Alliant Tax Credit 31, Inc, et al v. M. Vincent Murphy, III, et al
Court Docket Sheet

11th Circuit Court of Appeals

2015-14634 (ca11)

MOTION to continue Oral Argument. filed by Marilyn Murphy. Opposition to Motion is Unknown. [8521063-1] (ECF: Mark Nash)

Case: 15-14634 Date Filed: 07/26/2018 Page: 1 of 10 No. 15-14634 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ALLIANT TAX CREDIT 31, INC., ALLIANT TAX CREDIT FUND XXVII, LTD.; ALLIANT TAX CREDIT FUND XXVII, INC.; ALLIANT TAX CREDIT XI, INC.; and ALLIANT TAX CREDIT XI, LTD., Plaintiffs/Appellees/Cross-Appellants, v. M. VINCENT MURPHY, III; MULTIFAMILY HOUSING DEVELOPERS, LLC; COMMUNITY MANAGEMENT SERVICES, INC.; and MARILYN MURPHY, Defendants/Appellants/Cross-Appellees. On Appeal from the United States District Court for the Northern District of Georgia, Case No. 1:11-cv-00832-RWS APPELLANT MARILYN W. MURPHY'S MOTION TO POSTPONE ORAL ARGUMENT SHAWN M. WINTERICH MARK R. NASH THE WINTERICH LAW FIRM, LLC NELSON MULLINS RILEY & P.O. Box 71203 SCARBOROUGH LLP Marietta, Georgia 30007-1203 Atlantic Station, 201 17th Street NW T: (404) 668-7766 Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/Cross-Appellee Marilyn w. Murphy DATED: July 26, 2018 Case: 15-14634 Date Filed: 07/26/2018 Page: 2 of 10 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1, the undersigned counsel for Appellant Marilyn Murphy hereby certifies that the following is a complete list of persons and entities that are now known or understood to have an interest in the outcome of this case: 1. Affordable Realty Management Inc. 2. Alliant Capital, Ltd. 3. Alliant, Inc. 4. Alliant Tax Credit 31, Inc. 5. Alliant Tax Credit XI, Inc. 6. Alliant Tax Credit XI, Ltd. 7. Alliant Tax Credit XXVII, Inc. 8. Alliant Tax Credit Fund 31-A, Ltd. 9. Alliant Tax Credit Fund XI, Ltd. 10. Alliant Tax Credit Fund XX, Ltd. 11. Alliant Tax Credit Fund XXVII, Ltd. 12. Arpey, Vincent J. 13. Barnett, Keith J. 14. Bundy, Jr., Walter H. 15. Carroll, Patrick C-1 Case: 15-14634 Date Filed: 07/26/2018 Page: 3 of 10 16. Community Management Services, LLC 17. Darden, David B. 18. Doran, Brian 19. Dunn, Michael A. 20. Gazebo Park Apartments of Acworth, LLC 21. Gorham, Patricia A. 22. Hawkins & Parnell 23. Hines, V., Richard K. 24. Hutchins, John P. 25. Johnson, Edward David 26. Johnson & Ward 27. Kreimer, Jr., Stanley E. 28. Lea, Puja P. 29. Lentz, Kurt E. 30. Malko, Simon R. 31. Mayer Brown, LLP 32. McDonald, M. Brent 33. Miller, Nathan 34. Morris Manning & Martin, LLP 35. Multifamily Housing Developers, LLC C-2 Case: 15-14634 Date Filed: 07/26/2018 Page: 4 of 10 36. Murphy, Dorothy F. 37. Murphy, Elizabeth 38. Murphy, Erin 39. Murphy, Kay P. 40. Murphy, III, M. Vincent 41. Murphy, Marilyn W. 42. Nash, Mark R. 43. Nelson Mullins Riley & Scarborough LLP 44. Netter, Brian D. 45. Smith Bundy Bybee Barnett, P.C. 46. Stacy, James 47. Story, Hon. Richard W., United States District Court Judge, Northern District of Georgia 48. Tager, Evan M. 49. Troutman Sanders, LLP 50. United Parcel Service, Inc. (UPS) 51. Wildler, IV, Pelham 52. Wilson, Alysia 53. Wilson, Bruce 54. Winterich, Shawn M. C-3 Case: 15-14634 Date Filed: 07/26/2018 Page: 5 of 10 55. The Winterich Law Firm, LLC 56. Young, II, Henry L. Dated: July 26, 2018 s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/ Cross-Appellee C-4 Case: 15-14634 Date Filed: 07/26/2018 Page: 6 of 10 APPELLANT MARILYN W. MURPHY'S MOTION TO POSTPONE ORAL ARGUMENT Pursuant to Federal Rules of Appellate Procedure, Rules 27 and 34(b), Appellant Marilyn W. Murphy respectfully asks this Court to postpone oral argument in this matter until the next available calendar on or after September 4, 2018. The reason Appellant is seeking to postpone oral argument is, as explained more fully below, that her attorney who is presenting oral argument, Mr. Shawn M. Winterich, has had a recent family medical issue that will render him unavailable until approximately September 3, 2018. Counsel for Appellant has conferred with the other parties to this Appeal, and the parties have indicated they will not oppose this Motion. Mr. Winterich, a sole practitioner, is Appellant's (a) primary attorney since this case and related litigation commenced in 2011, (b) sole trial counsel, and (c) the sole attorney who will be presenting oral argument for Appellant. Oral argument is scheduled for this Appeal on August 16, 2018. (See Eleventh Circuit Oral Argument Calendar for Week of August 13, 2018.) Mr. Winterich has recently had a serious family medical emergency that will prevent him from preparing for and participating in oral argument on that date. Specifically, Mr. Winterich has an immediate family member -- for whom Mr. Winterich is the primary caregiver -- who recently underwent major inpatient 1 Case: 15-14634 Date Filed: 07/26/2018 Page: 7 of 10 surgery on July 17, 2018. On July 25, 2018, Mr. Winterich learned that this immediate family member will be undergoing a revision of the original surgery on August 3, 2018, which was not originally anticipated. The August 3, 2018, surgery is also expected to be inpatient. The immediate family member's doctors and Mr. Winterich expect the recovery time to take approximately six weeks, and during that time, Mr. Winterich will be caring for the immediate family member who will be at home.1 Mr. Winterich anticipates being able to appear and argue by or after September 4, 2018. As soon as Mr. Winterich learned of his immediate family member's additional surgery and his need to be away from work during the recovery period, he immediately contacted counsel for the other parties to this Appeal to request consent to postpone oral argument. Counsel for the other parties to this Appeal have indicated they will not oppose this Motion, and Appellant has brought this Motion as soon as reasonably possible after Appellant and Mr. Winterich learned of the need to postpone oral argument. 1 Mr. Winterich will make available for the Court a "doctor's note" that explains Mr. Winterich's immediate family member's medical condition should the Court request one. For patient privacy purposes, Mr. Winterich and Appellant respectfully request that Appellant not be required to publicly file any such note. 2 Case: 15-14634 Date Filed: 07/26/2018 Page: 8 of 10 CONCLUSION For the foregoing reasons, Appellant asks that oral argument scheduled for August 16, 2018, be postponed until the next available calendar on or after September 4, 2018. Date: July 26, 2018 s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/Cross- Appellee 3 Case: 15-14634 Date Filed: 07/26/2018 Page: 9 of 10 CERTIFICATE OF COMPLIANCE This document complies with the word limit of Fed. R. App. P. 27(d)(2)(A) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), this document contains 524 words. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word 2013 in Times New Roman 14 point font. Date: July 26, 2018 s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendants-Appellants / Cross-Appellees 4 Case: 15-14634 Date Filed: 07/26/2018 Page: 10 of 10 CERTIFICATE OF SERVICE I hereby certify that on July 26, 2018, one copy of this brief was electronically submitted to the Clerk's Office of the United States Court of Appeals for the Eleventh Circuit. On this same date, a copy of the brief was served on all counsel of record by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Electronic Filing. s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/ Cross-Appellee 5

MOTION to file a supplement brief filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C. and M. Vincent Murphy, III. Opposition to Motion is Unknown. [8271965-1] (ECF: Stan Kreimer)

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MOTION to file a supplement brief filed by Marilyn Murphy. Opposition to Motion is Unknown. [8278266-1] (ECF: Mark Nash)

Case: 15-14634 Date Filed: 10/23/2017 Page: 1 of 13 No. 15-14634 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ALLIANT TAX CREDIT 31, INC., ALLIANT TAX CREDIT FUND XXVII, LTD.; ALLIANT TAX CREDIT FUND XXVII, INC.; ALLIANT TAX CREDIT XI, INC.; and ALLIANT TAX CREDIT XI, LTD., Plaintiffs/Appellees/Cross-Appellants, v. M. VINCENT MURPHY, III; MULTIFAMILY HOUSING DEVELOPERS, LLC; COMMUNITY MANAGEMENT SERVICES, INC.; MARILYN MURPHY; and GAZEBO PARK APARTMENTS OF ACWORTH, LLC, Defendants/Appellants/Cross-Appellees. On Appeal from the United States District Court for the Northern District of Georgia, Case No. 1:11-cv-00832-RWS APPELLANT MARILYN W. MURPHY’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF ON JURISDICTION, AND FOR OTHER RELIEF, AND MEMORANDUM IN SUPPORT SHAWN M. WINTERICH MARK R. NASH THE WINTERICH LAW FIRM, LLC NELSON MULLINS RILEY & P.O. Box 71203 SCARBOROUGH LLP Marietta, Georgia 30007-1203 Atlantic Station, 201 17th Street NW T: (404) 668-7766 Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/Cross-Appellees Marilyn w. Murphy DATED: October 23, 2017 Case: 15-14634 Date Filed: 10/23/2017 Page: 2 of 13 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1, the undersigned counsel for Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC hereby certifies that the following is a complete list of persons and entities that are now known or understood to have an interest in the outcome of this case: 1. Affordable Realty Management Inc. 2. Alliant Capital, Ltd. 3. Alliant, Inc. 4. Alliant Tax Credit 31, Inc. 5. Alliant Tax Credit XI, Inc. 6. Alliant Tax Credit XI, Ltd. 7. Alliant Tax Credit XXVII, Inc. 8. Alliant Tax Credit Fund 31-A, Ltd. 9. Alliant Tax Credit Fund XI, Ltd. 10. Alliant Tax Credit Fund XX, Ltd. 11. Alliant Tax Credit Fund XXVII, Ltd. 12. Arpey, Vincent J. 13. Barnett, Keith J. 14. Bundy, Jr., Walter H. 15. Carroll, Patrick C-1 Case: 15-14634 Date Filed: 10/23/2017 Page: 3 of 13 16. Community Management Services, LLC 17. Darden, David B. 18. Doran, Brian 19. Dunn, Michael A. 20. Gazebo Park Apartments of Acworth, LLC 21. Gorham, Patricia A. 22. Hawkins & Parnell 23. Hines, V., Richard K. 24. Hutchins, John P. 25. Johnson, Edward David 26. Johnson & Ward 27. Kreimer, Jr., Stanley E. 28. Lea, Puja P. 29. Lentz, Kurt E. 30. Malko, Simon R. 31. Mayer Brown, LLP 32. McDonald, M. Brent 33. Miller, Nathan 34. Morris Manning & Martin, LLP 35. Multifamily Housing Developers, LLC C-2 Case: 15-14634 Date Filed: 10/23/2017 Page: 4 of 13 36. Murphy, Dorothy F. 37. Murphy, Elizabeth 38. Murphy, Erin 39. Murphy, Kay P. 40. Murphy, III, M. Vincent 41. Murphy, Marilyn W. 42. Nash, Mark R. 43. Nelson Mullins Riley & Scarborough LLP 44. Netter, Brian D. 45. Smith Bundy Bybee Barnett, P.C. 46. Stacy, James 47. Story, Hon. Richard W., United States District Court Judge, Northern District of Georgia 48. Tager, Evan M. 49. Troutman Sanders, LLP 50. United Parcel Service, Inc. (UPS) 51. Wildler, IV, Pelham 52. Wilson, Alysia 53. Wilson, Bruce 54. Winterich, Shawn M. C-3 Case: 15-14634 Date Filed: 10/23/2017 Page: 5 of 13 55. The Winterich Law Firm, LLC 56. Young, II, Henry L. The only Appellant entity is Gazebo Park Apartments of Acworth, LLC. There is no parent corporation or publicly-held corporation that owns more than 10% of its stock. Dated: October 23, 2017 s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/Cross-Appellee C-4 Case: 15-14634 Date Filed: 10/23/2017 Page: 6 of 13 APPELLANT MARILYN W. MURPHY'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF ON JURISDICTION, AND FOR OTHER RELIEF, AND MEMORANDUM IN SUPPORT Appellant Marilyn W. Murphy respectfully moves this Court for leave to file a supplemental Brief as to the issue of diversity jurisdiction, and for other relief. Appellant shows the following: STATEMENT OF FACTS AND PROCEDURE 1. In April 2017, this Court entered an order remanding this appeal to the district court for purposes of fully resolving the question of the court's subject matter jurisdiction over this diversity action. This Court specifically ordered that "the underlying citizenship facts must be identified and confirmed." (Order of April 10, 2017 at p. 1.) 2. The parties filed over 1,000 pages of briefing, evidence and other documentation into the district court record. 3. The district court found complete diversity by its brief Order of October 2017 (Doc. 628), specifically that all Defendants were Georgia citizens, and identifying the several state citizenships of the each of the five remaining Alliant plaintiffs, but without discussing any underlying jurisdictional facts at all, or indicating exactly what jurisdictional facts the district court was identifying and confirming. 1 Case: 15-14634 Date Filed: 10/23/2017 Page: 7 of 13 4. The district court order includes scant explanation and no background. The record pertaining to jurisdictional facts filed in the district court, before and after the jurisdictional question, is voluminous. ARGUMENT AND CITATION OF AUTHORITY A. Introduction This Court may conduct plenary review of subject matter jurisdiction sua sponte. It has the obligation to inquire into subject matter jurisdiction whenever it may be lacking. Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997). An appellate court must satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under review. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974-75 (11th Cir. 2005). B. Supplemental briefing should be permitted. Good cause exists for supplemental briefing This Court's remand to District Court added over 1,000 pages to the appellate record, mostly in the form of documentary evidence. This newly-filed evidence does not require uniform scrutiny; the level of scrutiny should be highly variable. Leave to file fifteen additional pages of legal argument is sought by this Motion (not including factual and procedural history). The briefing filed in the District Court--though no longer than needed to cover the subjects at hand--at the time included evidentiary objections and other exposition that need not be fully 2 Case: 15-14634 Date Filed: 10/23/2017 Page: 8 of 13 reproduced on appeal. The idea is to save time, given the Court's mission to identify and confirm jurisdictional facts. C. This Court may permit briefing. Congress contemplated a situation where the briefing of the parties was complete, though, for whatever reason, an additional issue arises--as the question of complete diversity of parties did here--before the appeal is finally decided. "On occasion, a court may permit or order the parties to file supplemental briefs addressing an issue that was not addressed--or adequately addressed--in the principal briefs." Committee Notes on Rules-2002 Amendment to Fed.R.App.P. 32(a)(2). Simultaneous brief filings by the parties will minimize delay. D. Remand is complete. The final judgment resulting in this appeal was entered in 2015 (Doc. 483.) There followed the notice of this appeal. In ordering limited remand, or remand for a limited purpose, this Court ruled "We REMAND this appeal to the District Court...." (Emphasis in original.) (Order of April 10, 2017 at p. 1.) Review is sought by this Court of the District Court's Order deciding complete diversity, for which this appeal was remanded. (Doc. 628.) In its present posture, Ms. Murphy intends to file a Notice of Appeal of the district court's order (Doc. 628) in some form, out of an abundance of caution, to protect any rights she has or may have to appellate review of that order. Here, a 3 Case: 15-14634 Date Filed: 10/23/2017 Page: 9 of 13 diligent search reveals no authority showing whether a remand to the district court from a federal court of appeals, resulting in a district court finding that diversity jurisdiction existed all along (thus keeping the appeal alive), is an appealable final order. This Court, in contrast, having remanded to district court for lack of evidence of complete diversity in a related case also involving Alliant plaintiffs, affirmed the dismissal of the action by the district court for lack of complete diversity in a related case. It appears that the district court's dismissal of that action did function as an "appealable final order." The Alliant Appellees actively appealed that dismissal by filing their own notice of appeal, and this Court did decide that appeal (affirming the district court's dismissal). Alliant Tax Credit Fund XVI, Ltd. v. Thomasville Cmty. Hous., LLC, No. 16-17027, 2017 U.S. App. LEXIS 19901 (11th Cir. Oct. 12, 2017) Unlike in Thomasville, it appears unnecessary to file a notice of appeal here, as the district court elected to keep this appeal alive. As much as filing a notice of appeal within the scope of an already existing appeal may appear improper, or merely superfluous, the consequences of neglecting to do so if otherwise required can be draconian. The margins of this Court's jurisdiction in this regard are not crystal clear and the finding sought would help clarify the procedure. 4 Case: 15-14634 Date Filed: 10/23/2017 Page: 10 of 13 PRAYER FOR RELIEF WHEREFORE, Appellant Marilyn W. Murphy prays for the following relief: a. That this Court enter an order granting leave for all parties to file respective supplemental briefs on the issue of diversity jurisdiction, involving no more than fifteen pages of legal argument per law firm, exclusive of factual and procedural history, within 20 days of the order; and b. A confirmation of this Court's jurisdiction to fully review the Order of the District Court (Doc. 628), i.e., finding complete diversity of parties, without the filing of any form of additional notice of appeal in the district court. Date: October 23, 2017 s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 5 Case: 15-14634 Date Filed: 10/23/2017 Page: 11 of 13 Attorneys for Defendant-Appellant/Cross-Appellee 6 Case: 15-14634 Date Filed: 10/23/2017 Page: 12 of 13 CERTIFICATE OF COMPLIANCE This document complies with the word limit of Fed. R. App. P. 27(d)(2)(A) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), this document contains 1,879 words. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word 2013 in Times New Roman 14 point font. Date: October 23, 2017 s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendants-Appellants/Cross-Appellees 7 Case: 15-14634 Date Filed: 10/23/2017 Page: 13 of 13 CERTIFICATE OF SERVICE I hereby certify that on October 23, 2017, one copy of this brief was electronically submitted to the Clerk’s Office of the United States Court of Appeals for the Eleventh Circuit. On this same date, a copy of the brief was served on all counsel of record by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Electronic Filing. s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/Cross-Appellee

RESPONSE to Motion to file supplemental brief filed by Appellant-Cross Appellee Marilyn Murphy in 15-14634 [8278266-2] filed by Attorney Brian David Netter for Appellees-Cross Appellants Alliant Tax Credit 31, Inc, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc, Alliant Tax Credit XI, Inc. and Alliant Tax Credit XI, Ltd. (ECF: Brian Netter)

