k. lipari, - medical supply chain response to... · cci00001 author: samuel lipari created date:...

IN THE MISSOURI COURT OF APPEALSWESTERN DISTRICT

SAMUEL K. LIPARI,

Appellant,

)))))))))

Case No. WD70534Circuit No. 0816-04217Jackson County at Independence

v.

NOVATION, LLC, et al.,

Respondents.

RESPONDENTSIDEFENDANTS' SUGGESTIONS IN OPPOSITION TOAPPELLANT'S MOTION TO REMAND PREMATURE APPEAL

RespondentslDefendants Richard Davis, Jerry Grundhofer, Andrew Cecere, Andrew

Duff, and Piper Jaffray Companies, through counsel Shughart Thomson & Kilroy, P.C., file

these Suggestions in Opposition to Appellant/Plaintiff's Motion to Remand Premature Appeal.

Respondents do not oppose the dismissal of Mr. Lipari's appeal, but to the extent his motion

seeks to remand the case it is without merit.

This appeal stems from the dismissal of an action filed by Mr. Lipari in the Circuit Court

of Jackson County, Missouri, Case No. 0816-04217, alleging state law antitrust violations and

common law causes of action. On August 8, 2008, the Circuit Court entered an order and partial

judgment. Despite the fact not all parties were included in the partial judgment, Mr. Lipari filed

a Notice of Appeal, see Case No. WD 70001, which this Court dismissed.

On December 29, 2008, the Circuit Court granted defendant Lathrop & Gage's motion

for judgment on the pleadings. After the date of this dismissal, Mr. Lipari filed a Motion for

Leave to Amend Petition seeking, among other things, to add numerous defendants (including

members of the Board of Governors of the Missouri Bar Association) and a new count for

injunctive relief. On January 9,2009, however, before the Circuit Court had ruled on his Motion

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for Leave to Amend, Mr. Lipari filed his Notice of Appeal thus divesting the Circuit Court of

jurisdiction.

Mr. Lipari's motion, to the extent it requests "remand", is without merit. Missouri

Supreme Court Rule 84.09 allows an appellant to dismiss an appeal any time prior to the

submission of the cause in the appellate court. If Mr. Lipari wishes, he may follow this rule and

voluntarily dismiss his appeal. (His motion, at p. 6, inconsistently asks the Court to "dismiss the

appeal and remand the matter.") Respondents are entitled to finality in the judgment entered in

their favor below. Mr. Lipari's motion seeking "remand" should be denied.

WHEREFORE, for the above stated reasons, Respondents request this Court deny

Mr. Lipari's Motion to Remand Premature Appeal and grant all other relief to which they may be

justly entitled.

Respectfully submitted,

MARK A. OLTHOFF ~'V" MO #38572SHUGHART THOMSq.N¥KILROY, P.C.1700 Twelve Wyando120 W 12th StreetKansas City, Missouri 64105-1929(816) 421-3355(816) 374-0509 (FAX)

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JAY E. HEIDRICK MO #54699SHUGHART THOMSON & KILROY, Pc.32 Corporate Woods, Suite 11009225 Indian Creek ParkwayOverland Park, Kansas 66210(913) 451-3355(913) 451-3361 (FAX)

ATTORNEYS FOR RESPONDENTSRICHARD K. DAVIS, ANDREW CECERE,JERRY A. GRUNDHOFER, ANDREW DUFF,AND PIPER JAFFRAY COMPANIES

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document wasdelivered via United States mail, postage prepaid, this 28f4Iay of January 2009, to:

Mr. Samuel K. Lipari3520 NE Akin BoulevardSuite 918Lee's Summit, MO 64064

Appellant

Peter F. Daniel, Esq.Lathrop & Gage LC2345 Grand BoulevardSuite 2800Kansas City, MO 64108-2684

Attorneys for Respondent Lathrop & Gage LC

John K. Power, Esq.Husch Blackwell Sanders LLP2300 One Kansas City Place1200 Main StreetKansas City, MO 64105

Attorneys for Respondent Husch Blackwell Sanders LLP

John K. Power, Esq.Husch Blackwell Sanders LLP2300 One Kansas City Place1200 Main StreetKansas City, MO 64105

Veronica Lewis, Esq.Vinson & Elkins LLP3700 Trammell Crow Center2001 Ross AvenueDallas, TX 75201-2975

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Kathleen Bone Spangler, Esq.Vinson & Elkins LLP2300 First City Tower1001 Fannin StreetHouston, TX 77002-6760

Attorneys for Respondents Novation, LLC, VHA Inc., University Healthsystem Consortium,VHA Mid-America LLC; Thomas Spindler, Robert Bezanson, Gary Duncan, Maynard Oliverius;Sandra Van Trease; Charles Robb, Michael Terry, Cox Health Care Services of the Ozarks, Inc.;Saint Luke's Health System Inc. and Stormont-Vail Healthcare Inc.

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