AMENDED FINAL PRETRIAL ORDER
WILLIAM B. SHUBB, District Judge.
A Final Pretrial Conference was held in this matter, pursuant to the provisions of Rule 16(d) of the Federal Rules of Civil Procedure and Local Rule 282, on July 2, 2018. Harry McLaughlin and Ognian Gavrilov appeared as counsel for plaintiff, and Randall Paulson appeared as counsel for defendant. Following the conference and having received plaintiff's Proposed Modifications to the Final Pretrial Order (Docket No. 106) as well as defendant's Objection (Docket No. 108), the court enters this Amended Final Pretrial Order:
I. Jurisdiction — Venue
Jurisdiction is predicated upon diversity jurisdiction, 28 U.S.C. § 1332. Venue is undisputed and is hereby found to be proper.
II. Remaining Claims
Plaintiff's remaining claims for trial are (1) declaratory and injunctive relief, (2) conversion, (3) fraud, (4) breach of the duty of good faith and loyalty, and (5) tortious interference with prospective economic advantage.
III. Jury — Non-Jury
Plaintiff demanded a jury trial multiple times before the trial conference, and at the Pretrial Conference, the parties and the court contemplated a jury trial on at least some of the issues. However, after the Pretrial Conference, plaintiff filed a Notice of Waiver of Jury Trial and contends that defendant waived his right to a jury trial, meaning the case should proceed to a court trial on all issues. (Docket Nos. 98, 102.)
The court disagrees. Notably, plaintiff agrees that the "general rule is that once one party files a jury demand, other parties are entitled to rely on that demand for the issues it covers, and need not file their own demands." (Docket No. 102 at 2.) See Calnetics Corp. v. Volkswagen of Am., Inc., 532 F.2d 674, 690 (9th Cir. 1976). Because plaintiff made a demand for jury trial, and indeed maintained this demand until after the Pretrial Conference, defendant was entitled to rely on this demand and was not required to formally demand a jury trial.
Further, once a party requests a jury trial, "[a] proper demand may be withdrawn only if the parties consent," Fed. R. Civ. P. 38(d) ("Rule 38(d)"), and the trial must be by a jury unless "the parties . . . file a stipulation to a nonjury trial or so stipulate on the record," Fed. R. Civ. P. 39(a)(1) ("Rule 39(a)(1)"). The court notes that defendant specifically stated in his Pretrial Statement that he did not request a jury trial. (See Docket No. 95 at 2.) However, this statement, made before plaintiff's Notice of Waiver was filed, and made before the court's Pretrial Conference, at which the parties and the court contemplated a jury trial on at least some issues, does not constitute defendant's unambiguous consent and stipulation to a court trial on all issues. See Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir. 1981) (courts "should indulge every reasonable presumption against waiver" of trial by jury).
Plaintiff relies primarily on Reid Brothers Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292 (9th Cir. 1983), in arguing that defendant waived his jury demand, but that case is inapposite. There, the plaintiff demanded a jury and the defendants initially opposed the request, moving to strike the jury demand. Later, the plaintiff withdrew the jury demand and one defendant refused to consent to a court trial. On appeal, the non-consenting defendant argued that it was entitled to a jury under Rules 38(d) and 39(a). The Ninth Circuit rejected that argument, holding that the defendant's prior "consistent" and "persistent" efforts to oppose the jury demand constituted waiver of the right to a jury, notwithstanding that defendant's failure to consent or stipulate as required by Rules 38(d) and 39(a). Cases citing Reid Brothers have generally limited that case to its facts, where there was active and consistent opposition to a jury trial. See, e.g., S.E.C. v. Masri, 551 F.Supp.2d 320, 322 (S.D.N.Y. 2008).
Because plaintiff demanded a jury trial and defendant did not actively oppose a jury trial or stipulate to a court trial on all issues after plaintiff withdrew his jury demand, Reid Brothers is inapplicable. Accordingly, plaintiff's claims for conversion, fraud, breach of the duty of good faith and loyalty, and tortious interference with prospective economic advantage shall be tried, pursuant to Federal Rule of Civil Procedure 48, before a jury consisting of no less than six and no more than twelve members.