Case: 15-14634 Date Filed: 10/30/2017 Page: 1 of 6 No. 15–14634 __________________________________________________________________ UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________________________________________) ALLIANT TAX CREDIT 31, INC., et) al.,) Plaintiffs/Appellees/) On Appeals from the U.S. Cross-Appellants,) District Court for the) Northern District of Georgia v.)) No. 1:11-cv-00832-RWS M. VINCENT MURPHY, III, et al.,) Defendants/Appellants/) Cross-Appellees.) __________________________________________________________________ ALLIANT’S RESPONSE TO MARILYN MURPHY’S MOTION TO FILE A SUPPLEMENTAL BRIEF ON JURISDICTION Case: 15-14634 Date Filed: 10/30/2017 Page: 2 of 6 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Alliant Tax Credit 31, Inc. v. M. Vincent Murphy, III, No. 15-14634 Pursuant to 11th Cir. R. 26.1-2(c), plaintiffs/appellees/cross-appellants Alliant Tax Credit 31, Inc., et al., certify that no persons or entities were omitted from the Certificate of Interested Parties contained in the motion. s/Brian D. Netter C-1 of 1 Case: 15-14634 Date Filed: 10/30/2017 Page: 3 of 6 Plaintiffs/Appellees/Cross-Appellants Alliant Tax Credit 31, Inc., et al. ("Alliant") hereby respond to Defendant/Appellant/Cross-Appellee Marilyn Murphy’s motion to direct the parties to file simultaneous supplemental briefs respecting the district court’s determination that diversity jurisdiction is available. As explained herein, although Alliant does not oppose the filing of supplemental briefs, it opposes Marilyn Murphy’s proposal that all parties submit briefs simultaneously. Because Alliant does not yet know what Appellants will argue, it cannot meaningfully respond to their arguments without first reviewing their briefs. BACKGROUND On April 10, 2017, this Court issued a limited remand order and directed the district court to (1) adjudicate Alliant’s motion to voluntarily dismiss defendant Gazebo Park Apartments of Acworth, LLC ("Gazebo Park"); (2) decide Alliant’s motion to amend and to seal the pleadings; and (3) resolve questions surrounding the Court’s subject-matter jurisdiction. On May 30, 2017, the district court granted Alliant’s motion to voluntarily dismiss Gazebo Park and its motion to amend the pleadings. R.584. The district court also entered a series of orders 1 Case: 15-14634 Date Filed: 10/30/2017 Page: 4 of 6 finding good cause to seal the amendment to the pleadings. R.578, 608, 615, 618, 623. And on October 6, 2017, the court entered an order finding that Alliant had "established diversity jurisdiction by a preponderance of the evidence" and identifying the state of citizenship of each party on the date the complaint was filed. R.628. ARGUMENT Separate motions requesting supplemental briefing have been filed by Marilyn Murphy and by M. Vincent Murphy, III; Multifamily Housing Developers, LLC; and Community Management Services, Inc. (collectively, "Vincent Murphy"). Marilyn Murphy specifically requests "[s]imultaneous brief filings by the parties." Alliant does not, in principle, oppose the requests to file supplemental briefs. But Alliant opposes Marilyn Murphy’s request that the Court require briefs to be filed simultaneously. Alliant has no idea what arguments Vincent Murphy and Marilyn Murphy intend to raise. Alliant cannot meaningfully respond to those arguments until they have been made. Accordingly, it would not serve the interests of the Court to require Alliant to file a supplemental brief at the same time that the Murphys file their 2 Case: 15-14634 Date Filed: 10/30/2017 Page: 5 of 6 supplemental briefs. Instead, any briefing order should permit Alliant a meaningful opportunity to respond to the Murphys’ supplemental filings. Dated: October 30, 2017 Respectfully submitted,/s/Brian D. Netter Edward D. Johnson Evan M. Tager MAYER BROWN LLP etager@mayerbrown.com Two Palo Alto Square, Brian D. Netter Suite 300 bnetter@mayerbrown.com 3000 El Camino Real MAYER BROWN LLP Palo Alto, CA 94306 1999 K Street, NW (650) 331-2000 Washington, DC 20006 wjohnson@mayerbrown.com (202) 263-3000 Attorneys for Plaintiffs-Appellees-Cross-Appellants Alliant Tax Credit 31, Inc., et al. 3 Case: 15-14634 Date Filed: 10/30/2017 Page: 6 of 6 CERTIFICATE OF COMPLIANCE This document complies with the type-volume limit of Fed. R. App. P. 27(d)(2)(A) because, excluding the parts of the document excepted by Fed. R. App. P. 32(f), this document contains 375 words. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Office Word 2007 in Bookman Old Style 14-point font. s/Brian D. Netter CERTIFICATE OF SERVICE I hereby certify that on October 30, 2016, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Eleventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. s/Brian D. Netter

ORDER: Appellees' "Motion to File Under Seal Its Motion to Amend the Pleadings Pursuant to 28 U.S. C. 1653" is GRANTED. Appellants' motions to file supplemental briefs are GRANTED. Appellants are directed to file their supplemental briefs within 30 days of this order. The appellees are directed to file a response brief within 14 days after the final appellant's brief is filed. [8278266-2] [8271965-2] [7997477-2]

Case: 15-14634 Date Filed: (1 of 3) 11/09/2017 Page: 1 of 2 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-14634-GG ________________________ ALLIANT TAX CREDIT FUND 31-A, LTD, Plaintiff, ALLIANT TAX CREDIT 31, INC, a Florida corporation, ALLIANT TAX CREDIT FUND XXVII, LTD., a Florida limited partnership, ALLIANT TAX CREDIT TAX CREDIT XXVII, INC, a Florida corporation, ALLIANT TAX CREDIT XI, INC., a Florida corporation, ALLIANT TAX CREDIT XI, LTD., a Florida limited partnership, Plaintiffs-Counter Defendants-Appellees-Cross Appellants, versus M. VINCENT MURPHY, III, MULTIFAMILY HOUSING DEVELOPERS, L.L.C., a Georgia limited liability company, COMMUNITY MANAGEMENT SERVICES, INC., a Georgia corporation, GAZEBO PARK APARTMENTS OF ACWORTH, LLC, a Georgia limited liability company, Defendants-Appellants-Cross Appellees, MARILYN MURPHY, Defendant-Counter Claimant-Appellant-Cross Appellee, PATRICK CARROLL, et al., Defendants. Case: 15-14634 Date Filed: (2 of 3) 11/09/2017 Page: 2 of 2 ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ ORDER: Appellees’ "Motion to File Under Seal Its Motion to Amend the Pleadings Pursuant to 28 U.S.C. § 1653" is GRANTED. Appellants’ motions to file supplemental briefs are GRANTED. Appellants are directed to file their supplemental briefs within 30 days of this order. The Appellees are directed to file a response brief within 14 days after the final appellant’s brief is filed./s/William H. Pryor Jr.___________ UNITED STATES CIRCUIT JUDGE Case: 15-14634 Date Filed: (3 of 3) 11/09/2017 Page: 1 of 1 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303 David J. Smith For rules and forms visit Clerk of Court www.ca11.uscourts.gov November 09, 2017 MEMORANDUM TO COUNSEL OR PARTIES Appeal Number: 15-14634-GG Case Style: Alliant Tax Credit 31, Inc, et al v. M. Vincent Murphy, III, et al District Court Docket No: 1:11-cv-00832-RWS This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. The enclosed order has been ENTERED. Sincerely, DAVID J. SMITH, Clerk of Court Reply to: Joe Caruso, GG Phone #: (404) 335-6177 MOT-2 Notice of Court Action

Appellant's Supplemental Brief filed by Appellant-Cross Appellee Marilyn Murphy. (ECF: Mark Nash)

