be deleted or otherwise noted on the records of this Court that he is no longer the attorney of record. This day of , 2Ua4 . and that Defendant's, Dale A. 4bracay, attorney no longer represents the Judge, United States District Court Northern District of Georgia, Atlanta Division Case 1:03-cv-03073-ODE Document 68 Filed 12/23/04 Page 1 of 3 .. . Aj s.~, ;.j? ;, DEC 2 3 2004 ^J4 Clerk FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY 4F MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC. ; JAMES T. DUFFY; NORMA L. DUFFY; JOHN J. DUFFY; and DALE A. OBRACAY; Defendants. CIVIL ACTION FILE NO. 1 :03-CV-3073-ODE IN THE UNITED STATES DISTRICT COURT ~* CONSENT ORDER IT APPEARING to the Court that discovery is currently set to expire in this action on November 29, 2004; that the Defendants Entertainment Film Works, Inc. and James T. Duffy have recently produced documents related to the General Indemnity Agreement at issue in this case which had not previously been produced; that Plaintiff wishes its expert witness to examine those documents and render his opinion as to their authenticity ; that Plaintiff is unable to provide its expert's written report by November 29, 2004 because of time constrains imposed Page 1 of 3 Case 1:03-cv-03073-ODE Document 68 r Filed 12/23/04 Page 2 of 3 0 0 due to the recent production of those documents and Plaintiffs expert's responsibilities related to other court proceedings and his job as Deputy Chief of Police in Duluth, Georgia; and that the parties have consented to the extensions and deadlines contained in this Order; IT IS HEREBY ORDERED THAT: (1) That the parties shall have until December 20, 2044 to serve the written disclosure required under Federal Rule of Civil Procedure 26(a)(2) for any expert who may be used at trial; (2) If any pasty discloses an expert as provided above, the other parties shall have until January 10, 2405 to depose the expert, to designate their own experts, and to serve the written disclosure required under Federal Rule of Civil Procedure 26(a)(2). (3) If any expert is designated by a party under the preceding paragraph, the other parties shall have until January 24, 2005 to conduct the deposition of any such expert. (4) Alb other discovery shall be completed by November 29, 2004, as previously ordered. (5) Any dispositive motions must be filed by January 15, 2005. Page 2 of 3 Case 1:03-cv-03073-ODE Document 68 Filed 12/23/04 Page 3 of 3 IT IS SO ORDERED this czc;- day of _~I~,g~,j, , 2004 . ORINDA D. EVANS, Chef Judge United States District Court (_~'zi5 L_~ Submitted and consented to by: s1 W. Randal Bryant Georgia Bar No. 092039 E-mail : rbryantgboviskyle .com Gregory R. Veal Consented to by: s1 Maurice J Bernard Georgia Bar No. 454850 Attorney for Defendants Entertainment Film Works, Inc., James T. Duffy, Norma L. Duffy, and Joan J. Duffy 2717 Chamblee Dunwoody Rd. Atlanta, Georgia 30341 Telephone : (678) 530-0900 Telephone : (678) X34-0499 Georgia Bar No. 726615 E-mail : grvgboviskvle .net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2295 Telephone : (770) 391-9100 Facsimile : (770) b68-0$78 Consented to by: s1 Stanley M. Lefco Georgia Bar No . 444800 Attorney for Defendant Dale A . Obracay 4651 Roswell Road Atlanta, Georgia 30342 Telephone : (404) 843-9666 Facsimile : (404) 843-9667 Suite G-602 Page 3 of 3 Case 1:03-cv-03073-ODE Document 69 Filed 01/15/05 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC., et al., ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE MOTION FOR SUMMARY JUDGMENT AGAINST ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, AND NORMA L. DUFFY NOW COMES the Plaintiff, Fidelity and Deposit Company of Maryland ("F&D"), and files this motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure against Entertainment Film Works, Inc., James T. Duffy, and Norma L. Duffy ("Indemnitors"). The Court should grant F&D's motion because there are no genuine issues of material fact, and F&D's is entitled to a judgment as a matter of law. The Indemnitors entered into indemnity agreements, promising to indemnify F&D for any and all losses and expenses sustained or incurred as a result of having issued bonds on behalf of Entertainment Film Works, Inc. and its subsidiaries. F&D has suffered losses and expenses under the bonds covered by the indemnity agreements, and the Indemnitors have refused -1- Case 1:03-cv-03073-ODE Document 69 Filed 01/15/05 Page 2 of 3 to reimburse F&D for those costs. F&D is entitled to summary judgment against the Indemnitors for $250,643.10 to indemnify it from its losses and expenses pursuant to the indemnity agreements signed by those defendants. F&D also moves the Court to direct the entry of that judgment as a final judgment, pursuant to Federal Rule of Civil Procedure 54(b). This motion is supported by the pleadings and discovery, the Brief in Support of Motion for Summary Judgment Against Entertainment Film Works, Inc. and the exhibits attached thereto, and the Statement of Materials Facts as to Which There Is No Genuine Issue to Be Tried. WHEREFORE, F&D prays that the Court award summary judgment in its favor against Entertainment Film Works, Inc., James T. Duffy, and Norma L. Duffy and direct the entry of that judgment as a final judgment Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -2- Case 1:03-cv-03073-ODE Document 69 Filed 01/15/05 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on January 15, 2005, I electronically filed the foregoing Motion for Summary Judgment Against Entertainment Film Works, Inc., James T. Duffy, and Norma L. Duffy, along with the Brief in Support of Motion for Summary Judgment Against Entertainment Film Works, Inc., James T. Duffy, and Norma L. Duffy and the exhibits attached thereto, and the Statement of Materials Facts as to Which There Is No Genuine Issue to Be Tried, with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Maurice J Bernard, III Stanley M. Lefco s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -3- Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AGAINST ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, AND NORMA L. DUFFY Plaintiff, Fidelity and Deposit Company of Maryland ("F&D"), has filed its Motion for Summary Judgment Against Entertainment Film Works, Inc., James T. Duffy, and Norma L. Duffy and files this brief in support of that motion. F&D respectfully shows the Court the following: Introduction F&D is a surety company in the business of issuing contract and other surety bonds. Entertainment Film Works, Inc. ("EFW") was a movie-theater company -1- Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 2 of 16 that needed surety bonds in order to obtain utility service for its theaters. EFW and its principals sought, and F&D issued, a number of surety bonds, part of the consideration for which was the execution of indemnity agreements in favor of F&D. When EFW did not pay for the utility services that it had obtained, F&D as surety was required to honor the terms of its bonds and pay those claims. The indemnitors (EFW and its principals) have refused to reimburse F&D for those payments as required under the indemnity agreements. F&D has been forced to file this lawsuit and engage in lengthy and expensive litigation to enforce the promises of repayment made by the indemnitors. Because there is no genuine dispute about any material fact concerning the enforceability of the indemnity agreements or the recoverability of the amounts paid and incurred by F&D under its bonds and in this action, F&D is entitled to summary judgment against EFW, James Duffy, and Norma Duffy. Statement of Facts F&D brought this action seeking indemnification under indemnity agreements. F&D issued several surety bonds on behalf of EFW and EFW of Florida, Inc. (Affidavit of Dennis R. Hayden, attached hereto as Exhibit A, para. 3). In consideration of F&D's issuance of these bonds, James T. Duffy (the president and CEO of EFW) signed a General Indemnity Agreement on May 21, 2001, -2- Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 3 of 16 agreeing to indemnify F&D from all losses and expenses sustained or incurred as a result of having issued bonds on behalf of EFW and any other corporation he owned, either directly or indirectly.1 (Deposition of James T. Duffy, pp. 4-5, 38-42 Exhibit 4 (the portions of this deposition cited in this brief are attached as Exhibit B); Exhibit A, para. 3). A true and accurate copy of this indemnity agreement is attached hereto as Exhibit A-1. (Exhibit A, para. 3) James Duffy later entered into another General Indemnity Agreement on October 11, 2001, along with EFW and Norma L. Duffy (who also served as a president for EFW).2 (Exhibit B, pp. 4, 13-14, Exhibit 1; Exhibit C, p. 8, Exhibit 1 The Indemnity Agreement provides that it applies to all bonds executed on behalf of "the Indemnitor and any corporation in which the said Indemnitor owns, directly or indirectly, in whole or in part, a controlling interest, whether existing or hereafter acquired, and any resident representative." (Exhibit A-1, p. 1). Although the name "Entertainment Film Works" does not appear in this Indemnity Agreement, James Duffy owned Entertainment Film Works (Deposition of Norma L. Duffy, pp. 5, 7 (the portions of this deposition cited in this brief are attached hereto as Exhibit C)), and he testified that he intended the Indemnity Agreement to apply to bonds issued for Entertainment Film Works. (Exhibit B, p. 40). 2 This indemnity agreement also contains signatures for John J. Duffy and Caroline Duffy. F&D did not include Caroline Duffy in this lawsuit, because she denied signing the indemnity agreement. F&D did include John J. Duffy, who did not deny signing the agreement until after he was sued in this action. (See Answer of John J. Duffy (Doc. No. 2), Second Defense). F&D's forensic document expert, Brian Carney, has opined that John Duffy did sign the indemnity agreement, while Caroline Duffy did not. Because of the fact issue related to John Duffy's signature, however, F&D is not moving for summary judgment against John Duffy. -3- Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 4 of 16 1). A true and accurate copy of this agreement is attached hereto as Exhibit A-2. (Exhibit A, para. 3). In this indemnity agreement, EFW, James Duffy, and Norma Duffy (collectively, "the Indemnitors") agreed to indemnify F&D from all losses and expenses sustained or incurred as a result of having issued bonds on behalf of EFW or any other corporation owned by the Indemnitors, just as James Duffy had agreed in the indemnity agreement signed on May 21, 2001. In the indemnity agreements, the Indemnitors agreed in part: To indemnify the Company [i.e. F&D] from and against any and all liability, loss, costs, damages, attorneys' fees and expenses of whatever kind or nature, heretofore or hereafter sustained or incurred by the Company by reason, or in consequence of its executing any such bond or bonds as surety or co-surety, or procuring the execution thereof, in making any investigation on account of any such bond or bonds, in defending or prosecuting any action, suit or other proceedings which may be brought in connection therewith, in enforcing any of the agreements herein contained, and in obtaining a release from liability under any such bond or bonds; and to indemnify the Company to the full amount of liability, loss, costs, damages, attorneys' fees and expenses as aforesaid, regardless of any reinsurance that may be carried on any such bond or bonds. (Exhibits A-1 and A-2, p. 1, para. 2). The Indemnitors also agreed to the evidence needed to establish the fact and extent of their liability to F&D for indemnification: -4- Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 5 of 16 [I]n the event of payment, settlement or compromise of liability, loss, costs, damages, attorneys' fees, expenses, claims, demands, suits or judgments as aforesaid, in connection with any such bond or bonds, an itemized statement thereof, sworn to by any officer or officers of the Company, or the voucher or vouchers, or other evidence of such payment, settle or compromise, shall be prima facie evidence of the fact and extent of the liability of the Indemnitors in any and all claims or suits hereunder. (Exhibits A-1 and A-2, p. 2, para. 5). The Indemnitors authorized F&D to complete any missing information contained in the indemnity agreement. The third paragraphs of the indemnity agreements provide in part: [T]he Company shall have the right and is hereby authorized . . . to fill up any blanks herein, and to correct any errors in filling up any blanks herein, . . . and that such insertion or corrections, when so made, shall be prima facie correct. (Exhibits A-1 and A-2, para. 3). F&D received numerous claims against the bonds issued on behalf of EFW and its subsidiary, EFW of Florida, Inc.3 (Exhibit A, para. 4). F&D notified EFW of claims against these bonds. Id. at para. 8. EFW did not provide F&D with any documentation which showed that amounts being claimed were not due and owing, 3 EFW of Florida was a subsidiary of (and completely owned by) EFW. (Exhibit B, pp. 54-55). -5- Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 6 of 16 none of the Indemnitors asked F&D to litigate such claims, and none of the Indemnitors deposited collateral with F&D sufficient to cover any of the claims. Id. F&D has paid $144,894.94 towards these claims. Id. It has also incurred expenses in the principal amount of $85,081.92 as a result of issuing these bonds. Id. at paras. 5-6. Copies of the check payments made by F&D for these losses and expenses are attached hereto as Exhibits A-3 and A-4. Id. at paras. 4-5. The prejudgment interest on these losses and expenses will be at least $20,666.26 as of April 1, 2004.4 ARGUMENT AND CITATION OF AUTHORITY I. Standard for Summary Judgment. A movant is entitled to summary judgment if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c). "Where the nonmoving party has failed to make a sufficient showing 'to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' there exist no genuine issues of material fact." Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 4 This interest is calculated at the statutory rate of 7 percent pursuant to O.C.G.A. ? 7-4-2. -6- Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 7 of 16 742 (11th Cir. 1996), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). As shown below, the Court should grant F&D's motion for summary judgment against the Indemnitors because there are no genuine issues of material fact, and F&D is entitled to a judgment as a matter of law. II. Indemnity Agreements Executed in Connection with the Issuance of Surety Bonds Are Enforceable Under Georgia Law. The indemnity agreements executed by the Indemnitors are clearly enforceable and binding. Georgia courts have consistently upheld the validity and enforceability of indemnity agreements executed in connection with the issuance of surety bonds. See, e.g., Anderson v. U.S. Fid. & Guar. Co., 267 Ga. App. 624, 627, 600 S.E.2d 712, 715 (2004), Nguyen v. Lumbermens Mut. Cas. Co., 261 Ga. App. 553, 555, 583 S.E.2d 220 (2003), Rhodes v. Amwest Sur. Ins. Co., 207 Ga. App. 441, 428 S.E.2d 581 (1993). Likewise, federal courts applying Georgia law have repeatedly upheld such indemnity agreements. See, e.g., Transamerica Ins. Co. v. H.V.A.C. Contractors, Inc., 857 F. Supp. 969 (N.D. Ga. 1994), Reliance Ins. Co. v. Romine, 707 F. Supp. 550 (S.D. Ga. 1989), aff'd 888 F.2d 1344 (11th Cir. 1990). III. The Indemnitors Are Liable for Bond Claim Losses. The Indemnitors are liable for the bond claims F&D paid on behalf of EFW -7- Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 8 of 16 and EFW of Florida, Inc.5 F&D paid $144,894.92 in bond claims that these companies failed to pay. (Exhibit A, para. 4). Pursuant to the indemnity agreements, the Indemnitors are liable for the payments made by F&D. Indemnitors are liable to the surety when the surety pays bond claims. Rhodes v. Amwest Sur. Ins. Co., 207 Ga. App. 441, 442 428 S.E.2d 581, 583 (1993). The indemnity agreements specifically give F&D the right to pay, settle, or compromise any claim against its bonds. (Exhibit A-1, para. 4). Payment by a surety of such claims where the surety has the right to pay, settle, or compromise claims is prima facie evidence of the indemnitors' liability. Transamerica Ins. Co. v. H.V.A.C. Contractors, Inc., 857 F. Supp. 969 (N.D. Ga. 1994), Reliance Ins. Co. v. Romine, 707 F. Supp. 550 (S.D. Ga. 1989), aff'd 888 F.2d 1344 (11th Cir. 1990). Furthermore, the terms of the Indemnitors' agreements with F&D plainly state that they are liable to F&D for these direct costs resulting from bond claims. (Exhibits A-1 and A-2, para. 2). 5 James Duffy owns EFW, which in turn owns EFW of Florida. (Exhibit C, pp. 5, 7; Exhibit B, pp. 54-55). The indemnity agreements provide that they apply to bonds executed on behalf of "the Indemnitor and any corporation in which the said Indemnitor owns, directly or indirectly, in whole or in part, a controlling interest . . . ." (Exhibits A-1 and A-2, p. 1). Because EFW of Florida is directly owned by EFW and indirectly owned by James Duffy, bonds issued on its behalf are covered under the indemnity agreements. -8- Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 9 of 16 F&D notified EFW of claims against the bonds issued on behalf of EFW and EFW of Florida, Inc. (Exhibit A, para. 8). EFW did not provide F&D with any documentation which showed that amounts being claimed by the bond obliges were not due and owing. Id. Under the terms of the indemnity agreements, F&D was authorized to pay these claims, absent a request from the Indemnitors for F&D to litigate the claims and a deposit of collateral with F&D sufficient to cover the claims and associated expenses. (Exhibits A-1 and A-2, para. 3). None of the Indemnitors asked F&D to litigate such claims, and none of the Indemnitors deposited collateral with F&D sufficient to cover any of the claims. (Exhibit A, para. 8). The indemnity agreements provide that in the event F&D makes any bond payments, "an itemized statement thereof, sworn to by any officer or officers of the Company, or the voucher or vouchers, or other evidence of such payment, settle or compromise, shall be prima facie evidence of the fact and extent of the liability of the Indemnitors in any and all claims or suits hereunder." (Exhibits A-1 and A-2, para. 5). Both the federal and state courts in Georgia have upheld such provisions in ruling that payment summaries and itemized statements of payments are prima facie evidence of the liability of indemnitors. Reliance Ins. Co. v. Romine, 707 F. Supp. 550, 552 n.3 (S.D. Ga. 1989); Anderson v. United States Fidelity & -9- Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 10 of 16 Guaranty Co., 267 Ga. App. 624, 627, 600 S.E.2d 712, 715 (2004). F&D has submitted an affidavit with a summary of loss payments totaling $144,894.92 which F&D paid as a result of having issued bonds on behalf of EFW and EFW of Florida, Inc., along with a copy of those check payments. (Exhibit A, para. 4, Exhibit A-3). The Indemnitors are therefore liable to F&D for $144,894.92 in bond payments. IV. The Indemnitors Are Liable for F&D's Attorneys' Fees and Other Expenses. The Indemnitors are also liable for F&D's attorneys' fees and other expenses. The Indemnitors specifically agreed to indemnify F&D for "attorneys' fees and expenses, of whatever kind or nature" sustained or incurred by F&D as a result of issuing bonds on behalf of the Indemnitors, in prosecuting any related action, and in enforcing the indemnity agreements. (Exhibits A-1 and A-2, para. 2). In construing indemnity agreements, Georgia courts have specifically upheld such provisions requiring the indemnitor to reimburse the surety for attorneys' fees and other expenses. See, e.g., Rhodes v. Amwest Sur. Ins. Co., 207 Ga. App. 441, 441-42, 428 S.E.2d 581, 582-83 (1993); Morrison v. Fidelity & Deposit Co. of Md., 150 Ga. 54, 102 S.E. 354 (1920); M-Pax, Inc. v. Dependable Ins. Co., 176 Ga. App. 93, 94-95, 335 S.E.2d 591, 593 (1995); United Rental Systems, Inc. v. Safeco Ins. Co., 156 Ga. App. 63, 67-68, 273 S.E.2d 868, 872 (1980). - 10 - Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 11 of 16 In bringing this action to enforce the indemnity agreements, and as a result of having issued bonds on behalf of the Indemnitors, F&D has sustained and incurred attorneys' fees and other expenses, totaling $85,081.92.6 The Indemnitors are liable for these fees and expenses, and F&D is entitled to summary judgment against the Indemnitors for the full amount of these costs. V. The Indemnitors Are Liable for Prejudgment Interest. The Indemnitors are also liable for prejudgment interest on F&D's losses and expenses under O.C.G.A. ? 7-4-2. The interest on the losses and expenses paid by F&D, calculated at the statutory rate of 7 percent through April 1, 2005,7 totals $20,666.26.8 6 Pursuant to paragraph 15 of the indemnity agreements, the Affidavit of Dennis R. Hayden establishes the Indemnitors' liability for $61,964.16 in attorneys' fees and expenses that have been paid by F&D. (Exhibit A, para. 5). The indemnity agreement also covers attorneys' fees and other expenses that have been incurred but not yet paid by F&D. (Exhibits A-1 and A-2, para. 2). The Affidavit of Dennis R. Hayden and the Affidavit of W. Randal Bryant (attached hereto as Exhibit D) establish the Indemnitors' liability for $23,117.76 in additional attorneys' fees and expenses that have been incurred but not yet paid by F&D. (Exhibit A, para. 6; Exhibit D). 7 F&D has calculated interest through April 1, 2005, anticipating that the Court will not rule on the motion for summary judgment before then, considering the Indemnitors' time for filing a response brief and F&D's time for filing a reply brief. $15,706.87 of this total is calculated on $117,813.60 in loss payments from May 6, 2003, the date of F&D's letter to the Indemnitors demanding reimbursement for 8 - 11 - Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 12 of 16 VI. The Indemnitors' Alteration Defense Is Unavailing. James and Norma Duffy have claimed that the indemnity agreement they signed on October 11, 2001 was altered by the addition of the "May 22, 2001" date in paragraph 15. F&D's position is that the indemnity agreement was not altered but contained the May 22, 2001 date when it was signed by the Indemnitors.9 This dispute, however, is not material, because F&D would be entitled to summary judgment even if the May 22, 2001 date had been added to the agreement after it had been signed by the Indemnitors. The third paragraph of the indemnity agreement provides in part: that amount. (Exhibit A-5). $2,584.72 of the total is for interest on the remaining loss payments ($7,871.32 to Orlando Utilities Commission and $19,210.00 to Florida Power Company) calculated from November 20, 2003, the date the Indemnitors were served with F&D's Complaint. (Exhibit A, para. 4; Returns of Service (Doc. No. 5)). The remaining $2,374.67 in interest was calculated on the expense payments shown in paragraph 5 from the date of payment of each check. (No interest has been calculated on the attorneys' fees and expenses that F&D has incurred, but not yet paid.) F&D e-mailed the October 11 indemnity agreement to Clara Scott of Bouchard Insurance, the insurance agency who issued the bonds on behalf of EFW and F&D. (Affidavit of Clara Scott, attached hereto as Exhibit E, para. 5, Exhibit 1). This agreement contained the May 22, 2001 date in paragraph 15. After receiving the agreement, Clara Scott printed it and sent it to EFW for execution. Id. at para. 3. Again, the agreement sent by Clara Scott contained the May 22, 2001 date. She later received the fully executed indemnity agreement from EFW containing the May 22, 2001 date. Id. at para. 6, Exhibit 3; Exhibit A-2. Brian Carney, a forensic document expert retained by F&D, has opined that the indemnity agreement contained the May 22, 2001 date at the time it was signed by the Indemnitors. - 12 9 Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 13 of 16 [T]he Company shall have the right and is hereby authorized . . . to fill up any blanks herein, and to correct any errors in filling up any blanks herein, . . . and that such insertion or corrections, when so made, shall be prima facie correct. (Exhibit A-2, para. 3). Therefore, the Indemnitors expressly authorized F&D to complete any missing information contained in the indemnity agreement. James Duffy and Norma Duffy testified that there was just a blank at the end of paragraph 15 when they signed the agreement. (Exhibit B, p. 20; Exhibit C, p. 13). In signing the indemnity agreement, the Indemnitors authorized F&D to complete any blanks. Therefore, even if the Indemnitors are correct that the "May 22, 2001" date was not in the agreement when they signed it, F&D would still have had the right to insert the May 22, 2001 date in the alleged blank at the end of paragraph 15 and is therefore entitled to judgment as a matter of law.10 VII. The Court Should Direct that the Summary Judgment Against the Indemnitors Be Entered as a Final Judgment. Federal Rule of Civil Procedure 54(b) provides: (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when 10 Even if there were a question of fact concerning liability under the indemnity agreement signed on October 11, 2001, James Duffy would still be liable as a matter of law under the indemnity agreement he signed on May 21, 2001. (Exhibit A-1). - 13 - Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 14 of 16 multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. As shown by F&D's First Amended Complaint (Doc. No. 28), this action involves multiple claims against multiple defendants. In addition to moving for summary judgment against the Indemnitors, F&D has moved the Court to enter that judgment as a final judgment. F&D has not moved for summary judgment against one of the defendants (John J. Duffy), and does not want the resolution of its claims against John Duffy through trial to delay its ability to enforce its judgment against the Indemnitors. The other defendants would not be adversely affected by the entry of the summary judgment against the Indemnitors as a final judgment, and there is no just reason for delaying the entry of the summary judgment as a final judgment. Conclusion As detailed above and in the attached affidavit of F&D's authorized - 14 - Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 15 of 16 representative, F&D's losses and expenses under the bonds it issued on behalf of EFW total $250,643.10 ($144,894.92 in losses plus $85,081.92 in expenses11 plus $20,666.26 in prejudgment interest). As shown above, F&D is entitled to summary judgment against EFW and James and Norma Duffy for $238,182.99 to indemnify it from its losses and expenses pursuant to the indemnity agreements they signed. The Court should also direct the entry of that judgment as a final judgment. Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 11 F&D incurred $1,064.00 in reasonable expenses in preparing its Motion to Compel Discovery Responses (Doc. No. 58) and asked the Court to order the defendants EFW, James T. Duffy, Norma L. Duffy, and John J. Duffy and their attorney to pay that amount to F&D under Rule 37(a)(4)(A) of the Federal Rules of Civil Procedure. (See Reply Brief in Support of Motion to Compel Discovery Responses and Request for Attorney's Fees (Doc. No. 60), pp. 6-7). The Court has not yet ruled on that motion, and F&D has included that $1,064.00 in the amount it is seeking from the Indemnitors in its motion for summary judgment. - 15 - Case 1:03-cv-03073-ODE Document 69-1 Filed 01/15/05 Page 16 of 16 Certificate of Compliance I hereby certify, pursuant to Local Rule 7.1D and Local Rule 5.1B of the United States District Court, Northern District of Georgia, that the foregoing brief was prepared in 14 point Times New Roman font. s/ W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 E-mail: rbryant@boviskyle.com - 16 - Case 1:03-cv-03073-ODE Document 69-2 Filed 01/15/05 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE INDEX OF EXHIBITS The Plaintiff hereby lists the following evidentiary materials that are being submitted with its Brief in Support of Motion for Summary Judgment Against Entertainment Film Works, Inc., James T. Duffy, and Norma L. Duffy: Exhibit A: Affidavit of Dennis R. Hayden. Exhibit A-1: General Indemnity Agreement dated May 21, 2001. Exhibit A-2: General Indemnity Agreement dated October 11, 2001. Exhibit A-3: Check payments for bond claims. Exhibit A-4: Check payments for expenses. Exhibit A-5: May 6, 2003 demand letter. -1- Case 1:03-cv-03073-ODE Document 69-2 Filed 01/15/05 Page 2 of 2 Exhibit B: excerpts from Deposition of James T. Duffy. Exhibit C: excerpts from Deposition of Norma L. Duffy. Exhibit D: Affidavit of W. Randal Bryant. Exhibit E: Affidavit of Clara Scott. s/ W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 E-mail: rbryant@boviskyle.com -2- . .... ':-, ... . '. .I , . - &! . . , ". "... " ' ::-. " .. ..' '. . -' . " ,. . ::, .. . , . ":. , . , ' . ,.. ,, , : : . , , MAR. 29. 2004 1 :32PM Case 1:03-cv-03073-ODE Document 69-6 ZURICH NORTH AMERICA ZURICH AMERICAN DDC Filed 01/15/05 Page 1 of 22P. 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Atl QA 10:16 77- J. "'IPIP06" IJ 5 5'1'''811801; II' UIiL;C iiH''I'' 1:01 ,1: C"' OCOC sooeee.. MICR Data: Account Number: 5598880010 Check Number: 1380027609 Paid Date: 2000811 Amount: $5, 000, Claim Number: 6380034074 https:/ /www. cashproarchive. com/zurich/serv /Serv M anager/M akepage ?fSe l=m ain&pKey... 09/28/2004 SEP.)8, 2004R10: 44AM Case 1:03-cv-03073-ODE Document 69-7 ZURICH AMERICAN DDC Filed 01/15/05 Page 22 Pal- 21" NO, 0188 of 34 1'11. --- l' t. Tt1 k.IJ, 1'O2(OO 't' eANKrrl:. BQVIS. KY r. ::!'t. OP!P. 'r.. IiTfLlPI)' r'ott CH, 't.' ''I. :....t:;r.:'' , t. C'''I- 8M,,,i1:;;L ;...r - t i.", jtG iP-, ""kJ c:: "'I''' ';I*" fi.. (I, 'N'" i., 4'JI I"'; AI I ':1:, ,. 1 c",'ioo .1lr f:O. 'r.' l!;t 11J ..l ..e"x ':00;: "t' f .. I.. 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".. .:; ::' :,(., ...,,: . , ,..". .!; P.)PO Case 1:03-cv-03073-ODE Document 69-7 1l, Q: 4.4M ZURICH AMERICAN DDC Filed 01/15/05 Page 24 of 34 182 NO, 0188Pag "FDElNATtL: AllANTA, G\ M11 4C ..... tTFlCltlOSrOJL"! 60\118. KVLE 8. su OPERA'T , IIC'JOS At"H D1A; L- :;:Y;p, 1I"""IOrcfI''''' ....1.\", ,-I" ur-:''LIr ft511 .a.r- v:",,,, 'U''' ""L.LI 0;'''. .l- ""':'I''I" G"''' .., ::1 104 iI. II , ,n..1 ,....1 0-"'"" -ir .. 1:.."" ':, ii"" V\' "'I , II:-' 1:c: ,:, ---8'!If'" "t'S". ': D... l:JFO) N I .. ..'r\1.. ......t". :tO '01(1..of: PI" -cot. rl:t.. lI"''''' n'r,'ii'''' https :/lwww. cashproarchivc. com/zurichiserv/ServManager/MakePage.?fSel=main&pKey ,-. 09/28/2004 Case 1:03-cv-03073-ODE Document 69-7 XE, 3AM ZURICH AMERICAN DDC Filed 01/15/05 Page 25 of 34 NO, 018 SPagP 142 !\' AM HO Ji(kS CDMf1V " noE "";;r 'Ti. ft Y' II'I..._:I "1:" E'IIcK'ca"... ':A' ""m'''. _11 Td""'IEUaI" 1.Ul1n.1..r. nl;la III"" ,"1I 7'1 E lun:.\ ZURJC . 1;1,1 ICAN INiUFW Cor1PANV ICH ....,".08 .....",.,,, "",.n. llC 'i. 0- -.. UJ:ur;!' I -..... 9I "/V'M 1,,.:U9:; I- ( ..""1, OHlirHOUSI/I. TWEJvEJ!l1f4lOO "J I." e.VI , ICO a AI$ I' y 22e8 TI s: P.;rim!!l'ilr Cc:rtm Eut Tni'" All..", ;I.:..'II" 'I..C,\"' Flr OA 3m ..Tf&l:"''';!:':!I'IL - aliQO 2 n. C ?'. ,':C.1.1: i!3.0 2 c.: s Sq..aaDIJ:: I OOCO .0 MICR Data: Account Number: 5598880010 Check Number: 1380027607 Paid Date; 20040811 Amount: $1,012. Claim Number; 6380034074 https:/ /www. cashproarchive. comlzurich/serv/ServManager/MakePage?tSel=main&pKey... 09/28/2004 -.' Inla SEP , ti 28, 200( iO:43AM QL\.U .1, C.:lAh'" Case 1:03-cv-03073-ODE I CAN DDC Document 69-7 ZUR I CH AMER Filed 01/15/05 Page 188 of 34 15' 26 gep, NO, o 1'.....r.,''';:\'.''- '::I",..""r;I'.f. r","rnT'lrol '.ul' :Fo(r 'I::"; .!J Jt:' FItEL.ITV NAnO ALBAK "'Tt.No. . eo ..., 00"13400 t. BOV1S. 1(:'U:JU "CHL.C, '11o 1,.. FC"," Dfrf ONL't C.. i$E lf'." -r,- 0t. tTi 1::1" ;; 7 OJ 1' ...1 " I ,, r.-r ' =;I., ..i Lt! :;" ".-1 ff -1' r:8E:1 o;'iI. ""::1 O;(..z -oo I' .. I:: t" https:/ /www. cashproarchivc. cOm/Zllnch/ ser /ServM anager/M akePage?fSel'"ain&pKey." 09/28/2004 ::. -Filed 01/15/05 Page 27 of 34 30' 0188PajP, ZURICH AMERICAN DDC 10:45AM JS, 28, 2004Case 1:03-cv-03073-ODE Document 69-7 ABN' fRI!a:s CO,,PINY -. M '!I!1 "''' IIIK'' tv:! II JI!" n.II' II, .. 'W" .an IIII. T1lt 1:K"' ,MIYIo ...u.IW....I'IItl .. it".. E Tv .,E.. ICI AMERICAN INBURAACE COMPAA'V 7D. fJlZ::'U P.Q. !a 1 111 ZURICH "'m"". 1.0; ,..TJ\0RE: t.Q Q 'ft rHAa IIVI'MI! THtliTHi AHD f711I-- I"''''''"''or ff I.. .r. """"'(4 I '...,." PAY THI$ CHEC tf DOUI M&Ginnls- & A,i:31H:J 1r$ I)J1h Trli!"J5 S.il. &-D r.t. Cclumbl, Ot-t.::5 77- I"",..'\h" "CC:)CiJ:I 1 "'1. 8DU 11O; 2'" .:0 1 "BO II 5;;'1"';;811001'.0" n ? MICR Data: Accouot Number: 5598880010 Cbeck Number: 1380027612 Paid Dllte: 20040811 Amount: $313. Claim Number; 6380034074 https://www. cashproarchive. com/zurich/serv/ServManager/MakePage?fSel=mailJ&pKey... 09/28/2004 :.:. -"' ,-.,".... -. , ,,, ::, - ---- ...... ! .-.. ... .."". ""'" :. .,.: .. ....;.. -.-, .tt:.. * t J' CSSlT ~~~ '~~~..- ''," ""' ;'"''' .. ". \:. ':'::;. ''' ,. - - , :SEP )8, 2004Rl 0: 45AM Case 1:03-cv-03073-ODE Document 69-7 ZURICH AMERICAN DDC Filed 01/15/05 Page 28 of 34 31r2 NO, 0188Paf, t.. .ooO; -M"T01 :vt. 1I'I:,,' ClJ.. Ic.fl E"'t ""ii;' 'Nj ,,IR "L':'. liUl IbIS 7. ,. i)': 12oo5S5.. : I" -i' :a:) !f" U;J u:5 L:"" I .. I' ''''C' I of ':!!I:"I l:j!,, 1,":1 f! t..,:" C'. l), " :1"" -t. -""'r r.. 8 ; OI: C.,r..: OG:; 1 '.. 01 "I'\''!' .. C' 1l '1 """' , k., htts://www. cashproarchive. com/zunchlscrv/Scl"vManager/MakePage?fSeJ=main&pKcy .,. 09/28/2004 .;\ JAN , . "" 13. 20051 12: 26PM Case 1:03-cv-03073-ODE Document 69-7 ZURICH AMERICAN DDC Filed 01/15/05 Page 29 of 34 NO, 2317 Pa ' Iin. ABN'AMROSER COMPAN toE F.:. :;;,JIW: tMs,. ILR ' II.J: 4..1I':I!Aif. ".uRAlcr U ... ......e;r :"11 M;ol,III:1I:W,Ii&/."I;:.. iI III oILtl 'r!"" Z&RIC J. ClDEMLOIhI.'89:'",. P.o. Dc 111:;'! I&R "'I'..y 1;l1 klC ZURICH ru"'C1! 0121111"" I\Dln" m.... ..4Qi DaIhIo ON"- rlQU"''' se HLIUlD Pa) to: eaey "HClmIC'FD!IP.. 00::1"18r.1 LlIUIIIIIg __18 t I" PAy THIS 5UII 111 '1111""- a."rd B 11. ''' W.: 1:GA3D51 :.11MII --__I S!JOla'l ;a- 1-.. ...00.," ..IJ;JCO .7::LJO(). H" ,!onIJUCUt: IiQ.,S8BIJD1-0" MICR Data: Aeeouot Number: 5598880010 Cheek Number: 1380028948 Paid Date: 20041018 AmODnt: $1, 700. Claim Number: 6380034074151P htt://w. casproarchive. com/zurichfservIServManager/MakcPage?fSe1=main&pKey... 01/1312005 -..", - .. lAN ....'" .---". . ::g ,.. " ;!'. ..."' = /)',, Filed 01/15/05 Page 30 of 34 NO, 2317 ZURICH AMERICAN DDC Case 1:03-cv-03073-ODE Document 69-7 2005h12:27PM (1r2 .n, ""(J L- liU.I I :r1_ l"'II''',I''I I....r.cI jr,' 9G "r\!::' L:IIII..T' .- I 0 3a ar. 1114 "'0 C: ";-2 PI r"' C"oJ I.. ( fa .. ?,I0 r.1o ..0..:: .. rol:\C: '" Otr- 0.,) co.. gu: 2,, htts:llww.casproarhi com/zurchiserv/ServManagerlMakePage?fSe1-mn&pKc... 01/1/2005 ' . "::' : ' ,"" ", ' . :' , ,., ::: ,: ' . ::,;, " ". :"' :),,,,, ,, "" " ' /' . ,, , " , " : /, . ,',' , :"; ' , ', : Dal8 '" " ' ,"' ', ;'/' '' , . .,," " ',. ';; "-/ . ' - -:;- ,'" "-' Case 1:03-cv-03073-ODE Document 69-7 Filed 01/15/05 Page 31 of 34 THE FACE OF THIS DOCUMENT HAS A BLUE BACKGROUND. NOT A WHITE BACKGAOUND. THE BACK OF THIS DOCUMENT HAS A SIMULATED WATERMARK. HOLD AT AN ANGLE TO VIEW. ZURICH AMERICAN INSURANCE C9MPANY NO. . 3330922895, 14(),merk:riLar10 ZURICH Zurich TowesIL6019i;1 066 , Schaumburg, ::t: 1' " 10/ 15/200 c,, :(r, .i. THIRTEEN THOUSAND, SEVEN iiuNORED SIXT- EIGHT AND 9300 "1' ", ,IIOVIS KYLf(ANO BURCH LLC " 53 PERIMETER eTR E FL 3 ATLANTA Oil 303' --DOLLARS LaSale Blnk N.A. ClI , illinoi 6003 1if 77- tf II' :I :! :I 0 "i 2 2 a "i 5 II' ':O? "i 230 2 21: 5 S"i",aaaoo "'OII' . , ::. ?;:I .. " " :;, ;. ' -_.._. Filed 01/15/05 Page 32 of 34 NO, 2316 p, 17 Case 1:03-cv-03073-ODE Document 69-7 JA JJ ! U. ZUR I CH AMER I CAN DDC hI$ 1 of2 AMROSEfH'fSCOMFMII 'I'6;r:W"t!G DOI.OI'II!I"'I!. II". 'fI.IIEliIll 1C AllleAlI_NlC. .ec. WlI;(;""_ ",.QlIIMt 'p..IkU,;"! f;/Wf !H M "I3I'''II_''_' 1I._U, IIIIU"'""I8"' .II. ""Q,T'. ZURICH IiltT..CIII M12I:i",11 'IHI/I"ID_JY..II'I/I1" r bi Di':.1I h4I':' II5 rnl9-U 11). " \"Y1 F 103 !J.."'" iMEM.'I ,. 13&00 lq, )ftd - k;Q .l,l t'" : 5SQ"SIlSCElJ-El" . ()D!:O::H OOfJ. II' J:(JH MICR Data Accouot Number: 5598880010 Check Number: 1380029622 Paid Date: 20041117 Amouot: $240. Claim Number: 638003730903P https:/l ww. cashproarchive. comlzurclser/SerManagerlMePage?fSe1=main&pKey,.. 01/13/2005 ;(" .:'.. !::?''"-. ...: -. -... ..",' ' ~~~ (", ""' ..\) ... q.' ' ; ,,.... . .& .. ,j .'"'' ):, ::. ,.. Case 1:03-cv-03073-ODE Document 69-7 Filed 01/15/05 Page 33 of 34 NO, 2316 ;llL !'" 1!1I.."" .I "': 'iI'I. "" ZURICH AMERICAN DDC t.. of 2 ,r'. d(' .,..tN6,.D-lGtI.a: lIl!oA' II'I' 1t.liil1' II' "1:.. :.'t"L "'''''.III''' ''I,''I' 1. : 7-. ''-:11:"" r. . , a. ";-3 . CO :JJ I"'II'I ..r:J1 .. o.:) !3 ' I" jE. ;;s !Ja'" !oi! i::. I:.J !I " Ii =: ::I '" ,0- r. " II. :a5c ""/0 ....018 "'"C''. 1'*'; ''WII'IIl,.-=1; httS:/lww cashproarhive.com/zurch/ser/ServMange/MakPage?tSe1=maiKey... 01/13/2005 .. Case 1:03-cv-03073-ODE Document 69-7 Filed 01/15/05 Page 34 of 34 THE FACE Of TI- DOCUMENT HAS A BlUE BACKGROUNO . MOT A WHITE BACKGROUND. THE BACK OF THIS DOCUMENT HAS A SIULATED WATERMARK. HOLD AT AN ANGLE TO VIEW 1I5 ZURICH AMERICAN INSURANCE COMPANY NO. 3330952161 Dale 7(. 2302 ZURICH Amounl: Zurich Towers. 1400 American Lane, SChaumbur9, IL 60196. 1056 12/17/2004 TWENTY. TWO THOUSAND, FIVE HUNDRED NINE AND 31/100 ....._....DOLLARS Pay . NET AMOUNT BOVIS KYLE AND BURCH LLC 53 PERIMETER CTR E FL 3 A TLANT A GA 30346 :IS*u...,u 22, 509. AS 1 L"S.j a.nIrN, Ch,cagcllhnQs6WCl3 77- A4'" ':OH'123022': 5 5'1"'88800 "'3330'152H, "'O". ZURICH AMERICAN INSURANCE COMPANY ClJk Dale Check:Number Check Amount 22 509. 12/17/2004 3330952161 154692/1115168 6380034148-001 *154692/1115168 154299/1105760 6380034074-001 4663. 10360. 4663. 10360. *154299/Il05760 154691/1115166 6380034074-001 4852. 4852. *154691/Il15166 Case 1:03-cv-03073-ODE Document 69-12 Filed 01/15/05 Page 1 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA A TLANT A DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, CIVIL ACTION FILE NO. l:03- CV- 3073-0DE ENTERTAINMENT FILM WORKS, ) INC., et al., Defendants. AFFIDAVIT OF CLAR SCOTT Personally appeared before me , the undersigned offcer authorized by law to administer oaths , Clara Scott, who , first having been sworn , stated the following facts: I am over 18 years of age , a United States citizen , and competent to make this Affdavit. I have personal knowledge of the facts stated in this Affidavit which are all tre and correct. I was employed by Bouchard Insurance from approximately June 2001 through August 2004 as a customer service representative/account manager. While EXHIBIT Page lof3 Case 1:03-cv-03073-ODE Document 69-12 Filed 01/15/05 Page 2 of 18 employed by Bouchard Insurance , I worked on obtaining bonds for Entertainment Film Works , Inc. Attached hereto as Exhibit 1 is a tre and correct copy of a letter and General Indemnity Agreement that I faxed to Dale Obracay/James Duffy at Entertainment Film Works , Inc. at (404) 256- 1569 on October 2001. The agreement that I faxed to Entertainment Film Works contained the date May 22 2001 at the end of fifteenth paragraph on the second page. I wrote the " 10/16" date in the upper right- hand comer of the letter to record the date I would follow up with Entertinment Film Works if a fully executed General Indemnity Agreement had not yet been received. lo. The General Indemnity Agreement attached in Exhibit..had earlier been e- mailed to me by Sherilynn M. Meyer of Zurich Nort Arericalidelity and Deposit Company of Marland. A true and correct copy of a printout of the e-mail containing the General Indemnity Agreement as an attachment is attached hereto as Exhibit 2. (The handwriting on the e-mail printout was a note from me to Page 2 of 3 .- Case 1:03-cv-03073-ODE Document 69-12 Filed 01/15/05 Page 3 of 18 Bouchard Insurance s Vice President , Todd McWhirter.) The General Agreement contained the May 22, 2001 date referenced in paragraph 3 Indemnity , above. Attached hereto as Exhibit 3 is a tre and correct copy of the fully executed General Indemnity Agreement that Bouchard Insurance received back from Entertainment Film Works. Neither I nor anyone else at Bouchard Insurance added anything to this General Indemnity Agreement after it was received back from Entertainment Film Works with signatues on executed General Indemnity it. After receiving the fully . Agreement, I sent the signed agreement to Jeffrey Wills of Fidelity and Deposit Company of Marland. FURTHER AFFIANT SAITH NOT. CLARA SCOTT SWORN TO and subscribed before me this J. day of ./1 2004. RA L .. NI... ..c....... II .GITIAI Page3 of 3 ' . ' ,.' \' . - ". - ' ,,. - ;. ' ... -, . Case 1:03-cv-03073-ODE Document 69-12 Filed 01/15/05 Page 4 of 18 Exhibit /)/)" _. .:. () r:Na:::: ::: ~~~ ~~~ :.:. ::: .... Case 1:03-cv-03073-ODE Document 69-12 :.:Mjco Filed 01/15/05 Page 5 of 18 ..tjj e.). .:.:CSR.:. DATI.:. ENTER:roLICY:;"- 10/09/01 101 1,1 CCM0060086 EFFlri:i: ::mIiti.rrmlt: PCKG 04/23/01 04/23/02 Entertainment Film Works, Inc. James Duffy 5920 Roswell Road Atlanta, GA 30328 6r?- Dale, Enclosed is the General Indemnity that needs to be signed and sent to us via overnite mail. We look forward to receiving the signed agreement. FIf Clara Scott 10i- S"6 15"67 0EAlT ( Su fr;' S--h 10 I B 76 aJ fL tl I 727- 1S:/-3 Case 1:03-cv-03073-ODE Document 69-12 Filed 01/15/05 Page 6 of 18 General Indemnity Agreement NOT TO BE USED FOR CONSTRUCTION BONDS KNOW ALL MEN BY THESE PRESENTS: WHEREAS , upon the request made by Entertainment Film Works, Inc 5920 Roswell Road, Atlanta , GA 30328, James T. and Norma L. Duffy, 990 Edgewater Drive, Atlanta, GA 30328 and John J. and Car ?hne. Duffy, 1690 S' . Johnson Ferry Road, Atlanta, GA 30319 (hereinafter called Indemntors , whether there be one or more), as IS eVIdenced by the slgmng hereof, and upon FIDELITY AND DEPOSIT COMPAN OF MAYLAND , the express condition tht this instrent be executed , a corporahon of the State of Marland , with its pricipal offce in the City of Baltimore , any subsidiary thereof, their successors and assign, (hereinftr called Company), has executed, or procured the execution of, and may, ftom time to time hereafter execute , or procure the execution of bonds , undertakings and/or obligations of suretyship or guarantee in the same or in different penaties and with the same or different conditions and/or provisions , and in favor of the same or different obligees (each of such bonds , undertngs and obligations being hereinfter called bond or bonds) on behalf of: the Indemnitor and any corporation in which the said Indemnitor owns, directly or indirectly, in whole or in part, controllng interest, whether existing or hereafter acquired, and any resident representative. WHEREAS , the Indemnitors have a substantial , material and beneficial interest in the obtang Company s reftainng ftom cancelling said bond or bonds. of the bond or bonds or in the AND NOW , THEREFORE , in consideration of the premies and the sum of one dollar, the receipt of which is hereby acknowledged , the Indemnitors , and each of them, for themselves , each of their heirs , executors , administrtors , successors and assign, jointly and severally, do hereby covenant and agree with the Company as follows: FIRST: To pay to the Company, in advance , the premium or premiums for any such bond or bonds , in accordance with the schedule of rates attached to or to be attached hereto , as long as liability thereunder shall continue, and until evidence , satisfactory to the Company, of the termation of such liability shall be fushed to it at its home offce: SECOND: To indemnfy the Company ftom and against any and all liabilty, loss , any such bond or bonds , in defending or prosecuting any action , costs , dages , attorneys ' fees and expenses , of whatever kind or natue, heretofore or hereaftr sustained or incured by the Company by reason, or in consequence of its executig any such bond or bonds as surety or co-surety, or procuring the execution thereof. in maing any investigation on account of suit or other proceeding which may be brought in connction therewith , in enforcing any of the agreements hcrein contained, and in obtaining a release ftorn liability under any such bond or bonds; and to indemnfy the Company to the full amount of liabilty, loss , costs , damages , attorneys ' fees and expenes as aforesaid regardless of any reinurance that may be carred on any such bond or bonds; THIRD: Tht the Company shall have the right and is hereby authorized , but not required: (a) to adjust, settle or compmi suits or judgments upon any such bond or bonds , unless the Indemnitors shall request it to litigate such claim or demands , or to defend such suits or to appeal ftom such judgments , and shall deposit with the Company satisfactory collatera suffcient to pay any judgment or judgments , rendered or tht may be rendered , with interest, costs , expenses and attorneys ' fees; (b) any claims , demands , to assent to any chage whatsoever in any such bond or bonds and/or any contract or contracts referrd and/or in the general conditions , to in any such bond or bonds plans and/or specifications accompanying said contrct or contracts and to bonds and/or in the general conditions , plans and/or specifications accompanying said contract or contracts and to assent to or take any assignment or assignents, to execute or consent to the execution of any continuations , extensions or renewals of any such bond or bonds and to execute any substitute or substitutes therefor, with the same or different conditions , provisions and obligees and with the same or larger or smaller penalties, all of the aforesaid without notice to or knowledge of the Indemnitors , it being expressly understood and agreed tht the Indemntors shall remain bound under the teno of this instrent even though any such assent by the Company does or might substantially increase the liabilty of said Indemntors; (c) to attch hereto a schedule of rates and copy or copies of any such bond or bonds, to fill up any blanks left herein and to COITect any eITors in filling up any bla herein , or in the schedule of rates attached , it being hereby agreed that such schedule and such copy or copies , when so attached , and that such insertion or cOITectons, when so made , shall be prima facie COlTect FOURTI: That liability hereunder shall extend to , and include , the ful amount of any and all moneys paid by the Company in the settlement or compromise of any claim , suits and judgments thereupon, in good faith , under the belief tht it was liable JII7b-3M, 7-94 Case 1:03-cv-03073-ODE Document 69-12 Filed 01/15/05 Page 7 of 18 therefor , whether liable or not, as well as of any and all disburements on account of costs, attrneys ' fees and expenses as aforesaid, which may be made under the belief tht such were necessary, whether necessar or not; costs , dages , attorneys ' fees , expenses claim , dem, suits or judgments as aforesaid, in connection with any such bond or bonds , an itemied statement thereof, sworn to , shall by any offcer or offcers of the Company, or the voucher or vouchers , or other evidence of such payment, settle or compromise lndel1tors in any and all claim or suits hereunder; evidence of the fact and extent of the liability of the be prima facie FIF1H: Tht, in the event of payment , settlement or comromise ofliabilty, loss , SIX1H: Tht nothng herein contaied shall be considered or constred to waive , abridge or diminish any right or remedy which the Company might have if ths instrent were not executed; SEVEN1H: To waive , and do hereby waive , all right to claim any of their proprt, levy, execution, or sale or other legal process , under the laws of any state or states; including homesteads , as exempt from EIGHTH: That, in case any of the Indel1tors shal fail to execute thi instrment , or in case any of the Indemntors, who execute this instrent , shall not be bound for any reason, the other Indemnitors shall neverteless be bound hereunder for the ful amount ofliabilty, loss , costs , damages , attorneys ' fees and expenses as aforesaid; NINH: To waive, and do hereby waive , notice of any breach or breaches of any such bond or bonds , or of any act or default tht may give rise to claim hereunder; TEN1H: That ths instrment shall be liberally constred , so as to fully protect the Company; ELEVENTH: Tht suits may be brought hereunder as causes of action may accrue , and the bringing of one or more suits, or the recovery of judgment or judgments therein shall not prejudice or bar the briging of suits upon other causes of action, whether bonds; theretofore or thereafter arsing; TWELFTH: Tht the Company does not guarantee the prompt issuance of any such bond or bonds , or the acceptance thereof by the obligee or obligees therein named , and tht the Company shall have the absolute right to decline to execute any such bond or THIRTEENT: That in the event the Company procures the execution of any such bond or bonds by some other surety or sureties , or executes such bond or bonds with other surety or sureties as co-sureties , or reinures any porton of such bond or bonds with other surety or sureties as reinsurers , then all the tenn and conditions of ths instrment shall inure to the benefit of any such surety or sureties , including the right to brig action hereunder; FOURTEEN1H: That the Indemntors shall continue to remain bound under the tenn of ths instrent on account of any such bond or bonds even though the Company may from time to time hereafter , with or without notice to or knowledge of the Indemntors , accept other or additional agreements or indemnity on simiar or other fonn to indemnify it in connection with the execution or procurement of any such bond or bonds , it being hereby expressly understood and agreed by the Indemntors tht any and all other rights which the Company may have or acquire against the Indemnitors and/or others under any such other or additional agreements of indemnity shall be in addition to , and not in lieu of, the rights aforded by the Company under ths instrent. FIFTEENTH: Whereas , surety has heretofore executed bonds on the express condition, promise and understandig, tht the Indemntor will provide indemnity therefore , and in fuher consideration of the surety' s agreement to execute other bonds (subject to Paragraph Twelft of this agrement) this indemnty shal apply to any bond or bonds executed on or after May 22, 2001. In accordance with Section 817. 