Plaintiff's claims for declaratory relief and request for a permanent injunction will be decided by the court, absent any stipulation by the parties regarding any other issues that should be decided by the court or the jury.
IV. Statement of Case, Jury Instructions, Proposed Form of Verdict
By July 23, 2018,1 counsel for plaintiff shall lodge and serve, pursuant to Local Rule 163, copies of all jury instructions that plaintiff requests be given on plaintiff's claims for conversion, fraud, breach of the duty of good faith and loyalty, and tortious interference with prospective economic advantage. At that time, counsel for plaintiff shall also file and serve a copy of a proposed form of verdict. Plaintiff's instructions shall include an instruction for every cause of action which is to be tried by the jury and set forth every element that plaintiff must prove in order to recover on each cause of action.
By August 1, 2018, counsel for defendant shall file and serve any objections to the instructions proposed by plaintiff. At the same time, counsel for defendant shall lodge and serve, pursuant to Local Rule 163, copies of any and all jury instructions not already proposed by plaintiff, which defendant requests be given. Also at that time, counsel for defendant shall file and serve a copy of any proposed form of verdict and shall also file any objections to plaintiff's proposed form of verdict.
By August 8, 2018, counsel for plaintiff shall file and serve any objections to the instructions proposed by defendant and to any proposed form of verdict.
Pursuant to Local Rule 163, any other instructions thereafter presented will be refused unless it is shown either: (1) that the necessity for the request arose in the course of trial; could not reasonably have been anticipated prior to trial from the pleadings, discovery or nature of the action; and the request for such additional instructions is presented to the court as promptly as possible; or (2) that the refusal to give such instructions would constitute plain error.
Likewise, any objections to proposed instructions not made in accordance with this order will be overruled as untimely unless it is shown either: (1) that the grounds therefor arose in the course of trial and the intention to make such objections is communicated to the court as promptly as possible, or (2) that the giving of such instructions would constitute plain error.
The parties shall appear in person on August 13, 2018 at 1:30PM in Courtroom 5, 14th floor for a Further Pretrial Conference to discuss jury instructions and a proposed form of verdict.
V. Voir Dire Questions
No later than fourteen calendar days before the trial date, counsel for each party shall submit all proposed jury voir dire questions.
VI. Proposed Findings of Fact and Conclusions of Law
No later than fourteen court days before the trial date, plaintiff shall lodge and serve the Findings of Fact and Conclusions of Law and form of judgment which plaintiff proposes to be entered at the conclusion of the trial pursuant to Fed. R. Civ. P. 52 on plaintiff's claims for injunctive and declaratory relief. No later than seven court days before trial, defendant shall lodge and serve the Findings of Fact and Conclusions of Law and form of judgment which defendant proposes be entered on the injunctive and declaratory relief claims.
VII. Trial Briefs
No later than fourteen calendar days before the trial date, counsel for each party shall file trial briefs pursuant to Local Rule 285.
VIII. Witnesses
(A) Plaintiff anticipates calling the witnesses identified at Exhibit "A" attached hereto.
(B) Defendant anticipates calling the witnesses identified at Exhibit "B" attached hereto.
(C) Except for retained experts, each party may call any witness designated by any other party.
(D) No other witnesses will be permitted to testify at trial unless:
(1) all parties stipulate that the witness may testify;
(2) the party offering the witness demonstrates that the witness is for the purpose of rebutting evidence which could not have been reasonably anticipated at the time of the Pretrial Conference; or
(3) the witness was discovered after the Pretrial Conference.
(E) Testimony of a witness not designated in this Order, which is offered under paragraph VIII(D)(3), above, upon the grounds that the witness was discovered after the Pretrial Conference, will not be permitted unless:
(1) the testimony of the witness could not reasonably have been discovered prior to the Pretrial Conference;
(2) the court and opposing counsel were promptly notified upon discovery of the testimony; and
(3) counsel proffered the witness for deposition if time permitted or provided all opposing counsel a reasonable summary of the testimony if time did not permit a deposition.
IX. Exhibits
(A) Plaintiff intends to offer the exhibits identified at Exhibit "C" attached hereto.
(B) Defendant intends to offer the exhibits identified at Exhibit "D" attached hereto.