Case: 15-14634 Date Filed: 12/11/2017 Page: 1 of 48 No. 15-14634 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ALLIANT TAX CREDIT 31, INC., ALLIANT TAX CREDIT FUND XXVII, LTD.; ALLIANT TAX CREDIT FUND XXVII, INC.; ALLIANT TAX CREDIT XI, INC.; and ALLIANT TAX CREDIT XI, LTD., Plaintiffs/Appellees/Cross-Appellants, v. M. VINCENT MURPHY, III; MULTIFAMILY HOUSING DEVELOPERS, LLC; COMMUNITY MANAGEMENT SERVICES, INC.; and MARILYN MURPHY, Defendants/Appellants/Cross-Appellees. On Appeal from the United States District Court for the Northern District of Georgia, Case No. 1:11-cv-00832-RWS SUPPLEMENTAL BRIEF OF APPELLANT MARILYN W. MURPHY REGARDING SUBJECT MATTER JURISDICTION ISSUES SHAWN M. WINTERICH MARK R. NASH THE WINTERICH LAW FIRM, LLC NELSON MULLINS RILEY & P.O. Box 71203 SCARBOROUGH LLP Marietta, Georgia 30007-1203 Atlantic Station, 201 17th Street NW T: (404) 668-7766 Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant / Cross-Appellee Marilyn Murphy DATED: December 11, 2017 C-1 Case: 15-14634 Date Filed: 12/11/2017 Page: 2 of 48 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1, the undersigned counsel for Appellant Marilyn Murphy hereby certifies that the following is a complete list of persons and entities that are now known or understood to have an interest in the outcome of this case: 1. Affordable Realty Management Inc. 2. Alliant Capital, Ltd. 3. Alliant, Inc. 4. Alliant Tax Credit 31, Inc. 5. Alliant Tax Credit XI, Inc. 6. Alliant Tax Credit XI, Ltd. 7. Alliant Tax Credit XXVII, Inc. 8. Alliant Tax Credit Fund 31-A, Ltd. 9. Alliant Tax Credit Fund XI, Ltd. 10. Alliant Tax Credit Fund XX, Ltd. 11. Alliant Tax Credit Fund XXVII, Ltd. 12. Arpey, Vincent J. 13. Barnett, Keith J. 14. Bundy, Jr., Walter H. C-2 Case: 15-14634 Date Filed: 12/11/2017 Page: 3 of 48 15. Carroll, Patrick 16. Community Management Services, LLC 17. Darden, David B. 18. Doran, Brian 19. Dunn, Michael A. 20. Gazebo Park Apartments of Acworth, LLC 21. Gorham, Patricia A. 22. Hawkins & Parnell 23. Hines, V., Richard K. 24. Hutchins, John P. 25. Johnson, Edward David 26. Johnson & Ward 27. Kreimer, Jr., Stanley E. 28. Lea, Puja P. 29. Lentz, Kurt E. 30. Malko, Simon R. 31. Mayer Brown, LLP 32. McDonald, M. Brent 33. Miller, Nathan 34. Morris Manning & Martin, LLP C-3 Case: 15-14634 Date Filed: 12/11/2017 Page: 4 of 48 35. Multifamily Housing Developers, LLC 36. Murphy, Dorothy F. 37. Murphy, Elizabeth 38. Murphy, Erin 39. Murphy, Kay P. 40. Murphy, III, M. Vincent 41. Murphy, Marilyn W. 42. Nash, Mark R. 43. Nelson Mullins Riley & Scarborough LLP 44. Netter, Brian D. 45. Smith Bundy Bybee Barnett, P.C. 46. Stacy, James 47. Story, Hon. Richard W., United States District Court Judge, Northern District of Georgia 48. Tager, Evan M. 49. Troutman Sanders, LLP 50. United Parcel Service, Inc. (UPS) 51. Wildler, IV, Pelham 52. Wilson, Alysia 53. Wilson, Bruce C-4 Case: 15-14634 Date Filed: 12/11/2017 Page: 5 of 48 54. Winterich, Shawn M. 55. The Winterich Law Firm, LLC 56. Young, II, Henry L. Dated: December 11, 2017 s/ Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant / Cross-Appellee C-5 Case: 15-14634 Date Filed: 12/11/2017 Page: 6 of 48 TABLE OF CONTENTS Page TABLE OF CASES AND AUTHORITIES ............................................................ iv STATEMENT OF JURISDICTION..........................................................................1 STATEMENT OF ISSUES .......................................................................................3 STATEMENT OF THE CASE ..................................................................................4 I. The Alliant Plaintiffs' have a long history of misreporting their citizenships ............................................................................................5 A. The Alliant Plaintiffs failed to accurately report their citizenship in predecessor litigation filed in 2007 ......................5 B. The Alliant Plaintiffs inaccurately claimed that Plaintiff Alliant Tax Credit Fund 31-A, Ltd. was a citizen of Florida at the commencement of this action ...............................7 C. The Alliant Plaintiffs inaccurately responded in written discovery that they were all citizens of Florida only ..................7 D. The Alliant Plaintiffs misreported the ownership structure of Plaintiff Alliant Tax Credit Fund XI, Ltd................9 E. This Court and the District Court set aside the similar Thomasville judgment because the Alliant Plaintiffs could not prove diversity in light of the "lack of trustworthiness" of their submissions .......................................10 II. The Alliant Plaintiffs' citizenship was not addressed by the District Court prior to the Limited Remand ........................................12 III. The Alliant Plaintiffs did not cure their jurisdictional deficiencies upon Limited Remand .....................................................12 A. In assessing the Alliant Plaintiffs initial proffer of jurisdictional evidence, the District Court recognized the Alliant Plaintiffs' had "not been candid with the Court" regarding citizenship allegations...............................................12 i Case: 15-14634 Date Filed: 12/11/2017 Page: 7 of 48 B. Alliant Tax Credit 31, LLC has never shown that it incurred $75,000.00 or greater in damages...............................14 C. Under the facts of this case, it was impossible for the District Court to confirm jurisdictional facts as the Eleventh Circuit ordered, without conducting any discovery ...................................................................................16 D. The District Court's conduct of the Limited Remand did not fulfill the mandate of the Eleventh Circuit .........................17 STANDARD OF REVIEW .....................................................................................18 SUMMARY OF THE ARGUMENT ......................................................................19 ARGUMENT AND CITATIONS OF AUTHORITY ............................................21 I. The purpose of the Limited Remand was to "fully resolve" subject matter jurisdiction questions ...................................................21 II. Resolving the subject matter jurisdiction issues in this matter required assessing state citizenship for each entity within the multi-layered structure of the Alliant Plaintiffs' entities ....................21 III. By considering inadmissible evidence, and in overlooking factual gaps, the District Court did not fulfill the objective of the Limited Remand ............................................................................23 A. The Alliant Plaintiffs have introduced contradictory and incomplete trust information .....................................................23 B. The Alliant Plaintiffs' declaration of Shawn D. Horwitz (Doc. 602-4), purporting to show a limited number of constituent entities, includes inadmissible evidence ................26 C. The declarations of Scott Kotick and James Jenkins, purporting to show a limited number of constituent entities, include inadmissible evidence.....................................28 IV. In refusing to give the Appellant the opportunity to conduct additional discovery, the District Court did not fulfill the fact- finding objective of the Limited Remand ...........................................29 ii Case: 15-14634 Date Filed: 12/11/2017 Page: 8 of 48 CONCLUSION ........................................................................................................34 CERTIFICATE OF COMPLIANCE .......................................................................36 CERTIFICATE OF SERVICE ................................................................................37 iii Case: 15-14634 Date Filed: 12/11/2017 Page: 9 of 48 TABLE OF CASES AND AUTHORITIES Cases Alliant Tax Credit Fund 31-A, Ltd., et al. v. Murphy, U.S. Court of Appeals for the Sixth Circuit, appeal no. 10-5454......................... 6 Alliant Tax Credit Fund 31-A, Ltd., et al. v. Nicholasville Community Housing, LLC, et al., United States District Court for the Eastern District of Kentucky, Eastern Division (Lexington), case no. 5:07-388-KKC ....................................... 5 Alliant Tax Credit Fund XVI, Ltd. v. Thomasville Cmty. Hous., LLC, No. 16-17027, 2017 U.S. App. LEXIS 19901 (11th Cir. Oct. 12, 2017) .......................................................................................................10, 11, 30 Alliant Tax Credit Fund XVI, Ltd. v. Thomasville Cmty. Hous., LLC, No. 16-17027, 2017 WL 4548066 (11th Cir. Oct. 12, 2017) ......................passim Americold Realty Trust v. Conagra Foods, Inc., 136 S. Ct. 1012 (2016) ........................................................................................ 22 Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) .............................................................................................. 2 Belleri v. United States, 712 F.3d 543 (11th Cir. 2013) ......................................................................18, 21 Blanco v. Carigulf Lines, 632 F. 2d 656 (5th Cir. 1980) ............................................................................. 32 California v. Green, 399 U.S. 149 (1970) ............................................................................................ 32 Davis v. Asano Bussan Co., 212 F. 2d 558 (5th Cir. 1954) ............................................................................. 32 Eaton v. Dorchester Dev., Inc., 692 F.2d 727 (11th Cir. 1982) ............................................................................ 32 Judd v. Rodman, 105 F.3d 1339 (11th Cir. 1997) .......................................................................... 19 iv Case: 15-14634 Date Filed: 12/11/2017 Page: 10 of 48 Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330 (11th Cir.2011) .....................................................................23, 24 Penaloza v. Drummond Co., Inc., 662 F. App'x 673 (11th Cir. 2016) ..................................................................... 19 Proffitt v. Wainwright, 685 F. 2d 1227 (11 Cir. 1982) ............................................................................ 33 RES-GA Creekside Manor, LLC v. Star Home Builders, Inc., No. 2:10-CV-207-RWS, 2011 U.S. Dist. LEXIS 138676 (N.D. Ga. Dec. 2, 2011) ....................................................................................................... 22 Rolling Greens MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020 (11th Cir. 2004) .......................................................................... 22 Scoggins v. Pollock, 727 F. 2d 1025 (11th Cir. 1984) ......................................................................... 19 Shuman v. Citibank N.A., No. 1:12-CV-3023-ODE, 2013 WL 12098818 (N.D. Ga. Jan. 29, 2013) ................................................................................................................... 22 Smith v. GTE Corp., 236 F.3d 1292 (11th Cir. 2001) .......................................................................... 21 Thomasville Community Housing, LLC, et al. v. Alliant Tax Credit Fund XVI, Ltd., et al., U.S. Court of Appeals for the Eleventh Circuit, appeal no. 14- 14886-AA ........................................................................................................... 10 United States v. Meyer, 398 F.2d 66 (9th Cir. 1968) ................................................................................ 32 Xaros v. U.S. Fid. & Guar. Co., 820 F.2d 1176 (11th Cir. 1987) .......................................................................... 22 Rules Fed. R. Evid. 602 ...............................................................................................26, 28 Fed. R. Evid. 803(6) ................................................................................................. 27 v Case: 15-14634 Date Filed: 12/11/2017 Page: 11 of 48 Fed. R. Evid. 901 ..................................................................................................... 27 Rule 30(b)(6) .......................................................................................................... 7, 8 Statutes 28 U.S.C. § 1291 ........................................................................................................ 1 28 U.S.C. § 1332 ..............................................................................................2, 3, 14 28 U.S.C. §1332(a) .................................................................................................. 31 Other Authorities 5 J. Wigmore, Evidence § 1367 (3d ed. 1940) ........................................................ 32 vi Case: 15-14634 Date Filed: 12/11/2017 Page: 12 of 48 SUPPLEMENTAL BRIEF OF APPELLANT MARILYN W. MURPHY REGARDING SUBJECT MATTER JURISDICTION ISSUES Appellant Marilyn W. Murphy ("Appellant") respectfully files her supporting Supplemental Brief as to the citizenship of Alliant Tax Credit 31, LLC, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, LLC, Alliant Tax Credit XI, LLC, and Alliant Tax Credit XI, Ltd. (the "Alliant Plaintiffs"1) and amount in controversy regarding Plaintiff Alliant Tax Credit Fund 31, LLC's claims. Appellant respectfully shows the Court the following: STATEMENT OF JURISDICTION As noted in Appellant's original brief filed on February 8, 2016, this Court has jurisdiction to hear this appeal under 28 U.S.C. § 1291, as it is an appeal from a final judgment entered by the District Court on September 11, 2015, disposing of all of the parties' claims. (Doc. 483.) As explained in more detail in this Supplemental Brief, however, no federal court has subject matter jurisdiction to 1 The three Alliant Plaintiff corporations identified in the caption of this appeal— Alliant Tax Credit 31, Inc., Alliant Tax Credit XXVII, Inc., and Alliant Tax Credit XI, Inc.—changed their organizational structure from corporations to limited liability companies in 2008, approximately three years before filing this action in 2011. For purposes of this Supplemental Brief, Appellant will refer to these three entities as limited liability companies, though the Alliant Plaintiffs themselves did not begin to do so until 2013, after Appellant initiated jurisdictional discovery. (Doc. 226-3.) 1 Case: 15-14634 Date Filed: 12/11/2017 Page: 13 of 48 hear the Alliant Plaintiffs' claims because they have failed to carry their burden of proving complete diversity of citizenship pursuant to 28 U.S.C. § 1332.2 Although the District Court purported to have subject matter jurisdiction over this action through complete diversity of citizenship pursuant to 28 U.S.C. § 1332, this Court issued Jurisdictional Questions, stating that "this court may lack jurisdiction over this appeal." (Dec. 12, 2016, Jurisdictional Questions at 1.) After the parties briefed this Court's Jurisdictional Questions, Appellant moved for a limited remand for purposes of resolving subject matter jurisdiction issues. (See Jan. 6, 2017, Cross-Motion for Limited Remand.) This Court granted Appellant's Motion and remanded this appeal to the District Court for the limited purpose of "fully resolv[ing] the question of the court's subject-matter jurisdiction over this action" (the "Limited Remand"). (April 10, 2017 Order at 2.) After the Limited Remand, and after the District Court purported to find complete diversity of 2 Appellant acknowledges that she stated in her original Appellants' Brief that subject matter jurisdiction was proper as to the Alliant Plaintiffs and Defendants Vince and Marilyn Murphy. (See Feb. 8, 2016, Appellants' Br. at 1.) However, in light of this Court's Jurisdictional Questions and the issues revealed during the Limited Remand of this action, Appellant recognizes that her previous understanding of subject matter jurisdiction was in error. But regardless of Appellant's position, this Court is obligated to independently determine whether subject matter jurisdiction exists, as parties cannot stipulate to subject matter jurisdiction, nor forfeit or waive challenges to it. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Alliant Tax Credit Fund XVI, Ltd. v. Thomasville Cmty. Hous., LLC, No. 16-17027, 2017 WL 4548066, at *3 (11th Cir. Oct. 12, 2017) ("We have repeatedly held that [p]arties may not stipulate jurisdiction." (internal quotation marks omitted)). 2 Case: 15-14634 Date Filed: 12/11/2017 Page: 14 of 48 citizenship, on November 9, 2017, this Court issued an Order directing Appellant to file this Supplemental Brief to address issues arising from the Limited Remand regarding subject matter jurisdiction. For the reasons that follow, Appellant respectfully submits that the District Court erroneously concluded that complete diversity jurisdiction exists, and did not fulfill its duty to "fully resolve" the subject matter jurisdiction issues in this case. Moreover, because the Alliant Plaintiffs have failed to carry their burden of proving complete diversity of citizenship, and because federal subject matter jurisdiction over this matter was premised solely on 28 U.S.C. § 1332, no federal court has subject matter jurisdiction over this action. Accordingly, the judgment of the District Court should be vacated, and this appeal should be dismissed, for lack of subject matter jurisdiction. STATEMENT OF ISSUES 1. Whether the trial court erred by refusing to allow Appellant discovery regarding the Alliant Plaintiffs' purported evidence allegedly supporting complete diversity of citizenship, thus failing to fulfil the objective of this Court's Limited Remand Order. 2. Whether the trial court erred by overruling every one of Appellant's evidentiary objections to the Alliant Plaintiffs' proffered evidence 3 Case: 15-14634 Date Filed: 12/11/2017 Page: 15 of 48 purporting to demonstrate complete diversity of citizenship, thus failing to fulfill the objective of this Court's Limited Remand Order. STATEMENT OF THE CASE This Supplemental Brief arises from this Court's April 10, 2017, Order remanding this appeal to the District Court for the limited purpose of "fully resolv[ing] the question of the court's subject matter jurisdiction over this action." (See April 10, 2017 Order at 2.) As explained in this Supplemental Brief, the District Court failed to fulfill its duty to "fully resolve" the subject matter jurisdiction issues in this case. Instead of fulfilling that duty, the District Court (1) refused Appellant's request for additional discovery to unpeel the numerous layers of the Alliant Plaintiffs' ownership structures, which are relevant to their states of citizenship, and (2) summarily denied Appellant's meritorious evidentiary objections to the purported evidence proffered by the Alliant Plaintiffs in support of their complete diversity of citizenship allegations. Because the Alliant Plaintiffs cannot carry their burden of proving complete diversity of citizenship through appropriate and competent evidence, this action should be dismissed for lack of subject matter jurisdiction. In the alternative, in light of the Alliant Plaintiffs many prior misrepresentations and misreporting of their alleged state citizenships, it was an abuse of discretion for the District Court 4 Case: 15-14634 Date Filed: 12/11/2017 Page: 16 of 48 to deny Appellant this basic discovery, and, thus, the action should be remanded for further proceedings. I. The Alliant Plaintiffs' have a long history of misreporting their citizenships. The Alliant Plaintiffs have a long history of misreporting their citizenship in this and related federal court actions purporting to be based on diversity jurisdiction. This history provides an important backdrop against which their actions and representations during the Limited Remand should be viewed. A. The Alliant Plaintiffs failed to accurately report their citizenship in predecessor litigation filed in 2007. In 2007, certain of the Alliant Plaintiffs and their affiliated entities (specifically, former Plaintiff Alliant Tax Credit Fund 31-A, Ltd., Plaintiff Alliant Tax Credit 31, LLC, Plaintiff Alliant Tax Credit Fund XXVII, Ltd., Plaintiff Alliant Tax Credit XXVII, LLC, Plaintiff Alliant Tax Credit Fund XI, Ltd., and Plaintiff Alliant Tax Credit XI, LLC) filed a breach of contract and guaranty diversity action against Georgia citizen Vince Murphy and others in the United States District Court for the Eastern District of Kentucky (the "Kentucky Litigation").3 The Alliant Plaintiffs incorrectly reported their citizenships as only Florida in their original complaint (see Doc. 356-2 at 2-4), and repeated this 3 Alliant Tax Credit Fund 31-A, Ltd., et al. v. Nicholasville Community Housing, LLC, et al., United States District Court for the Eastern District of Kentucky, Eastern Division (Lexington), case no. 5:07-388-KKC. 5 Case: 15-14634 Date Filed: 12/11/2017 Page: 17 of 48 misreporting in their 2009 amended complaint. (Doc. 356-4 at 2-4.) The Kentucky Litigation was the Alliant Plaintiffs' first opportunity to truthfully and accurately report their citizenships. The Alliant Plaintiffs ultimately prevailed in the Kentucky Litigation and were awarded a money judgment of approximately $8,900,000.00. But complete diversity of citizenship was lacking in the Kentucky Litigation. Specifically, the Alliant Plaintiffs falsely claimed they were Florida citizens, when in fact Plaintiff Alliant Tax Credit Fund 31-A, Ltd. was a Georgia citizen at the time the Kentucky Litigation commenced, as was Defendant Vince Murphy.4 Defendant Vince Murphy unsuccessfully appealed to the Kentucky judgment to the United States Court of Appeals for the Sixth Circuit.5 At the Sixth Circuit, the Alliant Plaintiffs provided no further citizenship information, nor did they explain to the court their incomplete and inaccurate reporting of their citizenship. 4 Defense counsel discovered this lack of complete diversity in the action now under appeal. Specifically, as of 2007, one of Alliant Tax Credit Fund 31-A, Ltd.'s partners—Great Plains Management Services, LLC—had a member as of 2007— United Parcel Service, Inc.—that was a Georgia corporation. (See Docs. 356-13, 356-15, 356-19; see also Brief of Appellants at 9-11.) Accordingly, Plaintiff Alliant Tax Credit 31-A, Ltd. was a Georgia citizen in 2007, as was Defendant Vince Murphy. 5 Alliant Tax Credit Fund 31-A, Ltd., et al. v. Murphy, U.S. Court of Appeals for the Sixth Circuit, appeal no. 10-5454. 6 Case: 15-14634 Date Filed: 12/11/2017 Page: 18 of 48 B. The Alliant Plaintiffs inaccurately claimed that Plaintiff Alliant Tax Credit Fund 31-A, Ltd. was a citizen of Florida at the commencement of this action. The Alliant Plaintiffs filed this action in 2011 in the United States District Court of the Northern District of Georgia, invoking the court's diversity jurisdiction. The Alliant Plaintiffs again included Plaintiff Alliant Tax Credit Fund 31-A, Ltd. As they had done in the Kentucky litigation, the Alliant Plaintiffs alleged they were citizens of only Florida, even though one Plaintiff was a citizen of Georgia (thus destroying complete diversity). (Doc. 1 at 3-5.) This was the Alliant Plaintiffs' second missed opportunity to truthfully report their citizenships. They amended their Complaint in 2013, but again repeated their false jurisdictional reporting. (Doc. 244 at 3-5.) C. The Alliant Plaintiffs inaccurately responded in written discovery that they were all citizens of Florida only. In 2013, the defense served a Rule 30(b)(6) deposition notice on the Alliant Plaintiffs inquiring about their "ownership structure." (Doc. 219-1 at 5.) The Alliant Plaintiffs designated Brian Doran as their Rule 30(b)(6) witness. When deposed in May 2013 about ownership structure, Mr. Doran denied being prepared or knowledgeable about this issue. (Doc. 219-2, 30(b)(6) deposition excerpts of Brian Doran, at 43:20 to 44:22.) Defense counsel had prepared an outline of jurisdictional questions for Mr. Doran, including questions about all six of the Alliant Plaintiffs' office locations (and non-brick and mortar addresses), which Mr. 7 Case: 15-14634 Date Filed: 12/11/2017 Page: 19 of 48 Doran could not or would not answer. A copy of the questions was shared with the Alliant Plaintiffs' lawyers at the deposition. (Doc. 219-3.) Three weeks passed, but the Alliant Plaintiffs still failed to provide answers to the jurisdictional questions. On June 22, 2013, Ms. Murphy filed a motion to compel. (Doc. 219.) The next day, the Alliant Plaintiffs submitted their answers: "Florida" was the Alliant Plaintiffs' sole written answer as to their office locations. (Doc. 226-3.) For all six Alliant plaintiffs, however, the correct answers to the questions posed were Florida and California. (See, e.g., Doc. 617-9, 30(b)(6) deposition excerpts of Brian Doran at 118:5 to 130:6.) This was the Alliant Plaintiffs' third missed chance to truthfully report their citizenships. One thing only Alliant knew in 2013: Shawn Horwitz, the chief executive of the Alliant Plaintiffs, had promised Mr. Doran—a jurisdictional fact witness—a five-percent financial stake in this litigation, so Mr. Doran was being compensated improperly.6 (Doc. 401.) The defense did not learn this until 2015. With this compensation arrangement in place, Mr. Doran deposed again over two dates in September 2013. After the depositions, a discovery dispute arose regarding the Alliant Plaintiffs' document production, and the defense moved for a supplemental 6 Specifically, Mr. Doran, upon severing his employment with the Alliant Plaintiffs, negotiated a contingent fee agreement of five percent of the Alliant Plaintiffs' recovery from Vince Murphy-related recoveries (including this action), in exchange for his testimony in this case as a Rule 30(b)(6) witness. (Docs. 390- 2, 390-3 and 390-4.) 8 Case: 15-14634 Date Filed: 12/11/2017 Page: 20 of 48 discovery order. The Alliant Plaintiffs opposed, declaring: "The Plaintiffs submit that the Defendants have more than sufficient documents and testimony showing the organizational structure of the Plaintiffs." (Doc. 288 at 8.) The District Court denied additional discovery in 2014 "based on Plaintiffs' representation that they have already produced all of the information that Marilyn Murphy seeks to compel." (Doc. 333 at 6.) The Alliant Plaintiffs' proclamation was proven false, again—this time by over 1,000 pages—and was their third lost opportunity to truthfully and accurately report their citizenships. The Alliant Plaintiffs were persuaded to reverse course by this remand, and they added over 1,000 pages of briefing and documents to the District Court record in 2017. (See Docs 573, et seq.; 602-1, et seq.) D. The Alliant Plaintiffs misreported the ownership structure of Plaintiff Alliant Tax Credit Fund XI, Ltd. In September 2013, Brian Doran testified that as of March 17, 2011, the partners comprising Plaintiff Alliant Tax Credit Fund XI, Ltd. were Alliant, Inc. and Alliant Capital, Ltd. (Doc. 617-9, 30(b)(6) deposition excerpts of Brian Doran at 132:21 to 136:1.) But Mr. Doran's testimony was false. He omitted JP Morgan Chase Bank, NA, Alliant Tax Credit Fund XX, Ltd., Citicorp, USA, Inc., Comerica Bank, and Wells Fargo Community Development Corp. (Doc. 576-1 at 4-5.) Mr. Doran's September 2013 deposition was the Alliant Plaintiffs' fourth missed opportunity to accurately report their citizenships. 9 Case: 15-14634 Date Filed: 12/11/2017 Page: 21 of 48 E. This Court and the District Court set aside the similar Thomasville judgment because the Alliant Plaintiffs could not prove diversity in light of the "lack of trustworthiness" of their submissions. In July 2011, four Alliant plaintiffs filed a related contract diversity action in the Northern District of Georgia against a limited liability company owned by Vince Murphy (referred to herein as "Thomasville").7 The Thomasville Alliant Plaintiffs shared management with the Alliant Plaintiffs in this appeal. More importantly, two of the Thomasville Alliant plaintiffs are also Plaintiffs in this action: Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC8 The Alliant plaintiffs filed Thomasville and this action within four months of one another in 2011. Those two Alliant Plaintiffs found it impossible to establish complete diversity from Georgia defendants in Thomasville. Although the Alliant plaintiffs succeeded at trial in Thomasville, after the defendants appealed,9 this Court remanded Thomasville for the limited purpose of resolving subject matter 7 Alliant Tax Credit Fund XVI, Ltd., et al., v. Thomasville Community Housing, LLC, et al., U.S.D.C., N.D. Ga., case no. 11-CV-2234-AJB. This Court recently affirmed the dismissal of the Thomasville matter for lack of diversity jurisdiction in Alliant Tax Credit Fund XVI, Ltd. v. Thomasville Cmty. Hous., LLC, No. 16-17027, 2017 U.S. App. LEXIS 19901 (11th Cir. Oct. 12, 2017). 8 The District Court declined to permit discovery about whether state citizenship of Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, Inc. changed between the March 2011 filing date of this action and the July 2011 filing date of Thomasville. 9 Thomasville Community Housing, LLC, et al. v. Alliant Tax Credit Fund XVI, Ltd., et al., U.S. Court of Appeals for the Eleventh Circuit, appeal no. 14-14886- AA. 10 Case: 15-14634 Date Filed: 12/11/2017 Page: 22 of 48 jurisdiction issues, including the citizenship of the Alliant Plaintiffs (much as it did in this action). The District Court, in meticulous detail, identified "myriad" reasons for doubt regarding the Alliant plaintiffs' citizenship. These problems mostly stemmed from the witness the Alliant plaintiffs used, Melvin Gevisser, who lacked a clear relationship to and understanding of the entities and documents he was testifying about. The District Court also found that the Alliant plaintiffs' opaque evidentiary submissions to try to show complete diversity lacked "trustworthiness." See Thomasville, case no. 11-CV-2234-AJB, Doc. 168 at 33 (N.D. Ga. Oct. 25, 2016).10 Accordingly, the district court dismissed the Thomasville matter for lack of subject matter jurisdiction. See id. Alliant appealed unsuccessfully. Alliant Tax Credit Fund XVI, Ltd. v. Thomasville Cmty. Hous., LLC, No. 16-17027, 2017 U.S. App. LEXIS 19901 (11th Cir. Oct. 12, 2017). 10 Specifically, the District Court in Thomasville found that "the testimony and other evidence proffered by [the Alliant] Plaintiffs lacks indicia of trustworthiness and completeness sufficient to establish that they have accounted for all of the persons and entities relevant to the analysis of [Alliant] Plaintiffs' citizenships." Thomasville, case no. 11-CV-2234-AJB, Doc. 168 at 33 (N.D. Ga. Oct. 25, 2016). The District Court found that the testimony it struck "set[ ] forth few details signaling trustworthiness." Id. at 27. The District Court cited more details than need be recounted here showing exactly the opposite, including the print date of a document relied upon being "well after" the date of the testimony for which it purportedly had been reviewed. Id. at 32 (emphasis in original). Finally, the District Court concluded that "myriad other issues. . . lead the [District] Court to seriously question the accuracy and reliability of any of [the witness'] testimony," id. at 29, and the District Court expressed frustration with the "hopelessly imprecise" terminology (i.e., "related entities") the Alliant witness used. Id. at 24. Finally, the District Court observed that Alliant tried to use arguments in briefing as a substitute for certain essential testimony absent from the record. Id. 11 Case: 15-14634 Date Filed: 12/11/2017 Page: 23 of 48 II. The Alliant Plaintiffs' citizenship was not addressed by the District Court prior to the Limited Remand. After prevailing at trial, the Alliant Plaintiffs submitted a proposed money judgment to the District Court, specifically including language that all Alliant Plaintiffs were diverse from all Defendants and that the trial court had subject matter jurisdiction over this action. (Doc. 475 at 3.) The District Court adopted this proposed finding and expanded upon the submitted language. (Doc. 483 at 3.) The District Court, however, had only evaluated the citizenships of former defendant Gazebo Park Apartments of Acworth, LLC and former Plaintiff Alliant Tax Credit Fund 31-A, Ltd. (ordering each one dismissed, as each was nondiverse). (Docs. 291, 331, and 584.) The District Court record was devoid of evidence about the citizenships of the five remaining Alliant Plaintiffs that the District Court was referring to in the judgment.11 III. The Alliant Plaintiffs did not cure their jurisdictional deficiencies upon Limited Remand. A. In assessing the Alliant Plaintiffs initial proffer of jurisdictional evidence, the District Court recognized the Alliant Plaintiffs' had "not been candid with the Court" regarding citizenship allegations. In April 2017, the Eleventh Circuit remanded this appeal to the District Court for purposes of fully resolving the question of the court's subject matter 11 The five Alliant Plaintiffs whose citizenship was not litigated in this action (before the Limited Remand in 2017) are Alliant Tax Credit 31, LLC, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, LLC, Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC. 12 Case: 15-14634 Date Filed: 12/11/2017 Page: 24 of 48 jurisdiction over this diversity action. Included in this Order was the mandate that "the underlying citizenship facts must be identified and confirmed." (April 10, 2017 Order at 1.) The District Court in turn gave the Alliant Plaintiffs two opportunities to carry their burden of proving complete diversity of citizenship. First, the District Court ordered the parties to support their respective allegations about the citizenships of all parties by filing admissible evidence. (Doc. 569.) In May 2017, the Alliant Plaintiffs offered the affidavit of Kathleen Balderrama, the "general counsel of Alliant Asset Management Company, LLC," who was "overseeing compliance matters for the Alliant family of entities." (Doc. 576-1.) There are over 6,000 Alliant Plaintiffs' entities. (Doc. 613-9, 30(b)(6) deposition excerpts of Brian Doran at 118:11-14.) Ms. Balderrama was not an executive of any of the Alliant Plaintiffs. She also does not testify when she joined Alliant Asset Management Company, LLC, which was in 2014, (see Doc. 617-11 at ¶ 2), three years after the relevant date, March 17, 2011, for determining the Alliant Plaintiffs' citizenship for purposes of diversity jurisdiction. After a status conference, and after evidence and briefing were filed, the District Court found: The Court notes that Plaintiffs' Amended Complaint [Doc. No. 244] alleges that Plaintiffs are all citizens of Florida. Now that Plaintiffs have been questioned as to their citizenship, Plaintiffs concede that they are in fact citizens of California, Delaware, the District of 13 Case: 15-14634 Date Filed: 12/11/2017 Page: 25 of 48 Columbia, Florida, Illinois, Nebraska, New York, Ohio, and Texas. Under these circumstances, in which Plaintiffs have not been candid with the Court and the Court has received a limited remand for the purposes of determining whether diversity exists, declarations and affidavits are insufficient-the Court requires documentary evidence that establishes the jurisdictional facts. (Doc. 596 at 2.) The District Court—acknowledging the Alliant Plaintiffs' lack of candor, and reiterating on three occasions that testimonial evidence about partnerships, companies, and trusts is not sufficient—gave the Alliant Plaintiffs a final chance to try and carry their burden of proving complete diversity of citizenship by ordering the Alliant Plaintiffs to file additional documents. (Doc. 596 at 4-6.) The Alliant Plaintiffs' citizenship submission of May 2017 was their fifth missed opportunity over four years to accurately report their citizenships. B. Alliant Tax Credit 31, LLC has never shown that it incurred $75,000.00 or greater in damages. This Court did not, when it ordered the District Court to confirm jurisdictional facts, confine the inquiry to diversity of the parties' citizenships. This Court asked for a reappraisal of subject matter jurisdiction, which in this case was based on 28 U.S.C. §1332. (Doc. 565.) Therefore, whether Alliant Tax Credit 31, LLC suffered damages in the minimum amount in controversy was also before the District Court on remand. The District Court did not, however, require Alliant to file any evidence that Alliant Tax Credit 31, LLC had in itself incurred $75,000.00 or greater in damages. 