23(1 )(), Florida Statutes: "Any pern who knowingJy and with intent to injure. defrud, or deceive any insurer fies a of claim or an application containing any false, incomplete , or misleading informtion is guilty of a felony in the third degre:' stat Signed , sealed and dated this day of JIt 7b-3M, 7- Case 1:03-cv-03073-ODE Document 69-12 Filed 01/15/05 Page 8 of 18 Attest: John J. Duff. Secretary Entertainment Film Works , Inc. James T. Duff. President Witness: James T. Duffy, Individual Witness: Norma L. Duffy, Individual Witness: John J. Duffy, Individual Witness: Caroline Duffy, Individual EACH INDEMNITOR MUST ACKNOWLEDGE THIS INSTRUMENT JII7b-M, Case 1:03-cv-03073-ODE Document 69-12 Filed 01/15/05 Page 9 of 18 For Acknowledgment by Individual Indemnitor. STATE OF SS: COUN On ths personay appeared day of before me the subscribe, James T. Duff described in and who known , and known by me to be the person act and deed. sam to be his to me personaly executed , the foregoing instrment and acknowledged Witness my hand and offcial seal. Notary Public My Commssion Expires For Acknowledgment by Individual Indemnitors STATE OF SS: COUNTY OF On ths personally appeared day of before me the subscribe Norm L. Duff descnDed in , and who executed, the foregoing personally known , and known by me to be the person her act and deed. acknowledged same to be instrnt an to me Witness my hand and offcial seal. Notary Public My Commssion Expires For Acknowledgment by Individual Indemnitors STATE OF SS: COUN On this day of before me the subscrber, to me personally and acknowledged John J. Duff personally appeared described in and who executed, the foregoing intrment known , and known by me to be the person same to be act and deed. his Witness my hand and offcial seal. Notary Public My Commssion Expires JII7b-3M, . . Case 1:03-cv-03073-ODE Document 69-12 Filed 01/15/05 Page 10 of 18 For Acknowledgment by Individual Indemnitors STATE OF SS: COUNTY OF On ths personally appeard day of before me, the described in subscriber Caroline Duff to me personally known , and known by me to be the person acknowledged sam to be act and deed. her and who executed, the foregoing instrment and Witness my hand and offcial seal. Notary Public My Commssion Expires For Acknowledgment by Corporate Indemnitors STATE OF COUNY OF On ths intrent; that he knows the seal of said corpration; tht the seal affxed to said instrent is such corporate seal; that it was so affxed by order of the Board of Directors of said corpration, and that he signed hi na thereto by like order; and the deponent fuer John J. Duffy described in , and which executed , the within said tht he is acquainted with is the personally appeared day of SS: before me the subscriber James T. Duf tn me tht he personally known , who , being duly sworn , did depose and say that he resides in the city of President of Enterainent Film Works. Inc. , the corpration and knows that he is the Secretary of said corpration and that he subscribed his name to the withn instrnt a like order of the said Board of Directors , and in the presence of the deponent. by Witness my hand and offcial seal. Notary Public My Commssion Expires JI17b-3M, 7-94 Case1:O3-cv-03073-ODE Document69-12 Page11of18 h?bit 2 .. Case 1:03-cv-03073-ODE Document 69-12 Filed 01/15/05 Page 12 of 18 Clara Scott From: Sent: To: Sherilynn M. Meyer (sherilynn. meyer(fzurichna. com) Wednesday, September 26, 2001 3:32 PM clarascotl(fbouchardfnb. com Entertainment Film Works Subject: EFWGIA. doc Attached is the General Indemnity Agreement J' ve prepared for the above captioned accunt. This GIA must be dated , signed, attested and notarized, then returned to my attention as soon as possible. If you should have any questions, please let me know. Thanks. SheriLynn M. Meyer Sr. Surety Underwriter Ass!. Direct Phone: 813- 354- 2234 Direc Fax: 813- 354- 2283 Mail: sherilynn. meyer(fzurichna. com (See attched file: EFWGIA.doc) c -t Do - JI vJ\ I0D &6 Case1:O3-cv-03073-ODE Document69-12 Page13of18 h?bit 3 OCT. -11 01 (THU) 11: BOli lJ.m INS. Case 1:03-cv-03073-ODE Document 69-12 P n:72'WI2b7 Filed 01/15/05 Page 14 of 18 002 General Indemnity Agreement NOT TO RP. USED FOR CONSTRUCION 1I01\D5 KNOW ALL MEN BY THESE PRESENTS: WHEREAS, upo tbe reque'l mado by Entertainmenl Film Worles. lno.. 59 O Rowell Road, Atlanta, GA 30328, JaDl T. and Norma L. Duffy, 990 Edlewaler Driv.. AlilDll, GA 30328 and Jobn J. and Caroline Duff, 1690 S. JohlUOD Ferr Rold, Allanla, GA 3D319 (b.,inCior c.Ued Indemnilor., ..hed,or thero bo one 01' molt), as i. ovid.ooed by Ih. .ignina horoof, and upn lhe expre.. conition rhat tb. ,..""enl be execulod, FIDELITY AliD DEPOSITCO!.PANY OF MARYlNP, Maryland, wilh ilB prinipal offco iu il Cily of Baltimore, any Company), "" oxeculed or prourd t e execution ol band. Wldomlcngs and/or ohlisations of sUlOl.hip 0, gullntee in the .omo or in different ponolli.. iUd with lbe sam OJ diIToRlt oondilloo, Indlor prvisions. and in favor of the sam or diffort obligee. (eich of .uch bond., \Udeakn(l Ind obJiptions \!inl herematler called bond or bond) on behalf of: .ubldiar threof. tholr Sllce..sor. and u.ign., Chorin Ind may, frm lime 10 limo hertlr exeute or ploour !b excc1U of . oorpoTillon oflhe Stat: of the IndlmDlblr Ind any corporotion in whlob tho Slid Indemnitor own" directly or indircdly, in wholo COnIrOIlD& inton,', ",lIo!her oxi.tlna or horeafter acquire, and any r..ldon! repre..ntl!lv.. WHERES, 1h Indemnitors havo . .ub6tlnlia Company material and bonoficial intceu in the or in part, I oblainos of the bond or bDsu or in 1b . ,"!'inng ftom cancellig .aid bond or bond.. AND NOW, THEREFORE, in cal1ida1ion of Ibe premi.o. iI the IIknwled&od, tho Indmnor!, iI each of .iSiJS, jointly iI th for wms.lvo., e""h of thoir heir" o,"cutars, .dmini.trtors, .UCce.1I ,urn of anI doll,r . tbe reooipl or wbib i. borey ....raUy, do hereby covcn.nl.nd .gre with the CompDY" foUows: ot sohed1le of rate. amcbed 10 Or to be attbed hereto, a. loog ..liabilitY lha,olJder .holl conllnue, and untilevldooo, .ati.faorro the Company, oftheletmli"" of.uoh liabilily .hall be fuished 10 JIll iu home offoe: FIRT: To pay to lhe Company, in ""vllce, the premium ptomium for any .u,h bond or bond, in Iccordane wJt the SECOND: To indot) lho Company frm and _sainl any nalU, hetelo("" or her..flr SIsllined or incured by the Company by rea.on, or in COD'equo",e of ita e,.cutis any sucb bond or bODds a. SUtoty Or eO-iurety, or prCWS tho execution !hereof. in mag IUY investillillon on acount of Iny Bucb bond or bood., in dorewg or proa urin any iCtiOn, suit or othr proceoding which may be brougbt in connon therewilh, in enforcllllDY of th asreemoDls he..in COnll\ned, Ind ID obtainins a role..o from Uahilty unde IUY sueh b0 or boUI; or ..peos.. , ofwhalever ki OD Iili.bihty. JOIi, oosll, damllla, attome. ' fees and and to inmnfy 1Ie Company 10 thl fUll ilOUDt of liabi1i, wS', CO.I. , regardless of any rainsurnco Ihal may bo c"ried 011 IOY .uch bond or bond.; dage., .nomeys ' f.es IId e"Ponss !I alisaid, d.mond, or to THIR: Thlt Iho Co..ony shall have the rigbt and is boroby acd1onzcd , bul nol required: (a) to a(lu.\. "Ido or ComlomO Iny claims, demnds ouiti or Judsmonls 1J0n any such bond or bondo, un1.n tho IndenuulOl8 shall request it 10 litigate .ue" claim or oui" such JudglnentS , an .baU depo'it with tho Copany salisfoctory colllwo!, such or 10 ap".al .ofcicnllO pay any jUdSD1lI1 or judgmem. , ..ndorcd or thallt.ay bo ..ndOlod, with i4tor.. eo.lS, expo""" and In..eya ' feo.; (b) def fr to l..enllO any choge wbarso.ver in any such bod or bonds and/or my contrlct or contraolB refened to inlny lIeh bond or bOda andlo, in the gen.ral ccmditions. plans anelor specificillon, aceompallying .Bid contlll or contiC" and 10 bordb andor in !b genral condition.. pJans InCor .pecifications ocoomponyig .aid eDIllacr or ,oollict. and to ..sont to or tae any ISslgnenl or ISSiJlDI.. to oxecule or COMent 10 th execution of any ccmtlnuatiol\, extensionB Or reneal, of an .uch bond or bonds and to oxocult Iny lubsrit te or substilule. Ihe..fol, with the some or dUa"ol condition., prvisions ond oblige.. aD wilh the Bame or Jarler or smaller pcnolti., aU of th aforesaid wiilou! fiOllc. to or knwlodge of the lnomtors, it bojq e"Presdy unerstoo aareed that th Indemnito," shall rcltm bound lUor th 10"' of lIu. Or mighl .ub.tloriaUy incre..o th libilty of said Indomnto,,; (c) 10 in.tnl1norn oveo tho:.i: IIY .ceb ...oot by tb Coan does band or bonds, to fit! up ;my blank. loft heroin and to corrct any orrors in fining LOP any bloo heroin, or in Ih. ""heduJ. of rate. atlched, ir being hereby a8Jod Ibat sucb .chodule an such copy or copies, when '0 att..bod, aDd lhat ouch inorlion OJ c",ctions when 10 made , .hall be prfnlQftrie Imch herota . sellodulo of ratos IDd copy or copies of 1n1' such tOrrOel; FOURTH: Thot liabilty h'reunr .hall ext.nd 10, and wcludo , tie fiii omont of any aud aU moncY" paId by tIo iI. tho .ettloment or comprQmiso of ony o!aim, .uil$ ""d judgmonls thereup, in ood fiitl, uoder u, bo1ief thar il was lisbl Coy JJ7b.JIo, ,... CCT.- !l' BOUCHARD iNS, OJITHUI1):i4 Case 1:03-cv-03073-ODE Document 69-12 TEL: '1744126; Filed 01/15/05 Page 15 of 18P 003 dItefo,. whether hable or ""t, as weU Qi of any and oil cf.bwument. on account of costs, aUorneya ' fees and expen.e. as afonsoid, whoh mAy be mae uner the OObefthat sycll were necessar, whether necessar or nol; ofpaymen seUlemeot or cOmporose of liabilty, 10", co,t" damage.. attorn.ys ' feel, el'sea aror...id, in conneotion with any slIcb bond or bonds an itemed It&temet lieref. 9WO to by any offcer or ollcer! of lIe Company, 0' l1e v,ucber or voucber , or other evidence of 'ucll p&ymem, senle or .0mp,omie, .haD Tht, in Ibo event FIF: clil, derndJ, suits or judgmon\9 .. prima be fade ""idcnce af the EURat and exleni of the liability of the IndemntOr! in any and all 01.;11 or suits hereunder: $!XTII: Tht nothine bereil contained 'haD be considered or constrd to waive, abridGe or diminish my riChl or remedy wbih the Company IIj,ht have ifthia inslrment wat not -.etot.d; levy, xe;;rin SEVENTH: To waive, and do hereby W"" , aU nihl to claim any of Ibm propert, including homesteads. a' e.empt or laic or other Jelja! pracesSI, under the Jaw' of I1'Y state or 'tatesj te ths il1Jenl, shat! not be hound for IIY r son, tb oth !IdemMo" shan amollt of liabilty. loss, COSU . dage" attrney. ' ree, and expen'es a. aforesaid: exec NINTH: To w&ive , tbat may give rise To claim hereuner EIGHTH: ThaI, in caiO any of the Indemnitot5 .han fai to execme th iltll, at in ta,e any of Lt. IndemniOl, wbo nevortelets b. bOW1d hereunde for Ihe full an do hereby waive, notice of any breach or breacOO. of any sucb bond or bods , Of of auy lei 01 defalll TENT That dUs instrnl shall be liberally constred, so Q' to fuly !'otecr Ibe Company; E!.EVE.'I: ThaT ,ui," may be brought he..UTer a. cause. of aClion may .ccre , .nd the bringin of one or moe .uits , or the recovery of judgmenT OJ Judgments therein .hall not prejud.. 0' bar th bringmg of suits upon othr ClWies of acdon, theretalor. Of the,e.ftr ariine; whe therf TWELF: ThOT dle Company does not prompt issuance of any ,uch band or bonds. or Ibe aceeptace by the obli .e or obligees therein .amo, and tbat the Company .hall have tbe ab.olUle right to dec)inelo execute any such boad or bonds; glllee th THIIlTEENTH: Th.t in th even! U,e Company procur.. the excution of any 'lIh bond or bonds by aome oter suret or sureties OJ "'OIle. .ueh bond Ot bonos with o!b", sure'Y 01 sureie, Ii co-suret;es or rein.ure, any poron of s oh bond or "ith other sue'Y or sun ei .s rein.ure'", then all rhe term and conditions of this instrment shaU inwe to tb benetlt of any ,uch .nr or .urti. , inclnding rhe right to brilillachon hereundr; FOURTEENm: That the IndemntOr! ,haU "'Ontmuo to romain bound und., the terms of th. in,lnment ou account of such boml or bondJ even thoogh the Company may flam time 10 time here.ftr, with or withut notice TO or knwledge of b:demntors accopl olber or additional agreement. Or indelDity on similar aT other rono to indemnfy it in conneclon widt e,.cur;oo or prncuremll of any such !b !b 11 orher riah" wbicl rhe Company may have or .cqui . .int !be Indemnoors andior others t1der any such other or adional agrment. of indemnity .hall b. II addition to, ""d noT lieu of 'e riShl' afforded by the Company under th\5 instrment bond nr bond,. it beine hereby expressly unelsrood and agreed by Ibe Incmtofi tht anyaad FIFTEENTH: Whre.., surly h.. beTe,ote", executed bood, on the expre.. cond1tion, prom.e and uner.tand, th Ibe IndomlTtor wi11 provide indo'Y therefore. and in furher con,id.rariou ai th 'UTCry , agreemnt to oxecote other bond (subject to 11, %801, Pargraph Twelfth ofthi, .,reement) rI. indemnty .hall apply 10 In DCt: rd(ln'!e any bond or honds executed on or artor May ..ill1 St;cfjon 817. 2Jil)(b), f!t''!da. Sfl1wI,1\: "Any pcnu:n wku lol:nal) and 'Nth imcru i. il1i"ro. detTiud. or IIIQei\'e on) I!\'urcr rjlu u. UultmGnl 1)( tlnim or 41 ::ppiiCNol1 r:ol1U1in T1,lIny folI6', if1Dtt",lc:c, 01' mililetll.lin infcTnlLtiDT is ill) aft f'c:lony l'lhc third .:..., Signed, 5caled and dated r.5 ,,1 day of /c;- f) L 1Ib-'M. '- ~~~ . CCT. 11' J 11 THU I 11: L 4 BOUCHARD INS. Case 1:03-cv-03073-ODE Document 69-12 P TEL: mWl26' Filed 01/15/05 Page 16 of 18 004 (0 "J. D S6C1'tary , ;;r. Dui Presid..r rV -t/Y lY-- yT. DUff 10 "Jin 0/VuL/"f EACH L'WEMNITOR MUST ACKNOWLEDGE THIS f!, 1nivi aI INSTRUMT J\7b-M. 7.04 OJ ITH BOUCHARD INS. oJ Case. j1:03-cv-03073-ODE Document 69-12 P 005 TEL:'lW12&: Filed 01/15/05 Page 17 of 18 For ,ukDowledament by Indivldu.llndomnltors STATE OF tl': d",.." M -t On this day of ss: C) c: 7" O '-, COUNTY OF t. '" / before p.fSonaJly appeared !mown, and ""own by me to be Ule person his act iDd deed. ,.. to be aq1s T Duff described in. and who exected, Ibe foregoinB inU'llenl 8ub6criber, to me peflon.1Iy all ac!mowlodgcd the Witnss my band ..d offcial ""I. My Com..ion E"1ifes cY Notary Public . GrOd STATE OF (,-6 cl.." On ths I) ,If aayof or Acknowledgment by Individuallndemnltors ss: COUNTY OF ()CT",;J 6/c &O( before mo, th subser, to me Norm I.. Duffv pOtnsUy known, and known by mo to be the pOISn pOtnaUy appesnd described in and who e.ocvled, th foregoUl inlr0n en aclmowlocged SIl to be her 'Ct aI deed. Wirnss my baud iId offcial .e,1. MyCommssloaExpires NM-L4NDtary Public /J"" 200 For Aeknowledgmont by Indlvlcuallndemsdlors STATE OF 5S: OOUNTY OF On 1110 G,-.,, 117+1 day of tf C7 cO 802 R. :i" o I before me, the s!!senber, 10 me pennaJly personally Ipp08ed kno\\lI, and IaOWl by me 10 be the peion a.mc to be John J. Duff dcscnlled in IDd wbD cxeculd. the fore oing instlnt and .cknw' died his lei &l d Y3. Witno. my h.nd an offcia se.l My Com..ion PubiIC Expires I:J. I Jl1b..M, '''4 . . ,,. ' . . . .. ' .. ' 01 (THUI i 1 :1:03-cv-03073-ODE BOUCHARD INS. Case ,5 .\ Document 69-12 TEL: /j?, GCT - Filed 01/15/05 Page 18 of 18 71i449: P 006 STATE OF -I 9" ' Onth' II ,It be For Acknowlodllmenl by llldividuallndcmnilorl ' II SS: COUNTY OF /nl1o' tI day of (.)CT,;8EIC! :; CJ oJ before me, :h S1sorbor. 10 me ute'" the foregoing ,,'1r01l IId pe.sonallyappeared Carollne Dm"t'v p."o".l1y knwn, ,nd known by acknwledsed '"1! ID ber me 10 be The per.or de,crb.d in on w acl and deed. Wi"'... my h.nd and offtial ",al. \'3 !/oU'U Notary P"bltc My ComJsion Expir. For Acowledament by Corporal.lndemoilo," STATE OF !:J, .: (Jo SS: COUNTY oF6"". On this persnally appeared J? t' II day of D CrDe tIC Jame. T. Dutr "," c bafor. me, the persnlly knwn , who. bems duly sworn, qid deose and say th President of ili the ",bsber, to me , 1b be Emenainmnt Pilm Worn tnc. knws the seal of ,aid co'poration; bo ,."do, i. the city of the cororon qesrihed in, and wbich ...Cled, the wirhi in$l11ment; tb.t he tht ii. ,..1 affxed 10 said in.tronl is .uch corprate lOll; th.t it wo' '0 am..d by order oflbe Boar of Directoll of .a,d cOlpofaliOJ anQ thll he ';1104 his ..me ther'lo by lik. ordor; and th. dt"".nt John 1. Duffy furthor s.id tht h. " acqulintec wilh a.d knows thr h. i. U,. S.c .Iiko orde cfth said Delfd of 1a of said corportion Ind ltaT ho . cribed hi "'010 DiT"'lors, and in tho pr.sence oftbo d'panonl .. 10 th wIthin instr by Wiwss my bmd iUd offcial .eal l'_ No/t1J PIblic My Commion Expi. :lO J117h-JM, 1-4 Case 1:03-cv-03073-ODE Document 70 Filed 01/15/05 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC., et al., ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE MOTION FOR SUMMARY JUDGMENT AGAINST DALE A. OBRACAY NOW COMES the Plaintiff, Fidelity and Deposit Company of Maryland ("F&D"), and files this motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure against Dale A. Obracay. The Court should grant F&D's motion because there are no genuine issues of material fact, and F&D is entitled to a judgment as a matter of law. Obracay is liable to F&D for his fraud and negligent misrepresentation in signing as a witness to indemnitors' signatures on an indemnity agreement when he did not in fact witness them sign the agreement and could not verify their signatures. F&D is entitled to summary judgment against Obracay for $237,942.86 in damages caused by his fraud and negligent misrepresentation. F&D also moves -1- Case 1:03-cv-03073-ODE Document 70 Filed 01/15/05 Page 2 of 3 the Court to direct the entry of that judgment as a final judgment, pursuant to Federal Rule of Civil Procedure 54(b). This motion is supported by the pleadings and discovery, the Brief in Support of Motion for Summary Judgment Against Dale A. Obracay and the exhibits attached thereto, and the Statement of Materials Facts as to Which There Is No Genuine Issue to Be Tried for the Motion for Summary Judgment Against Dale A. Obracay. WHEREFORE, F&D prays that the Court award summary judgment in its favor against Dale A. Obracay and direct the entry of that judgment as a final judgment Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -2- Case 1:03-cv-03073-ODE Document 70 Filed 01/15/05 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on January 15, 2005, I electronically filed the foregoing Motion for Summary Judgment Against Dale A. Obracay, along with the Brief in Support of Motion for Summary Judgment Against Dale A. Obracay and the exhibits attached thereto, and the Statement of Materials Facts as to Which There Is No Genuine Issue to Be Tried for the Motion for Summary Judgment Against Dale A. Obracay, with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Maurice J Bernard, III Stanley M. Lefco I hereby certified that I have also this day mailed the above-referenced documents by United States Postal Service to the following address: Dale A. Obracay 14817 Laguna Drive Suite 103 Fort Myers, FL 33908 s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Attorney for Plaintiff -3- Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AGAINST DALE A. OBRACAY Plaintiff, Fidelity and Deposit Company of Maryland ("F&D"), files this brief in support of its Motion for Summary Judgment Against Dale A. Obracay. F&D respectfully shows the Court the following: Introduction F&D is a surety company in the business of issuing contract and other surety bonds. Dale Obracay, then a vice president for Entertainment Film Works, Inc. ("EFW"), sought a number of surety bonds (primarily utility bonds) on behalf of -1- Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 2 of 17 EFW from F&D, which F&D issued Part of the consideration for the issuance of these bonds was the execution of an indemnity agreement in favor of F&D. Obracay signed the indemnity agreement as a witness to the signatures of two indemnitors, even though he did not actually see them sign the agreement. F&D relied on Obracay's representations that he had witnessed the indemnitors sign the agreement and issued several bonds on behalf of EFW as a result. If F&D had known that Obracay had not actually witnessed the indemnitors sign the agreement, F&D would have canceled any existing EFW bonds and would not have issued any additional bonds for EFW. As a result of Obracay's fraud and negligent misrepresentation, F&D sustained damages in paying bond claims after EFW failed to pay for utility services it had obtained. Despite having admitted under oath that he falsely attested signatures on the indemnity agreement, Obracay has forced F&D to engage in lengthy and expensive litigation to recover for his fraud and negligent misrepresentation. Because there is no genuine dispute about any material fact concerning Obracay's liability or the recoverability of F&D's resulting damages, F&D is entitled to summary judgment against Obracay. -2- Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 3 of 17 Statement of Facts F&D issued several surety bonds (primarily utility bonds) on behalf of Entertainment Film Works, Inc., a movie theater company, and its subsidiary, EFW of Florida, Inc. (Affidavit of Jeffrey C. Willis, attached hereto as Exhibit A, para. 3; Deposition of James T. Duffy, pp. 4-9, 54-55 (cited portions of this deposition are attached as Exhibit B)). As a condition of issuing bonds on behalf of these companies, F&D required that EFW, James T. Duffy, Norma L. Duffy, John J. Duffy, and Caroline Duffy enter into a General Indemnity Agreement ("Indemnity Agreement"), agreeing to indemnify F&D from all loss and expenses sustained or incurred as a result of having issued bonds on behalf of EFW and other companies owned by them. (Exhibit A, para. 4). A true and accurate copy of the fully executed Indemnity Agreement received from EFW is attached hereto as Exhibit A-1. (Exhibit A, para. 4). Dale A. Obracay signed the Indemnity Agreement as a witness to the signatures of John and Caroline Duffy. (Exhibit C, pp. 14, 35). Obracay served as vice president of development and operations with EFW, was responsible for obtaining bonds for the company, and signed the Indemnity Agreement as a witness while he was employed by EFW. (Exhibit B, pp. 7-8; Deposition of Dale A. Obracay, pp. 14, 21 (cited portions of this deposition are attached as Exhibit -3- Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 4 of 17 C)). Based upon Obracay's signatures on the Indemnity Agreement as witness, F&D believed that Obracay witnessed John and Caroline Duffy sign the Indemnity Agreement and, as a result, issued several bonds on behalf of EFW and related companies and refrained from canceling existing bonds. (Exhibit A, para. 5). Obracay testified that he signed the Indemnity Agreement as a witness to John and Caroline Duffy's signatures, but then admitted that he did not actually see either of them sign the agreement and that he could not verify their signatures: Q: Did you observe John Duffy or Caroline Duffy sign the document marked as Exhibit A? A: No. (Exhibit C, p. 36; see also pp. 18, 21). Both John and Caroline Duffy have denied signing the Indemnity Agreement. (See Answer of John J. Duffy (Doc. No. 2), Second Defense; Deposition of Caroline N. Duffy, pp. 7, 9-10, Exhibit 4 (cited portions of this deposition are attached as Exhibit D)). Based upon Obracay's deposition testimony, F&D added Obracay as a party to this action and asserted claims against him for fraud and negligent misrepresentation. (See First Amended Complaint (Doc. No. 28)). As a result of Obracay's fraud, F&D refrained from canceling existing bonds and issued several more bonds for EFW and its subsidiaries. (Exhibit A, para. 5). If F&D had known that Obracay did not witness John and Caroline Duffy sign the -4- Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 5 of 17 Indemnity Agreement as he had represented, F&D would not have issued any more bonds on behalf of EFW and its subsidiaries and would have canceled the bonds that had already been issued on behalf of those companies. Id. at para. 6. The Indemnity Agreement specifically references F&D's right as to "cancelling said bond or bonds." (Exhibit A-1, p. 2). F&D ultimately suffered $144,894.94 in losses under bonds as a result of Obracay's misrepresentation. Id. at para. 7. F&D has also sustained $85,081.92 in expenses of litigation, including reasonable attorney's fees, in prosecuting this action. (Affidavit of W. Randal Bryant, attached hereto as Exhibit E). All of F&D's losses and expenses were incurred well over a year after Obracay returned the Indemnity Agreement with his false witness. (Exhibit A; Exhibit E; Affidavit of Dennis R. Hayden (Doc. No. 69-4), paras. 4-6). ARGUMENT AND CITATION OF AUTHORITY By misrepresenting that he had witnessed John and Caroline Duffy sign the Indemnity Agreement, Obracay became liable to F&D for fraud and negligent misrepresentation. Because of this liability and his bad faith and stubborn litigiousness, Obracay is also responsible for F&D's expenses of litigation, including its reasonable attorney's fees. The grounds for F&D receiving summary judgment on these claims are discussed in detail below. -5- Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 6 of 17 I. Standard for Summary Judgment. A movant is entitled to summary judgment if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c). "Where the nonmoving party has failed to make a sufficient showing 'to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' there exist no genuine issues of material fact." Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). As shown below, the Court should grant F&D's motion for summary judgment against Obracay because there are no genuine issues of material fact, and F&D is entitled to a judgment as a matter of law. II. Obracay Is Liable for Fraud. F&D is entitled to summary judgment on its fraud claim against Obracay. "The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by the plaintiff, and damage to the plaintiff." Eason Publications, Inc. v. NationsBank of Ga., 217 Ga. App. 726, 730(3), 458 S.E.2d 899, 903 (1995). Each of these elements is satisfied here. -6- Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 7 of 17 Obracay made false representations by signing the Indemnity Agreement as a witness to the signatures of John and Caroline Duffy and thereby communicating to F&D that he had witnessed John and Caroline Duffy sign the Indemnity Agreement when he admittedly did not do so. (Exhibit C, pp. 18, 21, 36). Obracay's signing as an attesting witness to the signatures of John and Caroline Duffy was a misrepresentation that he saw John and Caroline Duffy sign.1 See McCray Refrigerator Co. v. Uramoto, 382 P.2d 600, 603 (Nev. 1963) (defendant's signing as witness to person's signature on guaranty was equivalent to defendant stating he saw person sign guaranty); Mendenhall v. Stewart, 47 N.E. 943 (Ind. App. 1897) (by signing name as witness to signature, he did not witness, defendant represented as facts what he knew to be untrue); Second Nat'l Bank v. Curtiss, 37 N.Y.S. 1028 (N.Y. App. Div. 1896). The elements of scienter and intention to induce are also satisfied in this case. Under Georgia law, these elements are established by showing the defendant's knowledge of the falsity of his representations when they were made. 1 The definition of "witness" is "one asked to be present at a transaction so as to be able to testify to its having taken place" (Merriam-Webster Online (visited Jan. 14, 2005), ) and "[o]ne who sees, knows, or vouches for something." Black's Law Dictionary (8th ed. 2004). "Attesting witness" is defined as "[o]ne who vouches for the authenticity of another's signature by signing an instrument that the other has signed." Id. -7- Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 8 of 17 See, e.g., Hertz Corp. v. Cox, 430 F.2d 1365, 1373 n.4 (5th Cir. 1971) ("Scienter . . . means knowledge on the part of the person making the representations, at the time when they are made, that they are false."); Bagley v. Firestone Tire & Rubber Co., 104 Ga. App. 736, 740, 123 S.E.2d 179, 182 (1961) ("The intention to deceive and the immoral element is supplied by knowledge of the falsity of the representations when they were made."). Again, Obracay had admitted under oath that he signed the Indemnity Agreement as a witness when he had not actually witnessed any signatures. Obracay, who was the officer charged with obtaining bonds for EFW (Exhibit B, pp. 7-8), obviously intended F&D to accept the Indemnity Agreement which he had fraudulently witnessed and to rely on his representations that he had witnessed John and Caroline Duffy sign the agreement. F&D justifiably relied on Obracay's representations. Based upon his signatures on the Indemnity Agreement, F&D believed that Obracay witnessed John and Caroline Duffy sign the Indemnity Agreement and, as a result, issued several bonds on behalf of EFW and related companies and refrained from canceling existing bonds. (Exhibit A, para. 5). F&D was entitled to rely on Obracay's representations, because they pertained to information within Obracay's knowledge which was not equally available to F&D. See, e.g., Daugert v. Holland Furnace Co., 107 Ga. App. 566, 570, 130 S.E.2d 763, 766 (1963) ("The right to -8- Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 9 of 17 rely on representations is generally conceded where the hearer lacks equal facilities for ascertaining the truth."). The whole point of requiring a witness is to rely on that person's representations that they witnessed the signatures being signed and that those signatures are authentic. F&D suffered damages due to Obracay's misrepresentations. As a result of Obracay's fraud, F&D issued several more bonds for EFW and its subsidiaries. (Exhibit A, para. 5). If F&D had known that Obracay did not witness John and Caroline Duffy sign the Indemnity Agreement as he had represented, F&D would not have issued any more bonds on behalf of EFW and its subsidiaries, would have cancelled the bonds that had already been issued on behalf of those companies, and would have avoided any losses under the bonds. Id. at para. 6. F&D ultimately suffered $144,894.94 in losses under bonds as a result of Obracay's fraud (Exhibit A, para. 7), and Obracay is liable for these damages. See, e.g., Kent v. White, 238 Ga. App. 792, 794, 520 S.E.2d 481, 484 (1999) ("[T]he measure of damages in an action for fraud is the actual loss sustained as a result of the fraud."). Although F&D was unable to locate any Georgia cases directly addressing the liability of one who attests an agreement without seeing it signed, there are several cases from other jurisdictions holding that such a person is liable for fraud. For example, in McCray Refrigerator Co. v. Uramoto, 382 P.2d 600, 603 (Nev. -9- Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 10 of 17 1963), the Supreme Court of Nevada held that a defendant who signed as a witness to a guarantor's supposed signature on a guaranty was liable for fraud when he did not actually see the guarantor sign the document. See also Anderson v. Snyder, 14 Pa. Super. 424 (1900) (one who attests a paper without seeing the maker sign it is liable in an action for fraud, without regard to intent); Mendenhall v. Stewart, 47 N.E. 943 (Ind. App. 1897) (liability arose from attesting signature without knowing whether it was genuine or not). These cases show that falsely attesting signatures is fraud. Under these persuasive authorities and Georgia law concerning fraud, Obracay is liable for F&D's damages resulting from his fraudulently witnessing the Indemnity Agreement. III. Obracay Is Liable for Negligent Misrepresentation. Obracay is also responsible for F&D's bond losses due to his negligent misrepresentation. The Georgia Supreme Court has recognized a cause of action for negligent misrepresentation and has adopted the approach of the Restatement Second, Torts, which provides: One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. - 10 - Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 11 of 17 Robert & Co. Assocs. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681 n.1, 300 S.E.2d 503, 504 (1983). Obracay was a vice president for EFW, was in charge of obtaining bonds for EFW, and signed the Indemnity Agreement while he was working with EFW. (Exhibit B, pp. 7-8; Exhibit C, pp. 14, 21). The information supplied by Obracay was to guide and influence F&D in its business transactions, specifically those related to the Indemnity Agreement and the bonds which it covered. F&D relied upon the false information provided by Obracay in issuing and refraining from canceling bonds. As shown above, F&D justifiably relied on Obracay's representations, which caused F&D to sustain $144,894.94 in losses under the bonds. Having supplied the false information in the course of his employment, Obracay is liable for the $144,894.94 in damages F&D suffered as a result of F&D's justifiable reliance on Obracay's representations. IV. Obracay Is Liable for Prejudgment Interest. Obracay also owes F&D prejudgment interest on its bond losses under O.C.G.A. ? 7-4-2. The interest on bond claims paid by F&D, calculated at the - 11 - Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 12 of 17 statutory rate of 7 percent, from June 17, 20042 through April 1, 2005,3 totals $7,996.02. V. Obracay Is Liable for F&D's Expenses of Litigation. As a result of his fraud and negligent misrepresentation, Obracay is also liable for F&D's attorneys' fees and other expenses incurred in bringing this action. As shown above, F&D incurred substantial bond losses as a result of Obracay's fraud and negligent misrepresentation. Obracay is liable for expenses of litigation under O.C.G.A. ? 13-6-11, which provides for these damages "where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense." "Bad faith" under O.C.G.A. ? 13-6-11 means bad faith in the transaction out of which the cause of action arose and may be established by evidence of fraud. See, e.g., Clark v. Aenchbacher, 143 Ga. App. 282, 238 S.E.2d 442 (1977). "Stubborn litigiousness" means forcing the opposite party to litigate when there is no bona This is the date on which Obracay was served with F&D's First Amended Complaint (Doc. No. 28), which included a demand for judgment against Obracay for the amount of F&D's losses under its bonds. (See Return of Service (Doc. No. 34)). 3 2 F&D has calculated interest through April 1, 2005, anticipating that the Court will not rule on the motion for summary judgment before then, considering the Obracay's time for filing a response brief and F&D's time for filing a reply brief. - 12 - Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 13 of 17 fide controversy. Witty v. McNeal Agency, Inc., 239 Ga. App. 554, 555, 521 S.E.2d 619, 624 (1999). Expenses of litigation under O.C.G.A. ? 13-6-11 may be awarded on summary judgment where the movant is entitled to them as a matter of law. Rivergate Corp. v. BCCP Enterprises, Inc., 198 Ga. App. 761, 762, 403 S.E.2d 65, 65 (1991); see also Fed. R. Civ. Proc. 56(c) (summary judgment shall be rendered if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law). Obracay's bad faith is established by his fraud in representing to F&D that he witnessed signatures he admittedly did not actually witness. He has also been stubbornly litigious with respect to both the fraud and negligent misrepresentation claims. Prior to being added as a party to this litigation, Obracay admitted that he worked as an officer for EFW and had signed the Indemnity Agreement as a witness to signatures he did not in fact witness. (Exhibit C, pp. 14, 18, 21, 36). Despite these admissions under oath, Obracay has been stubbornly litigious and has denied liability for fraud and negligent misrepresentation, without any evidence or defense supporting that denial. (See Answer of Defendant, Dale A. Obracay (Doc. No. 32); Defendant's, Dale A. Obracay, Amendment to Answer (Doc. No. 52)). - 13 - Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 14 of 17 Obracay's liability is not limited to expenses of litigation incurred in prosecuting the claims against him but also includes F&D's expenses related to the claims against the indemnitors. Such expenses are recoverable as consequential damages caused by Obracay's fraud and negligent misrepresentation. "Attorney fees and expenses of litigation in an underlying action [against a third party] are recoverable as real damages incurred as the result of defendants' malfeasance or misfeasance." Marcoux v. Fields, 195 Ga. App. 573, 574, 394 S.E.2d 361, 363 (1990); see also O.C.G.A. ? 51-12-7 ("In all cases, necessary expenses consequent upon an injury are a legitimate item in the estimate of damages."). F&D has incurred $85,081.92 in reasonable attorneys' fees and related expenses as a result of Obracay's bad faith, stubborn litigiousness, fraud, and negligent misrepresentation. (A detailed description of these fees and expenses is included with the Affidavit of W. Randal Bryant, attached hereto as Exhibit E.) Because Obracay's liability for these fees and expenses has been established as a matter of law, the Court should award F&D $85,081.92 for fees and expenses as a part of the summary judgment against Obracay. VI. The Court Should Direct that the Summary Judgment Against Obracay Be Entered as a Final Judgment. Federal Rule of Civil Procedure 54(b) provides: - 14 - Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 15 of 17 (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. As shown by F&D's First Amended Complaint (Doc. No. 28), this action involves multiple claims against multiple defendants. In addition to moving for summary judgment against Obracay, F&D has moved the Court to enter that judgment as a final judgment. F&D has not moved for summary judgment against Defendant John J. Duffy, and does not want the trial of its claims against him to delay its ability to enforce its judgment against Obracay. The other defendants would not be adversely affected by the entry of the summary judgment against Obracay as a final judgment, and there is no just reason for delaying the entry of final judgment against Obracay. - 15 - Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 16 of 17 Conclusion As shown above, F&D is entitled to summary judgment on its claims against Dale Obracay. As a matter of law, Obracay is liable to F&D for $237,942.86 in damages ($144,894.92 in bond losses plus $85,081.92 in expenses of litigation plus $7,966.02 in prejudgment interest) caused by his fraud, negligent misrepresentation, bad faith, and stubborn litigiousness. Therefore, F&D respectfully requests the Court grant summary judgment in favor of F&D and rule that Obracay is liable to F&D for fraud, negligent misrepresentation, bad faith, and stubborn litigiousness and the resulting damages of $237,942.86. should also direct the entry of that judgment as a final judgment. The Court Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 - 16 - Case 1:03-cv-03073-ODE Document 70-1 Filed 01/15/05 Page 17 of 17 Certificate of Compliance I hereby certify, pursuant to Local Rule 7.1D and Local Rule 5.1B of the United States District Court, Northern District of Georgia, that the foregoing brief was prepared in 14 point Times New Roman font. s/ W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 E-mail: rbryant@boviskyle.com - 17 - Case 1:03-cv-03073-ODE Document 70-3 Filed 01/15/05 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff CIVIL ACTION FILE NO. 1:03- CV-3073- 0DE ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA L. DUFFY; JOHN J. DUFFY; and DALEA. OBRACAY; AFFIDAVIT OF JEFFREY C. WILLIS Defendants. Jeffrey C. Wilis , first having been sworn , stated the following facts: I am over 18 years of age , a United States citizen , and competent to make this Affidavit. I have personal knowledge of the facts stated in this Affdavit which are all true and correct. I am employed by Zurich North America as a Senior Account Executive. I was responsible for underwriting for the bonds requested by Entertainment Film Exhibit A (Page 1 of 4) Case 1:03-cv-03073-ODE Document 70-3 Filed 01/15/05 Page 2 of 4 Works , Inc. (" EFW" ) and EFW of Florida , Inc. from Fidelity and Deposit Company of Marland ("F&D" F &D issued several surety bonds (primarily utility bonds) on behalf of EFW and EFW of Florida , Inc. As a condition of issuing bonds on behalf of these companies , F &D required that EFW , James T. DuffY, Norma L. DuffY, John J. DuffY, and Caroline DuffY enter into a General Indemnity Agreement (" Indemnity Agreement" ), agreeing to indemnify F &D from all loss and expenses sustained or incurred as a result of having issued bonds on behalf of EFW and other companies owned by them. tre and accurate copy of the fully executed Indemnity Agreement received from EFW is attached hereto as Exhibit A- The Indemnity Agreement received from F&D (Exhibit A- I) contained signatures for Dale Obracay as the witness for the signatures of John J. Duffy and Caroline Duffy. Based upon Obracay s signatures on the Indemnity Agreement F&D believed that Obracay witnessed John and Caroline Duffy sign the Indemnity Agreement and , as a result , issued several bonds on behalf of EFW , EFW of Exhibit A (Page 2 of 4) Case 1:03-cv-03073-ODE Document 70-3 Filed 01/15/05 Page 3 of 4 Florida , Inc. , and related companies and refrained from canceling existing bonds for those companies. If F&D had known that Obracay did not witness John and Caroline Duffy sign the Indemnity Agreement as he had represented , F &D would not have issued any more bonds on behalf of EFW and its subsidiaries (including EFW of Florida Inc. ), would have canceled the bonds that had already been issued on behalf of those companies , and would have avoided any losses or expenses under those bonds. F&D ultimately paid $144 894. 94 in claims against bonds issued on behalf of EFW and EFW of Florida , prior to October 11 , Inc. Each of those bonds that had been executed 2001 (the date of the Indemnity Agreement) contained a provision allowing F &D to cancel the bonds by providing written notice to the bond obligee. Some of these bond provisions also required written notice to the bond principal (either EFW or EFW of Florida, Inc. FURTHER AFFIANT SAITHNOT. Exhibit A (Page 3 of 4) ~~~ Case 1:03-cv-03073-ODE Document 70-3 ",. Filed 01/15/05 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AN DEPOSIT COMPANY OF MARYLAND Plaintiff CIVIL ACTION FILE NO. 1:03- CV-3073- 0DE ENTERTAINMENT FILM WORKS, ) IN c. , et aI. Defendants. VERIFICATION PERSONALLY APPEARED before the undersigned , an officer duly authorized by law to administer oaths , Jeffey C. Willis , who , after being first duly sworn , deposes and on oath states that the facts contained in the within and foregoing Affdavit are based on his personal knowledge and are true and correct. rl,. this LLIS Sworn to and subscribed before me day of January, 2005. \\I\U,," .. YPI/ J.unya . s;': i:$ Bo Manti Bo Ganey Comon # DDa549 17. 200 In. Exhibit A (Page 4 of 4) Case 1:03-cv-03073-ODE Document 71 FILED 2 Filed 01/19/05 Page 1 ofIN CLEWS WICE ti.Fi.'rl. fs .-A'la.nts IN THE UNITED STATES DISTRACT COURT FOR THE NORTHERN DISTRICT OF GEOR6~-`wfC'ATLN DIVISION JAN I ~ :~ 2005 FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff v. ENTERTAINMENT FILM WORKS, INC . ; JAMES T . DUFFY ; NORMA L . DLTFFY ; and DALE A . OBRACAY, CIVIL ACTION NO . 1 :03-cv-3073-ODE Defendants ORDER This civil action is currently before the court on the motion to withdraw filed by Stanley M . for Defendant Dale A . Obracay . Lefco, Esq . as counsel Counsel having complied with the the motion 'to notification requirements of Local Rule 83 .1(E), withdraw [#66] is hereby GRANTED . Defendant Obracay is directed to have new counsel file a notice of appearance within twenty (20) days of entry of this order or file a written notice with the Clerk of Court of her intention to proceed pro se . Failure to do so may result in Entry of a default against Defendant Obracay far failure to comply with an order of the Court . The Clerk is directed to serve a copy of this order on Plaintiff at the address provided by his former counsel as follows : Case 1:03-cv-03073-ODE Document 71 Filed 01/19/05 Page 2 of 2 Mr . Dale A . Obracay 14817 Laguna Drive Suite 103 Ft . Meyers, FL 33908 The Clerk is further directed to resubmit this matter to the court at the expiration of the above twenty day period . SO ORDERED, this lS day of January, 2005 . OR DA D . EVANS UNITED STATES DISTRACT JUDGE 2 Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 1 of 29 IN THE UNITED STATES DISTRICT COURT rx W IN 11E Rfl S 0MN FOR THE NORTHERN DISTRICT OF GEaRGIA Uo8 oD o C .