(C) Each party may offer any exhibit designated by any other party.
(D) No other exhibits will be received in evidence unless:
(1) all parties stipulate that the exhibit may be received in evidence;
(2) the party offering the exhibit demonstrates that the exhibit is for the purpose of rebutting evidence which could not have been reasonably anticipated at the time of the Pretrial Conference; or
(3) the exhibit was discovered after the Pretrial Conference.
(E) An exhibit not designated in this Order, which is offered under paragraph IX(D)(3), above, upon the grounds that the exhibit was discovered after the Pretrial Conference, will not be received in evidence unless:
(1) the exhibit could not reasonably have been discovered prior to the Pretrial Conference;
(2) the court and opposing counsel were promptly notified upon discovery of the exhibit; and
(3) counsel provided copies of the exhibit to all opposing counsel if physically possible or made the exhibit reasonably available for inspection by all opposing counsel if copying was not physically possible.
(F) Each party shall exchange copies of all exhibits identified in this Order, or make them reasonably available for inspection by all other parties, no later than seven calendar days before the trial date. Any and all objections to such exhibits shall be filed and served not later than four calendar days before the trial date.
(G) The attorney for each party is directed to appear before trial and present an original (and if physically possible one copy) of each exhibit to Deputy Clerk Karen Kirksey Smith at 8:30 a.m. on the date of trial.
(H) Each exhibit which has been designated in this Order and presented on the morning of the date of trial shall be pre-marked by counsel. Plaintiff's exhibits shall bear numbers; defendant's exhibits shall bear letters. If no objection has been made to such exhibit pursuant to paragraph IX(F), above, such exhibit will require no further foundation and will be received in evidence upon the motion of any party at trial.
X. Further Discovery and Motions
Except for motions in limine, no further motions shall be brought before trial except upon order of the court and upon a showing of manifest injustice. Fed. R. Civ. P. 16(e). No further discovery will be permitted except by the express stipulation of all parties or upon order of the court and upon a showing of manifest injustice. Id.
XI. Use of Depositions or Interrogatories
No later than twenty calendar days before the trial date, counsel for each party shall file and serve a statement designating all answers to interrogatories and all portions of depositions intended to be offered or read into evidence, with the exception of portions to be used only for impeachment or rebuttal. No later than ten calendar days before the trial date, counsel for any other party may file and serve a counter-designation of other portions of the same depositions intended to be offered or read into evidence and may file evidentiary objections to any other parties' designation. No later than seven calendar days before the trial date, the parties may file evidentiary objections to any other party's counter-designation.
XII. Date and Length of Trial
The trial is set for August 21, 2018, in Courtroom 5. The court estimates that the trial will last approximately ten days.
XIII. Settlement
The parties are willing to participate in a pretrial settlement conference. Accordingly, a settlement conference is set before Magistrate Judge Edmund F. Brennan on August 7, 2018 at 10:00AM in Courtroom 8, 13th floor. Each party is ordered to have a principal with full settlement authority present at the settlement conference or to be fully authorized to settle the matter on any terms.
No later than 12:00 PM (noon) on July 31, 2018 counsel for each party shall submit a Confidential Settlement Conference Statement via email to EFBorders@caed.uscourts.gov. The parties may agree, or not, to serve each other with the Confidential Settlement Conference Statements. The Confidential Settlement Conference Statements shall not be filed with the clerk and shall not otherwise be disclosed to the trial judge. However, each party shall e-file a one-page document entitled "Notice of Submission of Confidential Settlement Conference Statement."
XIV. Daubert Procedure
Any challenges based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), will be raised and resolved outside the presence of the jury just prior to when the challenged expert will be called to give testimony. Any challenged expert shall be present for such a challenge, and shall be available for questioning.
XV. Evidence Presentation Equipment
If any party feels that electronic presentation is necessary, they should be prepared to operate the courtroom's equipment or bring their own audio-visual equipment to the courtroom and be prepared to operate it themselves.
Exhibit A: Plaintiff's Witnesses
Plaintiff reserves the right to call (or not call) any witness listed. Plaintiff also reserves the right to call witness not listed for the purpose of document authentication and/or for rebuttal purposes only.