14 Case: 15-14634 Date Filed: 12/11/2017 Page: 26 of 48 For background purposes, when the Kentucky District Court entered the Kentucky judgment, the judgment of approximately $8.9M was divided into three segments of different sizes. Judgment for $1,478,489.00 in damages was shared by Alliant Tax Credit Fund 31-A, Ltd. and Alliant Tax Credit 31, LLC, but the Alliant Plaintiffs have offered no evidence or explanation of the respective ownership of this claim by those two entities.12 A recurring pattern appearing in the Alliant Plaintiffs' partnership agreements, as shown by the documents they filed in the District Court in 2017, is the investor partner holding 99.99% of the equity in their partnership or venture. In this case, the investor partner is Alliant Tax Credit Fund 31-A, Ltd., which was dismissed from this action in 2013 because it is a Georgia citizen. Alliant Tax Credit 31, LLC, the administrative partner that remained in this action, recovered the entire $1,478,489.00 owed to both itself and Alliant Tax Credit Fund 31-A, Ltd. Alliant Tax Credit 31, LLC, likely only owned and had a contractual right to retain approximately 00.01% of this share, i.e., $14,784.00, and therefore had only had $14,784.00—not the minimum of $75,000.00—in controversy. 12 The Kentucky District Court did not specify the respective percentage split, and there was no evidence or court filing before it that would have made such a finding possible. For greater detail about the facts underlying this issue, see Brief of Appellants at 35-39. 15 Case: 15-14634 Date Filed: 12/11/2017 Page: 27 of 48 C. Under the facts of this case, it was impossible for the District Court to confirm jurisdictional facts as the Eleventh Circuit ordered, without conducting any discovery. After this case was remanded to resolve the jurisdictional questions, the District Court allowed the defense to file proposed discovery requests regarding jurisdiction, (see Doc. 584), and the defense complied. (Doc. 586.) Although the District Court allowed these proposed discovery requests (including proposed interrogatories, requests for production, and requests for admission), and although the defense explained in their filing how their proposed discovery requests—along with requested depositions and third-party discovery—could be essential to controvert the Alliant Plaintiffs' questionable assertions of complete diversity, the District Court only required the Alliant Plaintiffs to produce selected documents. (See Doc. 596.) Notably, the District Court denied the defense follow-up examination (including an opportunity to depose the witnesses for whom the Alliant Plaintiffs produced affidavits to support their jurisdictional allegations) and the ability to subpoena additional, relevant documents from third-party entities related to or affiliated with the Alliant Plaintiffs. The Alliant Plaintiffs have a long history of misreporting their citizenships, as detailed above. Throughout this and the related actions, the Alliant Plaintiffs have sought to summarily declare that complete diversity of citizenship exists. Appellant and Mr. Vince Murphy have repeatedly identified major gaps (if not 16 Case: 15-14634 Date Filed: 12/11/2017 Page: 28 of 48 downright misreportings) in the Alliant Plaintiffs' claims, and this Court—along with the Thomasville court—have expressed skepticism whether complete diversity exists. In light of this history, during the Limited Remand, the District Court should have given Appellant the opportunity to thoroughly and adequately discover the bases for the Alliant Plaintiffs' citizenship claims. But even after acknowledging the Alliant Plaintiffs' lack of candor regarding their citizenship, the District Court denied Appellant sufficient opportunity to learn the underlying facts to test the accuracy of the Alliant Plaintiffs' claims. D. The District Court's conduct of the Limited Remand did not fulfill the mandate of the Eleventh Circuit. After the District Court's July 2017 Order acknowledging the Alliant Plaintiffs' lack of candor about their citizenship allegations (see Doc. 596), the Alliant Plaintiffs filed additional evidentiary materials to try to show the components of their ownership structure, largely through their executive, Shawn D. Horwitz. (See Docs. 597-607.) Before Mr. Horwitz, the Alliant Plaintiffs had used other witnesses (such as Alliant in-house counsel Ms. Baldarrama, and lay witnesses Mr. Doran, Patricia Fadness, and in Thomasville, Melvin Gevisser) for the same purpose. The Alliant Plaintiffs introduced no evidence from Thomasville or any evidence that plaintiff Alliant Tax Credit 31, LLC had incurred $75,000.00 or greater in damages, nor did the District Court require such evidence. 17 Case: 15-14634 Date Filed: 12/11/2017 Page: 29 of 48 In its October 2017 Order, the district court found complete diversity of citizenship, (see Doc. 628), finding that all Defendants were Georgia citizens and identifying the several purported state citizenships of each of the five remaining Alliant Plaintiffs. The Court's order, however, did not discuss any underlying jurisdictional facts, or indicate what jurisdictional facts it was identifying and confirming. Indeed, the order includes scant explanation and no background even though the record is voluminous. The order also makes no reference to Thomasville, nor does it make any findings about the citizenships of plaintiffs Alliant Tax Credit Fund XI, Ltd. and Alliant Tax Credit XI, LLC, which are also plaintiffs in Thomasville. Those two Alliant Plaintiffs found it impossible to establish complete diversity from Georgia defendants in Thomasville, which like this case, was also filed in 2011. The District Court also made no finding whether Plaintiff Alliant Tax Credit 31, LLC itself had incurred $75,000.00 or greater in damages. In short, the District Court failed to fulfill this Court's mandate to "fully resolve" the subject matter jurisdiction issues in this matter. STANDARD OF REVIEW This Court reviews questions of subject matter jurisdiction de novo. Belleri v. United States, 712 F.3d 543, 547 (11th Cir. 2013). Because the District Court did not make any findings or conclusions as to the amount in controversy for 18 Case: 15-14634 Date Filed: 12/11/2017 Page: 30 of 48 Alliant Tax Credit XI, LLC's claims, this Court should review that issue de novo. This Court reviews a District Court's case management decisions, including the denial of a request for jurisdictional discovery, for abuse of discretion. Penaloza v. Drummond Co., Inc., 662 F. App'x 673, 677 (11th Cir. 2016). This Court also reviews a District Court's decisions on evidentiary objections for abuse of discretion. Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997).13 SUMMARY OF THE ARGUMENT The District Court purported to find by a preponderance of evidence that the citizenships of all of the components of the Alliant Plaintiffs, collectively, were limited to the states of California, Delaware, Florida, Illinois, Nevada, New York, Ohio and Texas, and no "stateless" citizens. The District Court abused its discretion in reaching this conclusion. First, the Alliant Plaintiffs' introduction of proof of citizenship by affidavit was subject to numerous objections, many of which would have been in themselves fatal to various Alliant Plaintiffs establishing complete diversity by a 13 The citizenship findings of the district court are made under the preponderance of evidence standard, see Scoggins v. Pollock, 727 F. 2d 1025, 1026 (11th Cir. 1984), and this Court reviews those findings for clear error. See id. Appellant is not, however, challenging the sufficiency of the evidence that supported the District Court's purported jurisdictional findings. Instead, Appellant's argument is that the District Court abused its discretion in denying Appellant the opportunity to fully engage in jurisdictional discovery to controvert the Alliant Plaintiffs' evidence, and further abused its discretion by overruling Appellant's meritorious evidentiary objections. 19 Case: 15-14634 Date Filed: 12/11/2017 Page: 31 of 48 preponderance of evidence. Witnesses lacking factual foundation for their testimony has been a recurrent issue in this action and in the Thomasville case. Second, the subject of the remand was to confirm the subject matter jurisdiction of the District Court, and there was no discovery or other inquiry about the contested issue of whether any claim against Defendants possessed by Alliant Tax Credit 31, LLC at the time of filing this action satisfied the minimum amount in controversy. Third, and finally, the District Court did not manage the remand of the Eleventh Circuit's jurisdictional question as to citizenship of parties with the thoroughness the circumstances of this case required. A thorough examination would most likely have led to a different end result. Specifically, in a diversity action where five plaintiffs (all complex entities) have repeatedly underreported multiple state citizenships in this action and in two related cases; which repeatedly filed affidavits containing informational gaps and contradictions (affidavits being the sole method evidence is received and considered by the court); and which have also given their 30(b)(6) jurisdictional fact witness a financial interest in the cause, adversarial discovery and cross-examination (possibly including the introduction of opposing evidence) were required to confirm jurisdictional facts and to aid the courts in assessing the credibility of Alliant Plaintiffs' witnesses. 20 Case: 15-14634 Date Filed: 12/11/2017 Page: 32 of 48 ARGUMENT AND CITATIONS OF AUTHORITY I. The purpose of the Limited Remand was to "fully resolve" subject matter jurisdiction questions. When a federal appellate court has a "serious question" regarding the factual predicate for subject-matter jurisdiction, it may remand the action for factual findings to resolve the jurisdictional issues. Belleri v. U.S., 712 F.3d 543, 548 (11th Cir. 2013). That is what this Court did when it ordered the Limited Remand to "fully resolve" subject matter jurisdiction issues. (See April 10, 2017 Order at 2.) Full and complete resolution of the subject matter jurisdiction issues in this matter was necessary because a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction. A federal court not only has the power but also the obligation at any time to inquire into jurisdiction whenever the possibility that jurisdiction does not exist arises. Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001) (citations and punctuation omitted). II. Resolving the subject matter jurisdiction issues in this matter required assessing state citizenship for each entity within the multi-layered structure of the Alliant Plaintiffs' entities. Each Alliant Plaintiff is considered a citizen of each of the states for which its relevant partners, limited liability companies, and/or trust components are citizens. When a limited liability company consists of multiple tiers of ownership and control—as is the case here—the entire structure must be considered for diversity purposes. In other words, when an entity is composed of multiple layers 21 Case: 15-14634 Date Filed: 12/11/2017 Page: 33 of 48 of constituent entities, the citizenship determination requires an exploration of the citizenship of the constituent entities as far down as necessary to unravel fully the citizenship of the entity before the court. See RES-GA Creekside Manor, LLC v. Star Home Builders, Inc., No. 2:10-CV-207-RWS, 2011 U.S. Dist. LEXIS 138676 (N.D. Ga. Dec. 2, 2011). The same analysis applies to partnerships, limited partnerships, and trusts. A limited partnership (like any partnership) is a citizen of any state in which a partner is a citizen. Rolling Greens MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1021 (11th Cir. 2004). Similar to a partnership, a limited liability company "is a citizen of any state of which a member of the company is a citizen." Id. at 1022. The term "trust" can refer either to a distinct legal entity or to an abstract fiduciary relationship between multiple people. Americold Realty Trust v. Conagra Foods, Inc., 136 S. Ct. 1012, 1016 (2016). When a trust is a member of an LLC, it is necessarily a distinct legal entity. In these circumstances, the trust is a citizen of any state in which one of its beneficiaries is a citizen. See id.; Shuman v. Citibank N.A., No. 1:12-CV-3023-ODE, 2013 WL 12098818, at *2 (N.D. Ga. Jan. 29, 2013); see also Xaros v. U.S. Fid. & Guar. Co., 820 F.2d 1176, 1181 (11th Cir. 1987). 22 Case: 15-14634 Date Filed: 12/11/2017 Page: 34 of 48 III. By considering inadmissible evidence, and in overlooking factual gaps, the District Court did not fulfill the objective of the Limited Remand. Because the Alliant Plaintiffs chose to file their action in federal court, they had the burden to produce competent evidence to prove complete diversity of citizenship. See Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1340 (11th Cir. 2011) (citations omitted). This burden includes (1) identifying all persons, partnerships, and entities within the Alliant Plaintiffs' multi-layered structures, (2) identifying the citizenships of every one of these constituent persons or entities, and (3) confirming that no constituent persons or entities are "stateless" or Georgia citizens. The Alliant Plaintiffs, however, failed to carry this burden using trustworthy evidence. Instead, the Alliant Plaintiffs' submissions in the District Courts—in this action (pre- and post-remand) and in the Kentucky Litigation—have been plagued by inaccurate reporting and inadmissible and contradictory testimony. A. The Alliant Plaintiffs have introduced contradictory and incomplete trust information. The Lawrence Kohl ("LK") Family Trust and the Robert Kohl ("RK") Family Trust are components of all five Alliant Plaintiffs. (Doc. 576.) The District Court ordered the Alliant Plaintiffs to file copies of any applicable trust instruments because it would not accept testimony alone. (Doc. 596 at 6.) Although the District Court permitted the Alliant Plaintiffs to redact portions of these trust 23 Case: 15-14634 Date Filed: 12/11/2017 Page: 35 of 48 instruments inasmuch as the portions do not bear on state citizenship (see id.), and the Alliant Plaintiffs did so redact, (see Docs. 602-2, 602-3), the Alliant Plaintiffs never offered testimony that the redacted portions have no bearing on citizenship. The Statements of Citizenship of the Alliant Plaintiffs reflect the names of a limited number of trust beneficiaries, (see Doc. 603 at 17), but the sworn testimony does not. This has been a recurrent issue for the Alliant Plaintiffs in the related Thomasville matter.14 By way of background, Patricia Fadness ("PF"), an officer of Pentacorp, Inc., testified that Pentacorp is the trustee of The LK Family Trust, and that LK was the sole beneficiary of the LK Family Trust when this action was filed in 2011. (Doc. 576-18.) LK also testified that he was the sole beneficiary. (Doc. 576- 19.) PF's and LK's testimony was later shown to be inaccurate by the testimony of LK himself. 15 After the trial court's admonition that it needed additional documentary evidence because the testimony of PF alone was insufficient, (see Doc. 596 at 6), the Alliant Plaintiffs offered the Declaration of Sidney Kohl ("SK"). SK is the 14 See Thomasville, case no. 11-CV-2234-AJB, Doc. 168 at 24 (N.D. Ga. Oct. 25, 2016). 15 LK later testified that he was not the sole beneficiary of that trust, and identified three additional beneficiaries: JEK, MAK, and JMK, his children. The LK trust instrument provides for "any one or more of the group consisting of the Donor [SK]'s son [i.e., LK] with whose name such fund is designated, and any issue of the Donor's said son." (Docs. 602-58, 602-1, 602-2 at 3 ((emphasis supplied).) 24 Case: 15-14634 Date Filed: 12/11/2017 Page: 36 of 48 "donor" of the LK and RK Family Trusts. SK testified that he "signed" these two intrafamilial inter vivos trusts in the early 1970s, each a separate original instrument. (Docs. 602-1, 602-2, 602-3.) But the trust instruments filed by the Alliant Plaintiffs and authenticated by SK are incomplete. For example, the original trustees are named in the 1972 LK and RK trust instruments, (see Docs. 602-2 at 14; 602-3 at 14), and those original trustees are not Pentacorp, which claims it was the trustee in 2011. (Docs. 576-16, 576-18.) This apparent change in trustees indicates the Alliant Plaintiffs failed to provide trust amendments, and the Alliant Plaintiffs never explain this omission in the record. The Trust could also have added co-trustees since 1972, which could have impacted the Trust's citizenship. Another deficiency is that SK professes no knowledge of the trusts he signed, nor of their management or administration. The trust instruments are expressly amendable. (See, e.g., Docs. 602-2 at 7-8; 602-3 at 7-8.) SK does not indicate whether, in the 39 years between 1972 and 2011, there were any amendments to these LK and RK trust instruments that could affect the identity of trust beneficiaries, i.e., to change the class of beneficiaries and, therefore, change the number of constituents of the Alliant Plaintiffs' ownership structure, or even change the eligible signators. Finally, the trusts are intrafamilial, but SK's testimony about the number of beneficiaries and prospective beneficiaries, and 25 Case: 15-14634 Date Filed: 12/11/2017 Page: 37 of 48 how he knows the number of beneficiaries, or whether he maintains contact with LK and RK, is unclear and therefore is objectionable under Fed. R. Evid. 602. B. The Alliant Plaintiffs' declaration of Shawn D. Horwitz (Doc. 602-4), purporting to show a limited number of constituent entities, includes inadmissible evidence. i. Plaintiff Alliant Tax Credit XXVII, LLC a. Testimonial Problems Mr. Horwitz claims that Plaintiff Alliant Tax Credit XXVII, LLC was a single-member LLC when formed in 2008 and that it has not added additional members through the 2011 date of this action. (Doc. 602-4, at ¶ 5.) The documentary evidence he relies on for this allegation, however, does not rule out additional members. He relies on the entity's operating agreement that he claims "remained in effect" for a particular time frame, but that does not rule out additional members. (See Doc. 602-4.) Mr. Horwitz does not testify that only he could execute a document adding or changing the LLC's membership, and, thus, his testimony cannot rule out the possibility of new members being added without his personal approval. His testimony regarding Alliant Tax Credit XXVII, LLC lacks foundation and, therefore, is inadmissible under Fed. R. Evid. 602. b. Documentary Problems The supporting documents that Mr. Horwitz provides are also problematic. The operating agreement that Mr. Horwitz refers to, (see Doc. 602-6), for Alliant 26 Case: 15-14634 Date Filed: 12/11/2017 Page: 38 of 48 Tax Credit XXVII, LLC is objectionable as untrustworthy and lacking proper authentication. Specifically, pages 3, 4, and 5 are wholly redacted or at least not filed. Moreover, pages 1 and 2 show page number footers rendered in "Courier New" font, while page numbers 6 and 7 are rendered in "Arial" font.16 (Compare Doc. 576-7, where all page numbers throughout the document are rendered in the same Arial font.) Nothing else within the document directly ties pages 1 and 2 to pages 6 and 7. Accordingly, the operating agreement is objectionable for reasons of disorder and for lack of personal knowledge of the witness. Thus, it is inadmissible hearsay not compliant with the business records exception appearing at Fed. R. Evid. 803(6), and it is likewise inadmissible due to lack of authenticity. Fed. R. Evid. 901. ii. Plaintiff Alliant Tax Credit XI, LLC Mr. Horwitz's claim that Plaintiff Alliant Tax Credit XI, LLC is a single member LLC is also objectionable for the same reasons as articulated above at Section III.B.i, as he fails to rule out additional members. (Doc. 602-4, at ¶ 7.) His testimony and the supporting exhibit, (Doc. 602-7), are also objectionable for the same reasons articulated above at Section III.B.i, including page numbering anomalies, lack of satisfaction of the business records exception, and lack of authenticity. 16 Courier New font numerals are rendered as 1, 2, 3, 4, 5, 6, 7, 8, 9, and 0. Arial font numerals are rendered as 1, 2, 3, 4, 5, 6, 7, 8, 9, and 0. 27 Case: 15-14634 Date Filed: 12/11/2017 Page: 39 of 48 iii. The Alliant Company, LLC, Alliant Capital, Ltd., Alliant Tax Credit Fund XXVII, Ltd., and Palm Drive Associates, LLC Mr. Horwitz's claim that the Alliant Company, LLC, Alliant Capital, Ltd., and Palm Drive Associates, LLC, (see Doc. 602-4, at ¶¶ 10, 12, 13), are single member entities likewise is objectionable for the same reasons articulated above at Section III.B.i.a because he fails to rule out additional members. His testimony is thus inadmissible under Fed. R. Evid. 602. C. The declarations of Scott Kotick and James Jenkins, purporting to show a limited number of constituent entities, include inadmissible evidence. i. Kotick Family Partnership, LP The testimony by Scott Kotick about the Kotick Family Partnership, LP (Doc. 602-15) does not rule out additional members and is inadmissible for the same reasons shown in Subpart III.B.i.a above, not including the page numbering issue. Fed. R. Evid. 602. ii. SAK Housing, LLC James Jenkins' testimony supporting the Alliant Plaintiffs' claim that the SAK Housing, LLC (Doc. 602-20) has the number of members claimed is inadmissible for the same reasons shown in Subpart III.B.i.a above. Fed. R. Evid. 602. 28 Case: 15-14634 Date Filed: 12/11/2017 Page: 40 of 48 IV. In refusing to give the Appellant the opportunity to conduct additional discovery, the District Court did not fulfill the fact-finding objective of the Limited Remand. Appellant has established the Alliant Plaintiffs' lengthy history of misreporting their citizenship—even after having multiple chances to accurately report it—in this action, in the Kentucky Litigation, and in the Thomasville matter. Appellant has further identified evidentiary objections to the Alliant Plaintiffs' testimony and documentary evidence proffered to try to prove complete diversity. Even the District Court acknowledged the Alliant Plaintiffs' lack of candor regarding reporting their citizenship. (Doc. 596 at 2.) Yet, the District Court refused Appellant's request for additional jurisdictional discovery, including depositions of the Alliant Plaintiffs' affiants (including Mr. Horwitz) and third- party discovery. In light of the Alliant Plaintiffs' history of untrustworthiness regarding reporting their citizenship, the District Court abused its discretion when it failed to give Appellant the opportunity to conduct such discovery. Specifically, the trial court ordered the parties to file proposed discovery requests, (Doc. 584), and the defense complied. (Doc. 586.) Appellant filed one series each of proposed Requests for Admissions, Requests for Production of Documents, and Interrogatories to confirm jurisdictional facts. Most notably, Appellant sought two things: 29 Case: 15-14634 Date Filed: 12/11/2017 Page: 41 of 48 First, she requested a copy of the documentary evidence of citizenship that the Alliant Plaintiffs had already filed under various sealing orders in Thomasville: Please produce all documents offered into evidence, admitted into evidence or filed in [Thomasville] for purposes of proving or otherwise showing the citizenship of the plaintiffs thereto, and constituents thereof. (Doc. 586-2 at § 2.) This information was important as the Thomasville District Court found that none of the Thomasville Alliant plaintiffs satisfied their burden of proof of diversity of citizenship,17 which this Court affirmed.18 Two plaintiffs in Thomasville were Alliant Tax Credit Fund XI, Ltd. and Alliant Tax Credit XI, LLC and they initiated both this action and Thomasville in 2011.19 Had the District Court compelled production, the documents and testimony produced may have had impeachment value or have led to evidence disproving diverse citizenship. But Appellant was never given the opportunity to assess these documents because the District Court refused to allow such discovery. 17 See Thomasville, case no. 11-CV-2234-AJB, Doc. 168 (N.D. Ga. Oct. 25, 2016). 18 Alliant Tax Credit Fund XVI, Ltd. v. Thomasville Cmty. Hous., LLC, No. 16- 17027, 2017 U.S. App. LEXIS 19901 (11th Cir. Oct. 12, 2017). 19 From the evidentiary submissions the Alliant Plaintiffs made in the District Court, there is no indication that the state citizenships of Alliant Tax Credit Fund XI, Ltd. or Alliant Tax Credit XI, Inc. changed from March 2011 through July 2011 when this case and Thomasville were filed, respectively. 30 Case: 15-14634 Date Filed: 12/11/2017 Page: 42 of 48 Second, Appellant sought documents showing that Alliant Tax Credit Fund 31, LLC, had itself incurred $75,000.00 or greater in damages as required under 28 U.S.C. §1332(a): All agreements by and between each plaintiff company or other entity or partnership as the case may be, or any combination. (Doc. 586-2 at § 1(d).) A copy of the relevant agreement between Alliant Tax Credit Fund 31-A, Ltd. and Alliant Tax Credit 31, LLC would, according to testimony of Brian Doran, show respective percentage ownership of their shared claim against Appellant Vince Murphy of $1,478,489.00, which is not available from any other source. (Doc. 613-10, 30(b)(6) deposition of Brian Doran, at 191:6 to 194:1.) If the ownership of this claim is allocated 99.99% to 00.01%, as other Alliant partnership arrangements are (see, e.g., Doc. 356-19 at 7), the principal amount in controversy for Alliant Tax Credit 31, LLC's claim would be $14,784.00 (or 0.01% of $1,478,489.00). Discovery to permit proper jurisdictional fact-finding is favored in this Circuit. In reversing a dismissal for lack of subject matter jurisdiction so that discovery could be conducted, this court stated as follows: It is now clear that federal courts have the power to order, at their discretion, the discovery of facts necessary to ascertain their competency to entertain the merits. The problem is the degree to which such discovery is mandatory or discretionary. We have held that such jurisdictional discovery is not entirely discretionary, and this appears to be the better view. 31 Case: 15-14634 Date Filed: 12/11/2017 Page: 43 of 48 Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 729-30 (11th Cir. 1982) (citations and punctuation omitted). This court has held that where the record left in doubt questions upon which jurisdiction could be based, the plaintiff was not required to depend exclusively upon defendant's affidavit for answers to that question but had the right to employ interrogatories to develop fully the necessary facts. See Blanco v. Carigulf Lines, 632 F. 2d 656, 657-58 (5th Cir. 1980) (citing Davis v. Asano Bussan Co., 212 F. 2d 558, 564-565 (5th Cir. 1954)). A party attempting to elicit material facts about jurisdiction is entitled to use the discovery process before the issue of the existence of jurisdiction is disposed of. Id. at 658. Discovery makes cross-examination possible, which elicits the truth. Appellant alluded to depositions when seeking discovery. (Doc. 586 at p. 2.) Discovery is intended to encourage settlements, to avoid surprise, to permit effective cross-examination and rebuttal, and, basic to all others, "to elicit truth essential to correct adjudication." United States v. Meyer, 398 F.2d 66, 71 (9th Cir. 1968). The Supreme Court has recognized cross-examination as "the greatest legal engine ever invented for the discovery of truth." California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)). The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the accuracy of the truth-determining process. It is, 32 Case: 15-14634 Date Filed: 12/11/2017 Page: 44 of 48 indeed, an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal. Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests. . . . But its denial or significant diminution calls into question the ultimate integrity of the fact-finding process and requires that the competing interest be closely examined. Proffitt v. Wainwright, 685 F. 2d 1227, 1254 (11 Cir. 1982) (citations and internal quotation marks omitted).20 Finally, in issuing the Limited Remand, this Court stated: "The district court shall take any action that it deems necessary to address the motions and resolve the doubts about its diversity subject matter jurisdiction, including but not limited to jurisdictional discovery if appropriate." (April 10, 2017 Order at 2.) While this Court did not specify how the District Court was to carry out its mandate, the District Court was required to use an appropriate truth-seeking methodology to fully resolve jurisdictional questions. But instead of fulfilling this mandate, the District Court deprived Appellant the opportunity to cross-examine (via deposition) the Alliant Plaintiffs' witnesses, and deprived Appellant the opportunity to obtain additional documentary evidence that may controvert their allegations. In light of the history of this matter—including the Alliant Plaintiffs' 20 Although Proffitt arose in the context of a criminal matter, it's statements regarding the importance of cross-examination and confrontation nonetheless apply in this adversarial civil case. 33 Case: 15-14634 Date Filed: 12/11/2017 Page: 45 of 48 lack of candor regarding their citizenships—it was an abuse of the District Court's discretion to deny additional jurisdictional discovery. CONCLUSION For the reasons stated above, Appellant respectfully requests that this Court dismiss the Alliant Plaintiffs' claims for lack of subject matter jurisdiction, because the Alliant Plaintiffs failed to carry their burden of proving complete diversity of citizenship using admissible, competent evidence. In the alternative, because the District Court failed to permit adequate jurisdictional discovery, Appellant respectfully asks this Court to remand this matter to allow Appellant to cross- examine the Alliant Plaintiffs' jurisdictional witnesses (including, but not necessarily limited to, Mr. Horwitz), and to obtain additional documentary evidence. This 11th day of December 2017. s/ Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 34 Case: 15-14634 Date Filed: 12/11/2017 Page: 46 of 48 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendants-Appellant / Cross- Appellee 35 Case: 15-14634 Date Filed: 12/11/2017 Page: 47 of 48 CERTIFICATE OF COMPLIANCE This document complies with the word limit of Fed. R. App. P. 32(a)(7)(B) and Fed. R. App. P. 28.1(e)(2)(A) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), this document contains 8,024 words. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word 2013 in Times New Roman 14 point font. This 11th day of December 2017 s/ Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant / Cross-Appellee 36 Case: 15-14634 Date Filed: 12/11/2017 Page: 48 of 48 CERTIFICATE OF SERVICE I hereby certify that on December 11, 2017, one copy of this brief was electronically submitted to the Clerk's Office of the United States Court of Appeals for the Eleventh Circuit. On this same date, a copy of the brief was served on all counsel of record by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Electronic Filing. s/ Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant / Cross-Appellee 37