-Atl anlia ATLANTA DIVISION FEB 1s 2M5 FIDELITY AND DEPOSIT ) COMPANY OF MARYLAND, ) } Plaintiff, } } vs. ) Lt1ZHE BY: O Ct k r I" CIVIL ACT ION FILE NO. 1 .03-CV-3073 -OP ENTERTAINMENT FILM WORKS,) INC., JAMES T . DUFFY, NORMA } L. DUFFY, and JOHN J . DUFFY, } Defendants . } } BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AGAINST ENTERTAINMENT FILM WORKS, INC., AMES T. DUFFY AND NORMA L . DUFFY Defendants, Entertainment Film Works, Inc ., James T. Duffy and Norma L . Duffy, respond to Plaintiff's Motion for Summary Judgment as follows : STATEMENT OF FACTS On October 11, 2001, Defendants, Entertainment Film Works, Inc ., James T . Duffy and Norma L . Duffy, signed a General Indemnity Agreement . A copy of that General Indemnity Agreement is attached to Exhibits "A" and "B" . Plaintiff has sought to bring an action on the General Indemnity Agreement which includes on page 2 of that document a date of May 22, 2001 . This appears at the end of the 15th paragraph on page 2 of Exhibit "A-2" to Plaintiffs Motion for Summary Judgment . The Defendants, Entertainment Film Works, Inc ., James T . Duffy and i Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 2 of 29 Norma L . Duffy, (hereinafter referred to as "EFW, et al ."). James T . Duffy, one of the Defendants, did sign a General Indemnity Agreement on May 21, 2001 . That document is attached to Plaintiff's Motion for Summary Judgment as Exhibit "A1 ". As set forth in Plaintiff's motion, the Plaintiff had a contractual term authorizing Plaintiff to fill up any blanks and to correct any errors in filling up blanks . Defendants, EFW, et al ., have attached copies of the signed General Indemnity Agreement from Defendants' files where there does not appear to be any blank for the Plaintiff to fill in . Defendants, EFW, et al ., have consistently testified that the General Indemnity Agreement dated October 11, 2001 did not have the date May 22, 2001 at the end of the 15t" paragraph and that it was their understanding that the General Indemnity Agreement would only apply to transactions after the date of the execution of the General Indemnity Agreement Defendants, EFW, et al ., have contended that there was a material alteration of the document that was executed by them on October 11, 2001 . ARGUMENT AND CITATION OF AUTHORITY I, Standard for Summary Judgment . A movant is entitled to summary judgment if "there is no genuine issue as to any material fact and . . .the moving party is entitled to a judgment as a matter of law ." Fed. R . Civ Proc . 56(c) "Where the nonmoving party has failed to make a sufficient showing `to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' there exist no 2 Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 3 of 29 genuine issues of material fact." Mize v . Jefferson City Bd . or Educ, 93 F .3d 739, 742 (11 " Cir. 1996), quoting Celotex Corp . v. Catrett, 477 U .S. 317, 322-23 (1986). Defendants should deny Plaintiff's Motion for Summary Judgment against Defendants, EFW, et al ., because there are genuine issues of material fact to be resolved . Further, Plaintiff has not carried its burden of proof in its motion for summary judgment with respect to substantial issues . II. The Indemnity Agreement has been Materially altered and is void . Defendant, James T . Duffy, has admitted to the execution of the General Indemnity Agreement identified as Exhibit "A-1" in the index of exhibits to Plaintiff's motion . However, Plaintiff filed this action based upon Exhibit "A2" which is attached to Plaintiff's motion . Exhibit "A-1" was produced at deposition and Defendant, James T. Duffy, was interrogated about this document . He admitted that this document was signed by him and returned to the appropriate person or entity . Plaintiff has included this document as part of its motion . In Footnote 1 on page 3 of Plaintiffs brief, Plaintiff refers to the fact that the indemnity agreement fails to name Entertainment Film Works and then relies upon the testimony of Defendant, James T . Duffy, to establish its application . Plaintiff does not state that it has the authority under the specific language of the indemnity agreement to fill up any blank and to correct any errors in filling up the blanks to establish that the entity in question was Entertainment Film Works . Nonetheless, Plaintiff states that based upon this contractual language, Plaintiff had the right, 3 Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 4 of 29 even if Defendants' testimony is construed totally in Defendants favor, to change a material provision to the contract by predating the contract of indemnity . This increased Defendants, EFW, et al .'s, risk by $80,556 .00 (Exhibit "B" ) Defendants, EFW, et al ., have raised a genuine issue of material fact . Defendants, in Exhibits "A" and "B" attached hereto, have set forth a genuine issue of material fact in connection with the material alteration of the General Indemnity Agreement The date upon which the agreement comes into being and requires the indemnitors to indemnify Plaintiff is a substantive and material matter Plaintiff contends that it would have the right to correct any blank that had been improperly filled in pursuant to the terms of the indemnity agreement . The contractual form as submitted by the Plaintiff, being identified as Exhibit "A-1", does not have any blanks that are identified . In order to have the authority to carry out the terms of its contract, the Plaintiff would need to show that there were, in fact, specific blanks that were made in its contractual agreement that could be changed . Plaintiff has contended that at the end of the 15`h paragraph on page 2 of the General Indemnity Agreement there is a blank . Defendants' attachments to Exhibits "A" and "B" of Defendants, EFW, et al ., response, show no blank . Plaintiffs attachment, Exhibit "A-1" does not have an identified blank space . The language relied upon by the Plaintiff should be strictly construed in application, since Plaintiff drafted the document and submitted it to the Defendants . O .C.G.A . ? 132-2 and L & B Construction Co ., Inc v Ragan Enterprises, Inc ., 267 Ga. 809, at 4 Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 5 of 29 811 (1997) . III. The Indemnitors are Liable for F&D's Attorney's Fees and Other Expenses . Plaintiffs claim for attorney's fees is invalid and unenforceable . Plaintiff has made its claim for attorney's fees and other expenses in an amount totaling $85,081 .92 . Pursuant to Georgia law, the only way that a contract may enforce a term for attorney's fees is pursuant to O .C.G .A. ? 13-1-11 . The Affidavit of Dennis R . Hayden attached to Plaintiff's motion as Exhibit "A" on page 3 shows the amounts incurred on the bonds issued to various entities This is in paragraph 4 of Mr. Hayden's Affidavit . Also on page 3 in paragraph 5 and continued on page 6 are listings for the attorney's fees in connection with this action . First and foremost, the attorney's fees provision of the O .C .G .A. ? 13-1-11 restricts the amount upon which a contract can enforce a provision for attorney's fees . Unless specifically stated in a percentage amount, attorney's fees are limited to fifteen percent of the first five hundred dollars of principal and ten percent of any amount in excess of five hundred dollars . O.C.G .A ? 13-1-11(a)(2) . Technically, that code section provides that the provisions with respect to attorney's fees cannot be enforced unless requisite notice is provided pursuant to the terms of that statute Plaintiff has not provided any notice to the Defendants, EFW, et al ., in connection with a claim for attorney's fees pursuant to that statutory provision Under Georgia law that is the only statutory provision governing 5 a Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 6 of 29 contracts and limits the amounts that may be recovered in an action to recover attorney's fees . Rhodes v. Amwest Sur. Ins. Co ., 207 Ga . App . 441, Div . 6 at 442 (1993) and Global Ind . U.S ., Inc v . Harris, 376 F . Supp . 1379 (N .D. Ga. 1974). The total amount of funds being sought by the Plaintiff is $144,894 .92 . The amount of attorney's fees being sought by the Plaintiff is over $61,964 16 Plaintiff has not complied with the necessary statutory provisions of Georgia law to collect attorney's fees . Even if the Plaintiff had done so, Plaintiff would only be entitled to fifteen percent of the first five hundred dollars due under the contract and ten percent of any amounts in excess of that . 0 C.G .A . ? 13-1-11 . Plaintiffs reliance upon the cases cited, deals with attorney's fees which were incurred in connection with the defense of any claims on the bonds . According to the Affidavit of Mr . Hayden, the attorney's fees listed in paragraph 5 represent the expenses, including attorney's fees, for bringing this action to enforce the indemnity agreements . At best it is ambiguous as to whether or not any of these fees were incurred in connection with Plaintiffs payment of the bonds listed in paragraph 4 of his affidavit . At worst, it is clearly a reference to the expenses of bringing an action on the indemnification agreement which is governed solely and exclusively by O .C .G.A . ? 13-1-11, based upon the complaint and Plaintiff's First Amended Complaint that has been filed in this action . In Rhodes v . Amwest Sur Ins . Co., supra, that action included a request for attorney's fees . The court in that case said that the attorney's fees awarded to the 6 Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 7 of 29 insurance company related to claims under the surety bonds and were not attorney's fees relating to the enforcement of the indemnity agreement . For this reason, the court held Amwest's claim for attorney's fees did not fall within the notice requirements of O .C.G A. ? 13-1-11 . For the same reason the claimeed amount for prejudgment interest as set forth in Plaintiffs motion for summary judgment would not be authorized The calculations are based upon principal and attorney's fees The attorney's fees request does not meet the requirements of 0 C .G .A . ? 13-1-11 with respect to fees incurred to pursue the action on this indemnification agreement . CONCLUSION The affidavits provided by Plaintiff clearly state that the date was placed on the contract that was submitted to the Defendants, EFW, et al . The affidavits of the Defendants, EFW, et al . state that there was no date inserted after the end of the Fifteenth paragraph and that the General Indemnity Agreement was to be effective as of the date of execution . This clearly creates a genuine issue of fact for determination by the trier of fact . Further, Plaintiff has failed to meet its burden on the issue of attorney's fees . Plaintiff seeks in connection with the General Indemnity Agreement attorney's fees in excess of those authorized by law in the state of Georgia Plaintiff did not provide the requisite notice and has not limited its claim to the mandatory requirements of Georgia law . If it is further calculated prejudgment interest based upon claims to which the Plaintiff is not entitled . Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 8 of 29 Because there are genuine issues of material fact to be decided and Plaintiff has failed to follow the statutory provisions of Georgia law with respect to its claim for attorney's fees, Plaintiffs motion should be denied . Respectfully submitted, .' ~ 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 MAURICE J BEARD, III Attorney for Defendants Georgia Bar No . 054850 8 I Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 9 of 29 CE RTIFI CA TE OF SE RVICE This is to certi fy that I have served a copy of the within and foregoing BRI EF I N OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AGAINST ENTERTAINMENT FILM WORKS, INC ., JAMES T. DUFFY AND NORMA L . DUFFY upo n the follow ing co unsel an d depositing a true copy of same in the United States Mail, with adequate postage affixed thereon, addressed as follows : W. Randal Bryant, Esq . Bovis, Kyle & Burch, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Laurence H. Margolis, Esq The Margolis Law Firm Lion's Gate Manor 1126 Ponce de Leon Avenue, N E . Atlanta, Georgia 30306 4AThis day of February, 2005 . MAURICE J~RNARD, III Attorney for efendants Georgia Bar No . 054850 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 9 I Case Document 77 Filed Page 10 of 29 EXHIBIT Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 11 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, vs CIVIL ACTION FILE NO 1 03-CV-3073 ENTERTAINMENT FILM WORKS, I N C, JAMES T DU FFY, NORMA L DUFFY, and JOHN J DUFFY, Defendants AFF IDAVIT O F N ORMA L. DUFFY Personally appeared before the undersigned attesting officer duly authorized to administer oaths in this state came NORMA L DUFFY who first being duly sworn, deposes and states as follows 1 I am Norma L Duffy I am over 18 years of age I do not suffer under any legal disability 2 I am one of the Defendants in this action 3 I was presented w7th a document entitled General Indemnity Agreement A copy of that document is attached as Exhibit "A" 4 On page 2 of the agreement the 151h paragraph ended with the words . "to any bond or bonds executed on or after " In reading this document the date to which it referred was the date which appears at the bottom of page 2, "Signed, sealed and dated this 1 lth day of Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 12 of 29 October, 2001 " This was mv understanding at the time that I was presented with this document 5 The document that I have before me for execution did not have a blank line or any indication that the words "on or after" did not refer to the signed, sealed and dated line which appears immediately after those words below the warning language, set off by boxing 6 There was nothing to indicate on the document presented to me that there was a blank to be filled in at the end of paragraph 15 but rather it referred directly to the date of execution which appeared immediately below that paragraph 7 Attached hereto as Exhibit "A" is a copy of the second General Indemnity Agreement I signed 8 The undersigned's attention has been drawn to the fact that this affidavit will be used in opposition to a Motion for Summary Judgment filed by the Plaintiff in this action FURTHER YOUR DEPONENT SAYE 'TH NOT This J5 day of February, 2005 NORMAL DUFFY t _and da before r} , 200 My commission exp ires V:~ 1! z~0 r Z1~5 I Case Document 77 Filed Page 13 of 29 EXHIBIT Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 14 of 29 All a R ~ f ~"~ ~. fill I ~ B * r Al ~~ ~" ~. IF ~ s R f ~~ f . ~ R ~r ~~~4p R E . 0 ii tl ! ~ .~ .~ ~ ~ ~~ lk q Ilk ~, Its H III. itiihIii!Iitii lei r .~ R ~ ~r tit .~ ~. r r t q t .. ~~ r ~ ' 94 ~ ~a h .~~ lei ~~ ~ .~$ ~~a~ ~ ltsi a B ih~ $ r ~ . ek ~ ~. Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 15 of 29 1* ~a ~. w r i w oil ~ ~- a ils .~ ts ~e 1 w i i A r .~ ~~ . ~~ ~ ova Jill I ~ .~ b i ~~ Xi 1 w Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 17 of 29 Tow A .ia.NrW m M r~t iW faiM" Iaiml .ilra a 7lAs Y W eir or . p W . VV{/NT i ~~~~r !I I OR ft I1r-y - - dower , ~ fJ,, Q T t t3 & .,je. %mtcre msa tie s1rhadws, lvewn , aW imam by m m bo 16. dera" iu a.d wi .mro r 4 tiiB horift irardm n w . d A*aorrl aftOd io weero ba~_-bm ,,~ sct rd d ud. &/-'I ft; NOWY P46& IPM rr kftm ..ti y Ldiriir.i lri.r weferr. $4; grATS or COUNTY OF dv .- fA --aa-ldt 04 do , 'a 71y ~ dowaf . ..~/G ;0,e Name L MM _~ to me N 1v. mby = to tiei* r.woe_,,,,,,r,,, dn al .i i4 ma ..ao . s mul4 on gm .rieg bormam ad e imam, rdmawh dlpd awe 1a be ,,bK__ an id fwd. wioae+ .Mr hM f .ar o MQW . ..t E& . b* an . k me m u6.c iW IWai ry P+siWa jdyCMMjM","pjM /of SrATS OF de .1% 1 P. - - A aauWnr (it g4 r a ~~ 0a ft by ) ~ at dJ c= v 0 .z e l ~? o u~_ P++m..Ity ipp.wd ~.a nor fm Mb.oeibI r. L to mm p .ser.llY icrowx lid Itnm try tie ro be Ae mmfa be hk soAm d de.i doedi M J% sr t wto avuau" yle ibreeevf b wmraR m d wAmowleW ~'fL 4- U lYb ftiX A rBNe 1lrel~ my Lri W .iair i aad AM iif. !.M Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 18 of 29 'o .. . !1jI . .`~ 9 4 ~ a ~' 411 all r o +~ ~ 1 ,~ w . . T *~ J 8 fit I Case Document 77 Filed Page 19 of 29 EXHIBIT Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 20 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT } COMPANY OF MARYLAND, ) Plaintiff, ) V5 . CIVIL ACTION FILE NO . 1 03-CV-3073 ENTERTAINMENT FILM WORKS,) INC ., JAMES T . DUFFY, NORMA ) L. DUFFY, and JOHN J DUFFY, ) Defendants . ) AFFIDAVIT OF JAMES T. D UFFY Personally appeared before the undersigned attesting officer duly authorized to administer oaths in this state came JAMES T . DUFFY who first being duly sworn, deposes and states as follows : 1. I am James T. Duffy. I am over 18 years of age . I do not suffer under any legal disability . 2. I am one of the Defendants in this action . 3. I was presented with a second document entitled General Indemnity Agreement . A copy of that document is attached as Exhibit "A". Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 21 of 29 4. On page 2 of the agreement the 15`h paragraph ended with the words, "to any bond or bonds executed on or after ." In reading this document the date to which it referred was the date which appears at the bottom of page 2, "Signed, sealed and dated this 11th day of October, 2001 ." This was my understanding at the time that I was presented with this document . 5. The document that I have before me for execution did not have a blank line or any indication that the words "on or after" did not refer to the signed, sealed and dated line which appears immediately after those words below the warning language, set off by boxing . 6. There was nothing to indicate on the document presented to me that there was a blank to be filled in at the end of paragraph 15 but rather it referred directly to the date of execution which appeared immediately below that paragraph . 7. Attached hereto as Exhibit "A" is a copy of the second General Indemnity Agreement I signed. Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 22 of 29 8. I was at the time of the execution of the General Indemnity Agreement on October 11, 2001 the President and Chief Executive Officer of Defendant, Entertainment Film Works, Inc . 9. Prior to October 11, 2001, bonds were issued on behalf of Entertainment Film Works or its affiliates by number, date of issue and amount as listed below . Bond Bond Bond Bond Bond Bond Bond No : No : No . No : No. : No . : No : LPN LPN LPN LPN LPN LPN LPN 8377373 8377374 8377375 8377376 8377377 8377383 8377384 Date Date Date Date Date Date Date of of of of of of of Issue- 5122101 Issue . 5/31/01 Issue : 5/31/01 Issue : 5/31/01 Issue : 5/31/01 Issue : 8/27/01 Issue : 9127101 10 To the best of my knowledge these are correct, these were confirmed in a deposition by Jeffrey Clyde Willis as a Senior Surety Account Executive for Zurich Insurance Company . Amount : Amount : Amount : Amount : Amount : Amount: Amount : $ 7,400 .00 $11,040 .00 $18,948 .00 $13,168 .00 $16,000 .00 $ 9,000 .00 $ 5,000 .00 11 It was my understanding that the General Indemnification Agreement was to apply to any subsequent bonds issued by Zurich Insurance Company on behalf of Entertainment Film Work s. Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 23 of 29 12 . The undersigned's attention has been drawn to the fact that this affidavit will be used in opposition to a Motion for Summary Judgment filed by the Plaintiff in this action FURTHER YOUR DEPONENT SAYETH NOT This i6 '" day of February, 2005 . AMES T . DUFFY Sworn to and subscri this ay o f I ~. r Notary Public bef me 2005 . My commission expires : 41 0 . , Case Document 77 Filed Page 24 of 29 EXHIBIT Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 25 of 29 ~. .~ iLiiitit1!1 E 11 e ~ all fill r s ,-~ ~ ~t l +t ~ o 8 ~ $ p~ 'ItI R ~. #r tj ~ .R irk R ~~'~ arR# Its . i~ ~. ~ . ~t R R E R Ijli1W r all Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 26 of 29 !f e a ~ tr !~ ~~ s A r # Q . ~ ~r r ! ~c r e Ll r r r 1 R !~ t ~ L All R Aa r ~~w Ra a a r t 4 r r R 4 L ii' Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 28 of 29 Fw A1r s ~ IW Ud11 A11r L dwlrtrfi STA TE 4piro ! e a A ~ r ~. w .77 ) 8L, me. d s +tibwmi6.4 on to dq, of Qf-~T ;c,olf,1 p or- Pqlb wam+d t T naHv _ _ a i. pusaaailp = bia% 4M hanrn by m io W 1o doprW s 4 a. d wi. ma.e41L t wgft iqmpi -- t . d m&no.A*djpd ~ 1 . bar U -- act wd dm& 11bo?'pow MyCawmdumftpim /-L-- -91-04 for Arltr w I ft ...t by hmgd" IsA Mrhwrs BTATI CrnaM OF PEI acJ~l.~ W diff rA .0 4k C ~ILPly - &V at }ss. C/ c :ooe lor 4a ft ,~ .e _ ~2 o d r 6aiiu m ire wbWiboc, -- Nor= L DNdl1,r -- -- - ~ is me dRie l .d i4 ..a An .worlyd , do l..ms lm aleroo K ad mi l~ ~. bym d tis iW r e1~o~ la be ,,ba,,,_ w i~ dr .L 31, Pak% l ~r A.d.~rip~r~t a~ !l M I . Y~ riMiMr~ ST'Xl'8 OF COWN (IF ca ,. x ,~ ._?l ~7st I ft 6 C.- C> 3'a'e-- ,r a'tocs/ _ 61o1i. to aftolom jigm J. am to in pmmmjiy Oa 1W kp"MOYARNMd row., ad bow by m m be depenos +~rw 40 be ~, bw _ pa t ad deal did i% md wM moo" the Awopm bonraa at and .cknowle ft.d 91/d~ my MW r marl aed. M. Arrx J~b~fa mr C+o ena;,, ia,, 6spiru (.#-41' s .4 utVA"Im Case 1:03-cv-03073-ODE Document 77 Filed 02/16/05 Page 29 of 29 aA . ~ I a 194,111 I ' 1 ' t 4 1 1 .C ~ t1jIti Sit 8 III Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AGAINST ENTERTAINMENT FILM WORKS, INC., JAMES T. DUFFY, AND NORMA L. DUFFY Plaintiff, Fidelity and Deposit Company of Maryland ("F&D"), submits this Reply Brief in Support of Motion for Summary Judgment Against Entertainment Film Works, Inc., James T. Duffy, and Norma L. Duffy and shows the Court the following: The Indemnitors (Entertainment Film Works, James Duffy, and Norma Duffy) signed a written indemnity agreement that obligates them to repay the losses and expenses incurred by F&D as a result of surety bonds issued on behalf -1- Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 2 of 11 of Defendant Entertainment Film Works. That indemnity agreement also covers F&D's litigation costs, including attorneys' fees incurred in enforcing the agreement in this action. These defendants do not dispute the amounts incurred, their signatures on the agreement, or any other element of F&D's prima facie case. James and Norma Duffy instead attempt to avoid summary judgment on two grounds: (1) they theorize that F&D altered the indemnity agreement by inserting the effective date, and (2) they argue that O.C.G.A. ? 13-1-11 applies to the indemnity agreement and bars F&D's recovery of its attorneys' fees. The Duffys' theory is immaterial and their argument incorrect. F&D is entitled to summary judgment nonetheless. The dispute about when the effective date was put into the agreement is immaterial because F&D was authorized to fill in any blanks, and the Duffys contend that the effective date was missing when they signed. Whether a jury agreed with F&D or with the Duffys, the agreement itself makes the date effective either way. Also, the Duffys are wrong about the applicability of O.C.G.A. ? 13-111: it applies only to a "note or other evidence of indebtedness," and the Georgia courts have held that indemnity agreements do not fall into that category. The obiter dictum in the Duffys' single case does not support a contrary conclusion. Once the Court applies the terms of the agreement concerning addition of the date -2- Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 3 of 11 and applies the law concerning the inapplicability of the statute to indemnity agreements, nothing will remain for a jury to consider. summary judgment. I. The Indemnitors Authorized F&D to Fill Up Any Blanks in the Indemnity Agreement. As shown in F&D's previous brief, James and Norma Duffy's contention that the indemnity agreement they signed on October 11, 2001 was altered by the addition of a date in paragraph 15 is immaterial, because the Indemnitors expressly authorized F&D to fill up any blanks in that indemnity agreement: [T]he Indemnitors . . . hereby covenant and agree with the Company as follows: . . . [T]hat the Company shall have the right and is hereby authorized . . . to fill up any blanks herein, and to correct any errors in filling up any blanks herein, . . . and that such insertion or corrections, when so made, shall be prima facie correct. (Brief in Support of Motion for Summary Judgment Against Entertainment Film Works, Inc., James T. Duffy, and Norma L. Duffy ("SJ Brief"), Exhibit A-2 (Doc. No. 69-5), para. 3). The Indemnitors now claim that the indemnity agreement had no blanks to be filled. The Indemnitors attached the indemnity agreement which they claim is the document they signed in Exhibits "A" and "B" to their response brief. (Brief in This case calls for -3- Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 4 of 11 Opposition to Plaintiff's Motion for Summary Judgment Against Entertainment Film Works, Inc., James T. Duffy and Norma L. Duffy (Doc. No. 77)). Attached hereto as Exhibit A is an enlarged copy of the relevant portion of the indemnity agreement contained in the Indemnitors' exhibits, showing an empty space at the end of paragraph 15. The dictionary defines "blank" as "an empty space (as on a paper)." (Merriam-Webster's Collegiate Dictionary 120 (10th ed. 1999)). Moreover, the sentence appearing before the empty space stops with the words "on or after" without stating any date to which those words could apply. The empty space at the end of paragraph 15 is obviously a blank. The Indemnitors' contention that there is no blank is contradicted on the face of the document and is therefore unreasonable as a matter of law. Both James and Norma Duffy themselves testified during their depositions that there was a blank at the end of paragraph 15. (SJ Brief, Exhibit B (Doc. No. 69-9), p. 20; Exhibit C (Doc. No. 69-11), p. 13). Even if the Duffys are correct that the indemnity agreement attached to their response brief is the document they signed, then F&D would have been authorized to fill in the empty space after paragraph 15 with the date of May 22, 2001. The evidence in this case shows that the indemnity agreement contained the May 22, 2001 date at the end of paragraph 15 when it was signed by James and -4- Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 5 of 11 Norma Duffy. This date is absent from the indemnity agreements attached to the Indemnitors' response brief. F&D's forensic document expert has opined that the indemnity agreement produced by James and Norma Duffy was altered to remove that May 22, 2001 date at the end of paragraph 15. A brief comparison of the indemnity agreement produced by the Duffys (Doc. No. 77) to the indemnity agreement that they delivered to F&D (Doc. No. 69-5) shows that the document relied upon by the Duffys is extremely distorted and difficult to read, indicating that the text of the original indemnity agreement was copied multiple times to manufacture the copy relied upon by the Duffys. F&D believes that the Duffys altered the indemnity agreement to remove the May 22, 2001 date from their copy of the indemnity agreement, and the Duffys contend that their copy of the indemnity agreement is genuine. This dispute creates no genuine issue of material fact, however, and F&D is still entitled to judgment as a matter of law. Even if the indemnity agreement contained no date at the end of paragraph 15 at the time it was signed, F&D was authorized to fill in the blank in the agreement. Therefore, the dispute as to whether there was a date at the -5- Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 6 of 11 end of paragraph 15 is not material, and F&D is entitled to judgment as a matter of law.1 II. O.C.G.A. ? 13-1-11 Does Not Apply to the Indemnity Agreement. The Indemnitors seek to avoid their liability for attorneys' fees by claiming that F&D did not comply with the notice provisions of O.C.G.A. ? 13-1-11. Because O.C.G.A. ? 13-1-11 does not apply to indemnity agreements, the Indemnitors' arguments pertaining to that statute are without merit. O.C.G.A. ? 13-1-11 applies only where attorney's fees were incurred in the collection of a "note or other evidence of indebtedness" upon maturity and default. O.C.G.A. ? 13-1-11(a); Colonial Bank v. Boulder Bankcard Processing, Inc., 254 Ga. App. 686, 689, 563 S.E.2d 492, 496 (2002). The indemnity agreement is not a note or other evidence of indebtedness but is a promise to indemnify F&D. The enforcement of an indemnity agreement "is not the type of default situation contemplated by O.C.G.A. ? 13-1-11," so that Code section does not apply to attorneys' fees incurred in enforcing indemnity agreements. Ga. App. at 690-91. Colonial Bank, 254 Even if there were a question of fact concerning liability under the indemnity agreement signed on October 11, 2002, James Duffy is still liable under the indemnity agreement that he admits he signed on May 21, 2001. (SJ Brief, Exhibit A-1 (Doc. No. 69-4)). 1 -6- Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 7 of 11 The Indemnitors rely on dicta in the case of Rhodes v. Amwest Surety Insurance Co., 207 Ga. App. 441, 428 S.E.2d 581 (1993). The Rhodes court held that O.C.G.A. ? 13-1-11 did not apply to Amwest's claim for attorneys' fees related to expenses incurred as a result of surety bond claims. Although the court noted that the attorneys' fees did not relate to the enforcement of the indemnity agreement, it did not hold that an indemnity agreement was a note or other evidence of indebtedness or that attorney fees incurred in enforcing an indemnity agreement were subject to O.C.G.A. ? 13-1-11. The Rhodes court cited United Rentals Systems v. Safeco Insurance Co., 156 Ga. App. 63, 67(5), 273 S.E.2d 868 (1980), with approval. In that case, the Georgia Court of Appeals held that attorneys' fees that were incurred on account of a breach of the indemnity agreement did not come within the requirements of O.C.G.A. ? 13-1-11 (then Ga. Code. Ann. ? 20-506). The indemnity agreement in this case allows F&D to recover attorneys' fees incurred as a result of having issued any bonds on behalf of Entertainment Film Works, in enforcing any of the agreements contained in the indemnity agreement, and in prosecuting any action. (SJ Brief, Exhibit A-2 (Doc. No. 69-5), para. 2). Such fees are not controlled by O.C.G.A. ? 13-1-11, as shown by the United Rental Systems case. -7- Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 8 of 11 The United States Bankruptcy Court for the Northern District of Georgia recognized that O.C.G.A. ? 13-1-11 does not cover indemnity agreements in In re Cunningham, 79 B.R. 92, 93 (Bankr. N.D. Ga. 1987). That court cited Morrison v. Fidelity & Deposit Company of Maryland, 150 Ga. 54, 55, 102 S.E.354 (1920), in which the Supreme Court of Georgia ruled, under an earlier codification of O.C.G.A. ? 13-1-11, that an indemnity agreement allowed a surety to collect attorneys' fees and did not fall under the statutory requirements for notes and other evidence of indebtedness. Because the indemnity agreement in this case is not subject to the requirements of O.C.G.A. ? 13-1-11, the Indemnitors are liable for the attorneys' fees set forth in F&D's summary judgment brief. -8- Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 9 of 11 Conclusion For the foregoing reasons and those shown in F&D's previous brief, the Court should award F&D summary judgment against Entertainment Film Works and James and Norma Duffy for $231,182.99 to indemnify F&D for its losses and expenses pursuant to the indemnity agreements. Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -9- Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 10 of 11 Certificate of Compliance I hereby certify, pursuant to Local Rule 7.1D and Local Rule 5.1B of the United States District Court, Northern District of Georgia, that the foregoing brief was prepared in 14 point Times New Roman font. s/ W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 E-mail: rbryant@boviskyle.com - 10 - Case 1:03-cv-03073-ODE Document 78 Filed 03/04/05 Page 11 of 11 CERTIFICATE OF SERVICE I hereby certify that on March 4, 2005, I electronically filed the foregoing Reply Brief in Support of Motion for Summary Judgment Against Entertainment Film Works, Inc., James T. Duffy, and Norma L. Duffy, with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Maurice J Bernard, III Laurence H. Margolis I also certify that copies of this document have also been served on March 4, 2005 by placing them in the United States mail with adequate postage thereon, addressed as follows: Maurice J Bernard, III 3717 Chamblee Dunwoody Road Atlanta, GA 30341 Laurence H. Margolis 1126 Ponce de Leon Avenue, NE Atlanta, GA 30306 s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 - 11 - Case 1:03-cv-03073-ODE Document 79 Filed 03/10/05 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT ) COMPANY OF MARYLAND, Plaintiff, V. ) Fun #~V,, M A R 10 ZM5 "I, Clerk' ) CIVIL ACTION FILE N40; 1:03-CU-3073-ODE ENTERTAINMENT FILM WORKS, } INC., et a l ., Defendants . } ) OBRACAY'5 RESPONSE TO MOTION FOR' SUMMARY JUDGMENT l COMES NOW , Defendant , Obracay, by and throughhis undersigned counsel who hereby responds to Plainti ff's Motion for Summary Judgment in the matter, and shows the court the following Brief and submissions in support thereof filed herewith . This day of '~' , ,2Q05 H, Margolis, Esq . ~Laurenc State Bar No . 4705$0 Attorney for D . Obracay The Margolis Law Firm Lion's Gate Manor i 126 Ponce de Leon Avenue, N .E . Atlanta , Georgia 30306 404-872-70 86 ' (f) 404-892-4128 Case 1:03-cv-03073-ODE Document 79 Filed 03/10/05 Page 2 of 3 IN THE U NITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT ) COMPANY OF MARYLAND, ) Plaintiff, V. ' ENTERTAINMENT FILM WORKS, ) ) CIVIL ACTION FILE NOO. 1 :03-CV- 3073-ODE INC., et al., Defendants . ) } ' } - CERTIFICATE OF SERVICE I hereby certify that I have this date served on the opposing parry a true copy of the foregoing Response to Motion for Summ Jud ent, by sending the same via . Electron ic Mail to the follow ing: W: Randal Bryant, Esq . Maurice J. Bernard, Esq. BOVIS KYLE & BURCH, LLC 3717 Chamblee Dunwoody Road Chamblee, Georgia 30341 53 Perimeter Center East , Third Floor Atlanta:; Georgia 30346-2298 This ~' day of 52005 Respec 1y Submitted, Lawrence H Margol s Attorney for D . Obracay ; Georgia State Bar No. 4?x580 . Case 1:03-cv-03073-ODE Document 79 Filed 03/10/05 Page 3 of 3 The Margolis Law Firm Lion's Gate Manor 1126 Ponce de Leon Avenue, N .E. Atlanta; Georgia 30306 (404) 872-7086 (f) (404)-892-1128 _ i . Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT . FOR THE NORTHERN DISTRICT OF GEORGIA :ATLANTA DIVISION .h FIDELITY AND DEPOSIT } COMPANY OF MARYLAND,' Plaintiff, V. ) CIVIL *0 ., Ct~t *s' ) } ACTION FILE N00.' 1 :03-CV-3073-ODE ENTERTAINMENT FILM WORKS, , } INC., et al ., Defendants . ) QBR ACAY'S BRIEF IN OPPOSITION TO -PLAINTIFF'S M OTION FOR SUMMARY JUDGMENT AGAINST ENTERTAINMENT FILM; WORKS INC. JAMES T: DUFFY AND NOR MA L.` DUFFY , Defendant, Dale Obracay, responds .to Plaintiff's Motion for Summary Judgment as follows : STATEMENT- OF FACTS This case concerns the execution and enforcement of an indemnity Agreement dated October 11 ; 2001 . The plaintiff contends the indemnitors, and Obracay as witness, are liable to it for payments Plaintiff made on certain bonds it issued to . Defendant Entertainment Film Works, Inc . (EFW) and its affiliated Florida company .. Plaintiff has brought this action"for-fraud and negligent rnisrepresentation against Obracay because it' claims it would not have issued the bonds or it would have recalled previous bonds, if not for Obracay's signature . Obracay acted as a witness to the signatures of John and Caroline Daffy . Ubracay did not, nor is there any claim he did, act as a witness to the Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 2 of 13 signatures of Defendant's James and. Norma L7uffy. Only John Duffy is named as a defendant in this action . Thus, Obracay's liability . to Plaintiff is predicated on his witness of John Duffy's s ignature. The fact that the two other Duffy defendants are claiming a material alteration of the agreement directly affects Obracay's liability in this matter . Plaintiff has sought to bring an action on the General Indemnity Agreement which includes : a date of May 22, 2001, and which seeks to hold the indemnitors liable for pre-October, 2001 bonds and payments thereon . James T. Duffy, one of the Defendants, adm its, he did sign a General Indemnity Agreement on May 21, 2001 . This was not witnessed by Obracay . The other Defendants, EFW, et a1 .; have testified that the General Indemnity Agreement dated th October 11, 2001 did not have the date May 22, 200 1 at the- :end of the 15 ' paragraph and that it was their understanding that the General Indemn ify Agreement would only apply to transactions after the date of the execution of the General Indemnity Agreement . See, Brief of Defendants EFW, James: & Norms Duff y. They have contended that there was a 1 material alteration of the document that was executed by them on October , l 1, 2001 ; this is the document w itnessed by Obracay. Defendant Obracay adm its that he signed his name as a witness to the s ignatures of John and Caroline Dully, after the same had been not arized . Obracay states that John Duffy signed in Qbracay's presence and brought the document to Obra+cay for witness after his wife, "Caroline Duffy, signed the October 11 , 2001 agreement. See, Affidavit of D: 4bracay. 0bracay did not intend to defraud anyone by acting as a witness nor did he " i. w Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 3 of 13 negligently. misrepresent any fact ARGUMENT AND CITATION OF AUTHORITY I. Standard for Summary Judgment ; A movant is entitled to summary judgment is "there is no genuine issue as to any %' material fact and . . . the moving party is entitled to a judgment as a matter bf law :" Fed. R. CiV: Proc . 56(c): "Where the nonmoving party has fa i led to make a sufficient ;showing `to establish the existence of an element essential to that party's case, and on which that ` h party wi ll bear the burden of proof at vial,' there exist no genuine issues of material fact ." Mize v; Jefferson City Bd. Or Educ .', 93 F .3d 739,742 ( 11th Cir, 1996) , quationg Celotex Co p,. V. Catrett, 477 U. S. 317, 322-23 (198b) . This court should deny Plaintiff s Motion . for Summary Judgment against Obracay because there are . genuine issues of material fact to be resolved. Further, Plaintiff has not carried its burden of proo f i n its motion for i I summary judgment with respect to substantial issues . II. ' Ubracay did not make false representations to Plaintiff It is uncontested from the record evidence and exhibits, and it i s fiarther shown in Obracay's affidavit, that Obracay did not intentionally make any false representations to Plaintiff, nor does the evidence prove he made any negligent misrepresentat ions: Obracay only witnessed the signatures of John and Caroline Duffy, anand he did not witness the signatures of the other Duffy defendants . John Duffy signed in Obrac~:y's presence . See Affidavit of D :` Obraeay: Caroline Duffy, at least Obracay reasonably believed at the time, Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 4 of 13 had also signed the agreement, and provided it to John Duffy for Obracay to witness, which he did . That is it . Obracay never promisedthe Plaintiff, or any agent thereof, that the Duffy's were solvent or reliable ; Obracay did not guarantee the debt or agree that he would pay anything ; 4bracay did not communicate with, anyone seeing to induce them to rely on his signature as a witness to the October 11, 2001 Indemnity Agreement ; Obracay did not induce the . Plaintiff to pay on claims for bonds prior to October l l ; 2001 . See, Affidavit of Obracay . Obracay did not make any knowingly or negligently false representations and a jury question exists over his liability. Moreover Obracay did .not intend to deceive anyone or misrepresent any fact simply by acting as a witness . Thus a jury question exists over these issues and Plaintiff has not carried its burden . Plaintiff did not rely on Obracay and any such reliance was not reasonable. Plaintiff" s claim of relying on Obracay's signature prior to issuing the bonds is illogical . First, Plaintiff had already issued bonds to EFW, and itss affiliated company, since May, 2001, and had paid over $80,000 .00 in claims on those bonds before October 11, 2p0,1, the first and onlydate involving Obracay as witness : Second; Obracay only witnessed the signatures of John and Caroline Duffy . The other two indemnitors, Defendants James and Norms Duffy ;' had their signatures witnessed by another individual .' Caroline Duffy, one of fhe two indemnitors whose signature Obracay's liability is predicated upon, is not even named as a defendant to this suit Plaintiff s reliance upon Obracay's signature as witness was not reasonable, and Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 5 of 13 7 ~ .. . the issue - of Plaintiff s reliance or reasonableness thereof, is a jury- question: In Georgi a, fraud and dece it require that the plaintiff prove five essential element : (1) false representation made by the defendant ; (2) sc epter;.the intent to dece ive; (3) intent to induce the plaintiff to act or refrain from action in reliance upon the representat ion; (4) justifiable reliance, by the plaintiff upon the representation ; and (5) damages directly and proximately caused by reliance . Lakeside Inv. Group, Inc. v. Allen 253 Ga . A 450 (559 S.E. 2d 491 2002 Smalls v. . Blue riot Dev . Inc. 230 Ga.' A (497 S.E.2d 54) (19981. . 44& ' 556 `559 1 Moreover, Plaintiff must exercise due diligence, and have clean hands, before relying on the representations of another. See generally, Mi ddleton v. T Young Realty. Inc., 257 Ga. App. 771 (2002) . Here Plaintiff has not ca rried its burden on summary judgment on any element, notwithstanding the legal conclus ions contained in its Motion and Affidavit in support thereof. n Here Plaintiff has offered no evidence of Obracay's scienter, or any evidence that 4bracay intended to induce Plaintiff to rely upon his signature in issuing and extending bonds, or paying claims thereon.. ;, ` Moreover any reliance by Plaintiff on Obracay's signature was not reasonable reliance, and Plaintiff has failed to carry its burden as the mov ing party. Celotex Corp . V.. . Catrett . 477 U .S. 317, 322 -23 (1986) . As shown, Plaintiff had already issued bonds to . EFW, Inc . solely on the basis on James Duffy's s ignature, in May, 2Q01 . Additionally, Plaintiff paid almost $84 ,000 :00, it claims in this action that Obracay should now pay, prior 'to Obracay acting as a witness to two of the four inde atnnitors . Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 6 of 13 In sum, jury`questions exists as to Obracay's intent and on the issue of Plaintiff's reliance : This court should deny Plaintiff's Motion for Summary . Judgment . III . Obracn did not negligen"I misrep resent any facts proximately causing Plaintiff's damages Similarly Plaintiff's Motion for Summary Judgment as to its negligent misrepresentation : claim should be denied because Obracay did not make any false representations, and any mistake of fact he did make did not proximately result in the damages claimed by Plaintiff : First, Obracay only witnessed the signature of one of tb .e four named guarantors named as a defendant herein, John Duffy . Obracay actually saw john Duffy sign the. October 11 ; 2001 indemnity Agreement, and was advised by John : Dully that his wife, Caroline, had signed tie agreement in the back room . Since Obracay did not sign as witness to the signatures of indemriitors James and Norms Duffy, he made no representations in regard to James and Norms Duffy and any reliance by Plaintiff or its representatives on Obracay's signature in regard to James and `Norms Duffy is not reasonable as a'matter of law .` Qbracay .was not the proximate cause of the damages to Plaintiff The cause of the damages to Plaintiff was the failure of EFW and the indemnitors to pay Plaintiff, or the failure of Plaintiff to investigate the guarantors . Obracay did not cause any forgery to occur, nor did be sanction same : Obracay did not guarantee any bonds, or witness any signatures for the first $$0 ;000:40 Plaintiff paid out on claims on these bonds ; prior to October 11, _2001 : Obracay only acted as a witness, after a notary had authorized same . Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 7 of 13 Obracay is not liable for fraud or negligently misrepresent ing any facts and the Pla intiff has failed in carry ing its burden at this stage of the proceeding . TV. The Indemn ft Agreement has been materially altered and is vo id. Since Obracay's liabil ity is predicated on the validity of the Plaintiff's characterization of the language of the October 11, 2001 agreement , Obracay adopts and incorporates the arguments and submissions by co-defendants EFW and James and Norma Duffy, in regard to the alteration to the agreement . That is if the agre ement was materially altered by Plaintiff, or a representative thereof, Plaint iff cannot claim fraud against Obracay in entering into that altered agreement . Defendants, EFW, et al .; have raised a genuine issue of material fact . These Defendants, in Exhibits "A" and "B" attached to the ir response to Plaintiff ' s Motion for Summary Judgment aga inst them, have set forth a genu ine issue of material fact in connection -with the material alteration of the General . Indemnity Agreement . The date upon which the agreement comes into : being and requires the indemnitors to indemnify Plaintiff is a:.substantive and material matte . Plaintiff contends that it would have the - right to correct my blank that had been improperly filled in pursuant to the terms of the indemnity agreement. The contractual form as submitted by the Pla intiff, being identified as -Exhibit "A-1 ", does not have any blanks that are identified. In order to have the authority to carry out the terms of its contract, the Pla intiff would need to show that there were , in fact, specific blanks that were made in its contractual agreement that could be changed. Plaintiff has contended that at the end of the 15~' paragraph on page 2 of the Case 1:03-cv-03073-ODE Document 79-1 o. : Filed 03/10/05 Page 8 of 13 General Indemnity Agreement there is a blank. Defendant's attachments to Exhibits "A " and "B," of Defendant, EF"SW, et al., response,, show no blank. Plaintiffs attachment, Exhibit "A=1" `does not have an identified blank space . The language relied upon by the Plaintiff should be strictly: construed in applicat ion, since Plaintiff drafted the document and submitted it to the :Defendants : O.C.G .A. ? 13-2-2 and L & B Construction Co .. .Inc. . v. Ragan Enterprisee_, Inc., 267 Ga . 