On December 1, 2017, plaintiff disclosed Serge Mysin, Certified Public Accountant, as its expert witness on the issue of inappropriate and undocumented personal transactions engaged in by defendant Archbold. On December 1, 2017, defendant Archbold was served with a copy of Mr. Mysin's written report dated November 30, 2017. Mr. Mysin's testimony will support plaintiff Rackwise's termination of Archbold for cause, as well as claims against Archbold for fraud, breach of fiduciary duty and conversion.
WITNESS SUBJECT OF INFORMATION
Guy Archbold, As the former Chairman, President and CEO
C/O Counsel for of Rackwise, Inc., and defendant in this
Defendant case, Mr. Archbold has extensive
information as to his actions and omissions
leading to all aspects of his liability and
breach of his fiduciary duty to Rackwise in
this case.
Patrick Imeson, As Interim Chief Restructuring Officer of
C/O Counsel for Rackwise, Inc., Principal of Rackwise
Plaintiff Funding II, LLC, a Rackwise shareholder,
and Member of the Board of Directors of
Rackwise, Inc., Mr. Imeson can testify as
to improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise. Mr. Imeson can also testify
regarding specific financial and economic
harms that were done to Rackwise by
Archbold in concert with his illegitimate
board of directors.
Dwight Richert, As Principal of Triple R-F, LLC, a Rackwise
C/O Counsel for shareholder, and principal of Richert
Plaintiff Funding, financier of Rackwise, Inc., Mr.
Richert can testify as to improper actions
and omissions by Mr. Archbold that harmed
Rackwise resulting in damages and can
testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise. Mr. Richert can also testify
regarding specific financial and economic
harms that were done to Rackwise by
Archbold in concert with his illegitimate
board of directors.
Bart Richert, As a Member of the Board of Directors of
C/O Counsel for Rackwise, Inc., Mr. Richert can testify as
Plaintiff to improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise.
Michael Feinberg, As a Member of the Board of Directors of
C/O Counsel for Rackwise, Inc., Mr. Feinberg can testify as
Plaintiff to improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise.
Emmett DeMoss, As Chairman Emeritus and founder of
C/O Counsel for Rackwise, Inc., Mr. DeMoss can testify as
Plaintiff to improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise.
Doug MacRae, As Executive Vice President of the
C/O Counsel for Technology Group at Rackwise, Inc., Mr.
Plaintiff MacRae can testify as to improper actions
and omissions by Mr. Archbold that harmed
Rackwise resulting in damages and can
testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise.
Sherman Henderson, As an illegitimate director of Rackwise,
C/O Counsel for Inc. acting in concert with Guy Archbold,
Defendant Mr. Henderson has knowledge regarding
improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise.
Jay Schiffman, As an illegitimate director of Rackwise,
C/O Counsel for Inc. acting in concert with Guy Archbold,
Defendant Mr. Schiffman has knowledge regarding
improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and can testify as to the breach of
various fiduciary duties Mr. Archbold owed
to Rackwise.
Craig Whited, As an illegitimate director of Rackwise,
C/O Counsel for Inc. acting in concert with Guy Archbold,
Defendant Mr. Whited has knowledge regarding improper
actions and omissions by Mr. Archbold that
harmed Rackwise resulting in damages and
can testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise.
John Kyees, As an illegitimate director of Rackwise,
C/O Counsel for Inc. acting in concert with Guy Archbold,
Defendant Mr. Kyees has knowledge regarding improper
actions and omissions by Mr. Archbold that
harmed Rackwise resulting in damages and
can testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise.
John Todd, As an illegitimate director of Rackwise,
C/O Counsel for Inc. acting in concert with Guy Archbold,
Defendant Mr. Todd has knowledge regarding improper
actions and omissions by Mr. Archbold that
harmed Rackwise resulting in damages and
can testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise.
Jonathan Shechter, As a New York attorney purporting to
Foley Shechter LLP represent Rackwise, Inc. under the
211 E. 43rd St. direction of Guy Archbold, Mr. Schechter
Suite 609 has knowledge regarding the legal actions
New York, NY 10001 and omissions by Mr. Archbold that harmed
(212) 335-0465 Rackwise resulting in damages and the
breach of various fiduciary duties Mr.