MOTION to seal filed by Marilyn Murphy. Opposition to Motion is Unknown. [8322217-1] (ECF: Mark Nash)

Case: 15-14634 Date Filed: 12/12/2017 Page: 1 of 10 No. 15-14634 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ALLIANT TAX CREDIT 31, INC., ALLIANT TAX CREDIT FUND XXVII, LTD.; ALLIANT TAX CREDIT FUND XXVII, INC.; ALLIANT TAX CREDIT XI, INC.; and ALLIANT TAX CREDIT XI, LTD., Plaintiffs/Appellees/Cross-Appellants, v. M. VINCENT MURPHY, III; MULTIFAMILY HOUSING DEVELOPERS, LLC; COMMUNITY MANAGEMENT SERVICES, INC.; and MARILYN MURPHY, Defendants/Appellants/Cross-Appellees. On Appeal from the United States District Court for the Northern District of Georgia, Case No. 1:11-cv-00832-RWS APPELLANT MARILYN W. MURPHY'S MOTION FOR LEAVE TO LODGE SUPPLEMENTAL BRIEF AND SUPPLEMENTAL APPENDIX UNDER SEAL, AND MEMORANDUM IN SUPPORT SHAWN M. WINTERICH MARK R. NASH THE WINTERICH LAW FIRM, LLC NELSON MULLINS RILEY & P.O. Box 71203 SCARBOROUGH LLP Marietta, Georgia 30007-1203 Atlantic Station, 201 17th Street NW T: (404) 668-7766 Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/Cross-Appellee Marilyn w. Murphy DATED: December 12, 2017 Case: 15-14634 Date Filed: 12/12/2017 Page: 2 of 10 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1, the undersigned counsel for Appellant Marilyn Murphy hereby certifies that the following is a complete list of persons and entities that are now known or understood to have an interest in the outcome of this case: 1. Affordable Realty Management Inc. 2. Alliant Capital, Ltd. 3. Alliant, Inc. 4. Alliant Tax Credit 31, Inc. 5. Alliant Tax Credit XI, Inc. 6. Alliant Tax Credit XI, Ltd. 7. Alliant Tax Credit XXVII, Inc. 8. Alliant Tax Credit Fund 31-A, Ltd. 9. Alliant Tax Credit Fund XI, Ltd. 10. Alliant Tax Credit Fund XX, Ltd. 11. Alliant Tax Credit Fund XXVII, Ltd. 12. Arpey, Vincent J. 13. Barnett, Keith J. 14. Bundy, Jr., Walter H. 15. Carroll, Patrick C-1 Case: 15-14634 Date Filed: 12/12/2017 Page: 3 of 10 16. Community Management Services, LLC 17. Darden, David B. 18. Doran, Brian 19. Dunn, Michael A. 20. Gazebo Park Apartments of Acworth, LLC 21. Gorham, Patricia A. 22. Hawkins & Parnell 23. Hines, V., Richard K. 24. Hutchins, John P. 25. Johnson, Edward David 26. Johnson & Ward 27. Kreimer, Jr., Stanley E. 28. Lea, Puja P. 29. Lentz, Kurt E. 30. Malko, Simon R. 31. Mayer Brown, LLP 32. McDonald, M. Brent 33. Miller, Nathan 34. Morris Manning & Martin, LLP 35. Multifamily Housing Developers, LLC C-2 Case: 15-14634 Date Filed: 12/12/2017 Page: 4 of 10 36. Murphy, Dorothy F. 37. Murphy, Elizabeth 38. Murphy, Erin 39. Murphy, Kay P. 40. Murphy, III, M. Vincent 41. Murphy, Marilyn W. 42. Nash, Mark R. 43. Nelson Mullins Riley & Scarborough LLP 44. Netter, Brian D. 45. Smith Bundy Bybee Barnett, P.C. 46. Stacy, James 47. Story, Hon. Richard W., United States District Court Judge, Northern District of Georgia 48. Tager, Evan M. 49. Troutman Sanders, LLP 50. United Parcel Service, Inc. (UPS) 51. Wildler, IV, Pelham 52. Wilson, Alysia 53. Wilson, Bruce 54. Winterich, Shawn M. C-3 Case: 15-14634 Date Filed: 12/12/2017 Page: 5 of 10 55. The Winterich Law Firm, LLC 56. Young, II, Henry L. Dated: December 12, 2017 s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/ Cross-Appellee C-4 Case: 15-14634 Date Filed: 12/12/2017 Page: 6 of 10 APPELLANT MARILYN W. MURPHY'S MOTION FOR LEAVE TO LODGE SUPPLEMENTAL BRIEF AND SUPPLEMENTAL APPENDIX UNDER SEAL, AND MEMORANDUM IN SUPPORT In accordance with the Clerk's December 11, 2017, "Public Communication" directing Appellant Marilyn W. Murphy to file her Supplemental Brief under seal, Appellant respectfully moves this Court for leave to lodge her Supplemental Brief and Supplemental Appendix under seal, pending this Court's determination whether the Alliant Plaintiffs have carried their burden of proof that their alleged confidential information should be sealed in this Court. In support of this Motion, Appellant respectfully shows the following: On December 11, 2017, Appellant filed her Supplemental Brief, which contains information that the Alliant Plaintiffs have claimed in this litigation is confidential. Appellant does not agree that her Supplemental Brief contains confidential information that should be redacted or sealed in this Court. Out of an abundance of caution, however, and because the District Court previously issued a Consent Protective Order permitting the parties to redact or file under seal information alleged by a party to be confidential, (see Doc. 264), Appellant electronically filed a redacted version of her Supplemental Brief. Appellant also hand-delivered to this Court seven (7) redacted copies and seven (7) unredacted copies of her Supplemental Brief. Appellant also intends to file a Supplemental Appendix, and she anticipates including in that Supplemental Appendix 1 Case: 15-14634 Date Filed: 12/12/2017 Page: 7 of 10 documents from the record that may contain information that the Alliant Plaintiffs claim is confidential. Because the alleged confidential information at issue belongs to the Alliant Plaintiffs, they have the burden of demonstrating (under the relevant Eleventh Circuit standard) that the information should be redacted and sealed in this Court. If this Court concludes that the Alliant Plaintiffs have failed to carry that burden, Appellant is prepared to file her Supplemental Brief and Supplemental Appendix without any redactions. CONCLUSION For the foregoing reasons, Appellant respectfully requests leave from this Court to lodge her Supplemental Brief and forthcoming Supplemental Appendix in redacted form and/or under seal, pending this Court's determination whether the Alliant Plaintiffs' have carried their burden to keep the information at issue sealed from the public. Should this Court conclude that the Alliant Plaintiffs failed to carry that burden, Appellant will file her Supplemental Brief and Supplemental Appendix without any redactions. Date: December 12, 2017 s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 2 Case: 15-14634 Date Filed: 12/12/2017 Page: 8 of 10 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/Cross- Appellee 3 Case: 15-14634 Date Filed: 12/12/2017 Page: 9 of 10 CERTIFICATE OF COMPLIANCE This document complies with the word limit of Fed. R. App. P. 27(d)(2)(A) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), this document contains 362 words. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word 2013 in Times New Roman 14 point font. Date: December 12, 2017 s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendants-Appellants / Cross-Appellees 4 Case: 15-14634 Date Filed: 12/12/2017 Page: 10 of 10 CERTIFICATE OF SERVICE I hereby certify that on December 12, 2017, one copy of this brief was electronically submitted to the Clerk's Office of the United States Court of Appeals for the Eleventh Circuit. On this same date, a copy of the brief was served on all counsel of record by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Electronic Filing. s/Mark R. Nash THE WINTERICH LAW FIRM, LLC Shawn M. Winterich Georgia Bar No. 771030 P.O. Box 71203 Marietta, Georgia 30007-1203 T: (404) 668-7766 NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Defendant-Appellant/ Cross-Appellee

SUPPLEMENTAL Appendix filed [1 VOLUMES] by Appellant-Cross Appellee Marilyn Murphy. (ECF: Mark Nash)