809, at 811 (197). Since the question of an alteration of the agreement has been raised, andthere is no question it is a material alteration, a-jury issue exists , over the parties liability: thereunder, and Obxacay's representations in regard to same . Finally, Plaintiff should not be able to recover for its own sloppiness, mistake or departure from the agreement , as no defendant received proper notice of such departure . Until Plaintiff provided notice of its intend to depart from the understood terms of the agreement Piaintiffwas unable to hold any defendant to such departure . See, O.C .G.A: sec. 13-4-2; "The materiality of an alteration is a question of law for the court; the fact of an alteration is a question - for. the jury." And under O .C.G.A. sec . i3-4-4, "Where parties, in the course of the execution of a contract, depart form its terms and pay or receive money under such departure, before either can recover fo r failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement .: The contract will be suspended by the departure until such notice ." V. Invalid and Unenforceable claim for Attorney's Fees and Other Expenses. Plaintiffs claim - for attorney' s fees is invalid and unenforceable ' Plaintiff has Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 9 of 13 made its cla im fo attorney's fees and other expense in an amount total ing $$5,081 .92: i Pursuant to Georgia law, the only way that a contract may enforce 6 term for attorney's fees i s pursuant to O :C.G .A. ? 13-1-11 . The Affidavit ofDermis R: Hayden attached to Plainti ff's motion as Exhibit "A" on page 3 shows the amounts incurred on the bonds issued to various entities. ` This is in paragraph 4 of Mt. Hayden's Affidavit. Also on page 3 in paragraph 5 and cont inued on ` page 6 are listing for the attorney's fees in connection with th is action . First and foremost, the attorney's fees provision of the O .C.G.A: ? 13-1-11 restricts 'the, amount upon which a contract can enforce a provision for attorney's fees : Unless specifically n stated in a percentage among, attorney's fees are limited to fifteen percent of the first five hundred dollars of principal and ten percent of any amount in excess of five hundred dollars : O.C .G.A : ? 13-1-11 (a)(2). Technically, that code section provides that the provisions with respect to attorney's fees cannot be enforced unless requis ite notice is provided pursuant to the terms of that statute . Plaintiff has not provide any notice to the ; Defendants , EFW et al.; in connection with a claim for attorney's fees pursuant to that statutory provision. Under; Georgia law , that is the only statutory provision governing y contracts and limits the amounts that may be recovered in an action to recover attorney's fees: Rhodes v . Amwest Sur. Ins. Co., 207 .Ga. App . 441 , Div. 6 at 442 (1993) and Global Ind. U.S., Inc . v: Harris, 376 F . Supp . 1379 {N.D. Ga 1974} The total amount of e l funds being sought by the Plaintiff is $144 ;892 .9. 2.' The amount of attorney's fees being sought by the Plaintiff is over $6.1,964.16. Plaintiff has not complied w ith the necessary _ Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 10 of 13 statutory provisions of Georg ia law to collect attorney's fees . Even if the Plaintiff had done so, Plaintiff would only be entitled to fifteen percent 'of the first five : hundred dollars d due under the contract and ten percent of any amounts in excess of that . O .C .G.A . ? ' 131-1 . 1 1 Plaintiffs reliance upon the cases cited, deals with attorney's fees which were incurred in connection with the defense ofany claims on the bonds.' According to the Affidavit of Mr . Hayden, the attorney's fees listed in paragraph 5 :represent the expenses, including attorney's fees, for bringing this act ion to enforce indemnity agreements . At . best it is amb iguous as to whether or not any of these fees were incurred in connection with Plaintiffs payment of the bonds listed in paragraph 4 of his affidavit . At worst, it is clearly a reference to the expenses of bring ing an action on the indemnification agreement which is governed solely . and exclusively by O .C.G.A. ? .13-1-11, based upon the complaint and Plaint f s First Amended Complaint that has bee filed in this action. In Rhodes v. Amwest Sur. Ins. Co., supra, that action included a request for attorney's fees: The court in that case said thatt the attorney's fees awarded to the insurance company related to claims under die surety bonds and were not attorney's fees relating to the enforcement of the indemnity agreement. For this reason, the court held Amwest's clam for attorney's fees did not fall within the notice requirements of O .C .G.A. ? 13-1-11 . For the same reason the claimed amount for prejudgtnent iriterest as set forth i n Plaintiff's motion for summary j udgment would not be authorized . The calculation are . Case 1:03-cv-03073-ODE Document 79-1 ': Filed 03/10/05 Page 11 of 13 based upon princ ipal and attorney's fees. The attorney' s fees request does not meet the requirements of O .C:G.A. ? 13-1 = 1 l.with respect to fees incurred to pursue the action on this indemnification .agreement . CONCLUSION ., The affidavits provided in this matter do not show fraud or negligent I misrepresentation as a matter of law : On the contrary the same show conclusory allegations, unreasonable reliance, and the lack of proximate cause of damages : There exists genuine issues of fact relat ive to Obracay's representation, his intent, and the Plaintiffs reliance upon same. Moreover, Obracay's`acts. did not cause Plaintiff damages; nor could it be said to have been the proximate cause of Plaintiff's damages . Plaintiff paid halfof what it claims from Obracay prior to Oba racay acting as a witness EFW and, the iridemnitors failed to pay . Plaintiff has fa iled to meet its bu rden and there d are clearly genuine issues of fact for determination by the tries o f fact. Further, Plaintiff has failed to meet its burden on the issue of attorney's fees . Plaintiff seeks in connection with the General Indemnity Agreement attorney's fees in excess of those authorized by d law in the state of Georgia. Plaintiff did not provide the requisite notice and has not limited its claim to the mandatory requirements of Georgia law . If it is further calculated prejudgment interest based upon claims to which the Plaintiff is not entitled . Because there are genuine issues of material fact to be decided . and Plaintiff has failed to follow the statutory provisions of Georgia law with respect to its claim for attorney's fees , Plaintiff's mot ion should be denied. - Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 12 of 13 Respectfully submitted LAURENCE H . MARGOLIS Attorney for Defendant,. D . Obracay Georgia Bar No. 4705$0 The Margolis Law Firm 1126 Ponce de Leon Avenue, NE Atlanta, Georg ia 30306 .404-872-70 8 6 404-892-1128 Case 1:03-cv-03073-ODE Document 79-1 Filed 03/10/05 Page 13 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHE RN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT _ ) COMPANY OF MARYLAND, ` _ Plaintiff, v. } CIVIL } ` ACTION FILE } NOQ. 1 :03-CV-3073-ODE ENTERTAINMENT- FILM WORKS, INC., et al ., Defendant . : ) ) CERTIFICATE O F SERVICE I hereby certify that I have this date served on the opposing party a true copy . of the foregoing Response to Motion for Summary Judgment on behalf of D_ Obracav, by . sending . same via regular and Electronic Mail to the following : W. Randal Bryant Esq . ; Maurice J. Bernard, Esq . BOVIS, KYLE & BURCH, LLC :371'7 Chamblee Dunwoody Road 53 Perimeter Center East ; Third Floor Chamblee, Georgia 30341 Atlanta: Georgia 30346-2298 _ ' This day of `~ 2005 Respectffifly SubmitteA Lawrence H . Margolis Attorney for D . Obracay Georgia State Bar No: 4'705$0 Case 1:03-cv-03073-ODE Document 79-2 Filed 03/10/05 Page 1 of 5 - s ~IN THE UNITED STATES DISTRICT COUR OFGEORGIA ` FOR THE NORTHERN DISTRICT ~ ATLANTA DIVISION 1 ~' 20,05 FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, vs: ) ) CIVIL ACTION FILE NOO. :03-CV-3073-ODE ~ ENTERTAINMENT FILM WORKS, INC ., et al .l. Defendants .. ) AFFIDAVIT OF DALE OBRACAY Dale Obracay, first having been sworn, states the following facts : 1. I am over 18 years of age , a United States citizen, and competent to make th is . . Affidavit. : Y have personal knowledge of the facts stated in this Affidavit , which are all true and correct. 2. _ Several years ago, I consulted w ith a- film company named Entertainment Film Works, Inc. ("EFW") . I was not an employee of EFW but was paid as an independent d contractor . I was responsible primarily for consult ing on real estate development and lease negotiation . 3. During such time that I consulted with EFW, the company was run by and under Case 1:03-cv-03073-ODE Document 79-2 Filed 03/10/05 Page 2 of 5 the primary direction of James . T. Dully, president: 4. I do recall signing my name as a witness to the signatures of Defendants John and . Caroline Duffy , as guarantors on a October 11 , 2001 Indemnity Agreement with the Plaintiff F&D When I received this document to sign, it was already signed by James T . Dully, Norms Daffy, and witnessed by Robin Mauney, and both. s ignatures had been notarized . John Daffy signed his name in my presence and I witnessed it. I would not sign as a witness for Caroline Daffy until she . signed it even though it was already notarized. John Daffy left my office and came back with his wifes signature on the document, at which time. I witnessed it. I do not know if Caroline Daffy was in the bu ilding, but I did assume she was in the building; These were big offices and she did come around often. I did not always know if she was in the building . :The three other parties were properly executed prior to Caroline Duffy's signature and my witness of it . 5. I never intended to induce F & D or anyone else to rely on my witness of the Duffys' signatures to enter into any legal document . I never intended to `misrepresent r anything to anyone by my witness of the Duffys' ' signatures. ` As far as I know, John and Caroline did sign the document and had it notarized . , 6. Regardless, F&D had already issued bonds to EFW, its affiliates, and paid over . $80,000.00 in claims against those bonds , prior to my signature as a witness_ to the Case 1:03-cv-03073-ODE Document 79-2 ~. Filed 03/10/05 Page 3 of 5 October 1 1 ; 20,01 Indemnification Agreement . 7. ` I cannot speak to what F &D ultimately paid out in claims against bonds it chose to issue on behalf ofEFW and EFW of Florida, Inc ., however I did not authorize or guarantee any such payments,, and I was not responsible for notifying EFW -of said claims on the bonds and payments . 8. Importantly to this case, the majority of the bonds that were issued by F&D to EFW were issued months - before I acted as a witness to the October 11, 2001 Indemn ification Agreement, so they, F&D, could not have -been :relying upon my signature as a witness to issue the bands . I do not know if F&D altered the agreement or not. 9. It is riot reasonable for F&D, or any agent of F&D, to cla im that my signatu re is the sole or proximate cause of its damages in this lawsuit. F&D's own errors and sloppiness in the execution of its own Indemnity Agreements, its failure to investigate :the solvency o f its guarantors, and F&D's negligence in doing business contributed to or was the cause of its damages alleged inthis lawsuit. 10. Moreover, ` as the' evidence shows, an authorized notary public had attested to the document prior to my witness . It is thus unreasonable for F&D , or and agent thereof, to Case 1:03-cv-03073-ODE Document 79-2 Filed 03/10/05 Page 4 of 5 claim that my signature was the cause of them issuing and paying on the bonds . 11 . ` In sum, my s ignature as a witness did not cause F&D's damages or enable the guarantors failure to pay same, and I should therefore not be responsible for sums paid out on :bands I never `guaranteed or promised that others would guarantee : 12. F&.D ` has also not provided me with proper notice w its claim for attorney's fees and the fees it does claim in this matter are not permitted or legitimate in this instance : FURTHER AFF IANT SAYETH NOT <: 0311 0i20 05 Case 1:03-cv-03073-ODE Document 15 :27 4808141198 ~ 14048921128 . 79-2 N0 Filed 03/10/05 Page 5 of 5.832 Do 1 . . ,. ; . - ~. WC : lp0 ourif m dN3 3001 d tea : uvr~ woz "q*xewjo Amp MR am axopq agrjasqtt s prze 64 uaoA% ~ a o30 uaa pry otw are pug a Rpa [tAolx~ jvuOs.rad s~ u~o 'l rre artqll tm a~R U paUMuo0 "i ate TeqR alp saM s WO uo pu-e 4 ascfd')p 'moms Alnp isnj ,ia~B jor{nn: ` pazij,:)tpnv SInp`m o uv `p* zsaopt~n w I1 l'aL ~ ~ qp aI~Q `tea za~s~utuxPIR o~ nn O i Aq Q Q "Vg dd V 1i l ?b' NbS 'd Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AGAINST DALE OBRACAY Plaintiff, Fidelity and Deposit Company of Maryland ("F&D"), submits this Reply Brief in Support of Motion for Summary Judgment Against Dale Obracay and shows the Court the following: Obracay has admitted that he signed the indemnity agreement as a witness to a signature he did not witness. Because he knew this representation was false at the time he made it, his intent to deceive is established as a matter of law. F&D was entitled to rely on this representation, because it conveyed information which was not equally accessible to F&D, and is entitled to summary judgment against -1- Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 2 of 15 Obracay for the damages caused by his fraud and negligent misrepresentation. F&D is also entitled to recover its expenses of litigation pursuant to O.C.G.A. ? 13-6-11. I. Obracay Is Liable for Fraud. Obracay fails to show that there is any genuine issue of material fact with respect to F&D's fraud claim.1 As shown below, each of the elements of the claim are established as a matter of law, and F&D is entitled to summary judgment against Obracay for his fraud. A. Obracay Made a False Representation by Falsely Attesting the Indemnity Agreement. Obracay claims that he did not make any misrepresentation, while at the same time admitting he signed his name as a witness to a signature he did not Although Obracay filed Obracay's Statement of Materials Facts as to Which There Are Genuine Issues to Be Tried (Doc. No. 79-3), he did not respond to F&D's numbered material facts contained in its Statement of Material Facts as to Which There Is No Genuine Issue to Be Tried (Doc. No. 70-9). Because none of the material facts set forth by F&D were "specifically controverted" by Obracay in his statement of material facts, those facts are deemed to be admitted under Local Rule 56.1B(2). See, e.g., Kramer v. Gwinnett County, 306 F.Supp.2d 1219, 1222 (N.D. Ga. 2004). Based upon the admitted facts contained in F&D's Statement of Material Facts, there are no genuine issues of material fact and F&D is entitled to judgment as a matter of law as to all of its claims against Obracay. Even if the Court were to consider the statements contained in the Affidavit of Dale Obracay (Doc. No. 80), however, F&D would still be entitled to summary judgment, as demonstrated below. 1 -2- Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 3 of 15 witness. In his deposition, Obracay testified that he did not see Caroline Duffy sign the indemnity agreement and that John and Caroline Duffy were not present when he signed the indemnity agreement as a witness to their signatures.2 (SJ Brief, Exhibit C (Doc. No. 70-6), pp. 21, 36). Obracay now claims that he signed as the witness to Caroline Duffy's signature after John Duffy presented him with the indemnity agreement containing a signature for Caroline Duffy and asked Obracay to sign as a witness to her purported signature. (Affidavit of Dale Obracay ("Obracay Aff.") (Doc. No. 80), para. 4). Even in his new version of what transpired, Obracay still admits that he did not see Caroline Duffy sign the indemnity agreement and that he did not even know if she was in the building when he signed as a witness to her signature. Id. By signing the indemnity agreement as the witness to Caroline Duffy's signature, Obracay communicated to F&D that he saw her sign the agreement. This communication was a false representation because Obracay did not see Caroline Duffy sign the document. Obracay claims that he "reasonably believed" that Caroline Duffy signed the document, but this does not affect the falsity of his In his deposition, Obracay testified that he did not observe either John Duffy or Caroline Duffy sign the indemnity agreement. (Brief in Support of Motion for Summary Judgment Against Dale A. Obracay ("SJ Brief"), Exhibit C (Doc. No. 70-6), p. 36). He now inconsistently claims that John Duffy signed the indemnity agreement in his presence. 2 -3- Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 4 of 15 representation. His witness signature actually made two representations: (1) Caroline Duffy signed the document, and (2) he saw her sign the document. Regardless of the veracity of the first representation, the second representation is false. Obracay knew that he did not witness Caroline Duffy sign the indemnity agreement. By signing his name as a witness to a signature he did not witness, on an indemnity agreement being sent to F&D to induce it to issue bonds on behalf of Entertainment Film Works, Obracay knowingly made a false representation to F&D. B. Obracay's Intent to Deceive Is Established as a Matter of Law. Obracay claims that he did not intend to deceive anyone by claiming to have witnessed a signature he did not witness. The scienter element of fraud is satisfied, however, because Obracay knew he did not witness Caroline Duffy sign the indemnity agreement when he signed as a witness to her signature. See, e.g., Hertz Corp. v. Cox, 430 F.2d 1365, 1373 n.4 (5th Cir. 1971) ("Scienter . . . means knowledge on the part of the person making the representations, at the time when they are made, that they are false."); Bagley v. Firestone Tire & Rubber Co., 104 Ga. App. 736, 740, 123 S.E.2d 179, 182 (1961) ("The intention to deceive and the immoral element is supplied by knowledge of the falsity of the representations when they were made."). -4- Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 5 of 15 In Marrale v. Gwinnett Place Ford, 2005 WL 109028 (Ga. App. Jan. 20, 2005), a car salesman told a customer that a car had never been in an accident when it had been in a collision prior to its purchase by the customer. The car dealership claimed that the salesman's statement was not made with the intent to defraud because he did not know at the time of the statement that the car had been in an accident. The court held "even if the salesman did not know whether the car had been in a wreck, he certainly knew that he did not know the real condition of the car. Therefore, the salesman's misrepresentation could constitute fraud." Id. at *5. Similarly, even if Obracay did not know whether or not Caroline Duffy actually signed the indemnity agreement, he certainly knew that he did not witness her sign the agreement. Because Obracay knowingly supplied false information to F&D, his intent to deceive is established as a matter of law. C. F&D Justifiably Relied on Obracay's Representation. Obracay argues that F&D did not rely on Obracay's representations in issuing bonds, claiming that F&D had paid over $80,000 in claims on bonds issued for EFW prior to October 11, 2001, the date Obracay signed the indemnity agreement.3 Obracay's claim is wrong and unsupported by any admissible By failing to specifically controvert F&D's statements that it relied upon Obracay's witness signatures in its Statement of Material Facts (Doc. No. 70-9), 3 -5- Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 6 of 15 evidence.4 As shown in the Affidavit of Dennis R. Hayden and the attached checks, all of F&D's losses and expenses were incurred well over a year after Obracay fraudulently signed the indemnity agreement, with the first checks paying bond claims being issued on December 19, 2002. (Affidavit of Dennis R. Hayden (Doc. No. 69-3), paras. 4-6, Exhibits A-3 (Doc. No. 69-6), A-4 (Doc. No. 69-7)). Obracay contends that F&D could not have relied on his witnessing signatures on the indemnity agreement in relation to bonds issued prior to October 11, 2001. This argument also lacks merit. Although F&D had issued bonds prior to obtaining the October 11, 2001 indemnity agreement, it had issued those bonds on the condition that John and Caroline Duffy enter into an indemnity agreement.5 (SJ Brief, Exhibit A (Doc. No. 70-3), para. 4). As a result of Obracay's representations that he had witnessed both John and Caroline sign the indemnity agreement, F&D not only issued new bonds on behalf of EFW, but also refrained paras. 6, 9, Obracay has admitted the truth of these statements pursuant to Local Rule 56.1(B)(2). 4 Although F&D issued bonds for EFW prior to October 11, 2001, it did not pay any claims under the bonds until December 19, 2002. (Affidavit of Dennis R. Hayden (Doc. No. 69-3), para. 4). Obracay apparently misinterprets the penal sums of those bonds as being amounts that F&D paid prior to October 11, 2001. 5 The indemnity agreement that Obracay fraudulently represented he had witnessed provides that F&D already had issued bonds for EFW "upon the express condition that this instrument be executed." (SJ Brief, Exhibit A-1 (Doc. No. 70-4), p. 1). -6- Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 7 of 15 from canceling the existing EFW bonds. Id. at para. 5. In forbearing from exercising its right to cancel, F&D was entitled to rely on Obracay's witness signature, and F&D's reliance was justifiable as a matter of law. The court in Anderson v. Snyder, 14 Pa. Super. 424 (1900), held that when a defendant falsely attests a document, the doctrine of contributory negligence cannot be invoked, because "[i]t does not lie in the defendant's mouth to say that the plaintiff ought not to have relied so implicitly on his representation that [the signature] was genuine." It is a palpable fraud to witness a paper in that way. He may not have intended a fraud at the time, but it is a fraud in law and makes him liable for the damage that the plaintiff may have sustained in consequence of it. Id. (defendant who signed as witness to signature on certificate of no defense was liable for fraud; witness did not see signature being signed and did not know if signature was genuine). Here, Obracay cannot complain that F&D should not have believed his representation that he saw Caroline Duffy sign and thus that her signature was valid. Obracay's signature as the witness to Caroline Duffy's signature conveyed information which was not equally available to F&D, and F&D was therefore entitled to rely on Obracay's representation. See, e.g., Daugert v. Holland Furnace Co., 107 Ga. App. 566, 570, 130 S.E.2d 763, 766 (1963) ("The right to rely on -7- Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 8 of 15 representations is generally conceded where the hearer lacks equal facilities for ascertaining the truth."). Furthermore, Obracay is not competent to opine as to a surety's reasonable reliance on a witness signature to an indemnity agreement. Obracay never had or claimed to have any special expertise about surety underwriting principles and practice. Obracay would have needed to provide expert testimony to challenge the reasonableness of F&D's reliance, and he has failed to do so. Obracay has failed to controvert that F&D justifiably relied on his representation as to the authenticity of Caroline Duffy's signature in issuing bonds and refraining from canceling existing bonds. He therefore has not created any genuine issue of fact on the reasonableness of F&D's reliance on his witness. D. F&D's Damages Were Proximately Caused by Obracay's Misrepresentation. Obracay claims that he was not the proximate cause of F&D's damages. The undisputed evidence, however, is that if F&D had known that Obracay did not witness Caroline Duffy sign the Indemnity Agreement as he had represented, F&D would not have issued any more bonds on behalf of EFW and its subsidiaries, would have cancelled the bonds that had already been issued on behalf of those companies, and would have avoided any losses under the bonds. (SJ Brief, Exhibit -8- Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 9 of 15 A (Doc. No. 70-3), para. 6). Obracay has no evidence to the contrary. Therefore, Obracay's witness signature was the proximate cause of F&D's losses. II. Obracay Is Liable for Negligent Misrepresentation. Obracay is also responsible for F&D's bond losses for his negligent misrepresentation. Obracay, in the course of his business, profession, or employment,6 supplied false information for the guidance of F&D in its business transactions, namely those related to the indemnity agreement and the bonds issued on behalf of EFW. Obracay failed to exercise reasonable care as a matter of law in communicating that he witnessed Caroline Duffy sign the indemnity agreement because he knew at the time that that information was false.7 He is therefore liable In his affidavit, Obracay claims that he "was not an employee of EFW but was paid as an independent contractor." (Doc. No. 80, para. 2). Without explanation, his affidavit contradicts his earlier deposition testimony, where he testified that he was an employee and vice president of EFW. (SJ Brief, Exhibit C (Doc. No. 70-6), pp. 14, 21). He cannot escape summary judgment by submitting a self-serving affidavit contradicting his prior unequivocal deposition testimony. Moreover, Obracay signed bonds on behalf of EFW both before and after he signed the indemnity agreement on October 11, 2001. (See the attached Exhibits A, p. 1, and B, p. 2, respectively). Even if Obracay were merely an independent contractor, he was still acting in the course of his business, profession, or employment when he fraudulently witnessed the indemnity agreement. 6 Obracay testified that Caroline Duffy's signature had been notarized before there was any signature for Caroline Duffy on the indemnity agreement. (Affidavit of Dale Obracay (Doc. No. 80), para. 4). This shows further negligence by Obracay in that he knew that someone had already falsified the document, and had done so 7 -9- Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 10 of 15 for F&D's damages caused by its justifiable reliance upon the information provided by Obracay. See Robert & Co. Assocs. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681 n.1, 300 S.E.2d 503, 504 (1983). As shown above, F&D justifiably relied upon Obracay's witness signature and suffered damages as a result. Obracay is therefore liable for the $144,894.94 in damages F&D suffered as a result of Obracay's misrepresentation. III. The Indemnitors' Material Alteration Defense Does Not Affect Obracay's Liability for Fraud and Negligent Misrepresentation. Obracay adopts the arguments of his co-defendants, EFW and James and Norma Duffy, who have claimed that there is a genuine issue of material fact as to whether or not the indemnity agreement was materially altered. Obracay states his liability "is predicated on the Plaintiff's characterization of the language of the October 11, 2001 agreement." (Obracay's Brief (Doc. No. 79-1), p. 7). Contrary to Obracay's assertion, his liability is not based upon any characterization of the language of the indemnity agreement. Rather, his liability is based upon his fraud and negligent misrepresentation in communicating that he witnessed a signature he did not witness. The undisputed evidence is that F&D would have cancelled existing bonds and would not have issued any other bonds if it had known that with respect to the very signature he was being asked to witness, before he fraudulently signed the document as a witness to Caroline Duffy's signature. - 10 - Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 11 of 15 Obracay had not actually witnessed Caroline Duffy sign the indemnity agreement. The material alteration defense does not affect Obracay's liability. Even if Obracay could somehow avoid liability if the indemnity agreement had been materially altered, there was no material alteration. As shown in F&D's brief (Doc. No. 69-1) and reply brief (Doc. No. 78) in support of its motion for summary judgment against EFW and James and Norma Duffy, the indemnitors authorized F&D to complete the indemnity agreement by filling up any blanks therein. James and Norma Duffy claim that the agreement was altered by the addition of a date at the end of paragraph 15, which F&D denies. Even if the date had been added, the indemnitors expressly authorized F&D to do so, so there can be no material alteration of the document and no genuine issue of material fact with respect to the material alteration defense.8 Obracay's assertion of the material alteration defense is unavailing. Obracay cites O.C.G.A. ? 13-4-4, concerning parties who depart from the terms of a contract in the course of its execution. Even if F&D added the date at the end of paragraph 15, there was no departure from the terms of the indemnity agreement: those terms expressly authorized F&D to add such information to the agreement after its execution. 8 - 11 - Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 12 of 15 IV. Obracay Is Liable for F&D's Expenses of Litigation. Obracay argues that F&D cannot recover its attorneys' fees and other expenses of litigation from him because F&D did not comply with the provisions of O.C.G.A. ? 13-1-11. F&D, however, is not seeking to recover its attorneys' fees from Obracay under the indemnity agreement.9 F&D's claim is premised upon O.C.G.A. ? 13-6-11 and Obracay's bad faith, fraud, and stubborn litigiousness, and O.C.G.A. ? 13-1-11 does not apply. See, e.g., Eways v. Georgia Railroad Bank, 806 F.2d 991, 993 n.2 (11th Cir. 1986) (O.C.G.A. ? 13-1-11 does not limit recoveries under O.C.G.A. ? 13-6-11). F&D has established that Obracay "has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense" and is therefore entitled to recover its expenses of litigation under O.C.G.A. ? 13-6-11. If Obracay is guilty of fraud, as F&D has proven, then he owes attorneys' fees separately on that basis. See, e.g., Hudspeth v. A & H Constr., 230 Ga. App. 70, 72, 495 S.E.2d 322 (1997) ("[E]very F&D is not claiming that Obracay should be required to indemnify it pursuant to the indemnity agreement but rather that he should be liable for his fraud and negligent misrepresentation related to the execution of the agreement. Even if F&D were trying to recover its attorneys' fees against Obracay under the indemnity agreement, O.C.G.A. ? 13-1-11 would not apply because an indemnity agreement is not a "note or other evidence of indebtedness" governed by that statute. (See Reply Brief in Support of Motion for Summary Judgment Against Entertainment Film Works, Inc., James T. Duffy, and Norma L. Duffy (Doc. No. 78), pp. 6-8). 9 - 12 - Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 13 of 15 intentional trot invokes a species of bad faith and entitled a person so wronged to recover the expenses of litigation including attorney fees."). F&D has established that it incurred $85,081.92 in reasonable attorneys' fees and related expenses as a result of Obracay's bad faith, stubborn litigiousness, fraud, and negligent misrepresentation. (See Brief in Support of Motion for Summary Judgment Against Dale A. Obracay, Exhibit E (Doc. No.70-8)). There is no genuine issue of material fact with respect to the amount and reasonableness of these expenses of litigation,10 and F&D is entitled to an award of $85,081.92 for its fees and expenses as a matter of law. Conclusion For the foregoing reasons and those shown in F&D's previous brief, the Court should award F&D summary judgment against Dale Obracay for $237,942.86 in damages ($144,894.92 in bond losses plus $85,081.92 in expenses of litigation plus $7,966.02 in prejudgment interest) caused by his fraud, negligent misrepresentation, bad faith, and stubborn litigiousness. Obracay has failed to show the existence of any genuine issue of material fact. He has submitted no evidence concerning the reasonableness of the amount F&D seeks. Instead, Obracay admitted that F&D sustained $85,081.92 in reasonable expenses by failing to specifically controvert F&D's Statement of Material Facts, para. 12 under Local Rule 56.1B(2). (Doc. No. 70-9). 10 - 13 - Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 14 of 15 Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 Certificate of Compliance I hereby certify, pursuant to Local Rule 7.1D and Local Rule 5.1B of the United States District Court, Northern District of Georgia, that the foregoing brief was prepared in 14 point Times New Roman font. s/ W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 E-mail: rbryant@boviskyle.com - 14 - Case 1:03-cv-03073-ODE Document 81 Filed 03/28/05 Page 15 of 15 CERTIFICATE OF SERVICE I hereby certify that on March 28, 2005, I electronically filed the foregoing Reply Brief in Support of Motion for Summary Judgment Against Dale Obracay and the attached exhibits with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Maurice J Bernard, III Laurence H. Margolis I also certify that copies of this document have also been served on March 28, 2005 by placing them in the United States mail with adequate postage thereon, addressed as follows: Maurice J Bernard, III 3717 Chamblee Dunwoody Road Atlanta, GA 30341 Laurence H. Margolis 1126 Ponce de Leon Avenue, NE Atlanta, GA 30306 s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 - 15 - Case 1:03-cv-03073-ODE Document 83 Filed 04/21/05 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE MOTION TO STRIKE OBRACAY'S SUPPLEMENTAL BRIEF OR FOR LEAVE TO FILE SUPPLEMENTAL REPLY BRIEF The Plaintiff, Fidelity and Deposit Company of Maryland ("F&D"), hereby moves the Court to strike Obracay's Supplemental Brief in Opposition to Plaintiff's Motion for Summary Judgment (Doc. No. 82) as an unauthorized brief filed in violation of Local Rule 56.1A. Alternatively, if the Court authorizes the filing of Obracay's supplemental brief, F&D respectfully requests that the Court consider F&D's Supplemental Reply Brief in Support of Motion for Summary Judgment Against Dale Obracay (attached to F&D's Brief in Support of Motion to -1- Case 1:03-cv-03073-ODE Document 83 Filed 04/21/05 Page 2 of 3 Strike Obracay's Supplemental Brief or for Leave to File Supplemental Brief as Exhibit A) and order that it be filed. Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -2- Case 1:03-cv-03073-ODE Document 83 Filed 04/21/05 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on April 21, 2005, I electronically filed the foregoing Motion to Strike Obracay's Supplemental Brief or for Leave to File Supplemental Reply Brief, along with the Brief in Support of Motion to Strike Obracay's Supplemental Brief or for Leave to File Supplemental Brief, with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Maurice J Bernard, III Laurence H. Margolis I also certify that copies of this document have also been served on April 21, 2005 by placing them in the United States mail with adequate postage thereon, addressed as follows: Maurice J Bernard, III 3717 Chamblee Dunwoody Rd. Atlanta, GA 30341 Laurence H. Margolis 1126 Ponce de Leon Avenue, NE Atlanta, GA 30306 s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -3- Case 1:03-cv-03073-ODE Document 83-1 Filed 04/21/05 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC.; JAMES T. DUFFY; NORMA ) L. DUFFY; JOHN J. DUFFY; and ) DALE A. OBRACAY; ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE BRIEF IN SUPPORT OF MOTION TO STRIKE OBRACAY'S SUPPLEMENTAL BRIEF OR FOR LEAVE TO FILE SUPPLEMENTAL REPLY BRIEF COMES NOW the Plaintiff, Fidelity and Deposit Company of Maryland ("F&D"), and submits this brief in support of its Motion to Strike Obracay's Supplemental Brief or for Leave to File Supplemental Brief, showing the Court the following. Statement of Facts F&D filed its Motion for Summary Judgment Against Dale A. Obracay (Doc. No. 70) on January 15, 2005. Defendant Dale Obracay filed his response brief (Doc. No. 79) on March 10, 2005, and F&D filed a reply brief (Doc. No. 81) -1- Case 1:03-cv-03073-ODE Document 83-1 Filed 04/21/05 Page 2 of 4 on March 28, 2005. Without seeking the permission of the Court to file a supplemental brief, Obracay filed Obracay's Supplemental Brief in Opposition to Plaintiff's Motion for Summary Judgment (Doc. No. 82) on April 11, 2005. Argument and Citation of Authority With respect to motions for summary judgment, Local Rule 56.1A provides, "In accordance with LR 7.1C, the parties shall not be permitted to file supplemental briefs and materials, with the exception of a reply by the movant, except upon order of the court." Obracay filed his supplemental brief without obtaining permission from the Court, violating Local Rule 56.1A. Therefore, his unauthorized supplemental brief in opposition to F&D's motion for summary judgment should be stricken and not considered by the Court. If the Court elects to authorize the filing of Obracay's supplemental brief, F&D respectfully requests that it be permitted to file a supplemental reply brief to respond to the new arguments presented in Obracay's supplemental brief. The supplemental reply brief which F&D would like for the Court to consider (in the event the Court considers Obracay's supplemental brief) is attached hereto as Exhibit A. This brief is intended to clarify the issues addressed in Obracay's supplemental brief and to aid the Court in ruling on F&D's motion for summary judgment. -2- Case 1:03-cv-03073-ODE Document 83-1 Filed 04/21/05 Page 3 of 4 Conclusion For the foregoing reasons, the Court should strike Obracay's Supplemental Brief in Opposition to Plaintiff's Motion for Summary Judgment (Doc. No. 82) and not consider it in ruling on F&D's motion for summary judgment. Alternatively, if the Court authorizes the filing of Obracay's supplemental brief, F&D respectfully requests that the Court consider F&D's Supplemental Reply Brief in Support of Motion for Summary Judgment Against Dale Obracay (attached hereto as Exhibit A) and order that it be filed. Respectfully submitted, s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 -3- Case 1:03-cv-03073-ODE Document 83-1 Filed 04/21/05 Page 4 of 4 Certificate of Compliance I hereby certify, pursuant to Local Rule 7.1D and Local Rule 5.1B of the United States District Court, Northern District of Georgia, that the foregoing brief was prepared in 14 point Times New Roman font. s/ W. Randal Bryant Georgia Bar No. 092039 Attorney for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 E-mail: rbryant@boviskyle.com -4- Case 1:03-cv-03073-ODE Document 84 Filed 06/03/05 Page 1 of 106 PDF created with pdfFactory trial version www.softwarelabs.com Case 1:03-cv-03073-ODE Document 84 Filed 06/03/05 Page 2 of 106 PDF created with pdfFactory trial version www.softwarelabs.com Case 1:03-cv-03073-ODE Document 84 Filed 06/03/05 Page 3 of 106 PDF created with pdfFactory trial version www.softwarelabs.com Case1:O3-cv-03073-ODE Document 84 Filed Page4of106 4 1 At1anta, Georgia 30328. 2 Q. Do you understand that you're under oath 3? and you've sworn to te11 the truth? 4| A. Yes. 5 Q. Are you married to Norma Duffy? 6. A. Yes. Ti Q. And you've been married for 30 years? 8; A. Yes. 9| Q. Have you been married before? 10 A. Yes. 11 Q. Do you have any chi1dren? 12 A. No. 13 Q. How many times have you been married? 14 A. Twice. This is my second. 15 Q. Nhat is the name of your ex-wife? 16 A. Joan Osborn. 17 Q. Where does she live? 18 A. Chicago. 19 Q. what is your Socia1 Security number? 20g A. 21 Q. And your date of birth? 22 A. 7f16!4T. 23 Q. Nhat is your occupation? 24; A. CED, president, movie theater companies. 25 Q. Nhat companies? What are the names? 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1:03-cv-03073-ODE Document 84 Filed 06/03/05 Page 106 of 106 PDF created with pdfFactory trial version www.softwarelabs.com Case Document 85 Filed Page 1 of 46 1 IN THE UNITED STATES DISTRICT COURT FDR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY DF MARYLAND, PIBint1ff, CIVIL ACTION ENTERTAINMENT FILH NURKS, 3 I 1 vs. FILE NG. INC., et a1., 3 Defendants. DEPUSITIOH UF NDRHA DUFFY .July za zuu4 DD 3717 Chamblee Dunwoody Road Atlanta Georg1a Dane11e Reddy CCR 2340 OWN 1740 St 11| .\1\ll\11l GA 3ll3|)U 10: a.n. I . m; Case Document 85 Filed Page 2 of 46 APPEARANCES DF DDUNSEL Un behalf of the P1a1nt1ff RANDAL BRYANT Esq Bov1s, Hy1e Burch LLC Third F1oor Perimeter Center East At'!anta Georg1 a 30346 Dn beha1f of the Defendants HAURICE BERNARD Esq Law 0ff1ce of Haurice Bernard 3T17 Chamb1ae Dunwoody Road At1anta Georg1a 30341 2 . i i A1so Present: Janes T. Duffy i Case Document 85 Filed Page 3 of 46 3 HR. BRYANT: This is the deposition of Norma L. Duffy, taken pursuant to Notice and agreement in the action present1y pending in the i United States District Court for the Northern District of Georg1a' capt1oned F1de11ty Depos1t Company of Mary1and versus Entertainment Film Works et 31 C1v11 Action T119 number 1 03 CV ODE This depos1t1on 1s taken for a11 purposes perm1tted by 1aw My name is Randy Bryant am represent1ng the P1a1nt1ff Morris wou1d you 1ike for Hs Duffy to read and sign the depos1t1on transcript? HR BERNARD Yes HR BRYANT A11 objections to the t1me and p1ace of the depos1t1on and the qua11f1cat1ons of the court reporter are hereby waived if that agreeab1e HR BRYANT And a11 other objections except as to the form of the question and the responsiveness of the answer wi11 be reserved unt11 such t1me as this deposition is sought to be entered ev1dence 1h th1s case Is that agreeah1e? . I HR. BERNARD: That's agreeab1e. Document85 Filed 4 MR. BERNARD: I have two prov1sos, 1f I nay: The standard is re1evancy and attorneyIc1ient privi1ege. HR. BRYANT: Sure. But, otherwise HR. BERNARD: Dtherw1se agreed, yes. HR. BRYANT: Hou1d you p1ease swear in the witness. NORHA L. DUFFY having been f1f5t du1y sworn was exam1nBd and testified as fo11ows EXAMINATION BY BRYANT W0u1d you p1ease state your fu11 name an address for the record Norma Lee H11bert Duffy B90 Edgewater Dr1ve At1anta GBOTQ1B 30323 Do you understand that you re under oath and you re sworn to tel? the truth? Yes I go1ng to be ask1ng you re1ated to the 1aH5U1t by F1dB11ty Depos1t Company of Hary1and against you and others, do you understand that? Yes If you don hear a question wou1d you Case Document 85 Filed Page know? A. Yes. I Q. If you don't understand a question, try to rephrase 1t so you can. If you need to take a break at any time just 1st I8 know and we can take a break Nhat 18 your mar1tal status? I larr1ed To whom? James Duffy How 1ong have you been narr1ed to James Duffy? 30 years Any prev1oue marr1ages? Do you have any ch11dren? 234 T2 1680 And your date of b1Fth? August 21st 1946 Are you onp1oyed7 what we your occupation? Housewife what is your Soc1a1 Security numberCase Document 85 Filed Page 6 of 46 Have you been emp1oyed anywhere outside the home dur1ng the past TIVS years? what do you mean by outs1de the home Ne11 have you been emp1oyed per1od? Yes By whom? Hy husband company Nhat company? I guess 1t was EFW I not reai sure about that By EFH do you mean Enterta1nment F11n Yes when were you enp1oyed? For about s1x months 1h February 2001 for about s1x months 50 from about February to August 20017 Yes Nhat was your position w1th that company? I was pres1dent You were president of F11m Works? Yes Are you sure that that 15 the company you were the pres1dent ofworksCase Document 85 Filed Page about getting that position? A. Uhen we were estab1ishing the company, when my husband was the company. there weren't enough peDp1e to go around. So I was just appointed the president. Q. Hhen did that company start, Entertainment Film Works? February of 2001. Nhat were your respens1b111t1es as PTB51d9ht7 I was a figurative pres1dent so I rea11y d1dn have any FeSp0n51h111t1B8 Has 1t your husband decision to put you 1D as pres1dent? Yes Does your husband own Enterta1nment Fi1m Worksown Enterta1nment F11m Works? 100 percent owner? I don know when you were at Enterta1nnent F11m Works Document85 Filed Pege d1d you do anyth1ng to get bonds for the company document 1dant1 Exh1b1t 1 The on1y th1ng I d1d (PTa1nt1ff's Exh1b1t f1cat1en [By Mr Bryant) The 18 that the document HR BERNARD I w111 was to sign th1s 1 NBS document marked as you re referring to? actual1y at th1s po1nt object to the form of the quest1on as asked Th1s one has a date on 1t The date H35 not there when it was signed by them again? NR N9 1 I would 11K6 HBP to test1fy to her know1edge HR BERNARD Okay THE NITNE55 what was your quest1on [By Mr Bryant) Let go to page three of what has been marked es Exh1b1t 1 Is your s1gnature on page three? signature? 1t Do you remember 51gn1ng th1s document? But you can that that 15 your Th1s 13 my signature . Case 85 Filed Page 9 of 46 G. nane Robin document? 9 I see next to your s1gnature there's the Hauney? Yes. Nas she present when you e1gned th1e I don remember was James Duffy present when you e1gned th1s document? document' YDS Where were you when you signed the we were at a notary offwce where was that 0ff1CE? In the shopp1ng center adjacent to our hus1ness at that time was the notary Anne Horner? take nnt1ca of her name at that t1me notary? Has the notary at Harry Norman Rea1tors? Yee Th 5 1s on Rnswe11 Road? Yes Did you sign th1s document In front have to say yes, but I ree11y d1dnCase 1 Document 85 Filed Page 10 of 46 10 Q. Nas anybody e`lee there when you signed it? A. The on1y person I remember being there is 51ug. who 1s Slug? My husband J1m Could there have been other peop1e frol Enterta1nment F110 Works there at the l1H9 that you don remenber? I Just s1mp1y don remember who was D1d your husband s1gn th1s document front of the notary? I assume that he d1d but I wou1dn don know I don remember I Just remember signing 1t October 11th 2001 on 1t was that the day you s1gned th1s document? Yes And d1d your husband ask YDU to s1gn th1s document? Yes Te11 ne how you came about s1gn1ng 11 how he asked you how you went over to the notary 5 0ff1CB Just the sequence of events page four the notary has the date Case1:O3-cv-03073-ODE Document 85 Filed Page11of46 He Just asked me to s1gn the document put 'lt 1n front of me asked ne to go to the notary w1th 1m And that what I 1 D1d you wa1k from Enterta1nment F11m work to the notary? Yes So 15 the first t1me you saw this document the sane day you e1gned 1t? Yes D1d you read the document before you Un page two at the botton there a handwr1tten date october 11 2001 whose handwr1t1ng is that? I don know Is 1t your husband e? It couTd DG You 11 see on page two the 1ast fu11 paragraph TH bold there a date May 22 2001 was that date on th1s document when you signed 1t9 How do you know that 1f you d1d not read 1t? I 1e0ked if 11. but I d1dn't rea11y read 11 A. h' d`signed 1t Page 12 Of 46 12 1t in depth. And it was pointed out to me that October 11th was the day that was in question. 0, what do you mean "was in question"? A. The day the document was to take effect. 0. Hho pointed that out to you? A. My husband. 0. when did he point that out to you? The day I signed it. Hhen did he point that out to you mean where were you? I don remember It must have been at the notary 5 off1ce Why do you think your husband ment1oned that to you? Because 1t 5 a wr1tten 1n date Nhat 15? October 11 2001 But why wuu1d he say that to you? HR BERNARD I going to object to the on the part of the w1tneSa (By Mr Bryant) It your test1mony your husband asked to you S1gh th1s document You d1dn read 11 But he tc1d you th1s document was not go1ng to be 1D effect uht11 October 11th, 2004 15 that form of the question; it ca11s for specu1ation I Q. I Case1:O3-cv-03073-ODE Document 85 Filed Page13of46 13 correct? NR. BERNARD: Objection THE 2004? HR. BRYANT: I'm sorry, October 11th, 2001; is that correct. THE HITNESS: Yes. D. (By Hr. Bryant) Did your husband te11 you anyth1ng e1se about this document? . Yes. what e1se did he te11 you? He tn1d me that 1t was a persona1 guarantee for EFW surety bond for Ut111t1E5 what hand? Nhat ut111ty bonds? 