Archbold owed to Rackwise. Rackwise waives
any attorney-client privilege as to Foley
Schecter LLP.
Sasha Ablovatskiy, As a New York attorney purporting to
Foley Shechter LLP represent Rackwise, Inc. under the
211 E. 43rd St. direction of Guy Archbold, Ms. Ablovatskiy
Suite 609 has knowledge regarding the legal actions
New York, NY 10001 and omissions by Mr. Archbold that harmed
(212) 335-0465 Rackwise resulting in damages and can
testify as to the breach of various
fiduciary duties Mr. Archbold owed to
Rackwise, Rackwise waives any attorney-client
privilege as to Foley & Shechter.
Richard A. Ivers, As a Florida attorney purporting to
Law Office of represent Rackwise, Inc. under the
Richard A. Ivers direction of Guy Archbold, Mr. Ivers has
7451 Wiles Road knowledge regarding the legal actions and
Suite 101 omissions by Mr. Archbold that harmed
Coral Springs, FL Rackwise resulting in damages and can
33067 testify as to the breach of various
(954) 757-6262 fiduciary duties Mr. Archbold owed to
Rackwise, since Rackwise waives any
attorney-client privilege as to Foley &
Shechter.
Dorella Sanakidis, As an Administrative Assistant, Rackwise,
C/O Counsel for Inc., Ms. Sanakidis has knowledge regarding
Plaintiff improper actions and omissions by Mr.
Archbold that harmed Rackwise resulting in
damages and the breach of various fiduciary
duties Mr. Archbold owed to Rackwise.
Prakash Trevedi, As Sa UNISYS Senior Manager, Mr. Trevedi has
C/O Elizabeth knowledge regarding improper actions and
Parker omissions by Mr. Archbold that harmed
Assistant General Rackwise with UNISYS resulting in damages
Counsel and the breach of various fiduciary duties
Unisys Corporation Mr. Archbold owed to Rackwise.
Unisys Way
Bluebell, PA 19424
(215) 986-5541
Venkatapathi As a President of UNISYS Federal Group, Ms.
Puvvada, Puvvada has knowledge regarding improper
C/O Elizabeth actions and omissions by Mr. Archbold that
Parker harmed Rackwise with UNISYS resulting in
Assistant General damages and the breach of various fiduciary
Counsel duties Mr. Archbold owed to Rackwise.
Unisys Corporation
Unisys Way
Bluebell, PA 19424
(215) 986-5541
Stacey Lovelace, As a friend and personal assistant to Guy
102 Flint Rock Archbold, Ms. Lovelace has knowledge
Court regarding the actions and omissions by Mr.
Folsom, CA 95630 Archbold that harmed Rackwise resulting in
(916) 591-2111 damages and the breach of various fiduciary
duties Mr. Archbold owed to Rackwise. She
can demonstrate the personal
misappropriation of funds that were
specifically directed toward her.
Exhibit B: Defendant's Witnesses
Defendant reserves the right to call witnesses not listed for purposes of impeachment or document authentication.
1. Guy Archbold, who may Mr. Archbold is expected to have
be contacted through knowledge of his employment with
his counsel of Plaintiff, the ongoing operations of
record. Rackwise, Inc., the makeup of its
incumbent Board of Directors, and
the terms of warrants and Series A
Preferred Stock issued by Rackwise,
Inc.
2. John Kyees, who may Mr. Kyees is expected to have
be contacted through knowledge of his membership on the
counsel of record for Rackwise incumbent Board of
Defendant. Directors, the ongoing operations of
Rackwise, Inc., as well as the
events and circumstances surrounding
the "Special Meeting" of the Board
of Directors on February 2 and 3,
2017.
3. Sherman Henderson, Mr. Henderson is expected to have
III, who may be knowledge of his membership on the
contacted through Rackwise incumbent Board of
counsel of record for Directors, the ongoing operations of
Defendant. Rackwise, Inc., as well as the
events and circumstances surrounding
the "Special Meeting" of the Board
of Directors on February 2 and 3,
2017.