Case: 15-14634 Date Filed: 12/18/2017 Page: 1 of 228 No. 15-14634 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT MARILYN MURPHY and GAZEBO PARK APARTMENTS OF ACWORTH, LLC, Appellants/Defendants, v. ALLIANT TAX CREDIT 31, INC., ALLIANT TAX CREDIT FUND XXVII, LTD., ALLIANT TAX CREDIT XXVII, INC., ALLIANT TAX CREDIT XI, INC., and ALLIANT TAX CREDIT XI, LTD., Appellees/Plaintiffs. On Appeal from the United States District Court for the Northern District of Georgia, Case No. 1:11-cv-00832-RWS SUPPLEMENTAL APPENDIX OF APPELLANTS SHAWN M. WINTERICH MARK R. NASH THE WINTERICH LAW FIRM, LLC NELSON MULLINS RILEY & P.O. Box 71203 SCARBOROUGH LLP Marietta, Georgia 30007-1203 Atlantic Station, 201 17th Street NW T: (404) 668-7766 Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050 Attorneys for Appellants DATED: December 18, 2017 Case: 15-14634 Date Filed: 12/18/2017 Page: 2 of 228 INDEX OF APPENDIX Docket/Tab # SUPPLEMENTAL APPENDIX Response Brief and Objections of Defendants Marilyn W. Murphy and Gazebo Park Apartments of Acworth, LLC to Evidentiary and Other Citizenship Materials of Plaintiffs ............................................................................................................. 581 Response Brief of Defendants N. Vincent Murphy, III, Community Management Services, Inc., and Multi Family Housing Developers, LLC to Plaintiffs' Statement as to the Parties' Citizenship .................................................................................. 582 05/30/2017 Order ................................................................................................... 584 Notice of Filing Proposed Discovery Requests by Defendant Marilyn W. Murphy about Subject Matter Jurisdiction and Memorandum in Support .......................... 586 07/31/2017 Order ................................................................................................... 596 Declaration of Sidney Kohl ............................................................................... 602-1 Operating Agreement for Alliant Tax Credit XXVII, LLC dated January 1, 2008 ............................................................................................................................ 602-6 Alliant Tax Credit Fund XI, Ltd. Amended and Restated Agreement of Limited Partnership dated January 1, 2002 ..................................................................... 602-8 Response Brief of Defendants M. Vincent Murphy, III, Community Management Services, Inc., and Multi Family Housing Developers, LLC to Plaintiffs' Second Set of Supplemental Statements of Citizenship ..................................................... 611 Response Brief and Objections of Defendant Marilyn W. Murphy to Supplemental Citizenship Materials of Plaintiffs (SEALED) ...................................................... 613 Response Brief and Objections of Defendant Marilyn W. Murphy to Supplemental Citizenship Materials of Plaintiffs ......................................................................... 617 Case: 15-14634 Date Filed: 12/18/2017 Page: 3 of 228 Response Brief of Defendants M. Vincent Murphy, III, Community Management Services, Inc., and Multi Family Housing Developers, LLC to Plaintiffs' Second Set of Supplemental Statements of Citizenship (SEALED) .................................. 627 10/06/2017 Order ................................................................................................... 628 Certificate of Service Case: 15-14634 Date Filed: 12/18/2017 Page: 4 of 228 TAB 581 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 5 of 228 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND ] Case no.: 1:11-CV-0832-RWS 31, LLC, et al. ] ] Plaintiffs, ] ] vs. ] ] M. VINCENT MURPHY, III, et ] al., ] ] Defendants. ] _____________________________ ] RESPONSE BRIEF AND OBJECTIONS OF DEFENDANTS MARILYN W. MURPHY AND GAZEBO PARK APARTMENTS OF ACWORTH, LLC TO EVIDENTIARY AND OTHER CITIZENSHIP MATERIALS OF PLAINTIFFS COME NOW Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC and file this their Response Brief and Objections to Evidentiary and Other Citizenship Materials Filed by Plaintiffs, showing the following: STATEMENT OF FACTS AND PROCEDURE 1. In 2007, the Alliant Plaintiffs Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit 31, LLC, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, LLC, Alliant Tax Credit Fund XI, Ltd., and Alliant Tax 1 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 6 of 228 Credit XI, LLC1 filed a breach of contract and guaranty diversity action against Georgia citizen Vince Murphy and others in the U.S. District Court for the Eastern District of Kentucky.2 The Alliant Plaintiffs incompletely reported their citizenships as Florida. They did so both in the original complaint of 2007 (Kentucky Doc. 1 at pp. 1-3.), again in their amended complaint of 2009 (Kentucky Doc. 85 at pp. 1-3), and eventually prevailed. 2. Defendant Vince Murphy appealed the Kentucky judgment to the U.S. Court of Appeals for the Sixth Circuit.3 Again, Alliant appears to have imparted no further citizenship information. 3. The same six Alliant Plaintiffs filed this action in March 2011, adding new Defendants Marilyn W. Murphy, Gazebo Park Apartments of Acworth, LLC, Vince Murphy and several entities. Again all Defendants except Gazebo Park (which was stateless) were solely Georgia citizens. The Alliant Plaintiffs again incompletely reported their citizenship as Florida, both in their original complaint (Doc. 1, pp 3-5), and again in their amended complaint. (Doc. 244, pp 3-5.) 1 Jurisdictional discovery the defense conducted in 2013 showed that around late 2007, the three Alliant corporate plaintiffs converted to limited liability companies. 2 Alliant Tax Credit Fund 31-A, Ltd., et al., v. Nicholasville Community Housing, LLC, et al., U.S.D.C., E.D., Kentucky, case no 07-CV-0388-KKL. 3 Alliant Tax Credit Fund 31-A, Ltd., et al. v. Murphy, U.S. Court of Appeals for the Sixth Circuit, appeal no. 10-5454. 2 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 7 of 228 4. In July 2011, four Alliant plaintiffs filed an additional contract action against a limited liability company owned by Vince Murphy in this Court (related to the action they filed in Kentucky in 2007), referred to herein as "Thomasville," except that it was assigned to a different division.4 The Thomasville Alliant Plaintiffs included citizenship allegations of only Florida again (Thomasville Doc. 1, pp 1-2), and again amended their pleadings without making comprehensive jurisdictional disclosures (Thomasville Doc. 22, pp 1-2), but substantially prevailed in the contract action in Thomasville. Two of the Thomasville Alliant plaintiffs were also plaintiffs in this action: Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC. Vince Murphy appealed Thomasville to the U.S. Court of Appeals for the Eleventh Circuit.5 5. Jurisdictional discovery conducted in this action in 2013 eventually exposed the information that like all of the Defendants, Alliant plaintiff Alliant Tax Credit Fund 31-A, Ltd. was too a Georgia citizen, dating back at least to the initiation of the Kentucky lawsuit of 2007. (Doc. 356-13 through 356-21.) Concerned that this Georgia citizen on the plaintiffs' side could 4 Alliant Tax Credit Fund XVI, Ltd., et al., v. Thomasville Community Housing, LLC, et al, U.S.D.C., N.D., Georgia, case no 11-CV-2234-AJB. 5 Alliant Tax Credit Fund XVI, Ltd., et al, v. Thomasville Community Housing, LLC, et al., U.S. Court of Appeals for the Eleventh Circuit, appeal no. 14-14886-AA. 3 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 8 of 228 spoil complete diversity, the other five Alliant Plaintiffs moved to dismiss Alliant Tax Credit Fund 31-A, Ltd. from this action. This Court agreed and granted Alliant's motion in order to try to preserve complete diversity. (Doc. 291.) 6. Alliant proceeded to trial in this action and substantially prevailed. Alliant submitted a proposed judgment to this Court, including the following language: "The Court has subject matter jurisdiction over this action because (1) complete diversity exists between the Alliant plaintiffs and Vince [Murphy]; (2) complete diversity exists between the Alliant plaintiffs and Marilyn [Murphy], (3) complete diversity exists between the Alliant plaintiffs and Multifamily Housing Developers, LLC; [and] (4) complete diversity exists between the Alliant plaintiffs and Community Management Services, Inc…." (Doc. 475 at 3.) The language Alliant proffered suggests that this Court actually evaluated evidence of citizenship of the five remaining Alliant plaintiffs. This Court, entitled to trust the source of the proposed order, made these proposed jurisdictional "findings of fact" as part of its money judgment.6 (Doc. 483.) This Court had, in fact, only evaluated the citizenships of Gazebo Park and 6 Defendants fully satisfied this judgment within a month. 4 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 9 of 228 Alliant Tax Credit Fund 31-A, Ltd. (finding each to be non-diverse) (Docs. 291 and 331), not the five remaining Alliant Plaintiffs.7 7. As a result of the sua sponte investigation by the Eleventh Circuit (and not because of Alliant's jurisdictional reporting), the Eleventh Circuit remanded Thomasville to this Court for purposes or making jurisdictional citizenship findings. (Thomasville 11th Cir. Order of 3/18/15.) Not only do this action and Thomasville have Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC, as common plaintiffs, but all Alliant plaintiffs share management. 8. Specifically, on remand in Thomasville, after "multiple bites at the apple," this Court concluded, Alliant failed to proffer evidence of complete diversity as of the time it filed Thomasville, and this Court dismissed Thomasville.8 Thomasville Order of October 25, 2016 (Doc. 168), at 33. Specifically, this Court concluded: "The testimony and other evidence proffered by [the Alliant] Plaintiffs lack indicia of trustworthiness and completeness sufficient to establish that they have accounted for all the persons and entities relevant to the analysis of [Alliant] Plaintiffs' citizenships." Id. at 34. 7 The five Alliant plaintiffs whose citizenship was not litigated in this action were Alliant Tax Credit 31, LLC, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, LLC, Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC. 8 Alliant appealed this dismissal. 5 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 10 of 228 9. In Thomasville, Alliant's witness, Melvin Gevisser, testified by four separate affidavits in various attempts to prove Alliant's state citizenships (numbered "Gevisser I" through "Gevisser IV"). Id. at 28. Alliant had filed eleven additional declarations. Id. at 7. After finding in its order that Gevisser had a lack of personal knowledge, this Court cited "myriad other issues that lead the Court to question the accuracy and reliability of any of Mr. Gevisser's testimony…." (Id. at 29) This Court then expanded upon a series of discrepancies over four single-spaced pages. For example, Alliant attached a document allegedly relied upon as a basis for Mr. Gevisser's company "books and records" testimony. The problem that this document was printed well after Gevisser had made the relevant affidavit, meaning that that the document purportedly relied upon had not yet been accessed. (Id. at 32.) 10. Finally, Alliant, this court observed in Thomasville, placed factual assertions in their briefing for persuasive purposes, yet also omitted these assertions from 15 affidavits and declarations.9 9 This Court pointed out that "It has not escaped the Court's notice that the only attempts to link any of Mr. Gevisser's factual statements to supportive documents, to assert that the information appearing in the documents was current as of July 7, 2011, or to assert that none of the redactions to the documents conceal the existence of additional partners appear in unsworn briefs rather than testimony." (Id.) 6 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 11 of 228 11. As an Alliant jurisdictional fact witness, Gevisser did not alone have credibility problems. Alliant improperly gave Brian Doran, another jurisdictional fact witness, a financial interest in the outcome of this action. Doran, upon severance of employment, negotiated a contingent fee agreement of five percent of Alliant's recovery from Vince Murphy-related recoveries (including this action and presumably Thomasville), in exchange for his testimony as a Rule 30(b)6) witness. (Docs. 390-2, 390-3 and 390-4.) This Rule 30(b)(6) testimony included at least two depositions that the defense took of Doran for purposes of jurisdictional discovery in 2013 (Docs. 356-15 and 356-16 (excerpts).) Given Alliant's collection of over $10,000,000.00 in late 2015 (Doc. 518), Doran's financial interest is readily calculable. 12. In short, the Alliant Plaintiffs have made substantial omissions in their state citizenships in the three lawsuits (each with an original and amended complaint), plus in three appeals, and in their most recently-litigated matter, no less than four attempts--ultimately unsuccessful--to show the constituent parts or members being part of a limited class, and to establish the state citizenships of each. 7 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 12 of 228 ARGUMENT AND CITATION OF AUTHORITY A. Introduction The parties must make specific jurisdictional allegations. 28 U.S.C. § 1653 provides that "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." These amendments, however, must be provable. Specifically, the party invoking diversity jurisdiction, that is, Alliant, must establish diversity jurisdiction. Ray v. Bird and Son Asset Realization Co., Inc., 519 F.2d 1081 (5th Cir. 1975). Affidavits alone will not necessarily suffice particularly with this factual and procedural backdrop. Even in the absence of this history, courts generally give little weight to a party's profession of domicile as these declarations are often self-serving. Lustig v. Stone, 2017 U.S. App. LEXIS 2154 *3, 2017 WL 491149 (11th Cir. 2017) citing Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 (11th Cir. 2011). Even if the testimony and documents introduced by Alliant in this action in 2017 show the desired complete diversity, what Alliant has introduced is insufficient to confirm, as we have been ordered to do (1) that all persons and entities relevant to analysis of Alliant's citizenships have been accounted for, and (2) accuracy of citizenship of each constituent for purposes of that analysis. 8 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 13 of 228 B. Defendants Oppose Certain Forms of Relief Sought by Alliant, and Consent to Others. The Alliant Plaintiffs filed a Brief Providing Legal Support for Statements of Citizenship. Certain forms of relief that Alliant seeks Defendants Marilyn Murphy and Gazebo Park oppose, others are unopposed. First, the parties mutually consented to dismissal of Defendant Gazebo Park from this action on grounds of lack of subject matter jurisdiction in the Eleventh Circuit. This dismissal of Gazebo Park is unopposed both in the Eleventh Circuit and in this Court. Second, Alliant desires to amend pleadings to report citizenship. The amendment sought in the Eleventh Circuit is unopposed both in the Eleventh Circuit and in this Court. Third, Alliant moves to seal certain filings, which Defendants Marilyn Murphy and Gazebo Park oppose. There is a scheduling conference scheduled for May 30, 2017. There is also a consent protective order from 2013 that has apparently under the facts of this remand--and considering the outcome of Thomasville--outlived its applicability. (Doc. 264.)10 Defendants oppose further or more extensive attempts to seal. There is no compelling 10 Defendants oppose its continued applicability and intend to file a motion to either vacate it completely, or dramatically scale it back, for proceedings moving forward. 9 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 14 of 228 reason to seal other than to prevent identification theft, and these identifiers are already protected by Fed.R.Civ.P. 5.2, and possibly also by standing orders by this Court itself. Defendants do not understand that leave to file motions in this Court, including motions to vacate motions to seal, have been entered. Defendants ask for leave to be heard on the issue of sealing in greater detail. Defendants filed a short opposition to sealing in the Eleventh Circuit, and the likelihood of remand to this Court was unknown at the time. Under some circumstances, sealing is necessary to protect a party's rights. There is no evidence, and very little explanation, how such circumstances are present here. A copy of Marilyn Murphy's Eleventh Circuit filings (including her opposition to Alliant's request to seal) are filed contemporaneously herewith. Fourth, Alliant asks this Court to enter an order including findings of fact showing complete diversity and the meeting of the minimum amount in controversy. Defendants oppose the entry of such findings of fact until the factfinding process is complete as provided by the Eleventh Circuit. C. Objections to Admissibility of Evidence This Court's Order of April 17, 2017 provided a due date of May 15, 2017 for any responsive materials to the initial citizenship submissions by each party which were due and which each party filed on May 1, 2017. 10 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 15 of 228 (Doc. 569.) It is unclear whether this Court additionally seeks evidentiary objections along with responses. Out of an abundance of caution, and for preservation purposes, the following objections to admissibility are interposed to evidence filed by Plaintiffs. (See Docs. 576-1 through 576-23.) 1. Declaration of Kathleen Baldarrrama (Exhibit "A") This testimony lacks adequate foundation. Fed.R.Evid. 602. How the witness knows what she testifies she knows is not clear. Her position as "general counsel" of Alliant Asset Management Company, LLC, which involves responsibility for oversight over compliance matters, does not make clear how she would have knowledge of historic events, given that her start date is omitted. The testimony does not distinguish between personal and firsthand knowledge obtained by witnessing certain events, and knowledge obtained by review of company records, which are not identified or described. There is no testimony about custodianship or the manner of recordkeeping of the records testified about. The attachments to this declaration are inadmissible hearsay, and testimony about those attachments is based on inadmissible hearsay. Fed.R.Evid. 801. The Declaration contains no jurat (unless 28 U.S.C. § 1746 is applicable), but in the absence of a notarized affidavit, objections to authenticity are reserved. Finally, the testimony proffered further lacks foundation, and is inadmissible hearsay as the position or employment title information 11 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 16 of 228 provided by this witness does not show precisely how the witness received access to the records testified about due to the witness' position. It does not, as mentioned, show length of employment or start date as to that position. It does not show what personal knowledge the witness may have obtained from day-to-day responsibilities in that position testified about. The job title provided does not alone explain how the witness would have knowledge of business relationships, or access to business records of one or more other companies. The witness does not show which company she received the records from. The testimony given does not show that the witness knows the business practices of the maintenance of company records, what process may have been involved in gathering supporting documents, or that the records were contemporaneously made and held in the ordinary course of the business creating them. 2. Declaration of S.L.K. (Exhibit "B") This testimony lacks adequate foundation. Fed.R.Evid. 602. His position as "managing member" does not make clear how he would have knowledge of historic events, given that his start date is omitted. The testimony does not distinguish between personal and firsthand knowledge obtained by witnessing certain events, and knowledge obtained by review of 12 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 17 of 228 company records, which are not identified or described. There are no indicia of custodianship. The Declaration is unsworn and contains no jurat (unless 28 U.S.C. § 1746 is applicable), but in the absence of a notarized affidavit, objections to authenticity are reserved. The testimony proffered further lacks foundation, and is inadmissible hearsay as the position or employment title information provided by this witness does not show precisely how the witness received access to the records testified about due to the witness' position. It does, as mentioned, not show length of employment or start date as to that position. It does not show what personal knowledge the witness may have obtained from day-to- day responsibilities in that position testified about. The testimony given does not show that the witness knows the business practices of the maintenance of company records, what process may have been involved in gathering supporting documents, or that the records were contemporaneously made and held in the ordinary course of the business creating them. 3. Individual Affidavits from 2013 (Exhibits "C," "D" and "E.") Individual constituents of Plaintiff companies S.K., M.K., J.K.L., A.K., K.K., S.H., and J.H. prepared affidavits in 2013. All are subject to relevance objections, contrary to Fed.R.Evid. 401 and 402. These individual affidavits are objectionable for the reasons that they declare their "residence and state of domicile," in conclusory fashion, declaring state of domicile 13 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 18 of 228 (which is a term of art), instead of simply setting out the facts that show domicile. Further, they do not distinguish "domicile" from "residence." "Domicile" and "residence" may be, but are not necessarily, one and the same location. Lay persons would not, on their own, understand the difference. All attach drivers license copies. JL's driver's license was apparently not in effect at the inception of this action. One of two of S.H.'s declarations (i.e., the one from 2017) contains no jurat (unless 28 U.S.C. § 1746 is applicable), but in the absence of a notarized affidavit, objections to authenticity are reserved. This testimony lacks adequate foundation. Fed.R.Evid. 602. His position as "managing member" does not make clear how he would have knowledge of historic events, given that his start date is omitted. The testimony does not distinguish between personal and firsthand knowledge obtained by witnessing certain events, and knowledge obtained by review of company records, which are not identified or described. There is no testimony about custodianship. The testimony proffered further lacks foundation, and is inadmissible hearsay as the position or employment title information provided by this witness does not show precisely how the witness received access to the records testified about due to the witness' position. It does, as mentioned, not show length of employment or start date as to that position. It does not 14 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 19 of 228 show what personal knowledge the witness may have obtained from day-to- day responsibilities in that position testified about. The testimony given does not show that the witness knows the business practices of the maintenance of company records, what process may have been involved in gathering supporting documents, or that the records were contemporaneously made and held in the ordinary course of the business creating them. 4. Affidavit of James C. Jenkins (Exhibit "F") The Declaration of James C. Jenkins is worded the same or similarly to that of S.L.K. (Exhibit "B"), and is objectionable for the same reasons. 5. Affidavits of Patricia Fadness (Exhibit "G" and "I") Address of the principal place of business of the Trustee corporation is absent. Fed.R.Evid. 401 and 402. 6. Affidavit of R.K. (Exhibit "H") The Declaration contains no jurat (unless 28 U.S.C. § 1746 is applicable), but in the absence of a notarized affidavit, objections to authenticity are reserved. 7. Affidavit of L.K. (Exhibit "J") The Declaration contains no jurat (unless 28 U.S.C. § 1746 is applicable), but in the absence of a notarized affidavit, objections to authenticity are reserved. 