01d he spec1fy wh1ch bond? he d1d You sa1d the Hay 22nd 2001 date was not on th15 document when you s1gned 1t? D1d you say that? Yes Has 1t b1ankHas there another date there Document 85 Filed Page14of46 Q. 14 BNI YOU th1$ document with the GBCB being b1ank? A. the date. Q. A. This date at the bottom of the page was HB5 that date there when you signed 1t? I assume that 1t was, but I don't reany yesnotar1zed? signed notary notary 1t D1d you sign th1s document before 1t was At the t1me 1t was notar1zed HBS YGUY s1gnature n0t3F1ZBd before YOU I not understand1ng the question D1d you SIQH th1s document before the signed 1t? the Ne went to the notary off1ce and I document and then we handed it to the You signed f1rat and then the notary Yes You 11 notice on page four the date October 11th 2001 appears three twmes on that page 1s that Yes signed it? A. . Q. A. Case1:O3-cv-03073-ODE Document 85 Filed Page15of46 15 were those dates on the document before you Signed it or were they put on the document after you s1gned 1t? I don know Does the h3hdNT1tTHg on page four 1h your op1n1on match the handwr1t1ng on page two? Yes So 1f you handed th1s document to the notary after you s1gned it 1s that correct? You handed 1t to the notary after you s1gned 1t? Yes You don know when the October date was put on the document? BERNARD Nh1?h October date? BRYANT Any of the October dates Hr Bryant) when you s1gned the document were there any other e1gnetures on the document? 1 don remember that Do you remember 1f you S1gnod f1rst your husband signed first? Do not remember was Rob1n nauney in the off1ce on the day you s1gned th1s documentHR. HR. THE HITNESS: I den't know Document 85 Filed R?ge_1?_Qf46 16 A. Dnce again, I on1y remember My husband being with me that day. G. we11, was Robin Hauney at Enterte1nment F11n works that day? I den't remember. Q. Has John Duffy at the office that day? A. I don't remember. Has Baie 0'Bracey? I don remember. John Duffy? BERNARD You a1ready asked that one By Hr Bryant] Caroline Duffy? she was not How do you remember that 1f you don remember anyone e'Ise who was there? Caro11ne works and that 5 she never at the off1ce dur1ng the day Nhat t1me of day d1d you s1gn th1s? I don remember Enterte1nment F11m Works 5 office on Ro5we11 Road? Yee When? Somet1mes 1n the even1ngs When 15 the Iast t1ne you saw her thereHave you ever seen Cero11ne Duffy at A. G. Q. Case1:O3-cv-03073-ODE Document 85 Filed Page17of46 1? A. I'd only be guessing. I don't know. Q. How often wou1d you see her there? A. Not often. How many times wou1d you estimate? Two or three Ever see Da1e Bracey in that office? Yes How often wouTd you sae h1l there? I wou1d he guess1ng four days a week what about Robin Hauney7 The same And James Duffy? Are you asking me if I Knew he was there or did pers0na11y see him there? He11 when did you see him there? Hou often? During the day? Approx1mate1y twice a week Has your husband there iess often than Dale Bracey? You mentioned that you saw Da1a Bracey approximately four t1mes a week and your husband twice a weak any time, day or night. Q. 0. A. No. Q. Case1:O3-cv-03073-ODE Document 85 Filed Page18of46 18 A. Yes. G. Nhat is the difference? I A. My husband's responsihi11t1es carried him to different parts of the office where I wasn't 1t was just hard to find hin sometimes. U. After he you stopped working there, for Entertainment Fi1n Works how much would you go beck to the office? I rea11y didn work at Entarta1nment F11a works office And 1 would go approx1mate1y stop in maybe maybe four times a week Okay So these peop1e cou1d have been there more often but you were on1y there about four days a week? That correct Nhen you s1gned the document marked as Exhibit 1 was the name Enterta1nnent F11m Works on the docunent? YES works on the docunent? YES I I just QD1ng to read the first port1ons of the f1rst few 11nes Hhereas upon the request made by Entertainment Fi1m Works Inc 5920 Roswe11 . I'd 0. A. Q. A. Q. Was the address of Entertainment Film A. uv I I I Document 85 Page19 of 46 19 Road, At1anta, Georg1a 30323, James T. and Norma L. Duffy, 990 Edgewater Drive, Atianta, Georgia 30328, and John J. and Caroline Duffy, 1690 S. Johnson Ferry Road, Atlanta, Georgia 30319." Here those words on this document when you sighed 1t Yes How do you remember that? Because I read the paragraph D1d you read any other paragraphs on the f1rst page? what about on the second page? I rea11y d1dn read anything unt11 I came down and looked at the date and rea11zed that there was no date here Th1s was b1ank r1ght there By that you lean the paragraph end1ng executed on or after May 22 2001 9 HR BERNARD He ask1ng was th1s the paragraph THE WITNESS Yes Uh huh es (By Mr Bryant) D1d you ask your husband why that date Haan f111ed 1H7 I not sure 1f I asked h1n or I was under the aSSumPt10n that this was the date the Case1:O3-cv-03073-ODE Document 85 Filed Page 20 of46 20 date. I think he to1d me that that was the effective date. G. Nhat was? A. October 11th, 2001. Q. Nhat makes you think that? . Because he wou1d have exp1ained things n1nima11y to me Do you remember h1m axp1a1n1ng that you? ee Nas the day October 11th 2001 on th1s document when he exp1a1ned that to you? this page That the on1y one I remember You stated before you weren sure whether th1s date was on here when you e1gned 1t? I th1nk I wee 5peak1ng about th15 last Page four? Yes Has the date on the October 11th date page two on th1s document when you s1gned 1t? 95 Who wrote that data? H911 now that I 1ook at the wr1t1ng page or not the Test page, but this pageCase1:O3-cv-03073-ODE Document 85 Filed Page 21 of46 21 does Iock like S1ug's handwriting. Q. Did you see him write the date? A. Nc. G. Do you know if he wrote the date? A. NO. Q. Why didn't you fi11 in the date under the paragraph 1aheIed "Fifteenth"? HR. BERNARD: Object to the fern of the question, But subject to that. go ahead and answer if you can. THE WITNESS: Because I d1dn't have to because this N85 a continuation here that this HB5 the effective date Isn there a paragraph between the first date and the second date? There is yes what makes you think that 1ast 1ine was continuation oi the Fifteenth paragraph? It just appeared to be a continuation Uhen you handed this document to the notary were a11 the signatures on page three on the document? HR BERNARD Object That has been asked and answered. 5 Case1:O3-cv-03073-ODE Document 85 Filed Page 22 of46 I 22 HR. BRYANTback and read it for me. It wou1d he easier. I don't remember what you Said. HR. And I'n going by my notes. I mean. teii you. she said and you asked her about that, end she said: I don't remember the sequence of signatures. I don't remenber who was there. She just remembers it was herse1f and 51ug_ HR. BRYANT: I th1nk this is a more specific question as to what signatures were on this page when you handed it to the notary. THE HITNESS don remember mine that the on1y one I cou1d swear to (By Hr Bryant) Nas Robin Hauney 5 s1gnature on th1s when you handed it to the notary? I don remember H0016 YOU have handed this document to the notary w1thout the witness 5 on 1t? Pos51bTy why# The notary may have in turn handed 1t So do you think Rob1n Hauney n1ght have been at the notary officethe witness to sign. . Q. Case1:O3-cv-03073-ODE Document 85 Filed Page 23 of46 23 A. If you want me to guess, yes. Q. You stated ear1ier that you and your husband walked to the office of the notary. Did anyone e1se walk with you? I A. I don't remember. (P1aintiff'a Exhibit 23 was marked for identification.) . (By Hr. Bryant) when you signed the document that been marked as Exhibit 1 on page three was your name preprinted on the document? You 11 see it reads Norma Duffy individuai what about Entertainment Fi1m Works Inc Nas that preprinted on the document? I rea11y don know Do you know if your name was preprinted on it? It cou1d or cou1dn have been do you I don remember Nhat about the words attest and witness I don renember if anything was guess it had to have been, so I wou1d know where remember _IQoo_grnent 85 Page 24 of 46 24 sign, i Q. De you remember seeing the names of your husband and John Duffy and Caro1ine Duffy preprinted on this page when you 1t? N0 I don remember I don remember seeing these names but I assume they had to Th1s 15 the document you produced in response to our request for product1on of documents If you 11 1ook at page three of the document 1 5 been marked as EXh1b1t 2 d1d the page you signed Took 11ke th1s when you s1gned 1t7 I don be1ieve it did How was the document you s1gned dwfferent 1et me ask you another queet1on I page three 1D Exh1b1t 1 IS that the prepr1nted 1nformat1on I don know how to ask th1s Is the document page three 10 Exh1b1t 1 cioser to what you s1gned than the page 1h EXh1b1t Yes D1d the s1gnature page that you szgned have the word attest wr1tten on 1t f1ve times 11ke page three of Exh1b1t 2? New how wou1d I know that when Case1:O3-cv-03073-ODE Document 85 Filed Page 25 of46 25 remember what was printed on it Q. Ukay. A, to begin with? Q. I thought it might jog your memory. Page one of Exhibit 2, the first paragraph begins w1th the words: "whereas, upon the request by," 3 3f1Z9\" C3'|'|6d Nas the document you signed I ho1iove you previously testified that it had the information that was contained on page one of Exhibit 1 is that correct? Yes Exhibit 2 does not have the names Entertainment F11m Works James and Norma Duffy or John and Caro11ne Duffy on it 15 that correct? Yes And you previously testified that the document you signed had those name on the first page? YES D1d the document you signed have the transn1tta1 information on the top 11ke I don know Nhat tina of day d1d you s1gn thisExhibit 1 has? A. . Q. Case1:O3-cv-03073-ODE Document 85 Filed Page 26 of46 25 I th1nk I a1ready answered that that don't remember The tranem1tta1 1nfor|at1on at top of Exh1h1t 1 has 11 Do you remember 1f 1t was before or after that t1mE? Do you remelher 1f 1t was 1D the afternoon or the morn1ng? Do you remember 1f 1t was day or n1ght? Day Dur1ng bue1neea houre? D1d you keep a copy of the 1ndemn1ty agreement that you s1gned? I persona11y d1d not D1d your husband keep a copy? Yes Have you seen h1s copy* Yes when d1d you see 1t? Hhen P1a1nt1f+ brought aga1net ue Is that copy of your husband does It have copy of your swgnature YesCase1:O3-cv-03073-ODE Document 85 Filed Page 27 of46 2? Are there any other signatures on that copy? Yes Nhat signatures'-* The ones that are on EXh1b1t 1 and the notary D1d your husband show you a copy of Exh1b1t 1? Yes Has lt d1fferent 1n any way? I don know we es Yes it was It had wr1t1ng down here 1H one of the corners of the pages Nas lt d1fferent 1n any other way? that was tha copy that he the or1g1na1 copy or the copy that was prov1ded I really don know And I don really really understand what exactly you re asking about Hh1ch copy? Did the copy your husband showed you have The copy my husband showed me? D1d lt have the Hay 22nd 2001 date Actually, he showed me two cop1es Une Well, actually, he has I'm not sure Case1:O3-cv-03073-ODE Document 85 Filed Page 28 of46 28 had the date on 1t; one d1d not. Q. Were both of them signed? A. I don't remember. Q. was 1n Nevada "By of 2001? A. I den't remember. 0. Do you remember your husband ever trave111ng to Nevada? Y65 When' I don remember BERNARD I assuming you can sort of Tt It 5 re1evant? I don know what 1t has to Hay 2001 and October By Bryant) How often does your husband trave1 Nevada* I have no 1dea How many t1mes do you remember him go1ng to Nevada? Do you remember what year that was" Has It th1s year' He11 actua11y I 11 amend my statement because, yes, we have been to Nevada we have been to Las Vegas and I be11eve 1t was th1e past year OnceCase1:O3-cv-03073-ODE Document 85 Filed Page 29 of46 and Tt has been severa1 t1m&$ You went sometfne th1S year yourself? Yee Have you been before? Yes what other times have you gone? H1th h1m I ve been I th1nk I ve been tw1ce w1th h1m Once maybe five years ago and once th1s past year BRYANT 0 ay That a11 I have THE COURT REPORTER For the record you want a copy? HR BERNARD Vee {Dep051t1on conc1uded with him or before? D. AI R. Case1:O3-cv-03073-ODE Document 85 Filed Page 30 of46 INDEX TD EXHIBITS P1a1ntiff's Description Page Exhibit: Genera? Indemnity Agreement Genera] Indemnity Agreement {0F1g1n31 Exhibits 1 through 2 have been attached to the or1g1na1 transcript 1 3 2 2 3 i Filed Page 31 of 46 31 (PUPSUBHI to Rllie 30(6) of 'lhb Federal Ru1e5 of Civi1 Procedure andfor the deponent andfor requested the right to review the making carreCt1ons andfur thanges for that purpose the Errata pages annexed hereto.) party hav1ng deposit1on, and s1gn1ng. have been Case1:O3-cv-03073-ODE Document 85 Filed Page 32 of46 32 I I A STATE UF GEURGIAI COUNTY OF FULTON: i I hereby certify that the foregoing transcr1pt was taken down, as stated 1h the cept1on and the questions and answers thereto were reduced to typewr1t1ng under my direction that the foregoing pages 1 through 29 represen a true conp1ete and correct transcr1pt of the evidence g1ven upon sa1d hearing and I further cert1fy that I em not of k1n or counsel to the part1es TD the case am not 1h the regu1ar employ of counse1 for any of sa1d part1es nor an I 10 1nterestsd 1H the result of said case Th1s the 5th day of August 2004 lei DaneT1e Reddy CCR 2340 . Case1:O3-cv-03073-ODE Document 85 Filed Page 33 of46 33 COURT REPORTER DISCLOSURE UN DEPDSITION UFC L. DUFFY Pursuant to Art1c1e of the Ru'|es and Regu1at1ons of the Board of Court Reporting of the Judicia1 Council of Georgia which states: "Each court reporter sha11 tender a disclosure form at the time of the taking of the deposition stating the arrangements made for the reporting services of the court reporter, hy the certified court reporter the court reporter enp1oyer or the referra1 source for the depos1t1on with any party to the 11t1gat1on, oounsei to the part1e5 or other ent1ty Such form sha11 be attached to the deposition transcript I make the fo11ow1ng d1sc1osure I am a Georgia Certified Court Reporter I here as a representative of Brown Report1ng Inc Brown Reporting was contacted by the offtces of 1s, Ky Burch to prov1de court report1ng serv1ces for the deposition Brown Report1ng wi11 not be taking this deposition under any contract that is prohibited by A 1 14 3T(a an Brown has no contractfagreenent to provide reporting services with any party to the case any counse1 in the case or any reporter or reporting agency from whom a referral might have been made to cover this deposition Brown Reporting wi11 charge its usua1 and customary rates to a11 parties 1n the case and a financial discount w111 not be given to any party to this Iitigation $1gnature of attorneys present Date nda1 Bryant, Esg U7 28 Horrts Esg UT 28 Return th1s form after rev1ew andlor s1gnaturea to the court reporter for 1UC1US1DH 1h the record P1ease use reverse side for additionaT signatures I a ov' 1 U.C. 5- (D). Ls! Dane11e S. Reddy fs! Ra fs! Case1:O3-cv-03073-ODE Document 85 Filed Page 34 of46 34 DEPOSITIUN UF NURHA L. DSR I do quest1ons me on the Dane1Te hereby certify that I have read a11 propounded to ne and a11 answers given 28th day of Ju1y 2004 taken before Reddy and that There are no changes noted The fo11ow1ng changes are noted Pursuant to Ru1e 30{e] of the Federa1 Ru1es of Procedure andfor the Dff1c1a1 Code of Georg1a Annotated 9 11 30[e} both of wh1ch read 1D part Any changes 1h form or substance wh1ch you desire to make sha1T be entered upon the depos1t1on w1th a statement of the reasons g1ven for mak1ng them Accord1ng1y to 355151 you 1n effect1ng corrections p1ea3e use the form be1ow Page No L1ne shou1d read ge L1ne shou1d read Page Line sheu1d read Page L1ne shou1d read Page L1ne shou1d read ge L1ne shou1d read Page L1ne shou1d read Page Line ahou1d read ge No Line shou1d read LINE shou1d read by 1) 2) Pa No. No. HOL. I I I No. Pa Ho..m" No. Pa 'No_ No. Case1:O3-cv-03073-ODE Document 85 Filed Page 35 of46 DEPUSITION DF NDRHA L, DSR Page No. Line No shou1d read Pgge No. No should read Page Nor Egg u. _i Page Ho Line L1n9 L1ne Line L1ne No sh0U1d Shou1d shou1d Should ehou1d read read read read read If supplemental or add1t1ona1 pages are necessary p1eese furn1sh same 1n typewr1t1ng annexed to this depos1t1on HDRMA DUFFY Sworn to and subscribed before me Notary Pub11c Hy exp1res OWN 1?-10 ht, .Mlmit GA. 30309 404 S76 H979 No Na. No. No. No. No. 'rms the day of I I Case1:O3-cv-03073-ODE Document 85 Filed Page 36 of46 Case1:O3-cv-03073-ODE Document 85 Filed Page 37 of46 U1 H515 P. GEI2 General Indemnity Agreement NDT T0 BE USED F01 KMGWALT. HENRY THESE PRESENTS: IPU11 H13 111112 by Int.. 592| Bald, GA 12. nl L. llufbf. !9lJ Mllah, 331| J. and Duffy, 1690 8. Party land, GA lndemnilars, wlzedur mer: ln me or mare), is avidenuand by the and upon :lu express eomilrlon Hill Lhil bll't:1uusulln PIDEUTYANU DF ofthe of ofice in the City any mbddinry tluzeef; mumesnn mr] assigns, fluuruiruuhx ullud 'hal um' if muy, linm tim lm time hlrulhl annum, nr die of bmah, mdfur nfanumyship ow gamma-:tee in Ih: mn: :sr in dilfcrunl md wi:h :hu sum nr lid il lam! ur diffinm oblige: [nib uf mai bvulii. and- hnndur hululf al: Ind ln: ?1l|'Pll'lf|ll1 in lhu nr In whnin If In pri, I or hmanzr sequin-ul, and up ilu: I lubltatllill. mllellil lad beneficial ir|| 111| obtaining of mn band nr bond! br in the hum mncalling Snid hand orbundf. AND NOW, THEREFORE. lb musineralim. DI lla: prmnisu md the sum ofane dollar, me map! at which in hereby the lmdemnkuxe. and of Elzura, fur lfamsdvea. unch ul' eheir helra. amulrinnmra. mi and mu:-lily, :ln hefnby zuvennun and qu: wish rh>> Company as FEET: To pay vu ilu In advance. sh: premium nr any meh bond or honda. ln mmrduncs with me schedule l|f1'|lGl lmhed In as In bu uhzmd l-.mug Inn; an IinbLli|'y thereunder camima, and to fha nfihe nfsuudu shall la: ir nil.: harm umm: iadelnzlily Chnmamr lium :ml nalnsl my wi lm. emu, damrugan. fans and oFwl||nvo.- kiwi ur mum hmnalcm ur heraulhr nr by ll:-n Company lrynusun. ur in emunng any mal: band ar hands as mary or or pmfuring she \i1eren|1 in making my inmlignlion on SWDHI1 nf' in! lush hand ur bands, in prnuculin; any micna. :nil ur other 'wlsleh my 'nu laugh: in nhoccwith, in cnfamng my nf he herein ennulnud, in "lem Hum linda any such lmni nr bonds: l..1Ii ln indmnify the na in Rall linluilily. Inu, emu. has and eaqzenm as regisflleu oflny reimrurancv ilu! my bu cn my such bond or honda: Cnmimy have right and i| nulhmiud. 'buf nat requifedl la) LU uncle nr ll!! uphn ll) Sluihblinil the slnli inquest it ln lurh nr at un dofuld. s|d\ min O1 IB qpeal Fl-um mah lbiu dupnlic w-ish :hs Company mllacural. lu pay :enderml nr maybe rendered, will: imerenl, com, :rd mameyr fuel; [bl- lo mem manydumge wlawumr lu unyauch bm! or auzdlor my ra lam-y nah bundurbanda udfnr in pun! nomdilinns, glam md comme: or cnmramn lo bornlu mdfkar in Lb: UHIIFNF wlldiliblli, Irllm nT'|1r'n| Ipduiicnrinnl accompanying mini nr and ID :nent ln UT my nr to enewns cr naman: an du manuldnn af my comlnuaninm, mansions ur rmwwals ul' any muh lim! UI hunch md In lny lubllinltu ur lhe wut m' |lilTere:1l Ind ahllgats Ind 'Mill th: or lunar ur :nun Ill of Ll! allarcsuid in 01 lc|1nvlarlge nf ilu ll using and thai |11 Tndemnjlurr te-mlin bcund unda: the nf his :van my such by th: dues nr mlglu nuhurnlally lncrenae the lilbiliry uf said larlmnuiun: lc! lo :meh rerun a uiedulg nr wi enpy ar enpiu army hand In EII up 1:8 fifllq, und an mms: my mm in filling up :my blanks herein. ur infnn nfmes Il lpn!! mall schedule md sunk gapy gg qpgigg, gg mi |531 whan lo mann, shall be current; FOURTH: mall extend ua, mn ful! nnmmi nfany and all mnneys paul by the Company lb: nl UI my slilmu. nil: and in :msd fni|11. undo: ll! bulfieftlu: it wa.: linhle 186 P. Case1:O3-cv-03073-ODE Document 85 Filed Page 38 of46 is BCIUCHAED P. UUE ]1Gil'l|I lli-1 Iherdful. vrhsihs- Iinbls or mi. II ll himafcrsaaid, meh my 5, mud: th: belief atm mhven nnasiary. whelhnl mmaauym noi; in 11; arm nr mnupnmisu of mm. dnmugcs. imumrys' lim. glam, *mm guiu aibmaid. in with my sn-.sh sr bands. an immihed alalemmi nluzren12 swam tn ls! my nr -nlicem nf 111| Cuimany. uw me vausmr or vuichers, or mins: eridnnun ufsueh pm-nam, ieula or shall ufrlr Habiliiy ohh: in my and nil clnima ur suis: Iwreundrr; "rin: nuthin; ilmin wlieiwd MD be ministered or nonsnued no waive. Lbridge ni: diminish my right or namely which the Cn;-muy mighl hilvi aifl?llil Imlnmilnt wir! To and do inrduy waive, an 1-i;l1nu chin: any including as exempt im:-n lwy, "gg dm kgs! plums. undnr the hw; nfany nm nr uma; in gm any of :hu Indumniwurs nball fail ru menu ur iz. cane my -nf dia Iriciemnirow, eucuwthii ne lmund iiarmr mann, iizafim Lndmumms shall nevenhelens Bu hound hmundu for ilie gn,-gun; mg, mm, fuel and in afnmaid; T, mm, md do hen-by wlivr., nnrics of nr' my such hand an .iuhulg rims. may give rin In claim -nuggm immuugiu ;h|I1 be Iiheially :nn-summed. so ai lilly the &nm.\ny; TMI win my hebrnugln Il CJIIM nfacian may m:nn:e_ and the bringing ofum nr puipgl ag up gf nf jndgimim :herein shall um prejudice nr bar Ili: brimin; of illrl-5 upon niher nlfaclian. whiter llwtindhro wrhurufnar Tim Eb: Cammy fines nut guaranncs the army suck bond nr hands, nr th: azeepranse fiaersnf by gba 9|-gbijmm mrein nm-n1,nnd rim thu I-ull haw lim light decline an nm-.uw nu Ill-Ch hand nr bnudl: TN: in th even! li: Cunpany th: of any with bond or band: by umm mixer or me ur laulldl Willi- oth!! i1L::>>Qy ul nineties all ee-nlircries, Cl my purliun sf well 'linlld ar 'bands wide mlm' ENUM lu-aiu: as than LII Lha :arms and caciidnni irulrurrxelt lhall inure ia the benem army such Wgmmigg, :ie right to lclian hsreundeli Thu Lim Indeumim-a shall aiminue in semain bmuxi ulliler Ill# nt' this inimnucnx un ncoiml ni' any such bond orbundu nm zlunigh tl: Company may frusn Lin: no with as actin ra cn' knwlodmc illiumhitnrs, step! nilubt 0| rl! indemnity on limilrr nl' athlr farm! it in with :bg QI pmcunuu nfaay meh nr hands. it eacpieasly uniinzainuai ml by the Lnnmuumn ml my ml slgluu 'Hillel ilu Compmr my hw lrquirl Indemnimrs audio: oiliera wk: any such ulher nr lamruznrr ofindumiw in addition m, and nat in lieu uf. the righsaffm?ud by :hu this inm-umm. WI|g|?u, hu buulnfere mmulld bond: un 'Shu express and undumudlng, 'flat :I-ie Iudurnliilou' 'ldll md in of me lgremml 'm exeema other bonds lnuhim rn Pangraph quememi :his :hull any band nelmds execurnd nnur Mn 11. 2301. uigimnm nn qw rwlmiing |nfi'm-rulm in plug an nwi-i dm :hm in lmuduui miui smrian iniirl. nl imkmi . . .. . . Slgiiedqicmludmcl daled this ,fi7"' 'cn-|36 Case1:O3-cv-03073-ODE Document 85 Filed Page 39 of46 I IFS.sumw -EACH MUST THIS Case1:O3-cv-03073-ODE Document 85 Filed Page 40 of46 |1=l5 BUUGHARB as; me-5 Fm by ul 'fior ss_ utmuunur DMM. _hr .gf 74 I hefove me. tie pm, Nd no me personally hy mem be person in. md *iw ll|'E'hb? Wimsu my um ma wr. M1IarJrPu-Ulf: Mymnuuniumirpiran For Aulsnuwiedgnunt by nl fa SS: _mumor "yor xgfc-fa# ,fool dw 1? nl ln. md wh: susufiih I-bi url my alficial se|L' M4 N-wmf ww- dar nt. EUR befor: nm ill. who :xncumi Illt Enregning and Ag _Ig mum sul 5. Nadnry PubF|'Case1:O3-cv-03073-ODE Document 85 Filed Page 41 of46 ECT. LIILE INS. T27-Hillbi E05 Fw by Imlc ?;Ta5e fc 3200 mmf. un.. dw uhm-ins. M1 IM bv lu die pe-ri described Ln, and 4: md. dn Rnugoiag imuumuu: und same to he bg; an and dggq, (9 qw I wmvNotary Pubhc 1 MyCamn-usalnn F5\rpih\$ "70?7l' 29 by Cnrpu nm fa fu SSI comvrv o?iw; 1. Un fm- lbw! . mm me. me pennanlly app-nu-el up mn My swan. dirldapaneand uylluu he maiden in the nity ot' that he il I4-w _lim Prunislsm nf mu carporarinn d$1'lbld lu. tcm! whidu aroumcud, :hu wlrhirl that he du ariaid nmpuralion; hs sun ro md auch curpume ull; ilu: 11 ms so :mud by order of the Baird ?fDireu|m ofsaid colpm-anim, and am in nignad his Ili il Setltluyoflaid cumpmirlon and thai ha sebs,EURrlhed mm: ll! the by :nn wa. arm41.1 nf My 154- .TI T44 Reg? 43_?f46 8 5, General Indemnity Agreement NOT TO BE USED FOR BONUS Ow ALL MEN PRESENTS: IEREAS, upon the request made by called incleinnitora, wltethsar there be one ar more), as is evidenced by the l1=f=U? and upon the express condition rhal. this be cxecutecl, ANI: Deposit' Cowmn' or Mmmum. a Drill!! Sill!! of will! its principal Dine in like ciry of Baltiznorie, any subsidiary thereof, 'l.l'1ei.r Sllcotssars and UB, [`herell'1aRer called Company), has executed, or pmcurod the execution oi and may, E-urn ri_ma no time hereafter sxeeule, rw 1h= imdemkings anddor obligari ons of or guarantee in the same or in di&rent penalties and 1 the some or diEcrent conditions ancllor provisimas. and in of the same or different ubligecs (cada uf such bonds, makings md obligations being hereinafter called bond or bonds) on behalfoli and any oorpnratlon in which the said [nclemnitor owns, dir-emily ar indirectly, in whole or is part., a Wlleller eliatinlur mired, and any ruidgnf have a substantial, material and intnresl i.n the obtaining ofthe bond cr honda ur in lil'-33' 5 11-ll'l-lI'1lBg from cancelling said bond or bands. AND NOW. THE-Rimes, in consideration or me prxnisos ana me sum of me noun- me me of wlich 1awled?e=l. the lndamnitoro, and each of them. for theniaelvns, each 01' ahgir *ld #lb llereby WYHIMI and agree with the Company as lizllowa: Tunes In the Canons. in adwnoe. the premium or premium for any such :ma at-lmao, in ammauceie-in dm till-Ile Ilt?ihuf 1001* lc be ltladtcd herein* as long as liability theretmda' shall and until evidences satisuacmn' to :0iIlPllI)". 0'fl.l'l? shall bc Rimiahed tn ir as its llcanc oline: EOOND: To indemnity the Company ii-om and against any and all liability* loss, costa. damages.. attomeys' [aes and msn. kind or nature, heretofore or liereafrar susxained or ineun-ad by the Cunpanyby mason, or ln conaequerme of i1s :ming any audi braid nr bond; aa surdy nr or procuring the evcecution in malring any on account of such bond or bonds. in defending or any action, suit or other proceeding which may be brought in oonneotiorn swiah, in enforcing hqfein oqntained, and in obtaining a release from liability under any sudt bond or bondli tn iruclemnify the Company to the amount nl` liability, loss, oosts, daraages. attorneys' tees and expenses as afor=P>>8id>> .nileas ofany reinmrance mat may be earriod on my bond or bonds; Tha: the Company shall have right and is hereby authorized, but not requinod: to ndjua, santa nr compromise -claims, demands, suits upon any such bond or bonds, unless the lndernniiors sl1.a1lt-equeat it to litigalne such claims or ands, or to defend such wits or to appeal from such judgments, and shall deposit with the Company satisliotnry collalerils icieol to pay orjudgrnenrs, rendered or than may be rendered, with iJ1t=r==t, CMU. Ind fill ssent toany :lunge in any such bond or bonds andfor any contract or rein-red ro in any such bond iq- ig the general conditions. plans spucilimtions accompanying said contract or eocntracrs and to bands anilior I11 the eral conditions, plana antlfor qaocilioarinns accompanying saii mm-rack or conlrads and to assent to or take any 85-913111118111 Ui' so execute or eonsent in the execution crfany :rm-irinnalions. extensions or renewals of any bond Qi' "ld :ne any naamna or minima, mana-, wan me same our difrsram mmlininns, nwvaiws and vblisws and with Ms "1 er or mulls- penalties, all ElfIl1C aforsairl without notice to nr knowledge ofthe Indeannitoafa, ir being expressly understood and th!! the lrldemnitnrs remain bound under the terms ofthis even Lhough any auch 855511 by Ili! EICIIPBUF dw :ight substantially increase the liability of said In attach hereto a schedule ofraies and oops' or nl or bounds, lo iill up any blanks leil herein, and tn ora-red any emsrs in flillng up any Uf _I-fl 'lf fn" chad, it being hereby agreed 'mat such schedule and such oopyor cupiesuwhm so "ld 'Wh so made. shall be primfucie ro1nt'rr~1? nm tummy uefaunan nnu uma m, and tncrude. the lull and all Mm 1304 bv li" hr 'eltiemcnt or of any claims, suits and judgments thereupon, in good faith. under 1-ll? l-l"l 1* lfmiaa 1 whether liable or not, as well as ofany ani all dis`hurs ents on amount 0f`009l!, im md dt maybe made under the belief that such were necessity. 01' |1015 I Exam.- tb-JM_-we 5,53 ,ui In Case1:O3-cv-03073-ODE Document 85 Filed Page 43 of46 511 ?l1? Qfpaytnent. Settlement or compromise of liability, loss, costs, damages, attomcys' |ix:s,exp:mte5, img, demands, suits as albresaid, in oorutection with any such bond or bonds, an ibcmiaed swam oo my or ofhvers ofthe Company, or the voucher or vouchtri. or otha cvidentre ofsuch settlc or compromise, shall primlajiacm evidence ofthe :ict and ofthe liability ofthe Indemnitors in any and all claims or suits hereundw; That nothing hermit contained shall he considered or construed to waive, sbrridge or diminigh my fish; m- mmedy ith the Company might have il' this insuument were not executed; SEYENTH Tu ltlid do waive, all right no claim any of their property, 3_5 "mpg gon-1 Y. S\fl= Gt other legal prowess, uncle- the Jaws ofany stat: or stains; Tltal. in use any ofthe Indamnitnr: shall fail to execute this instrument, or in case any of the Indemaitm-a, who cute: liars shall not be hound Rr any reason, the other lttdemnitors nevertheless be bound hereunder iixr the hill ml li#-5. damages, fees and experts:-s as aforesaid; imwmi notice ofany breach or breaches ufany such bond or hoods. or ofazny act or defa uh: Thai this Instrument shall bv; liberally construed, ro as to the That suits may be bmught hensunde: as causes afmim ma accrue mai th.: bruigutg of on maram anal: not nt bar me imaging Qraliira upon other num elofum at tl1?tw.ll.cr arising; That the lfompany does not _guarantees the prompt issuance ofanysuclt band om- bonds, or the acceptance thseof J: Dt lhemtn named, ind lhat lhe Company shall have the absolute right to decline to my bmi gr .11 Tha: in Illt event the Company the execution of my such bond ot bonds by some other surety or lies, or executes such bond or bonds witl-i other or aureties as co-sureties, or reins-urea any portion efsuuh bond or bonds iotlter surety or surmise as reinsurers, than all the terms md conditions shall inure to the ber|eEt ot' any such ty or sursies, the right to bring action hereunder; FUIJRTEENTH: Tlut the Indemnitors shall continue to remain bound under the this on nuootmt ofany 1 bm-id nt bonds even thnugli the Company may &otn time to time hereafter, with or nutme ta or knowledge of the inept other or gdditjongl ggreentents ne' indemnity an similar oct other iorms to indemnify it in Wilh 1115 fulion our ptooumneut ofany such bond or beimis, i1 being lieroluy expressly Hd 1955 lB'*h9 WI mg right; whi?}| fb; may hnve gr acquire against the lndamnitnrs andfor Uh!! under any such other 01' ofindemnity omit he in aadittm ta. and nm in lieu an the rights by md# *bw Wheat, surety hu executed bonds on the express condition, promise 3115 F1121 The will um-star and in runhu-masiamrim aftha aumft ap-aamenrm rarrcutenmerbonds rmllitor pro C. _ygpb Twelfth nfthis agreement] this indemnity shall apply to any bond or bonds Url gud Ib). Flgf-llill i wr azirrni in me mm ned, sealed and dated this day Ist. lt. 18311 . HM, 1-94 Case1:O3-cv-03073-ODE Document 85 Filed Page 44 of46 EACH MUST THIS INSIRUMENT Case1:O3-cv-03073-ODE Document 85 Filed Page 45 of46 For Individual Indemuiturs OF SS: CIF "Malin HEY 0f belbre mg, aww' to me and hinwn by mc to be th; person described in. and who exrcmed, the [ur gg-um :nowluigecl sumeto be ag; gud egoms an an Willmis my hind and oicigl seal, Nararyfrabffc My Cnmmission Expires Fill' Arkhuwlodgmeni by Individual Indamnilor! KTE. OP SS: UNTY DF ?f hem me. the muwirm, min! and Known by me nu-be the pa~son_ kH`ibB\`| in, md who execmed, :he ihrregoing 3; mwledged same lobe act and deed. Fitness my hand and official seal. Naimy My Commission Expires Fur Acknowledgment by Individ ual OF SS: JNTY OF on this da), of . before me, [ht 'PP?l1'?d to me xl); known, and by me to he the person described i-ll. and W110 FWUSUUIS md mvdedgad. same to be act and deed.. my \i8.T1d md nflicnal sed, My Commission Expire: Case1:O3-cv-03073-ODE Document 85 Filed Page 46 of46 For All by Iildividull lndenmitnrs .Tis UF SS. JNTY On this day of me, the appeared to me anally lsnown, and known by me tube due person described in, and who executed, the faregning and Owledied sm: tu be acl: md deed. Wimcss mY hand and oficial seal. Norc.u;v Public My Cmnmission Expire For Acknowledgment by Curpnr-at: Indemulturs TE DF 55: NIY GF On *hi* . before :hu wily to me lnally who, being duly swurn, did deposeand say that Ile res!-dn in ciry he Prulclent of la described in, md which eneclned, the within know: the seal ofsaid corporation: 'Llm lhe sm] mixed to nsmment is suda umpmam seal; :hu byorder ofThe Board of Diraelms ncfsaid ou-pantim, and that hesigned m?g1?-gn bylikg nd uw said than he is scquaimzed with that he is the SEWENIQ of slid corporation md that he subscribed I: is nam: to Th: within :nrder ufzhe mid Board afbirecmrs, and in the Wimcse myhand and olicial sal. Nam? Pnlwa My Cmumisiim EXPETCU HM, 1-94 Case1:O3-cv-03073-ODE Document 86 Filed Page1of116 1 OH :az n1m ZZ gn: ,asm ,run 4:52 Econ: m*"U zcoz G14 can :FIDELITY AND DEPDSIT COMPANY DF MARYLAND, P181Dt1ff. CIVIL ACTION va. FILE NO. ENTERTAINMENT FILH WORKS, INC., et a1., Defendants. DEFDSITION OF CAROLINE DUFFY August 5 2004 00 Chamb1ee Dunwoody Road At1anta Gearg1o DanelTe Reddy CCR 2340 Atl FA 30309 4|]4 H76 H979 Case 1 Document 86 Filed 06/03/05 APPEARANCES UF CUQHQEL Un heha1f of the Piaintiffz U. RANDAL BRYANT, Esq. Bovis, Ky1e 8 Burch LLC Third F1oor Perimeter Center East Atlanta, Georgia 30346 Un beha1f of the Defendant John Duffy: HAURICE J. BERNARD, Esq. Lew Dffice of Maurice J. Bernard 3117 Chamh1ee Dunwoody Road At1anta, Georgia 30341 behalf of the Defendant Da1e Dbracay: STANLEY H. LEFCU, Esq_ 4651 Roswe11 Road 602 At1anta Georgia 3032? Dn heha1f of the Hitness Caro1ine Duffy DAVID NUTTER Esq Nations Toman Nutter LLP Suite 1550 Tower P1ace 3340 Peachtree Road NE Page2of 116 2 Un At1anta, Georgia 30?25 Case1:O3-cv-03073-ODE Document 86 Filed Page3of116 3 nn. BRYANT: This is the depus1t1=>n of I Caroline Duffy, taken pursuant to Notice and I agreement in the action presently pending in the United States District Court for the Northern District of Georgia' captioned Fidelity Deposit Company of Maryland versus Entertainment Film Works et al C1v1l Act1on file number 1 03 CV 3072 ODE This is taken for all purposes permitted by law Hy name 1s Randy Bryant am representing the Plaintiff Mr Nutter would you like for Hs Duffy to reed and sign the deposition transcript? HR NUTTER Yes MR BRYANT A11 objections to the time and place of the deposition and the qualifications of the court reporter are hereby we ved if that agreeable with counsel BERNARD That is LEFDD That agreeable NUTTER Agreeable BRYANT All other except as to the form of the quest10n and respons1veness of the answer w11l be reserved until such time as this depos1t1on it sought rm. Case1:O3-cv-03073-ODE Document 86 Filed Page4of116 4 be entered into evidence in this matter. Is that a1s0 agreeah1e? HR. NUTTER: That'e egreeab1e. CAROLINE N. DUFFY, having been first du1y sworn, was examined and testified as fo110ws: EXAMINATION BY HR. BRYANT: Hau1d you please state your fu11 name and address for the record Car011ne Nutter Duffy 1690 Johnson Ferry Road NE At1anta Ge0rg1a 30319 And you re married to John Duffy? Uh huh when you answer if you wou1d p1ease say or Okay It easier for the court reporter Have you been married before* Do you have any ch11dren7 Yes Nhat are their names? Char1es we ca11 h1m Chez And Noah Do they 11ve with youCase1:O3-cv-03073-ODE Document 86 Filed Page5of116 5 A. Yes. Q. what 1s your occupation? A. Pub11c relations. Q. who is your empToyer? A. Jackson Spa1d1ng Communications. D. Nhat are your responsibi1it1e5 there? A. I'm a senior account leader, and so I 1ead teens, do work for various cT1ents. How Iong have you worked there? N1ne years And where 15 your work? Nhat is the address? It Co1ony Square In At1anta? Uh huh Let go ahead and get those s1gnature pages Before the depos1t1on started I asked you to STQH these documents There are 25 documents and you signed then under the name "Caro11ne Duffy Ind1v1duaT each 1n hiue 1nk 15 that correct? I go1ng to mark as EXh1b1t 1 cop1es of those s1gnature pages w1th your s1gnature on them I just 11ke for you to look them over and ver1fy That'5 correct. al . I Case1:O3-cv-03073-ODE Document 86 Filed Page6of116 6 that they're a true copy. A. I just need to look through each of these. He go1ng through the copies now. A Soon as he 5 done with those Have you ever had your depos1t1on taken before? Once before yes Nhen was that? I don even remember I Q01HQ to say 10 years ago but I don know were you a party 1n a case or a (Node head aff1rmat1ve1y what k1nd of case was that? [P1a1nt1ff Exh1b1t 1 was marked or 1dent1f1cat1on (By Mr Bryant] Elh1b1t 1 15 a copy of the s1gnature pages you provided to me I 11ke ou to 100k through those and ver1fy that those are the ewgnatures cop1es of the s1gnatures you just Yes they are don't remember. I don't reca11_ 0. . A. Case1:O3-cv-03073-ODE Document 86 Filed Page7of116 {P1a1nt1ff Exhibit 2 was marked for 1dent1f1cat1on [By Hr Bryant) Exh1b1t 2 15 a document 1abe1ed General Indemn1ty Agreement If you wou1d please look at the th1rd page There a s1gnature under the propr1nted name Car011ne Duffy Ind1v1dua1 Is that your s1gnatur9? I not go1ng to tender th1s as an EXh1b1t but th1s 19 the or1g1na1 HR NUTTER The 0r1g1nE1 Df Exh1b1t 27 HR BRYANT R1ght Mr Bryant) I just I1ke you to 1oo at that same s1gnature 11DE of this or1g1na1 s1gned the name Caro11ne Duffy Is that your signature? HR NUTTER HR BRYANT NR NUTTER HR BRYANT secretary HR LEFCD HR NUTTER Can I Took at that because Sure Is th1s part of the That was added by my Tike to see 1t Dkay No. too. Case1:O3-cv-03073-ODE Document 86 Filed Page8of116 8 (By Hr. Bryant) Above the signature 1ine for Caroline Duffy there 5 a signature 1ine for John J. Duffy signed on it. Is that your husband signature? It doeen Iook like his signature to Are you iem11iar with your husband 51gnature? Uh huh Nhat about that s1gnature doesn look 11he your husband s1gneture? The are not how he usua11y 1oops h1s And frenk1y 1t looks contrived It Iooks 11ke somebody took special care to craft the S1 nature The 1s not bow he makes his a The f1rst signature on the page under the word attest is that your husband 5 signature? Aga1n, 1t doesn 1ook 11ke his signature to ne Did anybody ask you to s1gn this genera1 1ndemn1ty agreement? D1d you ever see th1S 1ndemnity agreement without your name hav1ng been signed the doeen't 1ook like his No. Case1:O3-cv-03073-ODE Document 86 Filed Page9of116 G. Has anybody from Entertainment Film works asked you to sign any indemnity agreement before? A. No. Q. Did you see anybody sign this agreement? A. No. {P1a1nt1ff's Exhibit 9 was marked for ident1f1cat1on.) (By Hr. Bryant) Exh1h1t 3 is a Tetter dated Hay 12 2003 with a signature Tor Caro11ne Du fy I that your s1gnature? Uh huh D1d you wrrte th1s 1etter7 Yes {P1E1Ht1ff Exh1h1t 4 was marked for (BY EXh'|b1t 4 1s a 'letter dated June 17 2 3 es In th1s Tstter of June 17 the second the General Indemn1ty Agreement Was that the f1T5t t1me you had seen a copy of the 1ndemn1ty agreement? Uh huh F1rst tmme I had any know1edge of th1s was when I got correspondence from Harriet paragraph says, appreciate your send1ng a copy of A Case Document 86 Filed Page 10 of 116 10 whatever her name is. (Pla1ntiff's Exhibit 5 was marked for 1dentif1cation.] 0. (By Hr. Bryant) Exhtbit 5 is a personal f1nanc1a1 statement. It appears to be signed by John J. Du fy. Is that your husband signature? on now. I mean it could e. neen I ve never seen th1s document Does 1t 1ook 11ke h1s s1gnature to you? We 1 aga1n it 1ooks 11ke a copy the and the m1dd1e don 1ook Itke how he makes hte Js and Ya {P1e1nt1tf Exh1b1t 6 was marked for 1dent1f1cat1on (By Hr Bryant} Exhibit 6 15 a State of New York workers Compensat1on Board form At the bottom 15 a s1gnature John Duffy Does that Iook 11ke your husband to you? It Iooks 11ke 1t oou1d he his e1gnature {P1a1nt1ff EKh1b1t was marked for 1dBHt1f1C&t10U {By Hr Bryant) Exh1b1t 7 18 t1t1ed Art1c1es of Amendment to the Artic1ee of Incorporatton of Enterta1nnent F11m Works Page 21 has the s1gnature of John Case Document 86 Filed Page 11 of116 11 Duffy." Does that 100k 1ike your husband's signature to you? A. It most1y Iooks 1ike his signature. The daesn't look like how he norma11y makes his It very different from the on this document which document are you referr1ng to? Exhibit 6 Elh1 bit was marked T0-r' (By Hr Bryant) Exhibit 8 on the f1rst page 1s a letter dated November 22nd 2002 It has signature for John Duffy Dees that 100k 11ke your husband s1gnature to you? Yes Does it Wook more 11ke his signature than the signatures on the PFEURV1DUS exh1b1ts? I wou1d say so yes what 15 it about that signature (P1a1nt1ff 5 Exh1b1t 9 was marked for 1dent1ficat10n (By Hr Bryant) Exh1b1t 9 15 3 ietter dated October 1st 2002 It has a signature for John Duffy Does that Took Tike your husband signature to youCase Document 86 Filed Page 12 of 116" 12 YES That Exh1b1t 9 is 3 1etter addressed to 1M Duffy Uh huh (P1H1Ht1ff 5 EKh1b1t 10 was marked for 1dent1f1cat1on (B Hr Bryant) Exh1b1t 1D 15 a Tet er addressed to Zur1ch with a signature for John Duffy Is that your 15 husband s1gnature? It Iooks 11ke 1t HR LEFCO what 15 the date of that Tetter? HR BRYANT 0Gt0h9Y 1st 2002 {P1a1nt1ff 5 Exh1b1t 11 was marked for 1dent1f1cat1on (By Mr Bryant) EXh1b1t 11 1s document t1t1Bd Genera1 Indemn1ty Agreement On the th1rd page there are two names s1gned One 15 John Duffy The other appears to be James Duffy Ie the e1gnature your husband s1gnature? s1gnatures It looks d1fferent than the other that I have sa1d 1ooks }1kE h15 61gnature So you don know I don know if h1s s1gnatureCase Document 86 Filed Page 13 of 116 don know but I don th1nk 1t 1 11kB h1s {P1a1nt1ff Exh1h1t 12 was marked for 1dent1f1cat1an [By Nr Bryant) Exh1b1t 12 15 Tabeled Bond App11oat1on On the fourth page the name John Duffy Does that Iook Nat you s1gnature that nd 15 s1gned under the word Attest 11ke your husband signature to you? as much as some of these other ve shown me Aga1n I don know I recogn1ze what exh1b1t 1s that on? Exh1h1t 8 Go1ng hack to Exh1b1t 10 Th1s 15 1etter dated October 1st 2002 The Ietter states At th1s time I w1thdraw my persona1 guarantee on the general 1ndemn1ty agreement dated October 11 ZDU1 D1d your husband at any t1ne around October 2002 ta1k to you about the genera1 fndemn1 agreement? (P1a1nt1ff 3 Exhibit 13 was marked for 1dent1f1cat1on {Ey Mr Bryant) Exh1b1t 13 1nc1udes a 13 A. I ooks O. 1 But it'a not to me 1t's not this Case Document 86 Filed Page 14 of 116 var1f1cat1on s1gned w1th the name John Duffy Is that your husband signature? ould ba Again I don th1nk the th1s 1S a copy on h1nk the 0 Touks ]1ke how he s1gns 1t It cou1d be I sint1ar certa1n1y HR BRYANT Do you have any questions for Ms Duffy? HR LEFCD Ara you done? MR BRYANT I may have some more hut I need to go through ly stuff EXAMINATION BY MR LEFCO Hs Duffy P1B1Ht1ff Exh1h1t 2 wh1ch the Genera1 Indemnuty Agreement I th1nk you said that not your S1QnatUfB Correct Do you have any 1dea who may have signed your name to that document? A No Cou1d 1t be that your husband s1gned your nano to that document? A I asked h1m that, and he sa1d no, so I h1n It's not 1n h1s tnterest to 51gn ny nane He knows that he's not author1zed to sign gage Document 86 Filed Page 15 of 116 name 0 name9 But you did ask h1m 1f he s1gned your cllent 15 the f1rst I heard about lt I saw ny name on the ocument sa1d at 15 th1e And he 531 he d1dn sign the document e1ther So ne1ther one of us did name? But you asked h1m if he had s1gned your Yes And he S&1d no And Pla1nt1ff Exhibit 5 wh1ch lS personal f1nanc1al statement on SunTrust form you ll note 1H the lower left hand corner 1t sayg Harsh 31st 2001 about that of loan or lead to statement? A. 0. prevlously depos1t1on Yes Do you know lf at around that t1ne or t1me if your husband applled for any type did any kind of ref1nanc1ng that would lead hin to complete personal financial I have no recollection of that. I'm going to hand you a document marked as Exh1bit 12 in your husband's 3 I don't th1nk it'sHhen I got the correspondence from your . Case Document 86 Filed Page 16 of 116 1E MR. NUTTER: Why don't we just go ahead and nark it as an exhibit. LEFCD: Let mark it. (P1aintifi Exhibit 14 was marked for identification (By Hr Leico) P1aint1ff Exhih1t 14 and just to save t1mE it appears to be a check written from Enterta1nment F11m Works, Inc Yes And it appears to be signed by your husband Do you recognize that signature" It STMITBF to his signature It Iooks 11ke h1s signature to me It does okay You had no involvement at a11 with Entertainment F11m Works" None at a11 Ownership position? T1t1e? No nothing Did you know Hr Dale Obrecay? I have met Da1e Under what cireumeiencee d1d you meet h1mNever held any office positionCase Document 86 Filed Page couple of times at social occasions. He orig1na11y if I remember right brought a franchise prospect to my husband and than was interested in gett1ng invo1ved with the company and actua11y worked for them for a period of t1ne. HR. LEFCD: I have no further quest1ons. Thanks wait one second (By Hr Lefco} Has your husband ever s1gned your name to any documents? You know occas1ona11y he pays the b111s 5omet1mes he 11 sign a check for me but not on a regu1ar This may be a sort of an unfa1r quest1on But October 11, 2001 approx1mate1y a month after 9111 wh1ch puts a do you have any vdea where your husband may have been on that part1cu1ar day? I have no 1dea Do you know Tf you and he were poss1b1y out of town on October 11, 20017 I have no 1dea A11 I remembering dur1ng that t1me per1od De1ta 1s one of my c11ents I was down at De1ta on you know an emergency has1s after 9111 And so I was work1ng pretty hard I don know what day of the week that was Case Document 86 Filed Page 18 of 116 18 MR. LEFCG: Do we know what day of the week that 15? BRYANT I don know BERNARD Thursday THE HITHESS I would have been et work By Hr Lefco) Do you reea11 when your husband resigned from Enterta1nment F11m works? on He was had k1nd of a 1h 1nterest for some t1me He wanted to get out of the company and was less and 1nvo1ved It feels 11kE a coup1e two years ago were your k1ds 1D schoo1 1h October 5hou1d have been yes Sawnt Hart1n Both of them? At that t1ne One of my chiTdren goes another schoo1 now At that t1m? yes I th1nk that where they were HR LEFCO Thanks I have no further questions MR BRYANT I ve got a ew D1d you have any* HR BERNARD HRwhere do your kids go to schoo1No. Case Document 86 Filed Page 19 of 116 HR. BRYANT: Just a few more que5t1ons FURTHER EXAMINATION BY HR BRYANT Have you ever s1gned any documents reIated to Enterta1nment F11m Works? I only reca1I one t1me and I th1nk I was a w1tness to someth1ng 11ke a TTQUOT 11oense That the on1y th1ng I ever remember Hhose s1gnature were you w1tne5s1ng for a s1gr1ature to the Hquor hcense? I on remember but it wasn that my memory of 1t yes Have you seen your name s1gned on any other documents re1ated to Enterta1nment F11m works? No I not aware of any I wou1d be pretty angry If I found out they NR BRYANT 0 ay That 311 THE COURT REPORTER For the record you want a copy (Off the record HR NUTTER YES LEFCU NR BERNARD (Depos1t1an concluded Case Document 86 Filed Page 20 of 116 Zi] INDEX TO EXM1 INAT IONS EXAMINATION PAGE Examination by Hr. Bryant 4 Exam1nat'ion by l'1r. Leica 14 Further Exan11na1:'ion by Mr. Bryant 19 Case Document 86 Filed Page 21 of116 Z1 1 INDEX TD EXHIBIIS P1a1nt1ff's Descrigtion Page 1 25 Signature Pages 6 General Indemnity Agreement 3 Letter of 5112103 9 4 Letter of 6117103 5 Persona? F1nanc1al Statement 16 6 New York workers' Compensation Form 10 Art1cTes of Amendment 10 8 Letter of 11122102 11 Letter of 1011102 Letter of 1011102 GeneraT Indemn1ty Agreement Bond App11cat1un Answers to 1nterrogator1es Copy of Check Number 30325 {0r1g1na1 Exh1h1ts 1 through 14 have been attached the or1g1na1 transcr1pt.