4. Sasha Ablovatskiy, Mr. Ablovatskiy is expected to have
who may be contacted knowledge of the fundamentals of the
through counsel of Rackwise, Inc.'s corporate Bylaws,
record for Defendant. the terms of exercise of warrants
issue by Rackwise, Inc. to Triple R-F,
LLC, and Rackwise Funding II,
LLC, and the terms of the Series A
Preferred Stock issue by Rackwise,
INc. as well as the federal
securities laws and regulations and
Nevada corporate laws applicable to
Rackwise, Inc., operating as a
publicly traded company.
5. Patrick Imeson, Mr. Imeson is expected to have
address and phone knowledge of the circumstances
number unknown to surrounding his investment in
Defendant, but known Rackwise, Inc., the facts and
to Plaintiff. circumstances surrounding the
"Special Meeting" of the Board of
Directors on February 2 and 3, 2017,
the alleged exercise of the warrants
on March 22, 2017, Defendant's
termination, and the ongoing
operations of Plaintiff from
February 2, 2017.
6. Bart Richert, address Mr. Richert is expected to have
and phone number knowledge of the circumstances
unknown to Defendant, surrounding his investment in
but known to Rackwise, Inc., the facts and
Plaintiff. circumstances surrounding the
"Special Meeting" of the Board of
Directors on February 2 and 3, 2017,
the alleged exercise of the warrants
on March 22, 2017, Defendant's
termination, and the ongoing
operations of Plaintiff from
February 2, 2017.
7. Dwight Richert, Mr. Richert is expected to have
address and phone knowledge of the circumstances
number unknown to surrounding his investment in
Defendant, but known Rackwise, Inc., the facts and
to Plaintiff. circumstances surrounding the
"Special Meeting" of the Board of
Directors on February 2 and 3, 2017,
the alleged exercise of the warrants
on March 22, 2017, Defendant's
termination, and the ongoing
operations of Plaintiff from
February 2, 2017.
8. Michael Feinberg, Mr. Feinberg is expected to have
address and phone knowledge of the circumstances
number unknown to surrounding his investment in
Defendant, but known Rackwise, Inc., the facts and
to Plaintiff. circumstances surrounding the
"Special Meeting" of the Board of
Directors on February 2 and 3, 2017,
the alleged exercise of the warrants
on March 22, 2017, Defendant's
termination, and the ongoing
operations of Plaintiff from
February 2, 2017.
9. Stacey Lovelace, Ms. Lovelace will testify to any
102 Flint Rock Court duties she performed on behalf of
Folsom, CA 95630 Plaintiff and whether she was
(916) 591-2111 compensated by Defendant for such
services.
Exhibit C: Plaintiff's Exhibits
NO.2 DESCRIPTION
1 Bylaws of Visual Network Design, Inc.
2 Subscription Agreements Rackwise-Purchasers:
Subscription Agreement dated May 7, 2014 by and between
Rackwise, Inc. and Rackwise Funding II, LLC.
Warrants to Purchase Common Stock effective May 7, 2014
issued by Rackwise, Inc. to Rackwise Funding II, LLC.
Warrants to Purchase Common Stock effective October 7,
2015 issued by Rackwise, Inc. to Triple R-F, LLC.
3 SEC Form 8-K [February 15, 2017]
4 SEC Form 8-K [March 20, 2017]
5 Action by Written Consent of Rackwise Shareholders
[March 23, 2017]
6 March 26, 2017 letter from Gavrilov & Brooks law firm,
Rackwise attorney Ognian Gavrilov, to opposing counsel
Randall J. Paulson
7 April 5, 2017 email message from Patrick Imeson to
Rackwise board and counsel forwarding Archbold's April
5, 2017 letter
8 April 14, 2017 email message from Rackwise counsel
Ognian Gavrilov to Rackwise Board forwarding Archbold's
April 13, 2017 letter
9 April 5, 2017 email message from Doug MacRae to some
Rackwise board members and counsel forwarding
Archbold's April 14, 2017 email message to Doug MacRae
10 SEC Form 8-K [April 14, 2017]
11 Documentation of Michael Hawes, C.P.A., an accountant
retained by Defendant Archbold on behalf of Rackwise,
estimating a net loss of $7,618,336 for the fiscal year
ended December 31, 2014.