15 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 20 of 228 8. Declaration regarding bank partner (Exhibit "K") This testimony lacks adequate foundation. Fed.R.Evid. 602 How the witness knows what he testifies he knows is not clear. His position as "executive director" of a bank does not make clear how she would have knowledge of historic events, given that his start date is omitted. The testimony does not distinguish between personal and firsthand knowledge obtained by witnessing certain events, and knowledge obtained by review of company records, which are not identified or described. There is no testimony about the manner of recordkeeping of the records testified about. There are no indicia of custodianship. The testimony is based on documents not incorporated into the testimony and is inadmissible hearsay. Fed.R.Evid. 801. Specific principal place of business data is omitted. Acquisition data is omitted and acquisition history of Alliant partnership interest is conclusory. All are subject to relevance objections, contrary to Fed.R.Evid. 401 and 402. The Declaration contains no jurat (unless 28 U.S.C. § 1746 is applicable), but in the absence of a notarized affidavit, objections to authenticity are reserved. The testimony proffered further lacks foundation, and is inadmissible hearsay as the position or employment title information provided by this witness does not show precisely how the witness received access to the records testified about due to the witness' position. It does, as mentioned, not show length of employment or start date as to that position. It does not 16 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 21 of 228 show what personal knowledge the witness may have obtained from day-to- day responsibilities in that position testified about. The testimony given does not show that the witness knows the business practices of the maintenance of company records, what process may have been involved in gathering supporting documents, or that the records were contemporaneously made and held in the ordinary course of the business creating them. 9. Declaration regarding bank partner (Exhibits "L," "M" and "N") This testimony in Exhibits "L," "M," and "N" is objectionable for every reason described in discussion of the Affidavit attached as Exhibit "K," except acquisition history, which is not discussed in Exhibits "L," "M," and "N." Date: May 15, 2017 /s/ Shawn M. Winterich The Winterich Law Firm, LLC State Bar No. 771030 P.O. Box 71203 Marietta, GA 30007-1203 404 668-7766 swinterich@winterichlaw.com 17 8 Case: 15-14634 Date Filed: 12/18/2017 Page: 22 of 228 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND ] Case no.: 1:11-CV-0832-RWS 31, LLC, et al. ] ] Plaintiffs, ] ] vs. ] ] M. VINCENT MURPHY, III, et ] al., ] ] Defendants. ] _____________________________ ] CERTIFICATE OF SERVICE I CERTIFY that on today's date the foregoing was filed with the Clerk of Court using the Court's CM/ECF system, which automatically sends email notification of this filing to all parties of record. Pursuant to LR 7.1 D, I further certify that the foregoing complies with the font and point selections approved by this Court in LR 5.1B. The foregoing was prepared with use of Microsoft Word software, using a 14-point Times New Roman font. Date of service: May 15, 2017 /s/ Shawn M. Winterich The Winterich Law Firm, LLC State Bar No. 771030 P.O. Box 71203 Marietta, GA 30007-1203 18 Case: 15-14634 Date Filed: 12/18/2017 Page: 23 of 228 TAB 582 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 24 of 228 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND 31-A,) LTD., et al.,)) Plaintiffs,) Civil Action File v.) No. 1:11-CV-0832) Hon. Richard W. Story M. VINCENT MURPHY, III,) et. al.,)) Defendants.) RESPONSE BRIEF OF DEFENDANTS N. VINCENT MURPHY, III, COMMUNITY MANAGEMENT SERVICES, INC., AND MULTI FAMILY HOUSING DEVELOPERS, LLC TO PLAINTIFFS' STATEMENT AS TO THE PARTIES' CITIZENSHIP BACKGROUND This matter is before the Court on remand from the Eleventh Circuit, due to Alliant's failure to establish diversity jurisdiction. By Order dated April 17, 2017 [Doc. 568] the Court directed the parties to file statements as to their citizenship at the time the Complaint was filed, including identity and citizenship of every partner of the partnership entities and of every member of the limited liability companies, along with evidentiary support for each of their statements and a brief providing legal support for the statements of citizenship. 1 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 25 of 228 The Court authorized the parties to file responses, "if necessary". Defendants respectfully submit that a response is necessary, due to Alliant's history of providing inaccurate and unreliable information regarding jurisdictional 1 matters. Defendants submit that Alliant has once again failed to provide sufficient evidence to establish jurisdiction in the case at bar. To begin with, it should not escape notice that the Eleventh Circuit remanded this case immediately following the District Court's finding, in the Thomasville case, that Alliant had submitted inaccurate and misleading information regarding jurisdiction. It appears that Alliant has submitted the same sort of disapproved materials in the case at bar. Defendants therefore submit that the Thomasville case provides useful guidance for the May 30 status conference. In Thomasville, Alliant submitted a Declaration from Melvin Gevisser, who purported to have knowledge of all the limited partners, corporations, and members of all of the Plaintiffs' complexly structured entities, solely by virtue of his status as CFO of an "affiliate" company. His Declaration provided no information as to the scope or duration of his employment as CFO, and no explanation as to how or why a "financial officer", of an affiliate company, would have personal 1 See, Alliant Tax Credit Fund XVI, et al. v. Thomasville Community Housing et al., U.S.D.C., N.D. Ga., C.A. No. 11-CV-2234-AJB (the "Thomasville case"), and Marilyn Murphy Response Brief, at pp. 5-7 [Doc. 581]. 2 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 26 of 228 knowledge regarding the Byzantine structure of the Alliant plaintiffs in the Thomasville case. Consequently, the Thomasville defendants objected to Mr. Gevisser's Declaration on several grounds, including hearsay and lack of personal knowledge. Although the District Court allowed Alliant multiple "bites at the apple" in order to cure these defects, it repeatedly failed to do so. Therefore the District Court ultimately sustained the defendants' objections, citing the "untrustworthiness" of Alliant's declarations. The District Court judgement was vacated, and, as noted above, the Eleventh Circuit promptly remanded the subject case for a jurisdictional review by this Court. Alliant has now submitted a Declaration from the general counsel for an entity known as "Alliant Asset Management Company, LLC", Ms. Kathleen Balderrama. This is the exact same protocol that was rejected by the Thomasville Court, except this time Alliant has used an attorney (as discussed below) from an affiliate entity, rather than a CFO. As in the Thomasville case, Alliant provides no explanation as to the relationship between the affiliate entity and the named Plaintiffs. The Declaration provides no information as to the scope or duration of the declarant's employment, and no explanation as to how or why a "compliance attorney", from an affiliate entity, would possess personal knowledge as to the present and past 3 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 27 of 228 composition of each and every one of Plaintiffs' variegated entities, members, partners, investors, trusts, etc. This is exactly the type of conclusory declaration that the Thomasville Court rejected, in a meticulously written decision. Inexplicably, Alliant has ignored the Thomasville Court's explicit instructions for establishing jurisdiction, and simply submitted the same sort of defective materials that caused the Thomasville Court to vacate its judgment. Defendants submit there are only two possible explanations for Plaintiffs' deficiencies: either they hope this Court will apply a lower standard than the Thomasville Court did, and/or they are simply unable to establish jurisdiction with competent witness and documents. Accordingly, and for the reasons discussed below, Defendants object to the Declarations submitted by Plaintiffs, and ask that they be stricken. Fed. R. Evid. 602 (lack of personal knowledge); Fed. R. Evid. 802 (hearsay); Fed. R. Evid. 803 (insufficient foundation). See, Whitney Bank v. Masarra, Civ. Action File No. 1:14-CV-613-SCJ, 2015 WL 11251738, at *3 (N.D. Ga. Apr. 24, 2015), cited by the District Court in the Thomasville case. STATEMENT OF FACTS Defendants incorporate by reference the statement of facts submitted by Marilyn Murphy in her Response. [Doc. 581]. 4 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 28 of 228 ARGUMENT AND CITATION OF AUTHORITY Defendants incorporate by reference the argument and citations of authority submitted by Marilyn Murphy in her Response. [Doc. 581]. Defendants note also that the Court did not require the parties to assert objections at this time, but, in an abundance of caution, Defendants asserted certain basic objections as set forth above. Defendants herewith note additional deficiencies and objections, and respectfully request the right to raise additional objections, following the May 30 status conference. Doc. 576-2 is incomplete and contains no reference or link to Ex. "A". Doc. 576-3 is also incomplete and is not a "partnership register" as stated by Ms. Balderrama at ¶ 2. There is no evidence to show that the only member of Alliant Tax Credit 31 LLC was Alliant Capital Ltd., as of March 17, 2011, as stated in ¶ 3. These defects are grounds for objection pursuant to Fed. R. Evid. 602 (lack of personal knowledge); Fed. R. Evid. 802 (hearsay); and Fed. R. Evid. 803 (insufficient foundation). Paragraph 4 of Ms. Balderrama's Declaration refers to "all relevant times", which is vague and conclusory. Doc. 576-6, to which it refers, is incomplete and contains no foundation or key with which to authenticate the "General Partner Acceptance Form". Doc. 576-6 does not in any way establish that the "General Partner Acceptance Form" is in fact a part of the "Partnership Register" attached as 5 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 29 of 228 Ex. "A". These defects are grounds for objection pursuant to Fed. R. Evid. 602 (lack of personal knowledge); Fed. R. Evid. 802 (hearsay); and Fed. R. Evid. 803 (insufficient foundation). Paragraph 8 relies upon Attachment "A" to Doc. 576-7, a purported excerpt from a Limited Partnership Agreement. However, the excerpt is incomplete and contains no foundation or key with which to authenticate the alleged Attachment "A". Paragraph 10 relies upon a purported excerpt from an Operating Agreement dated September 27, 2006, with an undated signature page. While the signature page purports to reflect all of the "principals", this is not sufficient evidence to establish all of the "members". Nor is there evidence to establish the membership as of March 17, 2011. These defects are grounds for objection pursuant to objection pursuant to Fed. R. Evid. 602 (lack of personal knowledge); Fed. R. Evid. 802 (hearsay); and Fed. R. Evid. 803 (insufficient foundation). The Declaration of Scott Kotick [Doc. 576-11], states that he is the "managing member" of 344 Columbia Associates, Ltd., i.e., in the current tense. He provides no basis to explain the membership of 344 Columbia Associates, Ltd., as of March 17, 2011, some six years ago. This defect is ground for objection pursuant to Fed. R. Evid. 602 (lack of personal knowledge); Fed. R. Evid. 802 (hearsay); and Fed. R. Evid. 803 (insufficient foundation). 6 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 30 of 228 The Declaration of Shawn D. Horwitz [Doc. 576-13] states that he is the "managing member" of Palm Drive Associates, LLC, presumably in the current tense. He provides no basis to explain the membership of Palm Drive Associates, LLC, as of March 17, 2011. This defect is ground for objection pursuant to Fed. R. Evid. 602 (lack of personal knowledge); Fed. R. Evid. 802 (hearsay); and Fed. R. Evid. 803 (insufficient foundation). The Declaration of James C. Jenkins [Doc. 576-15] states that he is the "executive vice president" of Esko Inc., which is purportedly the sole manager of SAK Housing, LLC. He provides no documents to support this assertion. Like Mr. Gevisser and Ms. Balderrama, he does not explain the scope of his duties at Esko, or how he would happen to have knowledge about SAK Housing, LLC. Further, he provides no basis to explain the membership of SAK Housing, LLC, as of March 17, 2011. All of these types of deficiencies were discussed at length in the Thomasville case; yet Alliant inexplicably continues to repeat them. These defects are grounds for objection pursuant to Fed. R. Evid. 602 (lack of personal knowledge); Fed. R. Evid. 802 (hearsay); and Fed. R. Evid. 803 (insufficient foundation). Robert Kohl [Doc. 576-17] and Lawrence Kohl [Doc. 576-18] assert that they are the sole beneficiaries of their respective trusts. They provide no trust documents to support these assertions. This defect is ground for objection pursuant 7 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 31 of 228 to Fed. R. Evid. 602 (lack of personal knowledge); Fed. R. Evid. 802 (hearsay); and Fed. R. Evid. 803 (insufficient foundation). Mr. Lenhardt's Declaration [Doc. 576-20] regarding the citizenship of JP Morgan Chase Bank, N.A. is based upon a document (articles of association) that is not attached. This defect is ground for objection pursuant to Fed. R. Evid. 602 (lack of personal knowledge); Fed. R. Evid. 802 (hearsay); and Fed. R. Evid. 803 (insufficient foundation). As a final matter of concern, Defendants suggest that it is highly unusual that Alliant has submitted a Declaration from its general counsel, rather than a competent employee of each Plaintiff. This will raise knotty problems of attorney- client privilege, if Ms. Balderrama is deposed. Perhaps this is yet another tactic to preserve the shroud of secrecy around Alliant's corporate structure. CONCLUSION It could not be more clear that Alliant thrives on secrecy. From the sealing of its Court filings, to the multi-layered structuring of its Tax Credit partnerships, to the submittal of a Declaration from its corporate counsel, Alliant has excelled in concealing the names of its investors and other parties at interest. It is also clear that Alliant has been "untrustworthy" when it comes to the issue of diversity jurisdiction, as discussed at length by the Thomasville Court. In 8 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 32 of 228 the case at bar, it is noted that many if not most of the entities named in Alliant's Declarations were not disclosed in Alliant's Certificate of Interested Parties. Accordingly, Defendants object to the Declarations as discussed above, and respectfully request as follows: (a) that the above-mentioned Declarations be stricken; (b) if not stricken, that Plaintiffs be required to produce any and all documents which support OR relate to the said Declarations; (c) for the right to conduct jurisdictional discovery as appropriate, and; (d) for such other relief as the Court deems proper. Respectfully submitted, this 25th day of May, 2017. /s/ Stan Kreimer, Jr. STAN KREIMER, JR. Georgia Bar No. 429550 Attorney for Defendants JOHNSON & WARD 100 Peachtree Street, NW Atlanta, Georgia 30303 (404) 524-5626 stan@johnsonward.com 9 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 33 of 228 ATTORNEY CERTIFICATION AS TO FONT AND POINT In accordance with LR 7.1 D, I hereby certify that the foregoing Brief has been prepared with one of the font and point selections approved by the court in LR5.1B. /s/ Stan Kreimer, Jr. STAN KREIMER, JR. Georgia Bar No. 429550 CERTIFICATE OF SERVICE I hereby certify that a correct copy of the Defendants' Response to Plaintiffs' Amended Statement of Citizenship was electronically filed with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to all counsel of record. This 25th day of May, 2017. /s/ Stan Kreimer, Jr. STAN KREIMER, JR. Georgia Bar No. 429550 JOHNSON & WARD 2100 The Equitable Building 100 Peachtree Street, NW Atlanta, Georgia 30303 (404) 524-5626p (404) 524-1769f stan@johnsonward.com 10 Case: 15-14634 Date Filed: 12/18/2017 Page: 34 of 228 TAB 584 Case: 15-14634 Date Filed: 12/18/2017 Page: 35 of 228 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT 31, INC., et al, Plaintiffs, CIVIL ACTION NO. v. X 1:11-CV-8032-RWS M. VINCENT MURPHY, III, et al., Defendants. ORDER This case comes before the Court following a scheduling conference held on May 30, 2017. As the Court indicated orally during that conference, the Court may allow Defendants to conduct jurisdictional discovery. Before deciding whether to do so, however, the Court seeks the input of the parties as to the scope of that potential discovery. Defendants are therefore DIRECTED to submit their proposed discovery within seven days of the date of this Order. Plaintiffs may then file a response within seven days thereafter. As a separate matter, Defendants may submit a brief on the issue of Plaintiffs filing their statement of citizenship under seal within seven days of AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 36 of 228 the date of this Order. Plaintiffs may then file a response within seven days thereafter. Finally, the Consent Motion to Dismiss Gazebo Park Apartments of Acworth, LLC and Plaintiffs' Motion to Amend Complaint to Provide Specific Allegations of the Parties' Citizenship are GRANTED. +tC.. SO ORDERED, this~ day of May, 2017. RICHARD. STO UNITED STATES DIST 2 A072A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 37 of 228 TAB 586 Case: 15-14634 Date Filed: 12/18/2017 Page: 38 of 228 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT 31, I Case no.: 1:11-CV-0832-RWS LLC, et al., I I Plaintiffs, I I vs. I I M. VINCENT MURPHY, III, et I al., I I Defendants. I I NOTICE OF FILING PROPOSED DISCOVERY REQUESTS BY DEFENDANT MARILYN W. MURPHY ABOUT SUBJECT MATTER JURISDICTION AND MEMORANDUM IN SUPPORT COMES NOW Defendant Marilyn W. Murphy and as provided in this Court's Order of May 30, 2017 (Doc. 584) files this her Notice of Filing Discovery Requests about Subject Matter Jurisdiction and Memorandum in Support. DISCOVERY REQUESTS Defendant attaches the following proposed discovery requests: 1. First Post-Remand Requests for Admissions (Appendix 1); 2. First Post Remand Requests for Production (Appendix 2); and 3. First Post-Remand Interrogatories (Appendix 3). 1 Case: 15-14634 Date Filed: 12/18/2017 Page: 39 of 228 SUPPORTING MATERIALS Marilyn Murphy also attaches redacted excerpts of the deposition of Brian Doran of September 2013 (Appendix 4). MEMORANDUM The Alliant Plaintiffs will oppose the discovery sought as being overly costly or voluminous to produce, and overly intrusive in their reply to this submission which is due within seven days. This Court did not provide the defense a right to reply so the most obvious objections are here headed off. The written discovery required at this time in the opinion of this writer is attached. It is impossible to know positively, but a follow-up round of written discovery may be required, as well as non-party document requests, plus possibly depositions if there remain any unanswered questions or to confirm authenticity. Every proposed discovery request (and any need for discovery in the future) arises from one or more of the following concerns: First, the Alliant plaintiffs chose this limited jurisdiction forum, not only chose but carefully planned their byzantine business structures' and further chose ' Complex business structures, it must be pointed out, are not by themselves improper. But diversity suits are not for all plaintiffs, and a complicated business structure can make a diversity suit expensive to prosecute. 2 Case: 15-14634 Date Filed: 12/18/2017 Page: 40 of 228 not to report their breadth in the Kentucky litigation,2 or in the Sixth Circuit Court of Appeals, to this Court in Thomasville,3 to this Court in this action, or to the Eleventh Circuit (at least not until Eleventh Circuit ordered them to do so), throughout three diversity lawsuits and three appeals. This non-reporting went on for over nine years, from 2007 through 2016. Second, as the jurisduction of this Court is limited, so is the purpose of the discovery sought. What is sought is copies of contemporaneous and reliable documents showing that as of March 17, 2011: (1) any partnership, LLC or other unincorporated Plaintiff constituent has an ascertainable and limited number of subconstituents; (2) in the case of a constituent corporation, that its citizenship is "State X," "State Y," and "State Z;" that its principal place of business is in "State X," and that its states of incorporation are "States Y" and "Z," (or whatever may be the case); or (3) in the case of a natural person constituent, that domicile was demonstrably a state other than Georgia. State tax returns, for example, may help achieve this. In addition to these conditions, no disqualifying domiciles or 2Alliant Tax Credit Fund 31-A, Ltd., et al. v. Nicholasville Comm. Housing, LLC, et al., U.S. Dist. Ct., E.D. Ky., case no. 1:07-CV-0388-KKL. 3Alliant Tax Credit Fund XVI, Ltd., et al. v. Thomasville Comm Housing, LLC, et al., U.S. Dist. Ct., N.D. Ga., case no. 1:11-CV-2234-AJB; order of October 25, 2016 disposing of this related case is referred to herein as "the Thomasville Order." (Doc. 168.) 3 Case: 15-14634 Date Filed: 12/18/2017 Page: 41 of 228 citizenships must appear within any of the constitiencies, such as statelessness. Third, third parties may be the most reliable source for certain documents. In Thomasville, for example, this Court noted that a document purportedly reviewed by an affidavit witness showed a print date from after the date of his affidavit. (See Thomasville Order at 32.) Fourth, some redundancy is inevitable. It is impossible to know what documents the Alliant Plaintiffs may have, or not, so several documents may be requested that answer the same question which may make the discovery requests appear overbroad; production of one contemporaneous document, however, may satisfy the purpose of several discovery requests about a particular constituent. Overlap, in other words, is inevitable. Fifth, some of the inquiries pertain to witness compensation. Brian Doran, for example, was found in 2015 to have been compensated on a contingent fee basis for fact testimony given in 2013, which involved jurisdictional fact depositions. (Doc. 410 at p. 2.) Sixth, some document requests involve the amount in controversy, which requires some explanation. Ideally, this inquiry would be satisfied by production of three partnership agreements. Some background is necessary, though. The Alliant plaintiffs are paired by three sets of numbers: "IX," "XXVII" and "31." 