} Case Document 86 Filed Page 22 of 116 (Pursuant to Rule 30(2) of the Federal Rules of Civil Procedure andior 0 the deponent andior a requested the right to review the making corrections andfor changes for that purpose the errata pages annexed hereto.) party havin deposition, and signing have been Case Document 86 Filed Page STATE DF GEORGIA: COUNTY UF FULTON: I hereby cert1fy that the foregoing transcr1pt was taken down as stated 1n the capt1on, and the and answers thereto were reduoed to typewrit1ng under my d1rect1on that the foregoing pages 1 through 19 represent a true complete and correct transcr1pt of the ev1dence g1ven upon ea1d hear1ng and I further cert1fy that I an not of k1n or counee1 to the part1es 1H the ease am not 1D the regu1ar employ of counse1 for any of said ner am I in anyw1se interested 1h the of sa1d case Th1$, the 20th day of August 2004 Dan611e 5 Reddy CR 2340 . 1 1 I 1 Case Document 86 Filed Page 24 of 116 24 COURT REPORTER DISCLOSURE ON DEPOSITION OF: CAROLINE N. DUFFY Pursuant to Article of the Ru1es and Regu1at1ons of the Board of Court Reporting of the Counc11 of Georgia wh1oh states: Each court reporter sha11 tender a form at the t1me of the tak1ng of the depos1t1on etat1ng the arrangements lade for the reporting serv1ces of the cert1f1ed court reporter by the cert1f1ed court reporter the court reporter enp1oyer or the referral source for the deposutwon w1th any party to the 11t1Q8t10H, oounee1 to the P3ft195 or other entity Such form eha11 be attached to the depoe1t1on trenscr1pt I make the fo11ow1ng I am a Georgie Cert1f1ed Court Reporter I here as a representat1ve of Brown Report1ng Inc Brown Reporting was contacted by the of v1s, Kg Burch, LLC to provwde court servtces for the deposition Brown Report1ng w111 not be tak1ng th1s deposition under any contract that 13 proh1b1ted by 14 3T(a and Brown Report1ng has no oontractiegreement to prov1de eerv1ces with any party to the case any counsel 1H the case or any reporter or report1ng agency from whom referra1 m1ght have been made to cover this depos1t1on Brown Reporting w111 charge usua1 and customary rates to a11 part1es 1h the case and a f1nanc1e1 d1scount N111 not be g1ven to any party to th1s 11t1g8t10h Dane11e eddy, CCR 2340 DB 05 04 51gnature of attorneys present Date Davwd Nutter, Esg Haur1ce Bernard, Esg tanley Lefco Esg Return th1s form after rev1ew andfor to the court reporter for 1nc1us1on in the record P1ease use reverse side for additional signatures o_o. 15- (IJ). fer Jef N. Randa1 Bryant, Esg. sf ua-05-04 ref Us-05414 :sr oe-os-04 Case Document 86 Filed Page 25 of 116 25 DEPUSITIDN OF CAROLINE N. DSR I do hereby certify that I have read all questions propuunded to me and all answers given August, 2004, taken before Danelle S. Reddy, and that: There are no changes noted The follow1ng changes are noted Pursuant to Rule 3U[e) of the Federal Rules of C1v1l Procedure endfor the 0ff1c1aI Code of Georgie Annotated 9 11 30{e) both of wh1ch read TH part Any changes 1n form or substance wh1ch you des1re to make shall he entered upon the depos1t1on with a statement of the reasons g1ven for nak1ng them Accord1ngly to 355131 you 1U effect1ng please use the Torn below Page N0 Page No Page No ge No Page No Page Page Page ge ge No L1ne L1ne L1ne L1ne Line L1ne L1ne LTRS L1ne No should should should should should should should should should read read read read read read read read read 2) I I No. Fa No, No. No. Line No. should need NoNo. Case Document 86 Filed Page 26 of 116 DEPOSITIUN DF CAROLINE DSR Page Page No L1ne Line Line L1ne L1ne L1ne shou1d shou1d should should should shou1d shou1d read read read read read read read If 5upp1ementa1 or add1t1one1 pages are p1ease furn1sh sane 10 typewr1t1ng annexed to th15 depos1t1on CAROLINE DUFFY Sworn to and before me Th1s the day of Notary Hy expires 1740 Pcatfhlibe 31| 4414 NoNO. Page No. Line No, shou1d read . No. 2u__ NC. I John J. Dujif. Wimess: Witness: Case Document 86_ Filed Page 27 of 116 Secretary Ent-e1-tai11ment Film Works, Inc. I James President James T. Duffy, individual Norma L. Duffy, Individual Wimcss: Iohn .T. Duffy, Witness: .`l1 M, 7-94 line Duffy, 1 2 in 5| '14 1.1? "yy- If EACH ACKNOWLEDGE THIS Pl A Case Document 86 Filed Page 28 of 116 John J. Dagjfiu, Secrerury Witness: Witness: Wimnss: Witness? .n Imam ma Film Works, 1.116 I James T. Iamcs T. Duffy, Individual Norma L. Duffy, Individual _Tohru J. Duffy, Care' eDui`f ,Indiyid I EACH INIJEMINITCIR MUST THIS w. Case Document 86 Filed Page 29 of 116 Arrest: Jah: Entertainment Film Works, Inc James 11 Da4@, President Duffy, Llldividual Wimess: Wimess: Witness: II 1-94 Norms L. Duffy, Individual John J. Duffy, lrudividual al EACH INDEMNITOR MUST THIS ENT Case Document 86 Filed Page 30 of 116 Entertainment Film Works, inc Attestz .1 Se-crermy Lime.: If Dujjfy, President \Vimess: Im-nes T. Duffy, Indi vidual Witness: Norma L. Duffy, Individual Witness: John J. Duffy, Individual ine Duffy, Indiv' JI 744 EACH INDEMNITOR MUST THIS Case 86 fUed Qage 31 of 116 John JZ Dujja Wimess; Entertainment Film Works, Inc. James I Di?ifv; .Presirfefrl Jamas T, Duffy, Individual Wirrlessz Witncesr Witness: Il 184 Nonna L. Duffy, John J. Duffy, 1ineDuffy,1gdi invin- I7 LACH MUST ACKNOWIEDGE THIS Case Document 86 Filed Page 32 of 116 Attest: 1# John .L L55 Secrefmy Du Witnesst Witness; Entra-tai11n1e11t Film Works, Inc. Prasiderar James T. Duffy, Individual Norma L. Duffy, Individual Wilness: Witness: 7%-3 H. J. Individual . . A ll-0 EACH MUST ACKNOWLEDGE THIS INSTRUBWNT Case Document 86 Filed Page 33 of 116 Attesl: John J. Wimess: Witness: Witness: Vlfimess: Works, Luc Jarmi TT Presideml James T. Duffy, Individual Nnrma L, Duffy, Individual Jul-Ln I Duffy, Individual line Duffy, Ig al IllTh-1 M. 1-id EACH INDEM NITDR lJS'l' ACKIYOWLEDIIE INSTRUMENT Case Document 86 Filed Page 34 of 116 AKLESII Du_5j~. sewn Witness: Witness: Witness: Witness: Film Works, Inc. James I Dwi* Pnesfrienr James T. l'JLlf`T`y, Individual Norrna L. Duffy, Individual Jehu J. Duffy. Individual 1 1 1 _.Ig EACH INDEMIYITDII ACKNOWLEDGE THIS Case Document 86 Filed Page 35 of 116 Joint Secretary Witness: Witness: Witness: Wiinesst Entertainment Film fW'ork,s, Inc. Qges T1 Dujjf, Praaidenr I amen T. Duffy, Inclividua] Nmma L. 111dividL1al John J. Duffy, Individual I yginzijvi . II A IACH THIS Case Document 86 Filed Page 36 of 116 Arrest: John Secrefssy Vfitness: Witness: Witness: Witness: J`|l Th-3i\1i 7-91 Ente:tai1'n11entFi1n1 Works, Inc, Iames T, Du f`fy_ Individual Norma Duffy, Individual John I. Duffy, Individual ine 1 ff _.ei ggmt. II 4 EACH MUST THIS Jams.: Presiden! Case Document 86 Filed Page 37 of 116 Entenainment Film Works, Inc. At1es1: Dum' I jelrnes TT Witness: James T. Duffy, [udividual Wimess: Norma L. Duffy, Individual Witness: John J. Duffy, Tndividual Wimcss: Du.tTy, Individ 2/22 ,rf EACH INDEMNITOR MUST WLEDGE TIES INSTRUMIENT Case Document 86 Filed Page 38 of 116 P\'L1cs1: John J. DMSJ, Secretary Witness: Witncs s: Wi mess: Entertainment Film Works, luc- James T. James T. Tfld-iVid1-131 Norma L. Du ffy, Individual .Tohn J. Duffy, Individual Witness: Jllih-3M. me Duffy I ll INDEMNTTOR MUST INSTRUMENT Case Document 86 Filed 06/03/05 Atlus: Page 39 of 116 Entertainment Film Works, Inc; I John J. .S'ecm'.m'y "'vilnBS5: Witness: Ja..-nes T. Duffy, Individual Numa L. Duffy, Individual Witness: Witness: John J. Dui`f'y, Individual ine Duffy, Incfivi EACH MUST THIS Case Document 86 Filed Page 40 of 116 AIICEA Jafrn i Dujjl, Secxersry Witness: Witness: Wimess Entertainment Film Works, Inc, James Presfdenr James T. Duffy, Individual Norma L. Duffy, Individual Jehu J. Duffy", lndividual Witness: .rn 173.351, 144 lne Dui`f\f Indiv . _e 0 1 EACH INDEMNITOR UST ACKNOWLEDGE. THIS Case Document 86 Filed Page 41 of116 Arrest: John D?g?fy, SM Witness: Emenaimnenl Film Works, Inc. _Inman T1 Dum-_ Presxdenl James T. Duffy, Individual Wilness: Witness Witness: 1-su Norma Duffy, Imiividual .Tohn J. Duffy, Individual Dufly, Lndivjdua EACH INDEMNITOR ACKNOWIE DCE INSTRUMENT Case Document 86 Filed Page 42 of 116 Entertainment FII111 Works, Inc. Attest; Duff? .L Witness: . Secremrg- James TT President James T. Duffy, Individual Wimess: Numa L. Du Ffy, Individual Witness: Witness: J1 lvbeu, John J. Individual line Duffy, Indivi lg* I . EACH INDEMNITOR MUST THIS Case Document 86 Filed Page 43 of 116 Attest: John J. Dly?J, Secrerery Entertainment Film Works, In: _md T. Du ffy, Inclivldual Witness: . Witness: Witness: 1-94 Norma L. John J, Duffy, Individual 'ne Duffy Lddividu EACH INDEIWLWITOR MUST ACKNOWLEDCE THIS Case Document 86 Filed Page 44 of 116 Attesli Join: J. Dum, Secretary Witness: Entertainment Film Works, lnr:_ Jarnes TI Eames T. Duffy, Individual Wimcsa: Norma L. Duffy, Witness: John I. Duf'iy, Indiifiduai Witness; 1 3 3 EACH INDEMNITOR MUST THIS In Case Document 86 Filed Page 45 of 116 Attesiz John J. Secmtary l% Witness: Witness: Witness: Film Works, Ja.-am II Dm. James T. Individual Norrna L. Duffy, Individual John. J. Duffy, Individual `nc Duffy, Indivi?Iual EACH LNDE MUST ACKNOWLEDG lf. Case Document 86 Filed Page 46 of 116 Atteslz Entertainment Fihn Works, Inc. John .'EURer:m:my James I Dujbg Witness: James T. Duffy, Individual Witness: Norma L. Duffy, Individual Witness: John I. Duffy. Individual Wiifless: -1 i Du Individual 1' . 1:1 Jia' JIl7b-3M,13a EACH MUST THIS Case Document 86 Filed Page 47 of 116 test: IR JT Duffy, Secremry itness: Film Works, Inc, fame: T. James T. Duffy, Individual Norma L. DME, Individual _tnessz John J. Duffy, Individual cDu Lrldivigual . .du J.: A 1 li' I 1-sw EACH INDEMNITOR MUST ACICNUWLEDGE THIS Case Document 86 Filed Page 48 of 116 Case Document 86 Filed Page 49 of 116 Entertainm ent Film Works, Inc. John J. Duffy, James Pmfidnnr Witness: James T. Duffy, Individual Norma L. Duffy, Individual Witness: John J. Duffy, Witness: -e ine y, In ivid 1 gd' -12 EACH INDEMNITOR MUST ACKNOWLEDGE THIS INSTRUMENT Case Document 86 Filed Page 50 of 116 Attest: I Secrerary Witness: Witness: Works, Inc. Jam es TZ James T. Duffy, Individual Norma L.. Duffy, Individual Witness: Wi lnetssz e' 1. John I. Duffy, Individual Du 11" 'fr I EACH INDEMNITDR MUST THIS INSTRUMENT Case Document 86 Filed Page 51 of116 Works, Inc. Attest Jo-im J. Src-remrj' .James If Da-ji.; President Witness: James T. Duffy, Individual Witness: Norma I.. Duffy, Individual Witness: John .T Witness: Du Indlvadual 1-.fb-su, 1--94 1 1' EACH INDEMNITUR INIUST THIS NSTRUMENT Case Document 86 Filed Page 52 of 116 Attest John J. Dujjf, Sccretaxy Witness: Wimessl E11tcrtaiz1rnentI"i1m Works, Ins; Jcr.me.i Du_Qf2_ President James T. Duffy, Individual Norma Duffy, Individual Witness: Witness: John I. Du[Ty, Indi\fidual 1 Duff) EACH MUST THIS INSTRUMENT Case Document 86 Filed Page 53 of 116 T. -il' U1lTHf_il 11215 li~'5. 'Jill General Indemnity Agreement NDT T0 Bl! USED KZNUW ALLHEN BY THESE PRESENTS: upon Llae request made by Film Wnrlai. leur.. 592| land. Atlanta, GA 30331. knee T. :ml Duffy. 990 Drive. GA IIUJZI and Jalan J. and Camille 1690 Sa Iollalul Ferry Emil. GA 30319 {hereina1'lev called Indenuairora, whether Ihre be one BT mme), il ii evidenced by The aiglaing heroni and UPD11 the express examined. Dzvusrr cenranv UF Ma Ll, nl`1lI Sm: of Maryland. vrilh is principal exile: in alae Cily nl'Balrarr|nre, any aubaldaw therainl mel: and assigns. nailed Cammy), has uemaled, ur the ellkculinn nli Ind may, time tu time h>>l!EIm! encum, at procure the cuelltiun bhhd-L lanaiemlucings uhllgannzas nr gumnnee im the sum: or ir. diflhent penalties and wlaia the mn: :ir da1`i'erent enedihoms andfa: povinima. and in fever ohh: :mme or different oblige: [sash efweh bonds. undermining; mal ablipaai uns bein; hereinafler called 'lard or bomb) an be.l1a1f`of; the lndamalcar mul any carpomin in whlela the Inalemnlm owns. liraelly nr laalflraeily, In whale er In pm. a mnrreillug Internal. avlmher Ur laereaflar aaequlrld. and any rashlenl rapeenramn. Llae have rmaerlel end beneficial inmeat in the -nhmining of the nr bench nr in lhe Item tlaavcllinl uid band AND NIIJW, THEREFORE, In ennaialenlann GI Eb: prereim and :ha :una of :me dnllar. llae vlairb in hereby aarluaovvlnalgnd, :he imalemniwra. ml eaciz af ahern. for :uh nl' their laelrs, exncum, ami assigns. jninxly and severally, :lo hereby cuvcnam ami agree wirh abe Company an Fnllawai P11813 To pay an the Can1pa'n'y.l1\ advance. the ntemhlan of pfaenaium: for any susla heml ur bums, in munlmce villa :he flflifbi ID or to be ll'laa:'hec| herein. ea lang ll Einbiliaf Ihemi-ands: araad uaatl T0 zhe nfsunh liability shall be faamimed lo it at il! home efline: SECDNI): Tn the Germany and npinsl my and a1l'litHl'.l'y, lun, DDIH, damlgep, .|:agm:ye' Ik; md. Kimi ur MIM. llelvwfure wmineal or Ivy its Cuanpany by reason, or in nl' In ereellring my web bend er bomla ei eurery ores-every, ur pa-arming lb: \ber:nl; immlaing any iraveangarinn on armiszn ui' any Buch MM nr buds. in defending Dr pmuuculing any alslicm. mir ur nlber proceeding which may be in connection llmearlalu. in eatbrelaag my nfabe agraenacau hemu mu in uh1auam| a release under any sunh or hnmle: tu indemnify lhe Cnmpany to Bae full amoam nf lliuiljty, In-ea, num, dqrraagna, Ibn and expensea as gfcinagid, reulldlesa ofuy reuasumce mat may bi carried un any such nr bmacla; Tamlu Cnrqaany shall have :be righteud in hereby auahm1zed,butno: required: re adjun, aeale ur emprm-dee any clailrn, dnnumla. ruin upnra hand or bonds. unlul llae I-male.-mir.urr glial! req-.neu ll in liaigeae mek claim. ne demands, or eu defend such euin ur no Qneal from ml ab1Ll depnaia wish ai'-e Company calinaml, tn pay nrjlalgrnenu rendered or um: may be rendered, with lauren, mms. expense: and attorneys' fem; fb) be ll~lh11 Ln any change wbmneveriaa any .auch hnador bonds md-'nr My man-121 nm referred to in any auch hand nr hand.: me.e'o1 in the general emuliriam. plans uaalrur said warner nl |:omrac1.a and aa bcimb mdzfur llie mmisral plan! accompanying; sein! of :naw-aes and an auen: lo or rake any ullpamenr nr aun15a1.mmu, to eaancuae nr cunelni ID execution of my cnnalnundnau, exaenrinm nr renewals pl' any nueh bo'|d arbnq1,d| end no any Iubaziruoe ar auhariml-ea aherefnr. alle mme ur daffea-enl cnndiriaria. and obliges and -nina :me aa- larger ur an-alle: pemlliea, all uf the nkaresaid renee an :ra nrlbe 1|-nemnlrars, it 'being exp-maly iinrlemmnd and itat ah: shill 111: Lhnugh lm' such mam by 1-fl! Cmrpalw does ea- subemnliallr imeue rho Liability nfmid lndasmuilnra: ac) le an-meh berem afrarea and cupy or engine bond LD fall up any blanks 1:11 herein. and no enereer any errewre in Ellim up any lahmcs herein. nr in alle nhadaale of mme il |8308 llrwi Wil! i1l=h Ind meh or eup?ea, when an -reached. and lim nach Inaeralnm Dr eameermna, when an rude, :lull be prlnajxcie- current; \==re\\r=de1 #hell mend W. and maludn. Ilie lui! armu na any nd all moneys paul by Ike Company an me am-nemena au al any claims. lhereunm. in good faiah. under ah: belief that in was lhble J/fa "nha MA Case Document 86 Filed 00/03/05 Page 54 of 116 BJUIIHARD EFS. i\i3 "iT il4 ]i;h|g u- mt, ai ll and ill dishurumenti on accfuunl nf mars, kan and expenses ai 5, ;-ids; undti "ls such were ut nm; len:-ml 11% mm afpayu-ruem, unlsmenl ur daniagel. bca, I ,jgugngig urjadinlerl-I lat AIDTCFIW, ii! will such nl'bnnd` am ilemikd einen-mar llurbofi aww; ml einen arms Company. UI the vuuchcr arveuuhcrs, or adm pmyniem. leule nr limll he primnfn-ig ut?11|: (act md :xlem ofthe Iiuhilixy uhh: Indemnlim ui my :nd ali rlnirru an sum 11-mg nuthin; herein oclwinud. he cnnsidmzd nr :unarmed ha waive. :bridge nr diminish any right cr rmedy wig: hufe Lfshis nn: NTH fu waive, und sin lumehy right I0 :Ialrn any uflhcir inghding fn :mu-pr km Lgyri ur lepl under of any lub nr ilml; an any of in lnsiaa-miunni shall tail in enema iw Inamsmem or in uw my nf me lnusmrniiun. who EIGHTE: I :inc-ul; Mg linll ml he Fur the nth# Ihalf mvenbeias Bn bound hulundzr fn? thu fuli uf msn, 'intl Ind is TQ wwe. md dn hu-shy of any breach arhreuhu nfmy :unix had ar bends, ar ai' my rx nr dahulr ilm may give ns.: In mira hercim-d=r; T113 Elil :hall be lilrlally romlrund, SU is ?0 pull!! "Ill suits my be bmuglmlunseuu-nnier as :muses chown my ucrue. md rl-.e bringing ofnuu Ln mor: min, in :he recomy ofjuiymnr an lisersin mn pnjudice nr 'uar [he upon other ol' acrinn. whuher Lhelelfulr mains; UH bmi nr bands, by we abgimg gf miwggi |h;r:In nnmed, nd :lm Cmrpany ham sin rigix Lu dmlinn ra cracuus my band ol hands; Tim ir| :he the prncunu the nxemion ufany such baud on uma, by num one furety surerin, ar examuen :ml hand of bondn with other sunry -:lr mfedrl cc-mrimn, sr rzinnraa any pnnian nfsuch band or bands wing omg; "Luv 5| gm-gig th all the Em! and DI liril iniuunlri: alsall murl IO the hznefn uf my such Ill!! ur weries, including right in br|r|| :uma hnrcuufkx; shali nmliinua In remain hmrrui Linda! Ihr nflhis imlnumnl cn army mah q- hm# um :hangin Line Conqnw my from limi in herezma-, u-irh or wirlmm notice ID nr of the hdunwim, or additlimi as munity nn simihr m- adm farms rn indemnify iz in eamm?m ui-hh me I!-wcdlun Bl pmcurerzzu nf my Siihlb bund hereby :qu :Bly Il-'Ili' Elgrted bl' UIC IMI my In! all orhq :latin whinh ibn Conrpuny may have nr |?qi=ir= ugninn dis mdme alum lsudw lm' lush Jlher cn' additional nl' indaurlilj' be an lfdliim ID. and not Ln limei |213 righll by die Whruu, surely his hnsidem execnwd bands un du nipma condidcm. Promise |131 iq; h\dm'r\'1irnr Iimhw. Ind in cnnsixkrarion :nf un: aure.1y's lgreemem in mecum other bu-ids t: Pina;-ragh Dflhil agreement Shi: ininniq :hull lppiyw lrry hand nrband1 metutnd on Ill Mt) 11, 2l|1l_ (Ubin lrunnyihla 51|-|4 Suimilf-llilkbh und mania nm ii .fi" Signnd, sealed and daled INS _Ji day of /'cn-ue, 141 Case Document 86 Filed Page 55 of 116 |1=e4 Bauman H43 au; Att 'f ks,Inc C10 -4.1 1 rf %1..nurfy, wma Jo .TDufa?', 1 al. Wi al EACH MUST T518 urrmn. 1-9| Case Document 86 Filed Page 56 of 116 l1=;s 53551949 IM 'Ni Fur Mhuwlenpnenl hy STATED, ?fm, SS: couwnfor fr' Dm nm h=rm= mx. dw ammbu. prnnuallyappured haw, and by bg PM-gen I1 md whu eremlred, the thmgaln; mul nm: ra bm an deed. wan" my :mm mn umm mr. Nnisfy Pubifc My Cm-mrlismn Expim |Ildh'|ll8| in ge CGIJNTY UF Eqyuf . rm. am i_ In me dilcnbud Ind when axacurtd. Ihregulng iluinneul and mhe__hg; RI lnddaed. I wma M, mm.-1 ma umm mn. "Mi Newry HMI: Expires /5 SS: wr "yd 5 .auf be-nm dna-mimi in, md. who und sul. 21| I LJ e.l-6\ Expire JiCase Document 86 Filed _Page 57 of 116 LET ?1:i5 EULFCHARD Bti Fm Aeklwwildsmein BY 1||I1r1daal sum or 4* ss= vf 1 bdnre me. in pm-orally' npp-med p:nu:s_i_ dessrihed Ln. and wi _-onacured. the Fmegning n1-nn-4mm md mme he _ggi mud deed. 7 Witness my hand md ical. 1- Mriq- Fnhirg 15| SB: nrtpmumlly known, did ckpnu and my dm hu mudill].12 nf mm' Wah mi 51| mrpm-man dewvihed 1.n. and which cxecuzd, the MIND insrrumemj ml |1e lim ml ul' said rurpnmion; thai mal :fixed rv mg is surh can-polar: nil; lla: il wma an aflimed by Dl&] oflhe 304\rd Ind |ig'r|aj hi; mm: :harem by lik! UTQEII dnpunam mid ml hs ;nanc|1||ia:meai with N15 WU 5? ii Ill' _l Ind mv bl subscribed Ms mam: lo by like urderafdes said Baud ofDine:mra, md in 4 Wimnss my bmi md ml A Noun Pubns fp- '54 JI T91 Case Document 86 Filed Page 58 of 116 gy-- Muy 12, zoos Eli*-fi--F lf' Me. Han-im Raimi MH 2 21133 Zurich North American Suretyti Financial Claims in will Fi' Fw it 3910 Keswick Road, 5 Floor{212| 1] Post Ofii ce Box Baltimore, MD 21297-1059 Dear Ms. Zalanzi: I received your May ti letter outlining the following claims against Film Works: Ciairn No: E35 003-10131 Claim No: 638 0033930 Claim 5191638 0034421 Claim NO: 633 0033929 Claim NO: 638 00353405 Claim No: 638 Claim Nu: 633 003.5329 Al no time have I ever been employed by, had an ownership il1f2r?Sl irl, 0115020 associated with Entertainment Film Worse, Ihave no knowledge of the disputes that you reference or the General Indeninity Agreement lnentioneel in your letter. Il' you have evidence that someone has purported ro use my signature or name on any Entertainment Film Works lreqtl est that you produce this infomation tu mt.: as soon as possible. I intend to prosecute any such illegal and un authorized use nf my sigtaturc or name to the fullest extent ofr_l-te law. Irespectfully request that you remove my name from any future correspondence an this subject. Si y, Ce ine Duify Cc: David C. Nu tier, Esq. FSCU MAY 22 23113 PL Qt" ,aewyi .1 In rw 1 1 'i1f.e- 4 *f *r Will UI w@ _g 32' _:Fi _an-fi; 3 _z ?1 535- 5 . Pl I "fi Eff; _b 1 55AK: 'ffl 1- r- E537 I ali; ,ff- =Iv na 'ilCII Qzgi Ezwg 1" ?532 9" 5 ti 721 0. Bax H069 |?ll'1d TY Bait mare, Ma 5 1 1 . Case Document Page 60 of 116 Caroline N. Duffy 1690 South Johnson Ferry Road Nort he-11 Atnm, Georgia 30319 I une 17, 2003 Ms. Harriet Kalanzi Collection Specialist, Surety Claims Zurich North America 3910 Keswick Reed, Floor (2121 1] PDSI DEW Box 17069 Baltimore, Maryland 21297-1069 633 0034074 Claim Noi 638 0533930 Re: Claim No: Claim Nc: 638 0034421 Claim No: 638 0533929 st 86 FSCU _lun 2 4 time RECEIVED Surety Hn. Serv. Claim Claim 633 00353405 Claim NDI 638 0034714405 Claim Na: 638 0035329 Dear Ms. Enclosed is my letter to you UFMBY ll 2003. Wh-lCl'l my signature. For some rmson your relum correspondence on May 29 referericed that my letter was unsigned, which was not the case. I appreciate your sending a uepy of' the General Indemnity Agreement related tothe above-referenced claims. The shown en this document is not mine. As stated in my earlier correspondence, lhave no knowledge of this indemriity agreement or any other business matters related to Entertainment Film Works. At no time have I ever had an Ownership interest in Entertainment Film Works, not have I ever been an employee or an Oflicer of this Wmpeny. have turned this rnaner over to my attamey fur Thank Czlroltne DuHy Cc: David C. Nutten Esq. Case Document 86 Filed Page 61 of116 May 12. 21303 Ms. Harriet Kalanzi zm-teh Neem .ameri-,ee Surelytit Financial Claims 3910 Keswick tteea, 5* Fleer (2121 1) Post oiftee Bee 11059 Baltimore, MD 21291-1069 Dear Ms. Zalanzi: I your May 6 letber outlining the fellnwing claims against Eniettainrnerat Film Wnrkii Claim NCI: 633 Claim N05 633 0033930 Claim No: 538 EIUBMZI Claim No: 538 0033929 Claim No: 635 00353405 Claim No: 638 Claim Nu; |538 0035329 At no time have I ever been employed by, had sn ownership interest in, ar been associated with Works. I have no knowledge ofthe disputes that you reference or the General Inclemrlity Agnemrlent merttioned in your letter' If'ycm have evidence that etsrneone has purported to my signature ur :game on any Entertainment Film Works documents, I request that you produce this irtformation to me as as possible. I intend to prosecute any such illegal and unauthorized useafmy signature or name to the fullest extent ofthe law. I respecllirlly request that you remove my name from any future con-cspondenee cm this subject if. me Dutfy Cc.: David C, Nutter, Esq, Case Document 86 Fned os/03/05 Page 62 of 116 1 a :num nc necfwf I fl gg mmi um-:rua rw \Redl\C|lI. UIHWH YN 3 H-mn 5 2 -rv nr CARL fs 22. 5 '.rHr5 2. and 3. N50 mumplem A if nam I Pr1n1 your nam and address an tm |e-.verse the :dt numh bagd or nn1he1mn||H1=aue nr Ili T1 Yu 1" sammy mums: El Nn 13515-Ammsr 'Rroa-4 #1616114 i sam; 'ma 540 mug, r-1013? 1 mania" El nm 2. H0530 Mu||ihu' I CDCOEQ _'_.gc-5 1690 Johnson Fern; u_S. nie, Georgia 3031U ll WM 4 IJUUL noun 2125ico?a 22500 imore, Maryla ff 52 T.. SP.. a #ff ll JN Case Document 86 Filed Page 64 of 116 EU Wann 3 1.: -an-|511 wy ww- I I I 'illiflf I 'i i 1 O'D'l!l'l . 1 Ill 1- culnien. ii 1* SUIEDULE GTHEII mu I it vElrrunE8 :uhilunduhb-yuundliuudnh. hl1M. In 'luannlinlluun luimlilunwl I /1 dluanf.. signmra fi Sunil! Securily Num Dam ul'Bl me sinned Sunil SECIIHIY Case Docurnent 86 Filed Page 65 of 116 State of New York COMPENSATION BOARD NOTICE DF ELECTION OF A WHICH IS REQUIRED TD FDR ITS EMPLOYEES UNDER THE NEW YORK STATE COMPENSATION LAW TD EXCLUDE THE SOLE OR ONE OF THE TWU OR BOTH (JF THE CORPORATION FROM SUCH COVERAGE 3; address orfinsumnce carrier here.) ARE NOTICE 1112: uncle: we provisions of Seeminn 54, subdivision 6, of 111: Waiters' Compensation Lew as amended, me con-poration uned below elects 'no exclude the emeeunivc omeer(s} named below from coverage under me New York Sun: Workers' Compemauon Law ish respecrm all me issueclto rheeorpomrinnbyahe insurance carrier oamedabom nmeufCorpom:ion if LU ype: D0r|e-person corp. (A two-person one nr both escecotive omr:el'S. ,?mus nm /fir' of-wwf' be Exdudedfro ,uw 2, Nm Jef# ZDU af; "mn =5?i-we H1 feig- CERTIFICATION USE FOR CORPORATION certify thesole mme: afallismedandwunanding ihenflimpursuam duriamnhesoleexacianive LHHII rv: beensinee 1:nmgraph[cJ ofthe Business Ccrpomion Lew. (Aix oorpome ml below.) ?iguan|re of |Fate Telephone No. USE FOR CORPORATION el.: .P ff-s?and f-"xii-I F'?g Nut: 5 jiggs- 1 /Jac' 7 eerlify we are :he nm executive nicer: ofthe above-named curporwon. having been 'Blu ily appmma by co:-perm resolmion; um: -we have been since the sole owen ovfall issued md oumamiins Ci! :ekand that each nfuswnsarlem and lztuuweholdali of :Lion T15 ofthe Business Corpomion Law. (Aix eorporateseal below.) "f .. 11 me ~-orifar I 3| NO. gh, JJ-fo gag- Aff- are eiephone o. xl I "Msn Urwrn. arvoxro nv me co i i `Hl5 ELECHONISFUTAL AND BINDING UPON 'l`H}l CORPORATE Sag reverse side for relevant porLim-is of Sec. 54, subd.. 6 (WCL) and Beer 715, Par. [eh of :he Business Corporation LawCase Document 86 Filed Page 66 of 116 Section 54. Subdivision 6 ofthe New York State Workers' Compensation Law b. An executive oflicer oi' any corporation who at all times during the period involved owns all ofthe issued and outstanding stock of the corporation and holds all ofthe otlices pursuant to paragraph of section 7] ofthe business corporation law and who is the executive officer ofa corporation having other persons who are employees required to be covered under this chapter shall be deemed to be included in the compensation insurance contract or covered under a certificate of self-insurance unless the officer elects to be excluded H'orn the coverage of this chapter. Such election shall be made by the corporation Sling a notice that the corporation elects to aitclude the executive otiicer of such corporation named in d-ie notice from coverage of' this chapter. Such election shall be filed with the insurance carrier or the chair in the case of self-insurance upon a fomt presented by the chair of the workers compensation board, Such election shall be effective with respect to all policies issued to such corporation by such insurance carrier as long as it shall continuously insure the corporation and shall be Furs] and upon the executive ollicer named in the notice until 'evoked by the corporation in accordance with pamgraph a. ofthis subdivision. Any two executive cliicers ofa corporation who at all times during the period involved between them Own all of the issued and outstanding stock ofthe corporation and hold all such provided, however that each odicer must own at' least one share of stock, who are the executive oEicera of such corporation having other persons who are employees required to be covered under this chapter shall be deemed to be included in the compensation insurance contract or covered under a eertiticate ol' selflinsuranee unless one or both the officers elect to be excluded from the coverage of this chapter. Such election shall be made by any such corporation Eling a. form prescribed by the chair ofthe workers compensation board with the insurance carrier or the chair in the case of selfiirmnance giving notice that the corporation elects to exclude one or both ofthe executive oEcers of such corporation named in the notice from the coverage of this chapter. Such election shall be eEective with respect to all policies issued to such corporation by such insurance carrier as long as it :hall continuously' insure the corporation and shall he final and binding upon the executive oicers as named in :he notice until revoked by the corporation. If such election is revoked. it Shi-ll be in Writirig on a f`orrn :resedbed by the chair and shall he tiled with the chair and the insurance carrier. Such revocation shall not be effective until thirty days after such Bling. Section 715, Paragraph of the Business Corporation Law my two or more may be held by the same person. except the otdices of president and secretary. When dl of the issued and outstanding stock ol' the corporation is owned by one pers0t'L such person may hold all or my combirtation of olfices. toss: rnevmei (1-94) Case1:O3-cv-03073-ODE Document 86 Filed Pag_g_?Z_Qf116 Sanus Uhit-E ARTICLES OF AMEIIDMENT TD THE DF INCOIIPDRATICIN DF WORKS, INC. 111 Section 14-1-602 of the Georgia Business Gurpcrarinn Code, the Anicles nf hlnurpuminn, as amended (the "Anicfu 'Fihn Works, Inn, SECOND: andeshblishing THIRD: tail! [4-2-|502 ufI.heGenrg'is Business the By-laws, the Board Cmpomdon [thc "Eom'd'oj`Dfrecfon" urdae Corpomtiows nfIr|ourpon1inmurB3r-Laws (th: which furthe inalnumberaemls. IFOURTH: Shm-cholin- .Suction I. Designation Hur Value Eight million shares of the stuck of are fb) perkre. 1 Cf Case Document 86 Filed Page 68 of 116 Suns: Llhite 770-505-1112 3 The haruldms of Class A Preferred Stuck shall be mtilied in receive out of mnsilientilnn legally alfailahk dividexmils, ward on tk: liquidiliun Ew|u"J. nmdiviiendsaredeclamd. uahmdemptinn Theamnmunfdividends 1|.wa.u.d SDC-lliiviikis Stock ofthe 2 Case _gqcument S6 F_i|_Q_g1 Page 69 of 116 Sang: Ilhxte 4 Fnrpurpaseaufdetuminingthe (la) (cl) l.$hI 3 .6 79 Of 116 llhitl! bcnoit plans or employment or agxranmtseaqressly hwlve (12) consecutive calendar munlbs, of Stock pwwant to (es) Saack. TheChssAP'r?ihu'odStock dzlernzinalinn (3) 4 Case Filed Page 71 of116 Songs Llhite mlolunufcaahandsacm-ities would receives ufllwenext sebedulcddividead Stunt. Secfaxl lntheevlnt arm: aimmumorwimingupefzhu (IJ) (aa) pm-hyasto unapuityasto Liqninhtiontn Stu-ck 5 Case Document 86 Filed Page 72 of 116 Sansa hlhite 770-555-4412 p.7 fd] I (al lf msudzreoorddataizustabished, h:xch,t11eholders fb) 'mterequired byhw, without than !tBfS0fCh$A Sm?k, vuti1:g aelass,1heCmpm-azkmmaynmz Stock,astndividnm|s, lWH2f Articles or Artigleg gp adverselyany Class arthelmlden tbemenii 6 Case Document 86 Filed Page 73 of 116 Sung-I Hhite 3 Staockby $?hdiB (iv) reiefundermy nppziubk mining zo mmiqupwy, nnysecm-hiesuonvuilalu aequireorreoerive, ofthe Corporation; gmgidg, that the provisions ufthis ofmycapiral Corporation "0flh?E&?HW onzmnasu 7 Case Document 86 Filed Page 74 of 116 Burma Llhiti 1ongas?iu1=fm? (vii) dissolveorliquidatu the (ix) flnoorporatio mmimmqmfi) (A) Deamnclam' (B) Pne&u'ed Btoekpinrm Februm-y 15, 2604; md the holder: ofClass A Stuck hnldingamqiuriiyofthu number ofismcd amd hMu&ka ndanmptinn Went [a "Chai A Pteiisned Rndexqztion [50 The Corpm-mion's ohIigxtlorn to :adam IPIB Clam A Preihmad redernptinn obligations under hs Senior lndebsedmss with nupecl my Stuck (E) Rsdmugodon 8 Case 7?Pi 116 Ganga Uhims redenmednwheihernrnut (iv) flu) at Feh'ue1:y `13,20D4at 100% Secdmn?. Bfdnuqdmhum?vm. (B) 3'-Him* Corpumion ahnil :mine anim-awcabls (a "Mandatory Tlmnoliuemtlnilolduaslmil 9 Case Document 86 Filed Page 76 of 116 Ganga Llhite The mtkae. G) bo Dat?(thc fi) (rv) interns; ate: th: Mandatory Redemption Payment Date; (vi) ofbusinessontheMandatm'y (vii) (vu"D I0 Case1:O3-cv-03073-ODE Document 86 Filed Page 77 of116 sons; unit.-E -no-sus-4412 2 Anjsuzh Mandasory pmvisiuna of ieudemcl. fb) Stodiwberedecmecl. Dmmviissa ll Case Document 86 Filed Page 78 of 116 Sung-B white inte:-estdnerenn, upunsurrmdot paidtoitkomtimetotime. (G) mn$m shD&&mmd&WedImm&&m& afiheshmessu (ni) Ifthe appisaahie ofredezanptinm [fthe (0) Pnairred Saliva Comienion (1) anequal hukEURVBd\h? ooarrnsasms 12 |113 Case Document 86 Filed Page 79 of 116 Sanus Unite 4- fb) (cy I3 Case Document 86 Filed Page 80 of 116 Sunni Hhine P. 5 lbnnumersionahdlbe ulosiagofsuchnaleofseuuritiea. (ci) . Common m? casenzayhe (Q) lfi31BUUl'P0rs1ionaiany into immediately (0 . All? ofsflorsubstamiallyalluf [airin- upantheoonversion 14 Page 81?f"6 Burma Idhite 776-505-4112 15 oonsolidatiun. mcrger or sais in which the successor unlpoxation at pludnsing mrporuion is oornsoiidatinn, mergaror an-qiaixc. (0 Oldistrihrtion upon Lil .I (ii) Ch) mm@n ofCom.mon Stock, solely in the p|.1.rp0s= conversion ufimmd and ?refinadStoc]r. (D (D Arlialeaoflneorpomtiun consolidation, mzrgur, out nonmvsassn 15 Case Document 86 Filed Page 82 of 116 Sang: Uhibe 'p 7 LHIMIHDMJ and Rigid.: Upon Notwifimtmding any other Saddam! Sklruhfbeleffrrai. Sufism Ra>>rdHoHns. The mdany-Paying Smionll. Nadu. 30328, Chief Utk?lighm Sadhu!-1 am, an "mums uuwra m=m"e1m=gh and nomfmsassn I6 Case Document 86 Filed Page 83 of 116 white 8 ihsrehteddacunmms. "uonuoling" "noun-olled by' wi1.h"} ofahnunmemnthe po clnse. merge;-or consolidation ofthe Carpomtionwithamothcr wrpomdonwheze elnzlinnofdifettursnr wlrrenzmbersofthe Ecard ofDirwmm'sndf'thsCo|'porat5o|; a mjority oftha board nfdirecmrs ofthe corporation issuing cash or 11 Case Document 86 Filed Page 84 of 116 SCHED Llhibe nl>>uocfallum'anypurtionacf the ofthe ofthe 15151. IB Case Document 86 Filed Page 85 of 116 Sansa Llhitn "PmM?Mmw&mnmw&mm "Pa-aan" mem: in mrcnezship, oorponicicm (including a Business in-un), "Senior the primipal, premium, ifmy, imerest (including (D shaJ]nn: cn-other (ii) (ii) hase;|mcI (iv) 19 f116 Case 1 Document 86 Filed 06/03/05 Page 86 0 Sana ublip1innur 0fu? mlDl?}dtEHOf Thu-nismlimitomthemnount mnriwr- means, with :upset to my Person: Subsidiaries Statesoranyslate thereoinnd fb) my partnemhip, vuutunz, limited liability mrporalzirm or partnership of orequivaknt intheabanweufoanzingemien, cnlitl?edto ebotkmofdireutors 20 uhiu we-sus-4412 Case1:03-cv-03073-ODE Document 86 Fie Snhua Uhlte I 06/03/05 Page 87 of 116 110-sms-4412 9.22 IN |md?f.?1gma? ha ,mm I tllehrtilcles #hh day 20111, ATTEST: lluvfwomcs, mc. Br- 0 5? 21 3083119355 5 rt . November 22, zoo; Zurich North Amterica Debbi Ferrara Commercial Surety Claim Division 87 Baltimo-re, Maryland 21203-0087 3910 new-iek Rom 1-tom Re: Response to November IB, 2002 letter Dear Nts. Ferrara, Please be advised that neither I nor my wife are officers, nor directors, nor guarantors ofEnter-tainment Film Works at the time of your enclosed document Mr. Obracafsoormtients reflecting such is inconeet. I would suggest that you contact Entertainment Film Works regarding this matter. I consider this matter settled and do not wish to be harassed or contacted by your company. Cc: David Nutter, Attorney at Law ZUD2 DCHIBIT fi Case ZLIRICH NORTH All ERI CA Phone: #5 Commercial Surety Claim Divlsiufs Fax: 57131 2_5-fs 4 Bom B7 Ernanl: MD 3910 Keswick Rd, 5" FDDI 21211 IB, 22102 RESPONSE AGAINST BOND Wodcs Duffy H590 5 lnlinmn Fen-5' Road Aamm, GA :um Rm Enrcminmnm Film tllaim Nu.; 638- 0033029/638 0053930 Bond Na.: LPN 3317376 Clgimanc Gas lk Rm Film Claim No.: |533 Band No.: LPM 5595534 Dau* Mr. Duffy: Fox Zurich Amuica bonds on behalf uf Film Works. We su: in necnipr of the enclosed received from Gas md Century Fax Film Cm-pacnmomnuldng ofdmbondr. forrindividuzl listed punch Please Prim mrrespondmce had Mr. Chuan; faxed me the cuclooecl lener md all Please IIHIE Lhuttwoofxhese ghirns are pastnhe :mpanse dale of 11118101 iucnurmeclion Lhe Please conuct mn as nun as possible discuss seuzlu-nam of these demands made agsirasr the band. kind; advis: wlxed-nc: Enmznah-mment Fil:-n "bds inrends ro pay :he E111 amount owed, ur sfrhere use wlid defenses payment.. mile. dilmni. A |3 i! dm an Failure to respond will leave Zudch Num no alucnmlive to Balisfy il! legal obligduuxs unde: dw bond by gf til: me signed UD 1' and all losses, mars, ?lnrg:s_ anomeys has and mpmses wluch :umm as msuh of havingissucd Should Zurich Nord1 Amenica pay :he its bon.d,i1: will luck to you fm: 5.01 rdmburscmenm. Sjncenly, ?kbbiF`smnu Debbi Ferrara Claims Sp?Ci2|iS? Case Document 86 Filed Page 90 of 116 1. ff.-wie: -mf. Haiglp!-1712 UJJUH eapauxv faT{_I_ Case Document 86 Filed Page 91 of116 John J. Dulfg 1690 Jolnumn Ferry Rand Atlanti, Georgia 30319 October 1, ZUUZ Mr. James T. Duih Enbenainhenl Film Works, Inc. 5920 Roswell Road, Suite Georgia 30328 near may, Effective imrnediately, I hereby resign my position as Vice President, Secretary and Clirerrttar Film Works, IDG. Please do :ict hesitate to contact me if you have any questions Best regards, /?lfy <1 Case1:O3- PaQe92of116 1690 Johnson Farr! Road Mama. Georgia 303111 Zurich North America insurance Finally' a DBDUSI Gnmpany vi MIMBFHI 3910 Keswick Road 5" Marytann 21 zur: Fla: Amenmant Tu Vllhom ii may concern. ETIGKIIEBG please find my realgnatlua as amoar and of Works. Inc. Atl|1lati11eI\||i|l1draur my passnmalguarantaa on thage|1|mllinde|'|'|n|iy agreement nlaladodzober of11, 1001. notba respunblefarany Flin Wants, Inc. at 5920 Rasnaii Rnd, Atlanta, Gaotgla 36328. a_a y\ cm James T. EXHIBIT c, Case Document 86 Filed Page 93 of 116 tw? General Indemnity Agreement BE USED Fon ami ha KNOW AL1. MEN BYTHESE WHEREAS. upon rccpest made hy (hereinafter called Itulemnitors, whether there he one or more), as is evideritxed by the signing harem; and upon the express eondition that this be AND DEPOSIT UF a corporation of the State ot' Maryland, with its principal oil-ioe in the City ci`Ba|tim0re. any sulisidiarythereoll their successors and wigs, thsretnotler smiled Company), has executed, or procured the exauttion oi] and may, from time to time hereafter execute, or the execution of bonds, andtor obligations of suretyship or guarantee in the some ur in different penalties and with the same or tliltarertt conditions andfor provisions, and in favor uf the same or ditfer-ent ehligees (8531 ef S-wh b0I1>truod lu waive, abridge or dilnlnish any right or remedy which the Company might have ilthis instrument were not executed; To waive, and do hereby waive, all right In claim any oftheir progeny, including homesteads, as exempt tram levy, execution, or sale or other legal process. Lmda the laws olfmiy state or states: T1-ng, -in use any ofthe Irldemnitnrs shall to execute or i.n-else any ofthe lnalerrmitoes, "tha this not be bound for my reason, the other lntlernnitors shall nevertheless be hereunder for the amount oflinhiliry, lass, Duets, damages, attorneys' fees and expenses as aforesaid; To waive, and do hereby waive, notice ol' any lartauslt or breaches ufany such band or honda, or of any act ur default that may giveriss Io claim hereunder; That this instrument shall be liberally construed. so as to hilly l?I? CUUDHIIYQ ELEVENTH: That suits may be hereunder as muses ofntim they IGCHE1 WHS, the recovery therein shall not plejtldicaor bm' |118 bringing of suits upon nther causes nf action, theretoiore nr therealter arising: TWELPTH: 'That the Company does n0t ofany :mah bond or bort?s, or this aoneptmc: bv the obiigee obligees therein named, and that I-he Cenlpeny shall have the absolute right In decline In any such bond ur 5; That in the event the Company pro-cures the execution ofany such bond or bonds by some other simty or surlslim, or amcutts such bond orbm-tis with other surety ur suretiee as w>>-Ellteties, or reinsures any Dfalch 01' with othet' surely or Bureties as lheu all the terms and aonditims u-fthis instrument shall inure tothe benefit ofany such surety nr including the right. to bring action 11a|'eu'ndel'; FOURTEENTH: That the lndemnitofs shall wntinu: tn remain bommd the terms ofthis lnsmimml an acouunt nfany such bond or bonds :Wm dwuglt the Cmnpany rnay liom time to time heraaher, with ur notice to or knowledge ofthe lndemniturs, accept other or additional agraornents or on similar or other to indemnity it in with the or pmcururieut ufany such bond bonds, it being lm-dry expressly mdu-stood by the Indemnilurs that any and all other rights which the Company may have or acquire against the Ind-emniturs others under any such other or additional shall in in addition tu, and not in lieu uf; the rights by the undur Lltis iJ'|Stl'lJ1'I1Bl'lt. FIFFEENTH: When-cas, surety has heretofore ueculed bonds on the express understanding, that the Ilideninitur will provide indemnity tl'|arefore, and in liirther omisideratimt ofthe sin-sys execute other t_subje1:t tu Paragraph Twelfth ofthis agreernent) this indemnity shall apply to any bond or bonds executed on or afcer In uwutdnw witll Semin: 8 I Fhridnsummz "Airy pnsonuho kmfwingly Ind uhh inun delhud, nr dooelve any insurer fllesa stanemun olclaimor my Babe. or nkluclmg is guilty ofa felnny in me third degree." signed, aealedanddated this day of r, so Case Document 86 Filed Page 95 of 116 _,ff rx/ Atlesl: AHBSI: Altestz EACH IINDEMNITOR MUST ACICNOWLEDGB THIS INSTRUMENT Case Document 86 Filed Page 96 of 116 For hy lndividuul lndemnilurs STATE DF fi." SS: couww OF ci.. ini; 315 day nf Wifi 3" 1 befwe me. rhe subscriber, appeared -.rl-1-M 77 knmisn, and lanmm by me no be the lI1?| V110 Eh# and acknowledged same lo hz aut and deed. I wma. myimd md naman mi. eiucic mu Nulury Public r-lnvarla Nourry Put-fic My mission Expins 3 For by Imiennilnn STATE UF OF On this day of . before mn the pirsorlally appuirtd rv m3 known, and by me to bc the deszribed in, and who ecuted, the foregoing and same tn be act and deed.. Witness my hand and ml. Nam.-y My Commission Expires For Aelumwledgment by llrdemnltors STATE UF SS: COUNTY OF On day of befhn ma, the subscriber, lu me and known by me to be thepersuin described Ln, and whu examined, the foregoing iristrurnem and acknowledged same lu be acl and deed. WHHES my hand and oH5|:iaI I. Nomajv Public 7.51 My Commission Expires Case Document 86 Filed Page 97 of 116 Fm by STATE OF SS1 COUNTY OF 011 this day of hefurc mu, the subscriber, personally appeared tn l'l1? pefsamily lmovm, and known by me lobelhe described in, and who Eiiwi-Iitlid, the foregoing i.ns-tmmemt and sckmudedgud mmetu be act and deed. Witness my hand and oiftcial scnl. Notary Pubhc My Expires For by C|lrp0rll? STATEOF FS: UF On this day of before me, the subscriber. personally appeared to me personally who, being duty swom, did dispose and say that he resides in the city of that hz i- President nf the xstiuri described in, and which execsmd, the within insti-tmmt.; that he knows the seal afsaid seal afiixedtu Said is such wrpornte seal; that it was so aExc=d by m1i=er Bord ofDiret:to1's ofsaid corporation, and that he Bignad his name thereto by hire order; and the deponent Esrthef said that he is acquainted with and knows that he is the Secretary ofsaid mrporatim and that he subscribed his name to the within irtsmirnenr by a like order ofthe said Hnard nfDin:cr.r.n, and i11t|'|t= presence ofthe Witness my hand and official seeti. Notary Fubffc My Commission Expires JI 7-94 Case Document 86 Filed Page 98 of 116 Bond Number Name Of-5205* Fidelity and Deposit Company of Maryland Colonial American Casualty and Surety Company Home Office: Bm: 1223* Baltimore, MD 21203 Bald Application (Not to be Used for Construction Banda) swam 1- General Information To Bc Completed ny All Appliunu N=m= ff 7" 3 Add!-Eg; E4 rs Telephum-Na 'f-.lu :a 5' I xi G?csk? Zilicnde 3. Smal secumyur mt Ln. Na. M. 0 it Mmlai 4. .mm wg F-eu? $511124 -v 2. or-2 I {.VRe.tired1 iisr previous occqpatiovll 5. Kind oFBon:i 1-me $l1l0\lIlI E51 Univ 6. To W'|1om Is .Y -ai a Address of{}bligee Section ll Complete Fur All Plrmit, Rntnut: alt! Other Bonds I. COMPLETE SECTIONS I, AND lx. 2. Attach 'Copy ofBond or Describe the Nature ofOh|iga|ior| In The Sploe Prfwided 3f|?ih?F or cupy.) Aim on page 4. &E|il`|ll For All Conn Appeal, Discharge 11515898 of Mui:hanic'a Lien. Supersodcas, etc.) I. SECTIONS I, AND IX. Z. Exict Title offlasr: 3. Describe Faces of Case Nature Proceedings (Note: Bonding Company May Rnquire Copies ofL,egal Douunmm Such as Appmlad., Motions Fm* Ra-Jia-for Scinlrn 4. Lis: Amount ofLinbi?ity, Claim Judgment, Value ofPrc|perty in 5. De?erimProperty Being Seized and Nmue ofAppIicant`s Ima-est in Same, ifAp;|1icable: 6. Bond To Be Filaii in the Of County, Stat: of' 7. Are You [nvolvul in Other Litigation? lfyes, explain: 8, Phone No. Address ofmiy.: 9. Sign Applic-atinrl, un page 4. EXHIBIT Page'1oI1 gifi Begg. Case Document 86 Filed Page 99 of 116 Section Complete For Probate an-il Other Guardia n. Truslee. Thus: "Intl ln or Frobledings. COMPLETE SECTIONS I, AND IX. (Note: Assets and Liabilities i.t'l SeCIi0n Hand 'rn Bc Film In rm com ur Come, ef 3. Name nfwardfnemsed Dare nf HIUI1 4. Wasil Will Fmmd? Ifyes, copy. 5. Applicant Reluiwhipm 6. List All Parties Inlerestecl ht The Estate (Le. Heirs, Lega1ees_ Devisees. Distribute. or Trust 7. Name ofhltamcyz H1005 Nu. Address of Al'hDme)C 8. Esmie Assets; Cash 5 ;StecIcs Description) Other: U: Real Estate 9. Tom] Liahilitia ofthe Estate: l|J. Have You Given Bond ln 'I'heEsteteB>>efo1'c'? ll. Have You Had Prior Possession ofthe Assets? 12. Are You indebted To The Estate? IJ. Is'fl1a-re Going Business in 'I"l|e Estate? Will You Give The Surety Joint Over the Ealatu: Assets? IS. Sign Application, on peg: 4. [Note: IF THE ANSWER TU ANY UNE OR MORE OF QUESTIONS li, ll, I2 OR 13 IS YES, PROVIDE COMPLETE DETAILS UN A SHEET CIF PAPER.) Seelimt Y>>Con1|le|? For All Truslnt.-s, Receivers end Other Il and Proceedings l. COMPLETE SECTIONS I, FLND IX. (Note: List Only Total Assets and Linbi lilies in Section itle ofCase as Docketod or Name ofBenk.rup1.v'Debtor ill Assets be Liquidated and Distributed to Crenilrars or is Reorganization anticipated? ll.. Attach Copy a-fPetitian For Order ofAppoir|.trnent If 5. Sign Application, nn paged and stench @3111 For Lest lisrrumii Band I. COMPLETE SECTIONS I, AND IX. 3 ls the Instrument Regislrrod, and ifso, in S. To \|l'hnrn Are Dividends Being Paid? 6. Ar: You the Absolute Owner ofthe Lost enlirled to Immediate Possession Free ofall Liens :uid Claim orfuty kind wltalsnevcr? T. Stale DEFINITELY ur rnl. Was Endorsed, A Pledgud or S. IfIn.111.l'nent HLA Check, has been stopped? If so, when? i 9_ Demibe Fully the Mmner i.|1 which the Instrument (Including Ihe Time Last Seen] or IU. Sign Application. on page 4. J21 Page2of2 2. Describe Lea In Detail Instrument: Par 5 Ma.rloe1 5 Case1:O3-cv-03073-ODE Document86 Filed Page100of116 Sectinn VII For l'uhli|: Official l. COMPLETE SECTIONS I. ANDIX. (Note: List Only Tuln] Assets and Liabilities ln Seclizm Appnimnd ar Elected? J. Have you Previously held this m-any Position. and if-SU, and FUF 4. Du you Fund or Wrile Checks? Is RE'lUiFfd'? Hy ww? 5, Nm-ne nfnepmimi Eu. Are You Against Lilbility? Nmnlaex ofsubmiinms Do They l-luv: With "Hd HW much? S, Who Audits Bunk: and Huw . 9. Who Reconcilm Bank I0 Du vw culled 'rmfs you Liahle rn- callmtim? I I: H-our Are You From Tax Liability? 