12 Documentation showing that during Defendant Archbold's
tenure as the Chief Executive Officer and President of
Rackwise, Rackwise sustained a net loss of $9,593,685
for the fiscal year ended December 31, 2012, a net loss
of $6,482,307 for the fiscal year ended December 31,
2013, and a net loss of $2,828,892 for the period
January 1-March 31, 2014.
13 Tax lien and levy of approximately $1,567,000 in
connection with the unpaid payroll taxes for the third
and fourth quarters of 2012, and the first and second
quarters of 2013.
14 Default Notice under a factoring agreement with its
secured lender Richert Funding in the approximate sum
of $12,000,000.
15 Default Notices on secured promissory notes to Rackwise
Funding II (outstanding indebtedness of more than
$8,000,000) and several other unsecured promissory
notes (outstanding balance of more than $608,000).
16 Documentation of Rackwise's default on obligations and
eventual termination of contract with Intel Corporation
under Archbold's leadership.
17 Record of Mr. Archbold's conviction/guilty plea in El
Dorado County (California) Superior Court to a criminal
violation of California Revenue and Taxation Code 19706
relating to his failure to file personal tax returns.
18 Eviction Notices for defaulted office leases in North
Carolina and California.
19 Alleged Employment Agreement of Archbold with Rackwise
dated September 30, 2011.
20 Rackwise employee, Dorella Sanakidis', documentation of
approximately $400,000 in misappropriation of company
funds by Defendant Archbold.
21 The Minutes of the February 2, 2017 Rackwise Board of
Directors' Meeting terminating Guy Archbold as a
director and officer of Rackwise, for cause.
22 The Minutes of the February 3, 2017 Rackwise Board of
Directors' Meeting ratifying and approving the
termination Guy Archbold as a director and officer of
Rackwise, for cause, and electing Patrick Imeson as
Interim Chief Restructuring Officer of Rackwise.
23 The Minutes of the March 23, 2017 Shareholders Meeting
removing Defendant Archbold and Sherman Henderson as
members of the Rackwise Board of Directors and
appointing Patrick Imeson and Bart Richert as directors
of Rackwise.
24 November 30, 2017 expert witness report of Serge Mysin,
C.P.A., concluding that Defendant Archbold engaged in
$384,886.62 in questionable transactions involving
Rackwise funds.
25 April 18, 2017 notices from the SEC that an individual
(Archbold) was attempting to reset Rackwise's password
to the electronic system so as to seize control of
Rackwise's account.
26 Company credit card records showing Archbold converted
approximately $70,000 between October, 2015 and
February, 2017 for personal uses.
27 Business account records showing Archbold took in
excess of $185,000 in so-called cash advances, and then
attempted to claim that such funds were for "business
expenses."
28 Compensation records showing that Archbold overpaid
himself as purported employee compensation, without
authorization, approximately $70,000 in 2015 and 2016.
29 Corporate expense records showing that Archbold used
corporate funds, without authorization from the Board
of Directors, and without any legitimate business
purpose, to provide economic benefit and assistance to
his friend and personal assistant Stacey Lovelace
("Lovelace") in an amount exceeding $60,000.
30 Corporate records showing that in 2016, Archbold caused
payments from customers in excess of $23,000 to be
withheld from Rackwise accounts, and instead used these
funds for himself and/or Lovelace.
31 Corporate records showing that Archbold has converted
in excess of $400,000 of Rackwise funds for his own
personal use, to the detriment of Rackwise, without The
Board's knowledge, authorization, or consent, and to
the detriment of the corporation for which Archbold
owed a fiduciary duty.
32 All Exhibits attached to all declarations in both
support and in opposition to the preliminary
injunction.
33 Exhibits attached to Defendant's Motion to Compel
Arbitration.
34 Exhibits attached to Defendant's Motion for Contempt.
35 All of the Resolutions from the Rackwise Corporate
Minutes Book.
36 Rackwise's Corporate Bylaws.
37 Rackwise's Articles of Incorporation.
38 Various pages of Rackwise's website/webpage.
39 Additional correspondence to defendant (including
letters, and emails) — various documents concerning
claims and issues in the instant lawsuit, including but
not limited to, cease and desist demands.