12. Ansel! Copies 011.951 Audit and Depwitun' 13. Sign Application, on page 4, Section V[li Statement Amen, Liabilities And Income .hs nl (Nate: (Shel: .Ap|1lluI1le Sedinn In Determine If Finalclal. ls Necessary. HSD. Amcll CPA Or lf Wl11.Pl?l? lil* CURRENT ASSETS CURRENT LIABILITIES Notes Rewivahle mtory Accrued Wages 0-0? Real Estate (Homestead) Mort a es Rear Estate tomar) Other ASM andrafufe i UN SEPARATE UF Sales 5 'Gros-5 P1051 Ne1Pro?t$ Give Th Names :ml Addresses nl' Individuals, NUI ID fill. W'llU KIMUII YW Fur Same Years (Null: To Dtlermine Il Are Needed] Nam: Addresses and TElEl'lDl'l? Occu tions .Sd/7 1t' J. 4' If# P.) Tre .KMF nr-Lu; AJ r. Cu 77 Eff; Thus.. mf fn FYI '7 (wwf 1_5 IJ Alun; :uni S2 51: 3 M1 3 Yves; L9 ii' 7 -335.4 Page3uf3 Case1:O3-cv-03073-ODE Document86 Filed Page101of116 'Elm mdusigmd rapusqaulut brIlFl1e|lgrar\u bond -avli-Nr l1|I vllr- ndvmoea ruutymranihllmu H1 nnun My who km-ingy and wil) mm rn injur.. |e.n-nun, or mm: any imma mu A ureuim or appumim Domain' inmm in ill ofa in llnniinl It "Till-I MIHBL 1 nuharrllal I IF :ig Inner Winans: IF W-Pirwfiip IIH all nfCn-Pn11un|dp} Winks: md Wines: I [lnsivi?laliy and LF |Ni?ig1 but :uw 116145 Name nfCorpu|-ation ff NEImnsidmfimu :rims is suncaessm md aim; Cl pruunrusg Hu: mncullon nf, or refnining Hut prremnly umcising in nip: au gncel, bun! nppind br, we |nu111y und pm in :he and urnimipal.. if: warnnis EM I |s lrmvemad I1 lie ?'b|1'l|I2Cf1|l nbliguiun Minh wr isgivcnm smurn, ardan:l1MMil\ Is lilly empowmd signal, mlulmndamnua 5 mar 5:/nr .M -2 rmimuumr Wimeuz: llvdemnilor be lebouhigld hefua Public by STATEOF 011 W5 ?33 lx-fort append in #1 `5 1 UF un Imwmv-1 In sew my mm; Eaqlirs BRICK BAUM J21 UBIFLI Nanny Fulzlk Navedu P398 4 Df 4 lxp. MIL IUIH Case1:O3-cv-03073-ODE Document86 Filed Page102of116 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND. Plaintiff, CIVIL ACTION FILE NO. FILM WORKS, INC., JAMES T. DUFFY, NORMA L. DUFFY, and IOHQN J, DUFFY, Defendants. DEFENDANT .TQHN QQEE RESPONSES TD FIRST INTERRUGATQRIESI REQUEST FOR PRODUCTION UF DDC UMENT5, AND REQUEST FOR ADMISSIONS TO DEFENDANTS COMES NOW, Defendant, John J, Duffy, in the above-styled matter and pursuant to responds to Plaintiffs First Interrogatolies, Request for Production ofDocu1'rtent5 and Request for Jkdmissions to Defendants ns follows: Q, I: For any Request For Admission that you deny, [at] slate specifically why the request is denied, (IJ) identify any persons on whose knowledge the denial is based, and (C) identify any documents fomiing part ot' the basis for that denial. (3) I denied Request for Admission Nos. 3, 4, and 5 on the basis that to my understanding the General Indemnity Agreement attached to Plaintiffs Complaint has been materially altered. Further, with respect to Request for Admission No. 3 I did ?101 EXHIBIT 1 ?2 Case Document 86 Filed O6/O3/05__tfege 103 of 116 sign the agreement. fb) This is based upon in-fommation Obtained from my brother, James T. Duffy, and myselfiu looking at the signatures on the document. (C) Based upon information given to me by James T. Dufi?`y, the original document submitted lo Entertainment Film Works, Inc. and James T. there is no reference: to The date May 22, 2001. lltterrngalogg No. 2: Identify each person whom you may call as an expert witness at trial und, for each such expert witness. summarize the subject matter of the expected the substance of facts and opinions to which the expert is expected no testify, and the grounds on which any such opinions are based. Resgonse: At this time Defendants Iiave made no delamination as to whom Defendants will call as an e:-tpen at nie trial of this ease. Interroggtory No. 3: Identify each person whorn you have retained or specially employed in arttieipatiun of litigation or in preparation for trial and whom you do not expect to call as a witness at trial. Eesponse: Defendants object to lntermgatory No. 3 on the grounds that the same exceeds the scope of permissible cliscovery. Defendants further object on the grounds Seeking attomey work product and trial preparation materials and it is too early to detemline these matters in any event. 2 Case1:O3-cv-03073-ODE Document86 Filed Page104of116 ]nterrognto;y_No. 4: Identify each person who you know or believe has information about the Crelteral Indemnity Agreement and your obligations Therettnder, outline the substance of what you know or believe to be his or her knowledge, and identify any documents relating to any such person's information, Response: James T. Dufiy has information about the General Indemnity Agreement. Since I did not sign this docurnent, I do not Feel Ihavc any obligations under the document. No. 5: 11" you have denied or partially denied any averment of Complaint in this action, En' each such denial please (ta) state specifically why the avgl-ment _ig denied and if you contend the averment is untrue, the wayfsj in which the averment is untrue, identify any persons on whose knowledge the denial is based, and identify any documents forming part ofthe basis for that denial. Please see my responses to the interrogatories above and Request for Admissions, This is the basis of my denials ofthe avemients of Plaintiffs Complaint. Interrogatory No. 6: Identify any and all documents you contend support your allegations that the document attached as Exhibit to Complaint was materially altered; identify any persons with knowledge of such material alterations, providing the substance of what you know or believe to be his or her knowledge; specify when, where, and how you contend the document was materially altered (specifying how you contend the document was changed); identify who made said alterationsfs), and identify all who were present .J Case1:O3-cv-03073-ODE Document86 Filed Page105of116 'l'fl'1?I1 said ahemt_ion5{s) was (wore) made. Resgonse: Please see the response ofEnte11ainment Film Works, Inc. and James T. Duffy. No. T: Identify the relationship of Robin Mauney, Phil Dine Tony Kouclouna, Sonya White, Roger Bourchard. and P. Todd Mcwhirter to Entenainrnent Film Works, Inc., specifying the positions held by these individuals with Entertainment Film Works, Jnc. and the dates they served in such positions, and identify their current addresses, phone numbers, and employers. Regpoger "Fo my knowledge Robin Mauney, Phil Tony Koudouna, and Sonya White were all employees of Enterlairunent Film Works, Inc. do not know Roger Bonrehard and P. Todd McWl1iner's relationship to Entertainment Film Works, lac. Ng. 3: lf you contend that John I . Duffy and Caroline Duffy did not sign the General ldomnity Agreement, idesitify who signed the names of John I. and Caroline Duffy to the General Indemnity Agreement and speci&f when said names were signed and why the person(s) signing thoac names did so. Res I tio contend that either I nor my wife signed the Genera] Indemnity Agreement. I do not know who signed the names of`Jo.l1n J, Duffy and Caroline Duiiv to the General Indemnity Agreement or when il was done nor why it was done. Innerrogagogg No. 9: Identify any person who panicipated in the preparation of your responses to these 4 Case1:O3-cv-03073-ODE Document86 Filed Owt/Q5 Page1060f116 interrogatories, including a listing of the responses to which each such person contributed. James T. Duffy participated in some matters with me. However, Ip;-epared these responses along with my attorney. QUEST FOR DF Rgtuest No. 1 1 That are or are requested to be identified in response to the above interrogatories. Reggonsei Attached please find a copy of the original General Indemnity Agreement as submitted to Entertainment Film Works, Inc. This is based upon information supplied by James T. Duffy. Rgucsl Ng, 2: Constituting the report or other can-cnt memorialization of the observations. findings, opinions, or conclusions of any testimonial expert retained by you in this action. Hauser Defendants, Entertainment Film Works, Ins. and James T. to Request for Production No. 2 on the grounds that the some is over hrond and encompasses ettomey work product as well as altorneyfclient privileged information. Subject to this objection without waiving sam e, there are no such reports at this time. REQUEST FOR QDMISSIONS Request for Admission No. l: Ian-tes T. Duffy signed the General Indemnity Agreement both individusliy and on behalf ofEnle:tninment Film Works, inc. 5 Case 1'03 cv Document 86 Filed Page 107 of 116 The Defendant, John I Duffy, can neiLher admit nor deny Plaintiffs Request for Admissicn No. I. Regug Qgimissieu Ne. 2: Norma L. Duffy signed the General Indemnity Agreement. Resgonsc: The Defendant, Jolm J. neither admit ner deny Plaintiffs Request fer Admission Ne. 2. Request for Admisgien Nc. 3: John .T. Duffy signed the General Indemniiy Agreement, directly under the primer works "John I. Duffy. Individual." Denied. Reguegl Nu. 4: .Ie-lm J. Dufii signed the General Indemnity Agreement, directly above the printed words J. Duffy, Secretary." 32% Denied. fur No. 5: .l'oh.n J. Duffy witnessed .Tunes T. Duffy signed the General Indemnity Agreement. Denied. 6 Case1:O3-cv-03073-ODE Document86 Filed Page1080f116 inquest for Admission No. 6: All of payments of claims under the Bonds it issued on behalf of Entertainment Film Works, Inc. were reasonable. EQSQUIISEE Defendants can neither admit nor deny the statement contained in Request for Admission No. 6 on the grounds that the ittfortnation available to Defendants at this time is insufficient. Plaintiff has not provided i.nforn1ution other than amounts as to the status ofthe payments of claims made under the bonds. Re Il 11/ MAL RJCE ARD, HI Attorney for De ndants 3717 Chamblee Dunwoody Road Georgia Bar 054850 Atlanta, Georgia 30341 (IST 5 3 Case1:O3-cv-03073-ODE Documerit86 Filed Page109of116 .Q General Indemnity Agreement not 'ro as user: ma noun; (NOW ALL MEN B'r" THESE PRESENTS: utiun the request made by ['hereinaEle.r called lridcumitors. wliethcr thu: be one or more), as is evidenced bythe Iigllirlg hereof. uid upon the express condition that this instriiruentbe executed, AND DEPOSIT COMPALY OF a :orporation of the Stal: of with its principal olilioc in the City of Baltinmre, any subsidiary thereof; their successors and issigns, (l-iereinafler culled has executed, or procured tl-u: execution oi and may, from time to time hareatier examine, or the exemtion nflzonclc, Lmclertalcinga eudfor obligations of auretyship ot guarantee in the same or i.n dihkreot penalties and vid: die same or diifermt conditions andlor provisions, and in iiwnr ofthe some or oblisees (each gf sugh Bud Dbligalzions being heremahe: called bond or bonds) on behalfoti hr ludemnitor and any eorporatlcn il which the said Imlenniitor owns. directly or indirectly, in whale or ln pnrt, a whether existing or hereafter acquired, and any resident representative. the Iridemniuars have a substantial, material and berieticial interest in the obtaining ofthe bond or bonds ta- in the f0mpany'= iiom cancelling said bond or bonds. AND NOW, THEREFDRE, ist consideration ofthe premises and the sun: of' one dollar, the receipt of which is he-ehy the lndunuitm-s, and each ol' them, for each of their heirs, executors, adminisn-ami-3, and 551915, and severally, do hereby covenant and agree with the Company as follows: FIRST: Tn paym the Company, in advance, the premium or premiums for any such bunti or bonds, ln accordance wltl-1 the ofmes alladlbd in or to be attardtod hereto, as long as liability tl-tereurider shall uuririntte, and urnlil evidence, saijalaetmym ae Cornpaoy, ofthe tea-miriation of such liability shall be Eimiahed to it at its home SECOND: To indemnify tl-ie Company dun and against any and all liability, loss, costs, damage, attorneys' tlees and kind dt' nature, heretofore Dir alia-lairled or ir1r:u.rred by the Company by i-megs, of in lenuting any such bond orhouds as or co-surety. or procuring the execution thereof in melting any investigation on account ot' my auch bond or bonds, in or prosecuting any action, suit nr other proceeding which may be brotight in tmimeetiori erewith, in any ufilie agreements herein con tained, and in 0btaini.r|? a release from liability under an such bcndor bonds: id to iriderunily the Cmnpany to the amount of liability, lose, costs, dan-rages, anonieys' foes and expenses as gardless cfatiy reinsurance that may he carried on any such bond or bonds; THIRD: That the Company shall have the 1-ight and is hereby authorized. but noi required: to adjust.. settle or yelaims, demands, suits orrjudgmeut: upon any such bond or bonds. unless the lndeinnltors shall request it Lo litigute such :lairns nr manda, or to defend such suits or to app-cal E-om such judgments, and shall deposit with the Company satisfactory collateral. Elicient Io pay any jnidgtnentar judgments, rmdered our thai may be rendered, with interest, busts, expemes and attorneys' fees; fb) assent to any change whatsoever in any suuh bond or bonds andfor any contract or contracts tu in any auch bond or bonds dl'or in the general conditiuris, plans speciications aceoenpen)-ing said or contract; and tn bonds andifolr in the nenl oonditions, plans an-dfor specifications accompanying said contract or contracts an-il Lo assent to or take any assignment or iignrnerits. to execute or otinserit to the execution ofany contiriumions, extensions or renewals of any such bond orboilds and to emit: any substitute or substitutes tlieretlar, will; the same or diliferent conditions, provisions and obligeea und with the same ur ger our smaller penalties, all ol' the aforesaid without notice to or of the it being expressly understood and reed that the shall remain bound under the terms ofthis cven lltough any such IBSGII by the Company dues might the liability ofsaid lndenmitors; bo attach hereto a .schedule and copy or eopiea ufany audi. 15 bmdd. to E11 up any blanks lelt herein. and to eon-cet any errors in Hlling up any blanlu herein, or in the schedule of rates ached, it being hereby agreed that such schedule and auch copy or copies, when sn attached, and that such insertion or nnrrectiont. en sn made, shall beprilwiafuete oorretzl; FOURTH: That liability hereunder shall extend lo, and include, the full amount ofany arid all moneys paid bythe Compmy th: settlement or mmpromis: ui' any claims, suits and judgments thereupon, in good faith, under the belief that il was liable 1" Wlileihel' liable nr nal, 85 "well as ofany and all disbursements un ettomeys' Ibex and expenses es it ,ay be made under the belief that such were necessary, whether necessary or not; Case1:O3-cv-03073-ODE Document86 Filed Page11Oof116 That, in the event afpayment, seltiemenl nr compromise nfiia bility, loss, CDSIS, clarnages, attomeyf f`e5_ claims. deuwlds, R-I-ll5 orjudglne-nm as aforesaid. in connection with any such bond or honda, an itemized statement therooll swam to by any otiicer or officers ofthe Company, or the voucher or vouchers, or other evidence o1`suu.h payment, settle or compromise, shall be evidence ofthe fest and ofthe liability ofthe lrtdezmnitors in any and all claims Orr Suits hereunder; 'itat nothing harem shall he considered or construed to waive, ahridgecr diminish any right or remedy which the Compariy might have if this immirnorit were not execulvarcl; SEVENTH: To waive, and do hereby waive, all right to claim any of their property. i|1c?udii1g hnmesteads, as exempt levy, eiibcution. Or Sale or other legal process, the laws of any state DT states; Tint, in case any ofthe Znriemnitors shall fail to execute Ihis or Lo case any ofthe lndermiiturs, who execute this insmiment, shall not be hound for any reason, the other Indemnitun shall zieverthele-ss be hound he.re:.rnder for the E111 amount of Liability, lose, cnets, damages, at-hameys' fees and expenses as aforesaid; To waive, and do hereby waive, notice ofany breach or breaches ofany such bond or honcls, or cl`a.ny act or deiituit .hat may give risroo claim hereunder; TENTHI That shall be liberally construed, so as to fully protect the Company; ELEVEFNTH: That suits my he brought hereunder as causes ofacrion may accrue, and the bringing ofgng gr mm; of *Mimi-\1 #wi-I not or har the bringing of st-1 its upon other of action, whether Eieretofnre ur thereaiter arising; TWELFIH: That the Company does not guarantee the prompt issuanoe nfany such bond or bonds. or-the acneptonce thereof rytlie oblige-c or obilgm therein named, and that lite Cunpany shall have the absolute right to irieclinero execute any such bond m- if THIRTEENTH: That in the even: the Company procure; the execution of`a.ny such bond or bonds by some other sureqr or or executes such bond or bonds vrith other surety or sur-aries as on-sureties, crreinsures any portion of such bond or btmda with other surety or suretits as reinsurers, then ali me terms and conditions ot' this iruncrurnent dull inure to the benefit ofany such mary or srireties, including the right to bring action ltereunder; FOURTEENTH: That the Intiemnitors shell continue to remain bound under the terms of this on BGGULLITII ofany uch bond or horrds even though the Cornpany may ii-om time to time hereafter, with or without notice to or knowledge nt' the "Dept other or additional agreements or indemnity on similar or other ionns to it in connection with the xcoition or procurement ofany such bond ur bonds, it being, hereby expressly understood and agreed by the Imiemnitors that any and ll rights which the Ckimpany may have or ucquire against tho and-"or others 'under any such other or additional groomer-its be in addition to, and not in lieu ol; the rigl-nas by the Company nmder lhia inscrument. FIFTEENTHI Whemls, surety has heretofore executed bonds on the express promise and understanrling, that the Will provide indemnity thcmiiore, and in Further consideration uftlie agreement to execute other bonds [subjetl to Bngnaplt Tweliih oflhis agroemmt) this indemnity shall apply lo my borid or bonds executed on or alle: lhloemtialue Mila Salina 8172311 Florida Slltutear My pets-on who knowingly and with intent ee injure, thi-and. ordamiveany flies 1- Rahenuut ann awlicatioa conhiming un mialmdirig irlimmrinn is g,uih;~ ma Sr.-Inn; in retina degee." ignod, sealed and dated this clay of lib-JM. A Attest: Atlest: Attest: ltiest: Case1:O3-cv-03073-ODE Document86 Filed Page111of116 1- EACH INDERLNITOR MUST ACKNOWLEDGE .. _m Case1:O3-cv-03073-ODE Document86 Filed Page112of116 For by Individual lndemnimrs GF 55: COUNTY OF On this day of befhre me, the subscriber umm-ails# ra me pexscmally Imaam. and known by me to be the person described in, and who executed, :he fm-:going instrument and mme In be am and deed. Witness myhand and seal. Narmy Public My Comrnissiun Expizcs For by Individual STATE OF SS: ZOUNTY OF on dl? b?fDrE me, the subscriber, "Fwd ID me mrsonally lmawu, and known tryme to be the person described in, and who menurod, the ?om-:going inmumml ma sknovledged sam: no be act and der:d_ Wiiness my hand and oflicial seal. My Commission Expires For Acknowledgment by Inllividlml TATE OF SS: OF Un This day of xsmatly appeared :rsnnully known. :nd known bym: to h: the peraom same Lu la: acl and drcd. Wimess myhand and sul. 1-94 hefhe mc, the subscriber, ITIS described in, and who exemrted, tha foregoing instrument My Commission Expixes Case1:O3-cv-03073-ODE Document86 Filed Page113of116 For by Individual SH. 5 OF SS: COUNTY OF O11 this day Df b?thrre me, the subscribe;-_ Imnwed so me >EURrmm|lyknUw11, and Immun by me tn be the persun described in, and who nmtculod, lhe lbregoing and tube act and deed. Witness my hand and cilicial senl_ Notary Pubfip My -:ummimm _Fur by Corporate lndemnitors HATE OP SS. ZOUNTY (JF on this day Uri-_. ., beihlt me, the subacribq-, amu1&appvd to me who, bemg duly swum, :hd dcpose and :ay that he residq in Ll-,gg gig' gf :hat hr ithe President of ih, uf tim doscribed in. and which execmed, Lhe 'WiI.'hl1I'.| lham he seal nfsaid me sm] aliixed 19 FL is such seal: tha: it was so afixed by order ofthe Baud of Directors ofsaid corpumliun, and than he signed 15 nametherelu by like oniu; and the said that he is acquainted with nd haw! that he is the Secretary ofsaid. corporaiinn and :hal he suhgcn-ib?d his nam; iq wid-|ig gh,- lika ufthe said Board DfDf1'?'0l'S, arid in mt presnnce ofthe Witness my hand and oiicial seal. .Vwwy My Cornmission Expires _Nw l1b.]M. xt Case1:O3-cv-03073-ODE Document86 Filed Page114of116 IN THE STATES DISTRICT COURT FOR THE NORTHERN DISTRICT UF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT OF MARYLAND, Plaintiff, vs. CIVIL ACTION FILE ND. FILM WORKS, INC.. JAMES T. DUFFY, 3 DUFFY, and JOHN J. DUFFY, I Defendants. VERIFICATION COMES NOW, Defendant, .Tohn J. Duffy, states that he has reviewed Responses to Plai11t_iH`s First Interrogatnries and states that those responses are true and correct to the best of his knowledge, information and betiefsubscribed before me this day cf May. 2004. lug, ff Notary Publif: nexpires: Tap, GEORGIA Case1:O3-cv-03073-ODE Document86 Filed Page115of116 OF SERVIQE This is Io certify that I have served a copy of the within and foregoing DEFENDANT JOHN J. RESPONSES T0 FIRST INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS, AND REQUFST FOR ADMISSIONS TO DEFENDANTS upon the following counsel and depositing a true copy of same inthe United States Mail, with adequate postage thereon, addressed as follows: Gregory R, Veal, Esq. W. Randal Bryant, Esq. Bovis, Kyle Burch, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2295 file. -1 Tnisgl fix.-fi /1 oo or JB Atzomey for Dlefendmis Georgia Bar No. USASSU 3711* Chamblee Dunwoody Road Atlanta, Georgia 3034] (GTS) 530-0905 Case1:O3-cv-03073-ODE Document86 Filed Page116of116 1 Acouuws PAYABLE 3 32 5 LD EEFZH I C|0000000000c00a21 4f3f20? CIR 0 I H513 DUE "Er $4,140.26 $0.00 50.00 sa, 140.2 Til 59,808.91 ?2,959.91 SELUD $5.05 59,808 .9 00000000000001113 mr 3:2102 3120x2002 $000.40 $6210.43 $0.00 susan S5094 0n000000000n01114 rn 3r2;f=J3 $309.53 ?0.00 s0_00 $169.5 0000:\000000n01115 rr, 1f25>>'2J02 510,230.09 510,z30,5Q 50.00 310,230.6 WC $1,290.06 51,290.06 50,00 51,290.0 537325-95 50.00 527.1283 fl' BANKXAHEHIGK 3 3 2 5 FILM WORKS, PNC. B4-armu .nccauurs PAYABLE sam r1osv:E% . mme 464-250-9550 ME SIT, 13,80 weary' sewn 1000010 one :wmrea mn nu :em fe Clarendon national Insuxan-ce suis Baca Raton Bram P0 am: am Deerfleld Beam If- ruse Cosa? - - Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 1 of 71 Page 1 MC GINNIS & ASSOCIATES, INC. 614.431. 1344 COLUMBUS, OHIO 800.498. 2451 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTIC DIVISION Fidelity and Deposit Company of Maryland, Plaintiff, vs. Entertainment Film ) Civil Action File No. ) 1: 03- CV- 3073- 0DE Works, Inc. ; James T. Duffy; Norma L. Duffy; and John J. Duffy, Defendants. Deposi tion of Dale A. Obracay, a witness herein, called by the Plaintiff for examination under the applicable rules of Federal Civil Court Procedure, taken before me, Kimberly A. Kaz, Professional Court Reporter and Notary Public in 2 0 and for the State of Ohio, pursuant to notice and agreement, at the Port Columbus International Airport, Columbus, Ohio, on Monday, April 26, 2004, beginning at 4:00 o clock p. m. and concluding on the same day. WWW. MCGINNISCOURTREPORTERS. COM - - Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 2 of 71 Page 2 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 APPEARANCES: ON BEHALF OF THE PLAINTIFF: W. Randal Bryant, Esq. (via telephone) Bovis, Kyle & Burch , LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia (770) 391- 9100 FAX: 30346- 2298 (770) 668- 0878 ON BEHALF OF THE DEFENDANTS: Maurice J Bernard III, Esq. 3717 Chamblee Dunwoody Road (via telephone) Chamblee, Georgia (678) 530- 0900 FAX: 30341 (678) 530- 0099 ALSO PRESENT: James T. Duffy (via telephone) WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 3 of 71 Page 3 614. 431.344 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO 800. 498. 2451 PULAT ONS It is stipulated by and between counsel for the respective parties that the deposition of Dale A. Obracay, a witness herein, called by the Plaintiff for examination under the applicable rules of Federal Civil Court Procedure, may be taken at this time by the Notary pursuant to notice and agreement; that said deposition may be reduced to writing in stenotype by the Notary, whose notes may thereafter be transcribed out of the presence of the witness; that proof of the official character and qualification of the Notary is waived; tha t the wi tnes s may sign the transcript of his deposi tion before a Notary other than the Notary taking his deposition; said deposi tion to have the same force and effect as though the wi tness had signed the transcript of his deposi tion before the Notary taking it. WWW. MCGINNISCOURTREPORTERS. COM - - Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 4 of 71 Page 4 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 MC GINNIS & ASSOCIATES, INC. INDEX WITNESS Dale A. Obracay Examination by Mr. Bryant Examination by Mr. Bernard Further examination by Mr. PAGE Bernard EXHIBITS Exhibi t A - MARKED General Indemnity Agreement Exhibi t B - 11- 14- 02 letter to Mr. Obracay from Debbi Ferrara; attachments Exhibi t C - 11- 18- 02 letter to Debbi Ferrara from Dale A. Obracay Exhibi t D - 12- 19- 02 letter to Mr. Obracay from Debbi Ferrara; attachment Exhibi t E - 12- 26- 02 letter to Debbi Ferrara from Dale A. Obracay Exhibi t F - to Debbi Ferrara from Dale A. Obracay; attachment 3 - 03 e- mail Exhibi t G - 14- 03 letter to Ms. Ferrara from Dale A. Obracay Exhibi t F - 10- 03 letter to Mary M. Pritckett from Dale A. Obracay WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 5 of 71 Page 5 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 PROC ING Monday, April 26, 2004 Afternoon Session Thereupon, Exhibi ts A through F were marked for purposes of identification. (Witness placed under oath. MR. BRYANT: This is the deposition of Dale A. Obracay taken pursuant to and agreement. notice, subpoena The deposition is taken for all purposes permitted by the Federal Rules of Civil Procedure. If it' s agreeable to Mr. Bernard, all as to the form and the obj ections except responsiveness of the answer will be reserved until such time as the deposition is thought to be entered into evidence in any motion, trial in this matter. MR. BERNARD: Is tha t okay, hearing or Mr. Bernard? That is agreeable. WWW. MCGINNISCQURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 6 of 71 Page 6 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 DALE A. OBRACAY of lawful age, being by me first duly placed under oa th, as pres cribed by law, was EXAMINATION examined and testified as follows: BY MR. BRYANT: Mr. Obracay, you have the right to read the transcript of this deposition and make any corrections and then sign it verifying its accuracy. Alternatively, you can waive that right. Which would you prefer? d probably like to read it. Okay. Mr. Obracay, if you don t hear or understand a question, will you please let me know? Yes. If you don t understand a question try to rephrase it so you can. a question, If you don t hear ll repeat it so you can hear it. Do you unders tand that you re under oath and that you ve sworn to tell the truth? Yes. And your answers must be verbal, not a nod or shaking your head, especially since WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 7 of 71 Page 7 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 doing this over the telephone. Just to avoid confusion, please answer " yes or " " to questions, not " uh- huh" or " huh- uh" II / yes Do you have any questions before we get started? No. Would you please state your full legal name? Dale Allen Obracay. Have you ever had your deposition taken before? Yes. How many times? Three or four. When was the last time? I can t recall. It' s been years. Did you review anything to prepare for this deposition? Yes. What did you review? The documents attached to the subpoena for Theater Entertainment Developers. Anything else? No. What' s the full address of your WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 8 of 71 Page 8 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 residence? 320 Moorings Cove Drive, Tarpon Florida 34689. Springs, Does anyone else live there? Yes. Who? My family. What are their names? My wife is Suzanne; and I have a daughter, Ellie; and a son, Colin. Are you currently married? Arguably. Are you separated? No, not legally. When is the last time you were at the 328 Moorings Cove Drive address? Two How weeks ago. long did you stay there? Four days. Have any divorce proceedings been initiated? No. And you were served wi th a subpoena in Fort Myers, Florida; Yes. is that correct? WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 9 of 71 Page 9 MC GINNIS & ASSOCIATES, INC. 614.431. 1344 COLUMBUS, OHIO 800. 498. 2451 Do you keep an apartment in Fort Myers? No. Where were you staying in Fort Myers? At my condominium. Does anybody live at that condominium? Just me. How often are you at the condominium in Fort Myers? It varies. MR. BERNARD: m sorry. It varies. I didn t hear that. THE WITNESS: I travel a lot. BY MR. BRYANT: In a typical month, like the past month, how often were you in Fort Myers? Not more than a week. Are you in Fort Myers or Tarpon Springs more often? Equally between the two residences. Have you ever lived in Georgia? Yes. When? I believe I moved out of Atlanta two years ago. Where did you move to? WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 10 of 71 Page 10 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800.498. 2451 Well, my primary residence has always been in Florida. Georgia? Tha t was a second home. What was the address of your home in 4101 Chastain Park Court. That' s Atlanta? Yes. Why did you move from Atlanta? Because I wanted to. Did you own your home in Atlanta? Yes. Did you sell it? No. You still own it? Yes. Are you renting it? Yes. Who are you renting it to? An individual. What' s that individual' s full name? Tangela Kendall. How much do you rent that home for? $700 a month. Do you have any relatives that live in Georgia? WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 11 of 71 Page 11 MC GINNIS & ASSOCIATES, INC. 614.431. 1344 COLUMBUS, OHIO 800. 498. 2451 No. Do you conduct any business in Georgia? No. When is the last time you were in Georgia? Today. That was for your flight to Columbus? Yes. When was the last time before today that you were in Georgia? I can t recall. Was it sometime this year? Probably. What were you doing in Georgia at that time? I would have just driven through. What' s your current occupation? I have a small group of companies and we run movie theaters. Wha t are the names of those companies? Theater Entertainment Developers, Inc. ; CG Holdings of Ohio II, Inc. ; Entertainment Developers, Inc. ; Bri tain Entertainment Developers, Inc. ; and I' ve got Eton Square Company, Inc. WWW. MCGINNISCOURTREPORTERS. COM Theater Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 12 of 71 Page 12 MC GINNIS & ASSOCIATES, INC. 431.344 COLUMBUS, OHIO 800. 498. 2451 614. MR. BERNARD: m sorry. Could you repeat that, sir? BY MR. BRYANT: I didn t hear. THE WITNESS: Eton Theater Company, Inc. How do you spell Eton? E-tAnd I have National Entertainment Developers, Inc. In what states do those companies conduct business? Ohio, Oklahoma and Florida. Did you list all the companies? there any others? There are none. MR. BERNARD: Were m sorry. I didn t hear your response. THE WITNESS: No, there are no other companies. BY MR. BRYANT: How long have you been involved in those companies? The oldest one is a year and a half. Which one is that? National Entertainment. Entertainment -- is it Developers? WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 13 of 71 Page 13 MC GINNIS & ASSOCIATES, INC. 614.431. 1344 COLUMBUS, OHIO 800. 498. 2451 National Entertainment Developers. And you own each of those companies? Yes. Are you the president of each of those companies? Yes. MR. BERNARD: THE WITNESS: I didn t hear your answer. Yes. BY MR. BRYANT: Mr. Obracay -Yes. Mr. Obracay, I haven t heard you for the past minute. Are you the president of each of those companies? Yes. Can you hear me now? I can. Okay. MR. BRYANT: Mr. Bernard, can you hear? MR. BERNARD: Yes. Thank you. BY MR. BRYANT: Mr. Obracay, you took a flight from Fort Myers, Florida to Columbus, Ohio today; is that correct? WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 14 of 71 Page 14 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 Yes. What are you doing in Columbus, Ohio? I own a theater here. Which theater is that? The Continent. How long do you intend to stay in Ohio? Well, my return flight is on Friday. Your return flight to Fort Myers? Yes. Are you employed by Entertainment Film Works, Inc. ? I was employed as a consultant. When were you employed by them? I worked for them for about a year, maybe a little over a year, and my employment terminated 2001 2002. July 2001, think; 2002 How did you get that position? don understand the question. How did you begin work for I spoke to Mr. Duffy and I agreed to go Entertainment Film Works? work for him. How do you know Mr. Duffy? I was in another business, and I learned of him because he had a cinema grill next door to WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 15 of 71 Page 15 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 my business, and got to know of him at that point 20 years ago. When you refer to referring to James Duffy? Mr. Duffy , are you Yes. You ve known James Duffy for 20 years? Yes. The cinema grill you referred to, where was that located? Maximo Plaza, St. Petersburg, Florida. Did you conduct business with -- Have you conducted business with James Duffy for 20 years? No. When is the first time you conducted business with Mr. Duffy? I can' t recall. Was it 15 years ago? I said I couldn t remember. Well, can you give me a ballpark figure? No, sir, I can Was it over ten years ago? Can I say something? Sure. Thank you. I am on three maj or medications for WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 16 of 71 Page 16 MC GINNIS & ASSOCIATES, INC. 614.431. 1344 COLUMBUS, OHIO 800.498. 2451 depression, one of which is for bipolar. I have taken my medication today to come into this meeting against my doctor s will, and I want to tell you that I' m about ready to fly off the handl e . Let me apologize on the front if I do. If I walk out of here because you have made me mad by badgering me this way with stupid questions, and I walk out of here, I will get a doctor s note that will excuse my behavior. So conduct yourself accordingly and I wi 11 sit here. Otherwise, will leave because I' m about ready to get up -- In fact, I have to get up and take a pill right now, so you just stop and sit MR. BRYANT: THE WITNESS: tight. re going to take a We can take a break. break. MR. BRYANT: Mr. Obracay, m trying to get answers to my questions. I don t mean to badger you. THE WITNESS: But you are. And wha t the hell does that have to do with this indemnity agreement? Please answer that question. Now, I want it to go on record that I am taking medication because of the way you are treating me. And I' m going to put it right down WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 17 of 71 Page 17 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 here, and she can put my medication down as exhibi ts if Mr. Bernard would like. MR. BERNARD: Whatever you want to put on the record, Mr. Obracay. THE WITNESS: I want it to go on record Zanex right now, and it' that I' m taking that . 5 the second one I' ve taken in an hour. And I want you to know that I take the following medications: And Effexor, 75 milligrams three times a day; and lithium carbonate, 300 milligrams once a day. m shaking like a this deposition. leaf. And I shouldn t be in And I have every right to call my doctor right now which would kindly dismiss me from this deposition and any further deposition. So take me whi le you ve got me here. MR. BRYANT: Mr. Obracay, I want to keep this as short as possible. Let me know when you re ready for me to ask me some more questions. THE WITNESS: abou t done. Get through it because I' If the Court Reporter -- If m shaking like a leaf. MR. BRYANT: you could hand Mr. Obracay what is marked as Exhibi t A. THE WITNESS: I got it. BY MR. BRYANT: WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 18 of 71 Page 18 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 Do you recognize this document? I don t remember. I remember something like this, but I don t remember this document. It' s labeled General Indemnity Agreement. it says, Undernea th tha Not to be used for . . James T. and construction bonds. In the first paragraph, it says, Entertainment Film Works. Norma L. Duffy.. . John T. and Caroline Duffy... n is that correct? That' s what this document says. On Page 3 of the document there is a list of signatures. Is your signature on that page? I witnessed the last two signatures on the page. The answer is yes. Okay. Did you see John Duffy and Caroline Duffy sign this document or the original? I don t remember. I don t think I saw ei ther one documen t ? of them sign it, no. Was anybody present when you signed this I don t recall. Where were you when you signed this documen t? I don t recall. Were you in the offices of Entertainment WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 19 of 71 Page 1 9 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 Film Works? Okay. ll put it another way: I don remember. Well, where do you think you signed it? m not going to guess. Were you in the United States of America? Probably. Were you in Georgia? I don t remember where I signed this. Well, where do you think you could have signed it, if you don t remember specifically? just am trying to get some help, if you can narrow it down for me. All right. I was in the United States. Were you in Alaska or California? Are you making fun of me now? No. I jus t need to narrow down where you signed it. We can go state by state, or if you can give me an idea of where you signed would be helpful. it, that And Well, purely a guess, m sure it would be helpful. I can tell you if I had to guess, and this is it would have been in the offices over at Entertainment Film Works. But it' s a guess. I don t remember. WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 20 of 71 Page 20 MC GINNIS & ASSOCIATES, INC. 614.431.344 COLUMBUS, OHIO 800.498. 2451 Who handed this document to you to sign? Jim Duffy. Were all the signatures other than yours on this document before you signed it? thing really remember for sure don that all the notaries were done first. there recall whether the ther signatures were not. when wi tnessed this The only Okay. But the signatures for John Duffy those were already on it? and Caroline Duffy, I said I don t recall whether their signa tures were on there already or not. I had a lot of things come at me every day that I' wi tness and I jus t -- Frankly, when I saw the notary had already been notarized off on it, would be reasonable to assume that the signatures were on this, but I don t recall. Would you sign a document as a wi tness for a signature that wasn t on the document already? As a rule, d say no. Was John Duffy in the office when you notarized his signature? I didn t notarize anybody ' s signature. m sorry, when you signed as a witness WWW. MCGINNISCOURTREPORTERS. COM Case 1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 21 of 71 Page 21 MC GINNIS & ASSOCIATES, INC. 614. 431.344 COLUMBUS, OHIO 800. 498. 2451 to his signature. I don t know. I don t remember if it was in the office when I signed this. Was John Duffy present when you signed this? I don t think so. Was Caroline Duffy present when you signed this? ve only met Caroline a half- dozen in my life. times m sure she wasn t there. Did you have any titles when you were working wi th Entertainment Film Works? I had assorted ti tles, yes. What were those titles? I was vice president for a while. don t know what else I was. When did you resign from Entertainment Film Works? July continue the same question more than one time. have time ll try -- I couldn t remember. why I asked again. Didn 2002. don answer that already? was answer Tha t ' s It would have taken longer for me to look it up. WWW. MCGINNISCOURTREPORTERS. COM Case1:O3-cv-03073-ODE Document 87 Filed Page 22 of71 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 Since the time you resigned from Entertainment Film Works, have you done any business with Entertainment Film Works? A. To my knowledge, they don't exist, but don't know. The answer is no. Q. Have you done any business with James Duffy since then? A. I've bought a little bit of equipment from him. Q. What equipment? A. Some projectors. Q. When was that? A. In the spring. Q. In the spring of this year? A. Yes. Q. When is the last time you've spoken to James Duffy? A. Yesterday when I left him a message to make you go away. Q. You left a message, you do not speak to him one-on-one? A. No. I left him a message and I said, "Make this guy go away. He's a waste of my time Q. When is the last time you spoke to him personally? Page 22 I lv Case1:O3-cv-03073-ODE Document 87 Filed Page 23 of71 Page 23 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 A. I can't recall. Q. Do you think you spoke to him within the past month? A. Sure. Q. Has Theater Entertainment Developers, Inc. done any business with James Duffy? A. We may have bought some equipment from him. He buys and sells equipment in the industry, industry wide, and it's not unusual for us to buy lenses or a camera or some seats from him from time to time. That's just not unusual. Q. Okay. How long have you known John Duffy? A. That's one of those relationships where I spoke to him on the phone five years before I met him, and I really never dealt with him much, even to this day. But, you know, 15 years, I suppose. But a very, very distant relationship. Q. What is John Duffy's role, or what was his role in Entertainment Film Works? A. He did marketing and real estate, looking for locations. Q. Going back to Exhibit A, the signature page, other than your own signature, are there any other signatures you recognize? Case1:O3-cv-03073-ODE Document 87 Filed Page 24 of71 Page 24 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 A. Well, recognize or ones that I can read? I mean, I can read some of these. Q. Well, James Duffy's signature, do you recognize that to be his? A. I recognize that one because I've seen it so many times. The rest of these I don't know. Q. Did Caroline Duffy work for Entertainment Film Works? A. Never once when I was there. Q. What about Norma Duffy? A. Never. MR. BERNARD: I'm sorry. What was that response, sir? THE WITNESS: Never. MR . BERNARD Never THE WITNESS: Never. MR. BERNARD: Thank you. BY MR BRYANT Q. To your knowledge, did either Caroline or Norma, have they worked for Entertainment Film Works at any time? A. No. Not to my knowledge. Q. Who is Robin Mauney? A. Robin helped with the set up of new theaters. I can't remember her title. She was on Case1:O3-cv-03073-ODE Document 87 Filed Page 25 of71 Page 25 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 the operations side. Q. She was employed by Entertainment Film Works? A. I'm not sure who she was employed by. There was a number of companies, but I'm not sure. Q. Was it one of James Duffy's companies? A. I'm not sure. I just know she worked on the operations side of things. Q. With James Duffy's companies? A. I said I wasn't sure. Q. Well, what operations are you talking about? A. She was helpful in setting up theaters that we were opening. Q. By who do you mean? A. Our group. Q. What group? A. Entertainment Film Works as a whole, being a group, collectively. Q. And this group is composed of different companies? A . Ri . Q. What are those companies? A. You'll have to ask Mr. Duffy. Q. Do you know any of the names? Case1:O3-cv-03073-ODE Document 87 Filed Page 26 of71 Page 26 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 A. Entertainment Film Works. Q. Do you know any other names? A. I don't. Q. Have you spoken to Maurice Bernard before? A. No. I don't think so. Q. Let's move on to Exhibit B. Do you recognize this document, Mr. Obracayyou recognize Exhibit A . Yes Q. what is that? A. Well, Zurich continues to be misguided by sending mail to me when I didn't work for them any longer, even when I made note of it to Debbi Ferrara. And this is just notice that they intended to pay out on a bond for Twentieth Century Fox. Q. Did you receive this letter? A. Yeah, I did. Q. Let's move on to Exhibit C. Do you recognize this exhibit, Mr. Obracay? A. Yes. Q. What is it? A. My response to Debbi at Zurich. Case1:O3-cv-03073-ODE Document 87 Filed Page 27 of71 Page 27 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 Q. This letter has the language, all correspondence to the Secretary of Entertainment Film Works, Inc. and personal Guarantor at his home address as follows: John Duffy, Secretary and personal guarantor and Caroline Duffy, personal guarantor"; is that correct? A. That's what it says. Q. Why did you identify John Duffy and Caroline Duffy as personal guarantors? A. Because Debbi sent me a copy of this indemnity agreement and it showed all of them on there. And John Duffy, at the time, I believe, was secretary because he had attested as secretary on that document. Q. Do you remember John Duffy being secretary apart from what it said on that document? A. NO. Q. Do you believe he had some office with Entertainment Film Works? A. I was not intimate with the officers and directors of any of the Duffy companies. Q. Do you know if he held a position with Entertainment Film Works at any time? Case1:O3-cv-03073-ODE Document 87 Filed Page 28 of71 Page 28 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 A. He carried a title of vice president when he was doing marketing. Q. When was that? A. During the time that EFW was in existence. I take that back. During the year and a half that I was there. Q. Okay. How long was Entertainment Film Works in existence? A. I don't know if it's even out of business. I don't have any knowledge. Q. Do you know when they began business? A. I don't. Q. Let's go to Exhibit D. Do you recognize that exhibit? A. Yes, I believe I do. Q. What is that? A. Pardon me? Q. What is that exhibit? A. It just says that they paid Twentieth Century Fox. Q. It's a letter from Zurich North America to you? A. No; it's to Entertainment Film Works care of me. Q. Did you receive this letter? Case1:O3-cv-03073-ODE Document 87 Filed Page 29 of71 Page 29 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 Exhibit E. Can you identify that exhibit? A Yes Q. What is that? A. It was an e-mail to Zurich telling him that I didn't work for these guys anymore; stop sending me mail and correct your records. Q. Well, the e-mail address on here appears to be daleo@gte.net; is that right? A. Yeah. Q. That's your current e-mail address? A. Yes. Q. I didn't hear you. A. Yes. Q. Exhibit appears to be an e-mail from Debbi Ferrara to you. Did you receive this e-mail? I'm sorry, it appears to be a letter from you to Debbi. Do you remember sending this e-mail? A. Hold on a minute. Let me read this. Q. Sure. A. I don't remember this e-mail, but I see what it says. Case1:O3-cv-03073-ODE Document 87 Filed Page 30 of71 Page 30 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 Q. You don't remember saying that? A. I don't remember writing the e-mail at all. I see what it says. Q. Is the information in the first paragraph correct? MR. BERNARD: Well, there is a great deal of information in there. I'm going to object to it. Do you want to break it down some, Randy? BY MR. BRYANT: Q. Okay. You say you were simply an employee, which, I assume, means simply an employee of Entertainment Film Works? A. Yes. Q. You stated previously you also were vice president at some point? A. Yes. Q. You state that James Duffy and John Duffy continue to own the stock of Entertainment Film Works; is that correct? A. That's what this says. I can tell you the date on here is the 3rd of January 2003. Q. Yes. A. You can call my the doctor. I was in the middle of a serious nervous breakdown. I was three months out of action. I don't know what Case1:O3-cv-03073-ODE Document 87 Filed Page 31 of71 Page 31 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 this says. If I wrote it, it doesn't matter. Q. Well, further down it states, "Sending me notices doesn't help you collect from the Guarantors. They will claim that you've haven't sent them good notice. I've seen this happen before. Don't be fooled. John Duffy is still part of this group." It states, have seen this happen before." What does that mean? A. That means I was on Pluto at the time, medicated, and I don't have a clue as to why I wrote this. And if you need verification, I can have Dr. Sichelman get it for you. Q. Has John Duffy or James Duffy ever claimed they didn't receive good notice of any claim under an indemnity agreement? MR. BERNARD: I'm going to object to the form of the question. I guess, Randy, what you're trying to ask him is whether he knows. The personal factor is hurting. But the way you phrased it, it sort of sounds like was he present. If you'll rephrase it It's a question that needs rephrasing. BY MR. BRYANT: Case1:O3-cv-03073-ODE Document 87 Filed Page 32 of71 Page 32 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 Q. Do you ever Do you know of any time that James Duffy or John Duffy ever disputed receiving good notice of a claim under an indemnity agreement? A. No. Q. Are you aware of them claiming they didn't receive notice of any other claim? A . No . Q. You state, "John Duffy is still part of this group." Was John Duffy still working with Entertainment Film Works in January 2003? A. I don't know. Q. Why did you state that in this e-mail? A. I don't know. Q. Were you making it up? A. I said I didn't know. Q. So you could have been making it up? A. I said I didn't know. Q. One of the sentences states, "The CEO of Entertainment Film Works, Inc. is James T. Duffy." Is that information correct? A. Well, he always used that title. Q. There is a sentence, have seen this happen before." What did you mean by that? A. I don't have a clue. I'm telling you I Case1:O3-cv-03073-ODE Document 87 Filed Page 33 of71 Page 33 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 was terribly medicated at that time. I couldn't work for three months. I can't be held accountable for anything I did during that period. Q. Were you seeing a doctor during those three months? A. I'm still seeing a doctor. Q. So you were seeing one during those three months? A. Yes. Q. I didn't hear you. A. Yes. Q. what's the name of the doctor? A. Dr. Allen Sichelman. Q. Where is he located? A. Florida. Q. Where in Florida? A. Port Richey. Q. What is his specialty? A. Well, it's family medical services. They have a number of different doctors in there. They do I'm in an HMO. He's my first point person. Q. Why were you seeing him during this January 2003 period? A. I was having a nervous breakdown. Q. Were you diagnosed as having a nervous Case1:O3-cv-03073-ODE Document 87 Filed Page 34 of71 Page 34 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 breakdown? A. I was diagnosed with severe depression. Q. Do you have any knowledge of John Duffy being affiliated with Entertainment Film Works? A. NO. Q. Let's go on to Exhibit G. Do you recognize that exhibit, Mr. Obracay? A. Yes. Q. What is that? A. It refers to the September 2nd letter requiring a response from me, and I said that I couldn't respond to something for Entertainment Film Works because I hadn't worked for them for a while. Q. This is a letter from you to Debbi Ferrara with Zurich North America? A. Yes. Q. Is that your signature? A. Yes. Q. I didn't hear you. A. Yes. Q. Do you remember sending this letter? A. I remember the letter. I don't remember exactly sending it. Q. Let's go to Exhibit H. Is that a letter Case1:O3-cv-03073-ODE Document 87 Filed Page 35 of71 Page 35 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 signed by you to Mary M. Pritckett? A. Yes. Q. Do you remember sending this document? A . Yes . Q. You state in this letter four signatures were referring to a document faxed to you. Was that document the indemnity agreement that's been marked don't know which one was attached. I can't tell you if that was Exhibit A or not. Q. Back to Exhibit A, just to clarify, you did sign this document? A. No; I witnessed two signatures on it. Q. Okay. Your signature is on this document, though? A. Correct. Q. And you stated that you signed it without personally witnessing John Duffy and Caroline Duffy sign this document? MR. BERNARD: I'm going to object to the form of the question. I don't think he particularly stated that. I think he stated he doesn't have any recollection. THE WITNESS: That true . I don 11 Case1:O3-cv-03073-ODE Document 87 Filed Page 36 of71 Page 36 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 recall. BY MR . BRYANT Q. So you could have signed it after witnessing them sign it? MR. BERNARD: Again, I'm going to object. I think his prior testimony was that he does not recall witnessing them sign it. His prior direct testimony was that he does not recall seeing either Caroline or John Duffy sign the document. MR. BRYANT: I believe his testimony was that he signed it after those signatures were already there, after it had been notarized. MR. BERNARD: That could be the case, but what I'm saying is I think you asked him earlier, just for the record, Randy, that did he observe them personally sign it. And I think his response was That's what I'm getting to. BY MR. BRYANT: Q. Okay. Let me ask that again just to be clear. Did you observe John Duffy or Caroline Duffy sign the document marked Exhibit A. No. MR. BRYANT: That's all I have at this point. Case1:O3-cv-03073-ODE Document 87 Filed Page 37 of71 BY MR. Q. Page 37 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 EXAMINATION RNARD Okay. Mr. Obracay, my name is Maurice Bernard. I'm representing the Defendants in the lawsuit. I will try and keep this short. A. Q. of you? A. Q. Can you hear me? Yes, sir. On Exhibit Do you have that in front Yes. My Exhibit consists of a letter to you, and then with it are four other documents attached to it, and then an envelope that has your stamped it looks like I don't know if it's printed or stamped address, and then it's addressed to Debra Ferrara or whatever. A. It appears mine is mixed up. So I've got and I have that envelope. What's the other documents? Q. Well, the next one shows a document that has J. Raymond Bouchard. Is that attached to it? A. Just a minute, please. Yes. Q. Was that included in the letter that was Case1:O3-cv-03073-ODE Document 87 Filed Page 38 of71 Page 38 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 sent to you from Zurich dated November the l4th? Do you know? A. I have no recollection of that at all. Q. The next one is a letter dated October 22, 2002 addressed a Mr. Ken Stults signed by R. B. Gautier II. Do you recall whether that was included in that letter to you? A. No; I don't recall seeing this letter. Q. The next one is a letter dated November l4th, 2002, going to Twentieth Century Fox Film Corporation. Do you recall whether that was included with the letter that was mailed to you with Debbi Ferrara? A. Hold on just a second. Dated December l9th? Q. No; November the 14th. It should be directly behind the letter to Twentieth Century Fox. A. Yes. I found it here. No, I don't recall this, either. Q. All right. And then there is another letter immediately behind that to Roger Bouchard Insurance that was sent from Zurich North America, dated November 14th. Do you recall if that was included in the letter that Ms. Ferrara sent to Case1:O3-cv-03073-ODE Document 87 Filed Page 39 of71 Page 39 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 you? A. No, sir, I don't recall. Q. Okay. Just wanted to clear that up because Exhibit was more than one page. Now, you have testified, sir, that you do have a problem I believe it's is it called bipolar disease? A. They're treating me for bipolar. My chart is severe depression. Q. How long have you had that problem? A. All my life. It's just been diagnosed within the last couple of years. Q. When you say all your life, have you had other episodes that they were unable to diagnoses? A. Yes. Q. When did the episodes first begin? A. I really can't tell you. It's been a long time. I know I had a bad one when I worked for Entertainment Film Works. I was three months without working, and then actually had another episode about two months ago. That's why I'm a little on guard today. Q. Okay. I understand. And I will try and be as brief as possible. This is just to get an idea of this. Case1:03-cv-03073-ODE Document 87 Filed 06/03/05 Page 40 of71 Page 40 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 When you say you had an episode with Entertainment Film Works, do you recall And I think you were there working with the company for about a year and a half, correct? A. Yes. Q. Do you recall exactly when that occurred during that time period or early on, later? I mean, do you have any recollection? A. Well, I think it was in the fall because it went past Christmas. Q. Fall of 2001? A. 2002 to 2003. Q. When did you you were working there Actually, I think you indicated you left in July of 2002? A. Yeah. So it would have been fall of 2002 over to January, February of 2003. Q. All right. So when you were working for Entertainment Film Works, you said you had an episode? A. Well, it started. My nerves were bad. I was shaking. I was going through tests. And then I went back home to Florida one time and didn't come back to work. And then I had an episode afterwards. I mean, these things don't happen Case1:O3-cv-03073-ODE Document 87 Filed Page 41 of71 Page -41 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 overnight. They happen over a period of time. Q. Okay. And in that regard, the only other question I think I have at this point is: During the course of your developing an idea of what the problems you were having were, have your doctors in any way told you that stress of work contributes to your problems? A. Work certainly was part of it, but seven children and a wife and an ex-wife contributed greatly. Q. Now, you say "an ex~wife". You have another wife with other children? A. I have all the children. I just happen to have an ex-wife. Q. Okay. I think you indicated that you still have a wife in Florida who you're married to but you're not divorced, correct? A. Right. Q. Is that a second wife? A. Yes. Q. Okay. That's what I wanted to get to. Does your medical condition create problems for you as far as your memory is concerned? A. Yes. Case1:O3-cv-03073-ODE Document 87 Filed Page 42 of71 Page 42 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 Q. Would you tell me how those problems come about? A. Sometimes it screws with my short-term memory quite a bit. But my secretary and my business partner have to keep tabs on me because I sometimes can't I miss appointments. I can't remember things. Some things I never remember, and some things I go, "Oh, yeah, now I remember." It's just a variety of things, but it's not fun. It is a memory problem. I have been known to get lost. Q. Okay. And when you say "get lost", please describe what you mean. A. I can remember one time missing a plane in Los Angeles and having to be tagged like a child and put on an airplane and escorted to where I was going to have someone pick me up. I was completely coherent. I wasn't drinking or anything. I just couldn't function. Q. How often since you've been an adult and I apologize, I have no clue. How old you are, Mr. Obracay? How old are you today? A. One-hundred nine. Q. In actual years, how old are you? A. I'm 48. Case1:O3-cv-03073-ODE Document 87 Filed Page 43 of71 Page 43 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 Q. Okay. And since you were an adult, say and let's give you the benefit that I take for myself age 25 on, have you had these problems on a fairly continuous basis? A. Yes. MR. BERNARD: I think at this point that's all I have for this witness. FURTHER EXAMINATION BY MR BRYANT Q. Okay. I have a few follow-up questions. Going back to Exhibit A, when did you sign this document, Mr. Obracay? A. I don't know. My signature is not dated. Q. It appears to have October llth, 2001. Do you day or within a few days of A. All I can tell you been notarized think it was on that that? for sure is that the notary notarized their signatures October llth. I have no knowledge of the date that I signed this thing. Q. Was James Duffy aware of your problems with depression when you worked with Entertainment Film Works? A. Yeah. He was sympathetic when I had Case1:O3-cv-03073-ODE Document 87 Filed Page 44 of71 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 Page 44 problems. He would make sure that I went home or took care of myself if I had to. Q. Were you taking medication when you signed Exhibit A. Based on the date, I'm going to say yes. Let me rephrase that. Based on the October date, I'm saying yes. But I don't know when I signed this. Q. Okay. You were taking medication on October llth, 2001? A. I have been on medication for seven or eight years. Q. What medication were you taking in 2001? A. Back then I was taking Klonopin, Prozac, Halcion, and one other one. I can't recall. Pretty strong mix of stuff. Q. You mentioned you have an ex-wife. Where does she live? A. Cleveland. Q. When is the last time you've seen her? A. Two weeks agoregular basis? A. She lives in Cleveland. I live in Florida. It's not that regular. Q. How often? Case1:O3-cv-03073-ODE Document 87 Filed Page 45 of71 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 A. We have a grandchild in common; once or the twice a year. Page 45 Q. What is her name? A. Kathy Obracay. Q. You said you had seven children? A. That's right. Q. Where do they live? A. All but two are adults now. Two live in Ohio, and the rest of them live in Florida. Q. How often do you work each week? A. How often? Q. How many hours a week? A. I work seven days a week. And I work as much as I have to. I don't know. Q. What would be an average? A. Seventy hours. Q. Please describe your responsibilities for your work. What do you do in those 70 hours? A. Well, I'm the president of these companies, and I work with the people who work under me. Q. What work do you do? If you could describe a typical day for me. A. I wish I knew what this had to do with me witnessing a piece of paper. Case1:O3-cv-03073-ODE Document 87 Filed Page 46 of71 Page 46 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 Well, I get up in the morning about 5:30 and I jog; then I have some coffee; and then I run into the office; and then I take phone call after phone call after phone call, and I deal with whatever the phone calls are; and that continues to 9:00 or 10:00 o'clock at night when I go to bed; and that continues in the morning. And that goes on every single day. Q. Who are the phone calls with? A. My employees. Q. At different theaters? A. At different levels of everything. Q. How many employees do your companies have? A. I can't tell you off the top of my head exactly, but I'm going to guess we have 55. Q. Where is your office? A. Corporate office is in Fort Myers, Florida. Q. What's the address? A. 13720 Six Mile Cyprus Parkway, Fort Myers, Florida 33912. Q. When you say "corporate office", what corporation or corporations? A. All the corporations have that address. Case1:O3-cv-03073-ODE Document 87 Filed Page 47 of71 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 Q. Okay. Page 47 MR. BRYANT: I think thaf;'S about it. Are there any statements you you'd like to change? Would you like your answer to any question? THE WITNESS: NO . I do Want statement, though. MR. BRYANT: Maurice, do you anything else? MR . BERNARD: No . MR . BRYANT: Okay . Go ahead Mr. Obracay. THE WITNESS: I just want it 've made that to change to make a have to go on record how unprofessional I think it was that Friday night at 5:15 I have a problem with kidney stones, which is the result of 01119 medication I'm taking I was on a gurney being pulled out of my condominium with four paramedics, one of which was holding an IV in my arm. And as we came out of the door, Mr. Bryant's process server shoved papers in my pocket the EMT told him to get out of the way and said, "Mr. Obracay, you've been served." I have never in my life seen anything like that anywhere, including Comedy Central or Case1:O3-cv-03073-ODE Document 87 Filed Page 48 of71 Page 48 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 anything like that. And I want it to go on record that Mr. Bryant has a very unprofessional attitude in allowing that behavior. And if that gentleman isn't reprimanded in some form or fashion, it just goes to secure that fact that it's not a very professional way of acting. MR. BRYANT: I apologize for that, Mr. Obracay. We instructed him to serve you with a subpoena. And my understanding was that he was outside your apartment for several hours and you wouldn't come to the door. And we have been trying to serve you for several months; but I apologize for the way it was done. THE WITNESS: It's just I've never met a law firm so unprofessional in my life. So that's all I wanted to say. So that if the Judge sees this, they know what happened. MR. BRYANT: Okay. Anything else? THE WITNESS: No . I 'm done . MR. BRYANT: Okay. Well, I thank you for showing up today. I know we had to make some adjustments, and I appreciate you cooperating with that. THE WITNESS: You can send me the $25 I spent to change my plane ticket. Case1:O3-cv-03073-ODE Document 87 Filed Page 49 of71 Page 49 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 MR. BRYANT: We sent you a check for your travel and it should cover that. MR. BERNARD: Are there any more depositions today, Randy? I was under the understanding since we had Mr. Obracay for his deposition, that the others were canceled; is that correct? MR. BRYANT: That's correct. MR. BERNARD: Mr. Obracay, thank you. Randy, thank you. At this point, I assume the deposition is the concluded. (Signature not waived.) (Thereupon, the deposition was concluded at 5:10 o'clock p.m. on Monday, April 26, ZOO4.) Case1:O3-cv-03073-ODE Document 87 Filed Page 50 of71 Page 50 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 AFFIDAVIT STATE OF SS: COUNTY OF Dale A. Obracay, having been duly placed under oath, deposes and says that: I have read the transcript of my deposition taken on Monday, April 26, 2004, and made all necessary changes and/or corrections as noted on the attached correction sheet, if any. Dale A. Obracay Placed under oath before me and subscribed in my presence this day of I Notary Public My Commission Expires: Case1:O3-cv-03073-ODE Document 87 Filed Page 51 of71 MC GINNIS ASSOCIATES, INC. 614.431.1344 COLUMBUS, OHIO 800.498.2451 I I A State of Ohio, SS: County of Fairfield, I, Kimberly A. Kaz, Registered Court Reporter and Notary Public in and for the State of Ohio, hereby certify that the foregoing is a true and accurate transcript of the deposition testimony, taken under oath on the date hereinbefore set forth, of I further certify that I am neither attorney or counsel for, nor related to or employed by any of the parties to the action in which the deposition was taken, and further that I am not a relative or employee of any attorney or counsel employed in this case, nor am I financially interested in the action. Kimberly A. Kaz, Registered Court Reporter and Notary Public in and for the State of Ohio. My Commission Expires: April l, 2008. CAUTION This certification bears an original signature in nonreproducible ink. The foregoing certification of the transcript does not apply to any reproduction of the same not bearing the signature of the certifying court reporter. McGinnis Associates, Inc. disclaims responsibility for any alterations which may have been made to the noncertified copies of this transcript tt=tDase Document 87 Q29 tt tt .e General Indemnity Agreement NOT T0 HE USED FOR DIJNDS KNOW ALL BY THESE PRESENTS: WHEREAS, upon the request made by Film Works. lite.. 5910 Roswell G4 55323. James T. and Norma L. Duffy, 990 Edgewater Drive, Atlanta, GA 3032! .loltn J. and Caroline Duffy, i690 S. Johnson Ferry Head. GA 3031.9 (hcrtinaller called lndemttitort, whether tltere be one or mont), mt is eviduncetl by the signing lteteoll and upon the express condition that this instrument be executed. FIDELITY AKD DF carpor t-tott ol' the Store of Maryland. wid: its principal office in the City of Balnmtare. any subsidiary thoreull their successors and asnigne. (hctoinnller milled has executed, or procttrecl the execution ull and may. from time to time hereafter execute, or procure the execution ot' antl.'nr obligations of sttretyship or guarantee in the same or it: different penalties and with the some or dillereot conditions andlor provisions. and in favor of the same or different obllgert leach of such bonds, uttdettalciugs and obligations hereinafter called bond or bonds) on behalf of: the and ony tot-parntiun in which the nw-ns. directly or indirectly. in wholo or in part, tt controlling interest. whether existing or hereafter acquired. and any roiltient representative. WHEREAS. the Intiemnitora have tt substantial, materiel and beneficial interest in the of the bond or bonds or ir: the Corrtpany's retraining from controlling said. bond or bonds. AND NOW, THEREFORE. its considersuon of the premises and the sum ot' one dollar. the receipt ui which in hereby acknowledged, the Incierrtnitors, and each of diem, for each of their ltelrb. executors. successor! and assigns. jointly and severally, :lo lterelay cttvettant and with the Company as follows: FIRST: To pay tothe Company. ln advance. the ptem.iu.m or prerniunts for arty such bent! nr bonds, in accordance wltl: the soltedule attached to or to be attached ltateto. as long os liability thereunder shall continue, and until stittsiiuztoty to the Company. ofthe term-imtiou nt' such liability sltall he furnished to it tu its home alice: SECOND: To indemnify the Company from and against any and till 'liability luis. coita, damages, attorneys' fees and expanses, ofwltatever kind or nature. heretofore or ltereuflet sustained or by UIC by reason, or in consequence uflts executing any such bond orbottds as surety or co-surety, or proctuint; the execution thereof, in making; tanyinvesitgntiott on account ol' Arty such bond or bonds, in defending or prosecuting any action. suit or outer proceeding which may be brought in connection therewith, in enforcing any of the agreeoteots herein contained, sud in obtaining release nom liahillry under any hottel or and to the Company to the Full amourtt of liability, loss, costs, cnomeys' teas and expenses as aforesaid, regardless of any retnsunnce that may be carried on any such bond or bonds; Ther the shall have tlte right and is hereby autltortzecl, hut not rlqutreclz (tt) to or any claims, demands, suits or Judgments upon any suols bond or bands, unless tlte lnclermtimrt- sltall request it tn lritigtitc stitch cl-Hints nr demands, or to defend Such suits or to appeal from such sad shall deposit with the satisfactory collateral. sufticient to pay any judgment orjudgments, rencluted or that may be rendered, with interest, costs, expenses and attorneys' fcei: (ls) to assent to any change whatsoever in any suelt bond or bonds sndfot any cont:-act or contracts rcfenttd to io any such bond or bonds and/or in the general conditions, plum ontilnr soecmcationtt accompanying said contract or contracts and to in the general conditions, plans and/or specifications accompanying said contract or contracts srtti to assent to at titre any assignment or aasitmtnents. to execute or consent to the execution oi any contlouotions, extensions ur renewals of any suclt bond or bonds and oo exccut: at-ty substinite or substitulett therefor, witlt tlte some or dittet-ent and and with the some or larger or smaller penalties. all of the aforesaid without notice to or knowledge of tlte lndentrsitots. it lseirtg expressly understood and agreed that the shall remain hound under the terms of this instrutnertt even though any such assent by the does or might substantially increase the liability of said tc) to attach hereto tt schedule ot' rates and copy or eapitts nl' arty auch band or bonds, to till up any blanks left. herein, and to correct any errors in filling up any blanks herein, or in the schedule oft-titre it being hereby agreed that auch schedule and such copy or copies. when so and such insertion or correstions, when so uutcle, shall be prtmefqcis correct; FOURTH: liability hereunder :hall extend to, and include. the Full amount of any and all moneys pattl by Compuy tn the settlement or coo-tpromtrc of any claLms. suits judgments thereupon, in good faith, under tit: belief tltat it was liable Mitts.: ht. 7-as EXHIBIT QUBQQDE Document 87 Yi-Eiltitol fi" APR-za-aunt _r therefor, liable or not, as well aa of any and all disbursements on account of :osts_ attomeys' fees and expenses as aforesaid, which may be rnecle uncter the belief that such were necessary, whether necessary or nut; F1Fl`i{: That, in the event settlement :tr compromise of liability. loss, costs, damages, fees, expenses, claims. demtutdt, suits or as aforesaid. in conneerton with any such bond or bands. at: itemized statement thereeh sworn to by any officer or oilicera of the Company, or the voucher nr vouchers, or other evidence of lush payment. settle or compromise. shall he prima jiteie evidence of the fact and cxtcut uftlte liability ol' the lndemnitort tn any and ali claims cr suits hereunder; SIXTH: That nothing herein contained shall be considered or construed to waive. ttbtidge ur tiirnintsh any right or remedy which the Company ntight have insrrurnont were not executed: To waive., md do hereby waive. all right to claim any of their property. homeutcads. as entempt from levy, or salt: or other legal pmcesl, under t.he lowt of any nate or states; That. in case any of the Indemnitors shall fail to execute this or in cate any of the lrtoemniltmt. who execute this shall not oc bound for any reason, the other Zudcmtutors shall nevertheless lac bound hereunder for the Fall amount uf Liability. lose, costa, dnmeges, attorneys' fees and expenses as aforesaid; NINTH. To waive, and do hereby wnivc, notice of any hteaclt or breaches oi' any such hood or bonds, oz of any o:r or .iofattir that may give rice to clnirn hereuoden TENTH1 Shall he liberally consumed. so us to fully protect the Company; That suits rmy be brought hetrtutrler as causes ofaction may accrue, and the bringing of one or suiti. or the recovery ofjudgment or judgntencs therein shall not prejudice or bar the bringing or suits upon other csttetes ot' action. whetlzer thererofore or thereafter arising; TWELPTH: That the Company does not guarantee the prompt issuance ot' any such bond or hoods. or the acceptance thereof hy tht: obliges or nhligees therein named, ood tl-tat the Con-pany shall have the absolute right to decline to execute my such boar] or bandit That in the event the Company prouurex Ll-te execution oi' any auch bond or bonds hy some other surety or suretiea, or executes such bond or bonds with other stzrery or aureties 43 eo-aurnties, or reirtsures any portion of such bond or bonds with other surety or surerictt ll reinsurers, then all the sud conditions of this :hall inure to the ot' any auch 0' ittelttdiftg the right to bring Muon herectnder; FOURTEENTH: That the [ndemnirozs shall continue to remain bound under the terms ot' thin ua account ofony such honct or bonds even rltnugh the Company may from time to time with or without notice to ur lcrtov/ledge of the indernrtitors, accept other or additional agreement: ur indetnniry cn similar or other forms to indemnify lr in connection with the ertecurian or procurement of any such bond or bonds. it being expressly understood and agreed by the that any and all other rights which Company may have or acquire against the loderttnitors nndfor athertt under any such other at additional agreements of indemnity shall be tn addition ta, and nat in lieu ol] the rightu afforded by the Company under this instrument. FIFTEENTH: Whereas. surety hos heretofore executed bonds on the express pmtnise and underttandittg. that ure lnciemvutor will provide indemnity therefore. and in further consideration of the st.tret'y's agreement to execute other bond: (subject to Twelfth of this agreement) this indemnity shall apply to any bond or bonds executed on or other May 12, 2001. tn with Scetton Bt `l.2Jtl lib). Ftnt-'ac hlalutua: "Mir amun who le-tnwmaly rid with intent tn inidta. dothud. or any insurer Vttea ti ttutr-nent or tut :pp.icat\iort any faire. tmaornelezot or misleading infumration tr guilty _-its the degree-'" Signed, sealed and dated this day of /an-Je hl, 1-94 APR-za-2nu4 Document 87 Fm Anas l`lb-QM, . Sncrelary CL. Inc. 71 Dwfv. I-residenr Dufy, i al ?11 EACH UTDEMNFFOR MUST ACIGYOWLEDGE APR-ze-zuu4 Document 87 For by lndivlrluul Indemnltors /2 STATEOF 62'-f 90 couwrv DF ?flv.-mmf On this day of appeared SS: Lmwn. and known hefore me, the :uhm-lbcr, to me personally d\15Cl'lbUd ln. ind wha the und acknuwludgud sam: ID bc an :md daed. Witness my hand and Notary .Public My Commiasmn Expizes 7' f' Fur by Indivldunl STATE OF in COUNTY OF On this _Qi day of brnfore ms, the subscriber, pmnnully nppcucd lgmy in me pczsonally lmown, and known by me ro he me person dem-ilacd in. and uha executed. the nad acknowledged nam: ra be gr an and deed. Wim; my hm and amen: ml. .. Nazary Fublin My Expircs /1 A Fur by Individual lndemnllora A STATE OF Q1 '17 SS: CDUNTY OP if Onrlus 7" diy of befor: mu. the subsmlaur. personally Appeared John J. ln ms personally known, and by me to lac pmun in, And who exzcuted. tba and acknowledged lame in be nel md dem. . Witness my hand and nfticinl seal . . |ll7b~3M. 144 My Commission Expires ?i 6?&1iI7?q2B WT: APR-ze-zuu4 Document 87 Ffil?id 5 yu; ii Far Aciumwludgnienx by liidivlnfunl s'rmso1= 'dl 1 i/ SS: COUNTY or 'Vg' Onthis _lf day of $2 fi ci before ms. Lim Nb5CUb?f. personally appeared in me personally known, and known by me in he the described Ln, and who--uusiired, the foregoing and acknowledged same ID be act and deed, Witness my hand and nfiicial seal. Nrirarg. Public My Cammissinn Expires /sq*/Q .foe 2/ For by Cnrpurnm Indemnilnn . STATE or fu 1 ss; COUNTY sn-Jw before me, ini" .5 member, personally appeared fi io me personally known, Min, being duly swam, did dcpnise and say than he resides in the city 3; tha: he il the Preaideniof ill onrlun dewnised in. und which executed, lhe. within in1min'iem; that he knows Lb: seal of said corpumion; that the Heal 1 I0 laid 'imtrumenl is such norpome len); dm it was so affixed by order nf lhe Board ofDixe:u:rs of said corpnmiinn. and :ned his mu: :herein by like order; and me depnuent liirllier said ilm he is acquainted with ff- and knows that ha is Llie Secxemry ofsaid vorpamiun and than he subscribed his name ID Lhe wzelim 2] ul by is like order uflbe said Baud ofDirc?tars, and in Lhe presence of lhe ,7 *eil Wimess my hand and ufliciui seal Na 7 blia ZURICH ZURICH NORTH AMERICA Phone B88 320 9659 #5 Cornmerclal Surety Claim DIVISIUU Box 87 Baltimore MD 21203 0067 3910 Kesw|ck Rd Flour 21211 Fax B77 B12 5754 Email debbn ferrara@zunchna com Nm ember 14 RESPONSE BOND Film Works Mir Dal: Obracav 328 Moonngs Cove Dnve Tarpon Springs FL 34689 7673 Principal Entenamment Film Works Clsum No 633 OU34074 Bond No LPM 8595574 Claimant Twentieth Century Fox Film Corpormon Dear Nr Obracay Zurich North America issued a Bond on behalf of Film Works We are Ln re the enclosed correspondence :ecezved from Twenueth Century Fox Corponuon demand under the terms of the bond for payment of $62,27" 21 Please refer to the above" number tn all tltrure correspondence and telephone Inquiries Please provide me w1th a w1.1ttcn statement of your posmon connecuon w-ich the demand against the bond. Spemfically advise whether Film Works intends to pay amount owed or if there are valid defenses to payment. lwtill df iuwrhing. Alelpomeisduemll/28/02. Failure to r?j will leave Zurich North America with no altemative but to Satisfy its legal obligations? the bond by payment of Lhe claim. 1 gf You are reminded that you signed an agreement to reimburse and indemnify Zucich North and all losses costs charges attomeys fem and other expenses which it nmight sustain as a having issued the bond. Should Zurich Nordt Anxcrica pay the claim rnade against its _f look to you for full reimbursement. Sincerely, I Debbi Fr-rmm 'l Debbi Fermra Claims Specialist Encs. 7- EXHIBIT 1 1 i DOCUITIGDI 87 p25 F929 I1 :C3l&Be 87 Pa@?258 ii 5_2 Phone: Commermal Surety Clalm D|v|s|on ZURICH PD. Elox B7 Baltimore, MD 21203-0087 saw Keswick Ru, sm 21211 Fax: Email: debbi.lerrara@zurichnacom November 14, 2002 Twentieth Ce-ntury Fox Film Corporation Mr, Randy Kender Litigation Deparunent P.O. Box 900 Beverly Hills, CA 90213-0900 Re: Primzipalz Film Works Claim No.1 638 0034074 Bond No.: LPM 8595524 Dear Mr. Kendal: Your lerrer of 10/ has been directed ro for Please forward correspondence to my attention at the address Set forth above Please be advised that we are presently raking "Qmarrer up winh our principal and we contact with you shortly regarding your claim. investigations may take up to 30 days this matte: be resolved prior to 30 days, please advis?in writing of the removal ofyour claim, 1 As with all correspondence on pending letter is written under a full and reservation of all righrs and defenses available at lmirjth equity and under :hc remts of :he bond_ Should you have any questions, do not hesitate no contact me. Sincerely, Debbi Ferrara Debbi Ferrara Claims Specialist Cc: Entertainment Film Works F-sza511APR-za-zona Il?55li$9 ZURICH Document 87 Eibeg9O5;W3/05 Page259 p, pm Nodh Arnerica Commercial Surety Claim Division P.O. Box B7 Baltimore, MD 21203-0087 3910 Keswick Rd, 5" FI 21211 Phone: Fax: Email; dehhi.ferrara@zurichna.com November 14, 2002 Roger Bouchard Insurance 101 Drive P.O. Box 6090 Clearwarer, FI.. 33758-6090 Re: Principal: Film Works Claim No.: 638 0034074 Bond No.: LPM 8595524- To Whom It May Concern: Zurich Norah America has issued the enclosed letter to Enterrainrnent Film Works. Be advise we are presenrly raking this matter up wirh our principd. Please forward correspondence, if attention at the above referencing above claim number. As wish all correspondence on pending claims, this is wxinen under a Hill and complete reservarion of all rights and defenses available at law;-in equity and under the terms of the bon Should you have :my questions, plmse do not hesiule no contact me. i 1 Sincerely, Debbi Perm-.1 Claims Specialist 135% Cc: Entenainment Film Works 1_ EnclDebbi Ferrara . mtinse Document 87 F-sae FICE mesa iz/oe '02 09:55 ln: Fox; 2, 3 liL7. lit-url, 1-1111., citafumn uuzu Ft. tin Jw FDX GROUP October 31, 2002 1_ rt, [127-449-1257] J. Raymond Baucnmt, Ana in-Fact Fidelity and Deposit . aryland 101 Stemresynrive C|eggyaeetf`Florida 33765 Re: film Work Sggig Bond/ Dear Mr. Bouchard: I Iarnwriting on behalfoflweutieth Century Fox Film Corporation with respect to the i bond (#08595524) issued by Fidelity and D1:poaitC0. of Maryland in connection with the Film obligations of' Entertainment Film Works, Inn. It is my understanding that you is Attomey-in-Fact: for Fidelity on that Bond. EFW, the Principal on the referenced Surety Bond. has :failed no timely pay Elm rental owed to ji the Bond's Ubligee. Attached is a copy ot'Fnx's 10/22/02 demand letter to EFW seeking pa fy Qy ofthe outstanding tilm rental, whieh failed to yield payment by EFW ofirs overdue Film rertta fi of this Friday (1 1/1 BFW owes Fox $62,272.21 in unpaid film rental and related ch 'lf $22.05 2.65 ofwhielt is morethan 21 days phil due. These amounts increase daily because Q, if still exhibiting Fox Films at some ofitu theaters. Pursuant to the ofthe Surety Bond. Fox hereby submits this letter to you on bchalfoflfid and Deposit Co. nl'Mary1and, notifying you payment default and seeking recovery nik, Bond in the emou.11tofEFW's unpaid Elm rental owed to Fox. Please make immediate payrnent EF W's outstanding li Im rental by chock to Twentieth Century Fox Film Corp., 21 21 Avenue of Stars, Los Angeles, CA, 90404, Atrn: Randy Kender, Suite 707. Ifyou would prefer to make' "5 payment by wire transfer, please contact mc for Fox's wire transfer infomation invite you to :unmet me if you have any questions or wish to speak to me about this matter. Si rely MuDq:nsitCu.ofMaryla.r1d it ii Ken St'ttlt2,BFW Film Buyer iE| at ?7 Pg; li ti Document 87 '02 09155 g, 3 3 Page261 F-tae i .l Pho A llP~Y|ll\ IDI Hill October 22, 2602 i UCT 2 4 ZCO2 Mr, Ken Stults, Film Buyer 5 Talbot Management $3720 Ben C. Pratt Six Mile Cypress Parkway .. Ft. Myers. FL 33912 Re: Dear Mr. Stultsz As we recently discussed, your client currently owes Fox a total of $60,274 for ou film rental incurred by its theaters. This outstanding debt (which increases witl1 earh additl exhibition ofa Fox film by EFW) is particularly problematic in light ofthe fact that $15,850 of rental is more than 21 days past due (and thus beyond your client payment despite repeated demands from Fox that these overdue rentals be paid in (itll I an-i writing to that your client immediately pay in full its overdue outstanding funn lf' Fox fails to receive such payment before the close of business on at that time, turn this matter over to our legal department for handling. I remind you that amounts owed Fox by EFW's theaters ar: covered by the surety bond issued on l/7/02, and prepared to draw down on that surety bond in the event that your cIiertt's overdue iilm remains unpaid. Ofeaurse, without limiting Fox's other rights and remedies, Fox will not co your t'.lient's theaters for the licensing of its motion pictures as long as your overdue film remains unpaid, I am hopeful that in response to this letter, your client immediately pays its outstanding Elm re in full. Nothing in this letter is intended to constitute a waiver uf any of Fox's rights and rem in this action, all of which are hereby expressly reserved Sincerely, RB. Gautier II cc: James Duffy Henri Fran.kfuner A cuivtrr/trttlf; _" 7 Pa@?2s2 a ,arl"izE733 2 uf' 3 FD .Q -gki?_.,gif ffDoCume? 87 Filed Page 63 of 71 S`'Teas-e 'd 929-1 alan ass iq.. .. 1 f. 1 \w WL.. 1 'n5_f'-Mi.wil 1 . Ll. . 4:5 -mfgQi. HDHHE HMI |NVEl=ll ll =GA'l&5e Document 87 'o 'mar gr November 18, 2002 $aIe A. Obrocay . ?28 Moorings Cove Drive Tarpon Springs FL 34689 Debbi Ferrara Zurich Norlh America Box 87 Balhmore MD 21203 0087 Re: Claim No. 638 0034074 and all fufure claims. Dear' Debbi, 7 I resigned from Enferlainmeni' Film Inc. over 4 monlhs ago. Pl send all correspondence to the of Enferfainmenl Film Wor and Personal Guarantor at his home adifhess as follows: John Duffy, Secretary and personal mor' and Caroline Duffy, per- 7 guaranfor' . 1690 5. Johnson Ferry Road .TQ GA 30319 6 Home: 404-255-4192 1. Thank you. 7 Sincerely, I 3 . Dale A. Cbracuy ;l 7' i . . 1 .IBIT .Qi Lie Dlvimn Bax B7 Buliimwt PM 21203-0087 3910 Rd, 5' FI 21211 Dwcm\n1.9, N32 F.U.mWorks Mn-.Dila Ohuzly 328 Tnrpon FL 54689-2673 R: Pnnupnl Cl|lmNo 63800 54074 Bond Nm LPM B59 Smcwely Debbi Fenm Claim; Spedllist End. Phono. 888-320-965 #8 ax 877-812-5754 Emnl1113556 'tif ZURICH Phona 410 261 T931 #6 lx. ashm GUM Zuich communal Suw Charm Dmnlon 0 Box 87 aamnm Nm 21203-ow 3910 mm Rd. 9? FIM 21211 Dcn:rnbc.r192D02 Mr.Rmd5-Kendzr lmgpumbepumnmr PO 902150900 Wada 638 LPM 8595524 "1"wenmh Rm Oneponuwx Gum No. Bond No Clanmamz In hne :nth our mvesapuan, we willbe ID Tvmuuesh Cmrury Fo: Film 65- fm-ms. ouwsn-sm.; has oiicnumyanu-nhn. Ihwkyuufmyammopnzdonh Sincerely D?hb1F'amn| mum 1 Ching; 551' 1 Cc: Eumzuhmmuxt Wada I 'Il End. mi >>1g?e 3" I ~u APR-ze-zun4 Documi 87 'FrUwdaQS'/03/05 Page266 . ,ei Emi v, APR-ze-zona ll Document 87 Frt|esda016103/05 Pag&B7 if 1-man. es, am nm wow :Fl subject: Enferroinmem' Film Works 41 Dan: Thu, Z6 Du: 2002 12135143 3 . From: 1 TU: 1 Hi Debbi, . I have nof worked for EnT?r'tuinm?n+ Fil f' I to gat mail for Them. Hare is 111: corn your records. Hope |10|idGy! Thdliia, 1 i gi Duffy En-rar-fairm?n1' Film Works Inc. 1690 5. Johnmn Ruud Mlanfa GA 30319 404~255-4192 1 Ddla A. %zoFuu DUUKII . ?-lla . .. $453 -vfimf -vo' 4vzn|J5pdq@ver|zcn ne\> on 011' D3 U7 54 37 AM Debbi Ferrara Thu AM 12 02 35 CST eoogte net Subject Re Entertamnment Film Works I believe the reason you conninue to receive mall 15 that you have Si as vice president on the bonds which Qherefore makes you the indemnit these bonds. Mr. Duffy has stated. ae you have. that he is no: invol with Entertainment Filmworks. However] I~need to have a name and conf bonds. /phone number of someone who is the responsible party for ches` Thank you for your cooperation in thisematcer. Debbi "Dale A. Obracay" cdaleoogtem HQ. oni Subj ect: Hi Debb I have to get change Thanks 12:35:43 PM deblai ferraraozurichna. 5 Encercainmem: Film 1 A not worked for Entertain`" o?lL'Work5 since July. I continul mail for them. Here is`f` address for them. Please your records. Hope your; great. wJ fg . 15- -iwf ui uf I 1; 1 Docum? 87 W. F929 To 5 7 Wir 4 11 Dale John Duffy Entertainment Film Works. Im: 1690 S. Johnson Ferry Road Atlanta, GA 30319 1% 404-255-4192 daleo 2_9 (See attached file: da1eD.vCf) 'ij 1 Ie `5 _'nufpigs APR-za-zuui D?cum FriiemahfMay, 2006. Respectfully submitted, MAURICE .I BERNARD, 3717 Chamblee Dunwoody Road Attorney for Defendant Norma Lee Duffy Atlanta, Georgia 30341 Georgia Bar No. 054850 (678) 530-0900 Case Document 105 Filed Page 2 of 2 CERTIFICATE OF SERVICE This is to certify that I have served a copy of the within and foregoing SUGGESTION OF BANKRUPTCY ON THE RECORD upon the following counsel and depositing a true copy of same in the United States Mail, with adequate postage affixed thereon, addressed as follows: W. Randal Bryant, Esq. Bovis, Kyle Burch, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Laurence H. Margolis, Esq. The Margolis Law Firm Lion's Gate Manor 1126 Ponce de Leon Avenue, N.E. Atlanta, Georgia 30306 This 9* day Ofix/ray, 2006. MAURICE BERNARD, Ill Attorney for Defendant Normal Lee Duffy Georgia Bar No. 054850 3717 Chamblee Dunwoody Road Atlanta, Georgia 30341 (678) 530-0900 Case Document 106 Filed Page 1 of1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. ENTERTAINMENT FILM WORKS, INC., et al., Defendants. CIVIL ACTION FILE NO. STIPULATION FOR DISMISSAL It is hereby stipulated and agreed by and between the Plaintiff, Fidelity and Deposit Company of Maryland, and the Defendant, Dale A. Obracay, through their undersigned attorneys, that the claims against Defendant Dale A. Obracay in the above-entitled action are hereby dismissed Without prqudice. s/ W. Randal Bryant Georgia Bar Number 092039 E-mail: wrb@boviskyle.com Attorney for Plaintw Bovis, Kyle Burch, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 s/ Laurence H. Margolis Georgia Bar Number 470580 E-mail: Attorney for Defendant, Dale A. Obmcay The Margolis Law Firm Lion's Gate Manor 1126 Ponce de Leon Avenue, N.E. Atlanta, Georgia 30306 Telephone: (404) 872-7086 Facsimile: (404) 892-1128 Case 1:03-cv-03073-ODE Document 107 Filed 05/15/06 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC., et al., ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE STIPULATION OF DISMISSAL It is hereby stipulated and agreed by and between the Plaintiff, Fidelity and Deposit Company of Maryland, and the Defendants Norma L. Duffy and John J. Duffy that the claims against Defendants Norma L. Duffy and John J. Duffy in the above-entitled action are hereby dismissed without prejudice. s/ W. Randal Bryant Georgia Bar No. 092039 E-mail: rbryant@boviskyle.com Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 s/ Maurice J Bernard, III Georgia Bar No. 054850 E-mail: embernard@mindspring.com Attorney for Defendants Entertainment Film Works, Inc., James T. Duffy, Norma L. Duffy, and John J. Duffy 3717 Chamblee Dunwoody Rd. Atlanta, Georgia 30341 Telephone: (678) 530-0900 Facsimile: (678) 530-0099 Case 1:03-cv-03073-ODE Document 108 Filed 05/15/06 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ) ) ) Plaintiff, ) ) v. ) ) ENTERTAINMENT FILM WORKS, ) INC., et al., ) ) Defendants. ) CIVIL ACTION FILE NO. 1:03-CV-3073-ODE CONSENT JUDGMENT Pursuant to the consent of Fidelity and Deposit Company of Maryland, Entertainment Film Works, Inc., and James T. Duffy, and said parties' waiver of a jury trial, IT IS HEREBY ORDERED that final judgment be and is hereby entered in favor of Fidelity and Deposit Company of Maryland and against Entertainment Film Works, Inc. and James T. Duffy, jointly and severally, in the amount of $222,000.00 (composed of $147,304.92 for loss payments under bonds issued on behalf of Entertainment Film Works, Inc., $45,401.05 for attorney's fees, and $29,294.03 interest), plus interest at the legal rate from the date of the judgment. -1- Case 1:03-cv-03073-ODE Document 108 Filed 05/15/06 Page 2 of 2 IT IS SO ORDERED this day of May, 2006. ________________________________ ORINDA D. EVANS, JUDGE U.S.D.C., NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION Consented to by: s/ Gregory R. Veal Georgia Bar No. 726615 E-mail: grv@boviskyle.net Attorneys for Plaintiff BOVIS, KYLE & BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 Consented to by: s/ Maurice J Bernard, III Georgia Bar No. 054850 E-mail: embernard@mindspring.com Attorney for Defendants Entertainment Film Works, Inc., James T. Duffy, Norma L. Duffy, and John J. Duffy 3717 Chamblee Dunwoody Rd. Atlanta, Georgia 30341 Telephone: (678) 530-0900 Facsimile: (678) 530-0099 -2- Case Document 109 Filed 05/17/06 Page 1 of2 MY 7 2006 IN THE UNITED STATES DISTRICT GMC EOR THE NORTHERN DISTRICT OF GEOR ATLANTA DIVISION FIDELITY AND DEPOSIT OF MARYLAND, I Plaintiff, v. CIVIL ACTION FILE NO. 1 ENTERTAINMENT FILM WORKS, INC., et el., Defendants. CONSENT JUDGMENT Pursuant to the consent of Fidelity and Deposit Company of Maryland, Entertainment Film Works, Inc., and James T. Duffy, and said parties' waiver of a jury trial, IT IS HEREBY ORDERED that nnei judgment be end is hereby entered in favor of Fidelity and Deposit Company of Maryland and against Entertainment Film Works, Inc. and James T. Duffy, jointly and severally, in the amount of $222,000.00 (composed of $147,304.92 for loss payments under bonds issued on behalf of Entertainment Film Works, Inc., $45,401.05 for attorney'S fees, and $29,294.03 interest), plus interest at the legal rate from the date ofthe judgment. Case Document 109 Filed Page 2 of 2 ITIS so ORDERED this day 2006. Consented to by: s/ Gregory R. Veal Georgia Bar No. 726615 E>>mai1: grv@boviskyle.net Attorneys for BOVIS, KYLE BURCH, LLC 53 Perimeter Center East, Third Floor Atlanta, Georgia 30346-2298 Telephone: (770) 391-9100 Facsimile: (770) 668-0878 ORINDA D. EVANS, JUDGE U.S.D.C., NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION Consented to by: s/ Maurice Bernard, IH Georgia Bar No. 054850 E-mail: Attorney for Dej?ndants Entertainment Film Works, Inc., James If Dujfj/, Norma L. Dujf/, and John Duffy 3717 Chamblee Dunwoody Rd. Atlanta, Georgia 30341 Telephone: (678) 530-0900 Facsimile: (678) 530-0099