40 Additional correspondence (including letters, emails,
and memoranda) — various documents involving defendant
as either a sender or a recipient, to Rackwise
shareholders, board members, employees, customers, as
well as Security and Exchange commission personnel and
various other third-parties.
41 Additional correspondence (including letters, emails,
and memoranda) — various documents between and among
employees and/or officers or shareholders of Rackwise
concerning defendant's actions and damages related
thereto.
42 Corporate and Administrative Records — various
documents relating to the operation and administration
of Rackwise, including corporate governance and
operation, corporate formation and implementation of
policies, business and business planning information,
board of director and officer records and employee
governance and human resource materials.
43 Advertising and Outreach Materials — various documents
relating to the operation of the Rackwise business and
corporate governance.
44 Financial Records — various documents in relation to
the financial operation and administration of Rackwise,
including bookkeeping and accounting information,
independent auditor information and various financial
reports.
45 Additional Securities and Exchange Commission Records —
various documents demonstrating the numerous improper
filing and submissions to the SEC by Archbold and/or
his agents purportedly on behalf of Rackwise.
46 Rackwise Requests for Admission, Set One, dated
November 17, 2017.
47 Archbold Responses to Requests for Admissions, Set One,
dated December 18, 2017.
48 Rackwise Interrogatories, Set One, dated November 17,
2017.
49 Archbold Responses to Interrogatories, Set One, dated
December 18, 2017.
50 Rackwise Request for Production of Documents, Set One,
dated November 17, 2017.
51 Archbold Responses to Request for Production of
Documents, Set One, dated December 18, 2017.
52 Transcript of February 28, 2018 Deposition of Sasha
Ablovatskiy, including all exhibits marked and/or
referenced therein.
53 Transcript of March 6, 2018 Deposition of Sasha
Ablovatskiy, including all exhibits marked and/or
referenced therein.
54 Transcript of January 22, 2018 Deposition of Guy
Archbold, including all exhibits referenced therein.
55 Emails authored by Defendant Archbold to Patrick
Imeson, Dwight Richert, and other declared witnesses in
the litigation including but not limited to Sasha
Ablovatskiy, Jonathan Shechter, Sherman Henderson, John
Kyees, John Todd, Jay Schiffman, Craig Whited, and
Stacey Lovelace. This is related to Exhibit D:
Defendant's Exhibits, at 24:2-24:4.
56 All email communications between Defendant Archbold and
UNISYS Corporation. This is related to Exhibit D:
Defendant's Exhibits, "business partners," at 23:9-23:10.
Exhibit D: Defendant's Exhibits
Defendant adopts by reference all documents listed in Plaintiff's Pre-trial statement and adds the following exhibits to the extent that they are not otherwise identified in Plaintiff's schedule of exhibits.
DESCRIPTION
Defendant's Employment Agreement.
Termination letter to Defendant.
Email correspondence between Defendant and RACKWISE
shareholders, business partners, investors, and Directors
during and post-employment status.
Corporate by-laws in effect at the time of Defendant's tenure.
All Exhibits-documents attached to all motions or Requests for
Judicial Notice submitted to this court pertaining to this
litigation.
All declarations attached to all motions or Requests for
Judicial Notice submitted to this court pertaining to this
litigation.
All filings with the SEC regarding Rackwise, Inc.
Corporate minutes regarding purported Special Meetings held on
February 2, 3, 2017, by the purported Rackwise Board of
Directors.
Special Interrogatories propounded on Plaintiff by Defendant.
Plaintiff's Response to Special Interrogatories propounded on
it by Defendant.
Request for Production of Documents propounded on Plaintiff by
Defendant.
Plaintiff's Response to Request for Production of Documents
propounded on it by Defendant.
All documents pertaining to the FLORIDA LITIGATION.
All correspondence generated by defendant's counsel pertaining
to the business of RASKWISE from February 2, 2017 to the
present.
Certificate of Designation of Series A Preferred Stock.
All documents sent by or received by defendant from any
RACKWISE shareholder, investor, employee, director, or other
party regarding the business of RACKWISE during defendant's
tenure with RACKWISE.