4 Case: 15-14634 Date Filed: 12/18/2017 Page: 42 of 228 Plaintiff Alliant Tax Credit Fund XI, Ltd., for example, has a limited partner relationship with Alliant Tax Credit XI, LLC, to the exclusion of the other three Alliant plaintiffs. The former is the "investor" and "upper-tiered" limited partner, which involves outside companies, including public companies; the latter is the "administrative" and "lower-tiered" limited partner, which is controlled exclusively by several families. (The same arrangements exist, respectively, between Alliant Tax Credit Fund XXVII, Ltd. and Alliant Tax Credit XXVII, LLC and between Alliant Tax Credit 31, LLC and former plaintiff Alliant Tax Credit Fund 31, Ltd.) Their combined investment is "heavily weighted" towards Plaintiff Alliant Tax Credit Fund XI, Ltd. The likelihood is significant that Alliant Tax Credit XI, LLC is nominally or minimally invested and is not, or may not be, a real party in interest that suffered injury in the amount of $75,000.00 or more. Alliant's witness indicated that documents satisfying this inquiry do exist. (See excerpts of Deposition of Brian Doran of September 2013 at 160:11 - 161:13 and 191:6- 197:9, Appendix 4.) Seventh, the proceedings in Thomasville involve prior testimony about citizenship of entities that appear or may appear within the ownership structures of all Alliant plaintiffs (in Thomasville or in this action, or both). This may include Alliant Company, LLC, Alliant Capital, Ltd., or Alliant, Inc. Alliant filed a dozen 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 43 of 228 declarations in Thomasville, including four by Melvin Gevisser, plus supporting documents. (Thomasville Order at 7, Doc. 168.) These are understood to be sealed but they and all supporting documents are--or at least should be--discoverable. Finally, this action involved an eight-figure lawsuit and recovery, and the discovery production sought here seeks objective truths. The breadth and depth of discovery sought here is proportionate to the amount in controversy overall and is not unprecedented in this action. Date: June 6, 2017 /s/ Shawn M Winterich Attorney Bar No. 771030 Attorney for Defendant Marilyn Murphy The Winterich Law Firm, LLC P.O. Box 71203 Marietta, GA 30007-1203 404 668-7766 swinterich@winterichlaw.com 6 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 44 of 228 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 45 of 228 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 46 of 228 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 47 of 228 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 48 of 228 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 49 of 228 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 50 of 228 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 51 of 228 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 52 of 228 0 Case: 15-14634 Date Filed: 12/18/2017 Page: 53 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 54 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 55 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 56 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 57 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 58 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 59 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 60 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 61 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 62 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 63 of 228 TAB 596 Case: 15-14634 Date Filed: 12/18/2017 Page: 64 of 228 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT 31,: INC., et al.,:: Plaintiffs,:: CIVIL ACTION NO. v.: 1:11-CV-0832-RWS: M. VINCENT MURPHY, III, et: al.,:: Defendants.: ORDER This case is currently before the Court on the proposed discovery topics submitted by the parties. I. Diversity Statute and Burden of Proof The governing statute, 28 U.S.C. § 1332(a), provides that "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between. . . citizens of different States." Section 1332(a) requires complete diversity, meaning that no plaintiff can be a citizen of the same state as any defendant. The citizenship inquiry takes place as of the date on which the Complaint was filed, disregarding any parties that subsequently are dismissed. AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 65 of 228 The burden is on the plaintiff, as the party invoking federal jurisdiction, to plead and prove such facts as are necessary to prove diversity jurisdiction. The preponderance of the evidence standard applies. The Court has reviewed Plaintiffs' submissions and finds that Plaintiffs have not satisfied a preponderance of the evidence standard. The Court notes that Plaintiffs' Amended Complaint [Doc. No. 244] alleges that Plaintiffs are all citizens of Florida. Now that Plaintiffs have been questioned as to their citizenship, Plaintiffs concede that they are in fact citizens of California, Delaware, the District of Columbia, Florida, Illinois, Nebraska, New York, Ohio, and Texas. Under these circumstances, in which Plaintiffs have not been candid with the Court and the Court has received a limited remand for the purposes of determining whether diversity exists, declarations and affidavits are insufficient - the Court requires documentary evidence that establishes the jurisdictional facts. II. Evidence by Type of Party The Court will review the applicable standards and discuss possible evidentiary submissions by type of entity: A. Natural Persons A natural person is a "citizen" of the state in which he or she is "domiciled." 2 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 66 of 228 Molinos Valle Del Cibao v. Lama, 633 F.3d 1330, 1341 (11th Cir. 2011). "Domicile is not synonymous with residence" because "one may temporarily reside in one location, yet retain domicile in a previous residence." Id. at 1341-42. Rather, "[f]or adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Miss. Board of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). Plaintiffs have submitted declarations from some natural persons that include an attached drivers license, but not all declarations include such attachments. Other evidence that the Court would consider would include, for example, voter registration, tax returns,1 location of assets, receipt of mail at a particular address, representations made in public documents, and other documented connections to the community. B. Corporations A corporation "shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business." 28 U.S.C. 1332(c)(1). A corporation's 1 The Court notes that any tax returns that are filed can be redacted to include only the state of filing and any other information helpful to the citizenship determination. 3 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 67 of 228 "principal place of business" is "the place where [the] corporation's officers direct, control, and coordinate the corporations activities" and is "normally. . . the place where the corporation maintains its headquarters." Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). One corporation has submitted an annual report for 2011, which is helpful as it lists the corporation's principal place of business. Other documents that the Court would like to review would include Articles of Incorporation or other corporate governance documents that were in effect at the time of filing suit. C. Limited Partnerships A limited partnership (like any partnership) is a citizen of any state in which a partner is a citizen. Rolling Greens MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). One glaring omission from Plaintiffs' submissions are the partnership agreements that were in effect at the time of filing of the lawsuit. The Court will not rely solely upon declarations to determine the identities of the partners. D. Limited Liability Companies Similar to a partnership, a limited liability company "is a citizen of any state of which a member of the company is a citizen." Id. Again, declarations are 4 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 68 of 228 insufficient for the Court to determine the members of an LLC. The Court would like to review the operating agreements that were in effect at the time the suit was filed. These agreements may be redacted to include only the identities of the members. E. Banks A bank can be chartered either by a state or by the federal government. If a bank is chartered by a state, then the general rules for corporations apply. See Wachovia Bank v. Schmidt, 546 U.S. 303, 306 (2006). Banks that are federally chartered, however, "shall. . . be deemed citizens of the States in which they are respectively located" for purposes of diversity jurisdiction. 28 U.S.C. § 1348. A national bank is "located" in the State in which its main office, as set forth in its articles of association, is located." Wachovia Bank, 546 U.S. at 303. Again, a declaration is insufficient here, and the Court wishes to review documentary evidence, such as the articles of association, to establish the citizenship of any banks. F. Trusts The term "trust" can refer either to a distinct legal entity or to an abstract fiduciary relationship between multiple people. Americold Realty Trust v. 5 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 69 of 228 Conagra Foods, Inc., 136 S. Ct. 1012, 1016 (2016). As relevant here, when a trust is a member of an LLC, it is necessarily a distinct legal entity. In these circumstances, the trust is a citizen of any state in which one of its beneficiaries is a citizen. The Court will not accept the affidavits submitted by the trusts at issue as evidence of the identity of the beneficiaries. The Court would like to review the trust's organizational documents that were in effect at the time suit was filed. Plaintiffs may file redacted copies of these documents that include only the identity of the beneficiaries. III. Conclusion Plaintiffs are ORDERED to file any supplemental information within fourteen days. For sake of clarity of the record, each Plaintiff may make a separate filing on the docket with relevant documents, but Plaintiffs need not make multiple filings of the same documents if there are common entities in their organizational structures. Defendants may file responses to Plaintiffs' additional submissions, if desired, within fourteen days of Plaintiffs' filing. If Plaintiffs fail to provide sufficient additional documentary support of their allegations, the Court will find that Plaintiffs have failed to prove diversity jurisdiction by a preponderance of the evidence. 6 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 70 of 228 SO ORDERED, this 31st day of July, 2017. ________________________________ RICHARD W. STORY United States District Judge 7 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 71 of 228 TAB 602-1 Case: 15-14634 Date Filed: 12/18/2017 Page: 72 of 228 REDACTED REDACTED Case: 15-14634 Date Filed: 12/18/2017 Page: 73 of 228 REDACTED REDACTED Case: 15-14634 Date Filed: 12/18/2017 Page: 74 of 228 REDACTED REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 75 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 76 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 77 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 78 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 79 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 80 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 81 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 82 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 83 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 84 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 85 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 86 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 87 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 88 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 89 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 90 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 91 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 92 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 93 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 94 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 95 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 96 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 97 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 98 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 99 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 100 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 101 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 102 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 103 of 228 REDACTED 5 Case: 15-14634 Date Filed: 12/18/2017 Page: 104 of 228 REDACTED Case: 15-14634 Date Filed: 12/18/2017 Page: 105 of 228 TAB 602-6 Case: 15-14634 Date Filed: 12/18/2017 Page: 106 of 228 Exhibit P-2 Case: 15-14634 Date Filed: 12/18/2017 Page: 107 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 108 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 109 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 110 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 111 of 228 TAB 602-8 Case: 15-14634 Date Filed: 12/18/2017 Page: 112 of 228 Exhibit P-4 Case: 15-14634 Date Filed: 12/18/2017 Page: 113 of 228 ALLIANT TAX CREDIT FUND XI, LTD. AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP dated as of January 1, 2002, by and among a Florida limited partnership, as General Partner, and those Persons whose names and addresses are set forth and designated as Investor Limited Partners on Schedule A attached hereto and made a part hereof, as the same may be amended from time to time. Preliminary Statement Alliant Tax Credit Fund XI, Ltd. (the "Partnership") was formed as a Florida limited partnership pursuant to an Agreement of Limited Partnership dated as of January, 2000 (the "Original Agreement"), by and between a Florida limited partnership, as General Partner, and a Florida corporation, as Original Limited Partner. A Certificate of Limited Partnership with respect to the Partnership dated January 6, 2000 (the "Original Certificate") was filed in the Filing Office on January 7, 2000. Certain defined terms used herein shall have the respective meanings given them in Section 11. In consideration of the mutual agreements set forth herein, the parties hereby agree that the Original Agreement is hereby amended and restated in its entirety, as follows: SECTION 1. NAME AND BUSINESS 1.1. Name; Continuation. The name of the Partnership is "AIIiant Tax Credit Fund XI, Ltd." The Partners hereby agree to continue the Partnership under the Uniform Act. Except as may be expressly provided herein to the contrary, the rights and obligations of the Partners and the administration of the Partnership shall be governed by the Uniform Act. 1.2. Partnership Offices and Resident Agent. 1.2.A. The principal office of the Partnership is c/o The General Partner may at any time change the principal office of the Partnership and shall promptly give notice thereof to the Limited Partners. In all events, the principal office of the Partnership shall at all times be located in the United States of America. 1.2.B. The resident agent of the Partnership in the State for service of process is Curtis D. Hamlin, Esq., Harllee, Porges, Hamlin, Knowles, Bald & Prouty, P.A., 1205 Manatee Avenue West, Bradenton, Florida 34205. 1.3. Names and Addresses of Partners. The names and business addresses of the General Partner and the Limited Partners shall be set forth in the Partnership Register. 1.4. Purpose. The purpose of the Partnership is to invest capital or acquire Interests in and become a limited partner or member of Property Partnerships as described in the "Investment Objectives and Policies" section of the Private Placement Memorandum, each of which will own and operate an Apartment Property which will qualify for Tax Credits, and to hold, sell, dispose of and otherwise deal with such Property Partnership Interests. The business of the Partnership shall include participation in such activities as are related or incidental to the above. The Partnership shall not engage in any other business or activity. 1.5. Term and Dissolution. The Partnership shall continue in full force and effect until December 31, 2052, except that the Partnership shall be dissolved and its assets liquidated prior to such date upon: (i) the sale or other disposition of all or substantially all of the assets of the Partnership; (ii) the Withdrawal of a General Partner if (a) the remaining General Partner(s), if any, shall fail to carry on the business of the Partnership pursuant to Section 7 .2, and (b) all remaining Partners shall fail to continue the business of the Partnership pursuant to Section 7.3; (iii) the election to dissolve the Partnership made in E:\FUND XI\LPA & AMENDMENTS\AMENDED & RESTATED LP,If.DOC Case: 15-14634 Date Filed: 12/18/2017 Page: 114 of 228 IN WITNESS WHEREOF, each of the parties hereto has executed and sworn to this Agreement as an instrument under seal as of the 1 day of January, 2002. General Partner: Investor Limited Partners: E:\FUND XI\LPA & AMENDMENTS\AMENDED & RESTATED L~OC Case: 15-14634 Date Filed: 12/18/2017 Page: 115 of 228 ALLIANT TAX CREDIT FUND XI, LTD. Schedule A General Partner Capital Contribution Total Agreed-To Paid-In Capital Investor Limited Partners CaP.ital Contribution Number of Units Contnbution [See the Partnership Register] E:\FUND XI\LPA & AMENDMENTS\AMENDED & RESTATED L~OC Case: 15-14634 Date Filed: 12/18/2017 Page: 116 of 228 TAB 611 Case: 15-14634 Date Filed: 12/18/2017 Page: 117 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 118 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 119 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 120 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 121 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 122 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 123 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 124 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 125 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 126 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 127 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 128 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 129 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 130 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 131 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 132 of 228 Case: 15-14634 Date Filed: 12/18/2017 Page: 133 of 228 TAB 613 613 *SEALED* Case 1:11-cv-00832-RWS Document 613*SEALED* 1 of 36 Filed 09/11/17 Page 1 Case: 15-14634 Date Filed: 12/18/2017 Page: 134 of 228 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND Case no.: 1:11-CV-0832-RWS 31, LLC, et I Plaintiffs, ] I vs. I M. VINCENT MURPHY, III, et ] al., I Defendants. I I RESPONSE BRIEF AND OBJECTIONS OF DEFENDANT MARILYN W. MURPHY TO SUPPLEMENTAL CITIZENSHIP MATERIALS OF PLAINTIFFS COMES NOW Defendant Marilyn Murphy and files this her Response Brief and Objections to Evidentiary and Other Citizenship Materials of Plaintiffs (Does. 602, 603, 604, 605 and 606), and as provided in this Court's Order of July 31, 2017 (Doc. 596) shows the following. Summary of argument The story of the Alliant plaintiffs' state citizenship is not only a story that has never been told the same way twice. The story itself has never stayed the same. For reasons of complexity alone, for the five Alliant Plaintiffs to establish reliably that they have revealed all constitutent partners, members and individuals who are citizens of states and not 1 613 *SEALED* 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 135 of 228 "stateless," who are relevant to an analysis of complete diversity, is an insurmountable order. Experience has shown that Alliant has not been forthcoming in their jurisdictional reporting dating back 10 years or by the supporting evidence they filed in 2017, which has involved factual and testimonial gaps, and otherwise lacks trustworthiness. Alliant has only made significant revelations when Alliant — as a result of rulings by the Eleventh Circuit and by this Court — felt they had no choice. The Alliant Plaintiffs have now made substantial omissions in their state citizenships in three lawsuits (including the related Thomasville case, the Kentucky litigation and this action), in spite of each of the three actions involving amendments to complaints, plus in each the three resulting appeals, until the Eleventh Circuit caught on in 2016. This Court's Order that Alliant supplement their findings so that they may try to establish diversity subject matter jurisdiction by a preponderance of evidence (Doc. 596), is one of many "second chances." That Alliant found it necessary to respond by filings totaling nearly 500 pages in August 2017 shows that no fast or easy solution is possible. 2 Case 1:11-cv-00832-RWS Document 6131/4 613 **SEALED* SEALED* Filed 09/11/17 Page 3 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 136 of 228 I. STATEMENT OF FACTS AND PROCEDURE A. Alliant failed to report its citizenship in the Kentucky Litigation filed in 2007. In 2007, the Alliant Plaintiffs Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit 31, LLC, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, LLC, Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC' filed a breach of contract and guaranty diversity action against Georgia citizen Vince Murphy and others in the U.S. District Court for the Eastern District of Kentucky2 (the "Kentucky Litigation"). The Alliant Plaintiffs incompletely reported their citizenships as Florida. They did so both in the original complaint of 2007 (Kentucky Doc. 1 at pp. 1-3), again in their amended complaint of 2009 (Kentucky Doc. 85 at pp. 1-3)3 and eventually prevailed. Specifically, one of the Plaintiffs in the Kentucky Litigation was Alliant Tax Credit Fund 31-A, Ltd. Although the Plaintiffs in the Kentucky Litigation said that all Plaintiffs were diverse from all Defendants, this was false. In this action, Appellants discovered that one of Alliant Tax Credit Fund 31-A, Ltd.'s partners as of 2007 'Three Alliant corporations converted to limited liability companies. 2 Alliant Tax Credit Fund 31-A, Ltd., et al., v. Nicholasville Community Housing, LLC, et al.,U.S.D.C., E.D., Kentucky, case no 07-CV-0388-KKL. 3 See Does. 356-2, 356-4. 3 1 Case 1:11-cv-00832-RWS Document 613,*SEALED* 613 *SEALED* Filed 09/11/17 Page 4 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 137 of 228 LLC—had a member as of 2007 Inc.—that was a Georgia corporation in 2007 when the Kentucky Litigation was commenced. has been headquartered in Georgia since, so Alliant Tax Credit 31-A, Ltd. was a Georgia citizen in 2007. (See Docs. 356-13, 356-15, 356- 19.) As was Vince Murphy. Complete diversity was lacking in the Kentucky litigation. Defendant Vince Murphy appealed the Kentucky judgment to the U.S. Court of Appeals for the Sixth Circuit (unsuccessfully).4 There Alliant imparted no further citizenship information; Vince Murphy appears to have been unaware of their shared Georgia citizenship. Alliant never explained their incomplete reporting in Kentucky. B. Alliant's citizenship reporting has been incomplete and misleading in this action filed in 2011. 1. Alliant Tax Credit Fund 31, Ltd. remained nondiverse. The Alliant Plaintiffs filed this action in 2011, again including Alliant Tax Credit Fund 31-A, Ltd. This was their first chance to truthfully report their citizenships. Alliant reported their various citizenships as being solely Florida. (Doc. 1, pp. 3-5.) They amended their Complaint in 2013, but 4Alliant Tax Credit Fund 31-A, Ltd., et al. v. Murphy, U.S. Court of Appeals for the Sixth Circuit, appeal no. 10-5454. 4 1 613 *SEALED* 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 138 of 228 repeated false jurisdictional reporting. (Doc. 244, pp. 3-5.) This was their second chance. 2. The defense conducted jurisdictional discovery in 2013. The defense served a Rule 30(b)(6) deposition notice on Plaintiffs inquiring about their "ownership structure." (Ex. "5.") Alliant designated Brian Doran their Rule 30(b)(6) witness. When deposed in May 2013 about ownership structure, Doran denied preparedness and knowledge. (Ex. "6;" Doran depo. of 5/1/13 43:20 — 44:22.) This office had prepared a loose outline of jurisdictional questions for Mr. Doran, including questions about all six of the Alliant Plaintiffs' office locations (and non- brick and mortar addresses), which he could not or would not answer. A copy was shared with Alliant's lawyers at deposition. Three weeks passed with no answers. This office filed a motion to compel. (Doc. 219.) The next day came Alliant's reply through its lawyer M. Brent McDonald. "Florida" was Alliant's sole written answer as to its locations. (Ex. "7" (Doc. 226-3).) For all six plaintiffs, the correct answers to the questions posed were Florida and California. (Ex. "8;" Depo of Doran of 9/3/13 at, e.g, 118:5 — 129:21.) More importantly, it was Alliant's missed third chance to truthfully report something, anything, relating to their citizenship. 5 Case 1:11-cv-00832-RWS Document 613*SEALED* 613 *SEALED* Filed 09/11/17 Page 6 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 139 of 228 Then-defense counsel Puj a Patel contacted this writer by phone the day Alliant's response to the motion to compel was due, in June 2013. She asked this writer to drop the motion to compel. The only response Alliant ever provided was the written answers described in the paragraph above— which were not truthful. This writer declined. (Appx. "11;" Declaration of Shawn M. Winterich at ¶ 1.) The idea, obviously, was to keep Doran from deposing about Alliant's numerous citizenships. Shawn Horwitz, the chief executive of Alliant, had promised Doran— a jurisdictional fact witness—five-percent financial stake in this litigation and was therefore improperly compensated.5 (Doc. 401.) Alliant opposed the motion to compel (Doc. 226), unsuccessfully. The defense served document subpoenas. (Ex. "8.") Doran deposed over two dates in September 2013. There arose a discovery dispute about document production. The defense moved for a supplemental discovery order. Alliant declared: "The Plaintiffs submit that the Defendants have more than sufficient documents and testimony showing the organizational structure of the Plaintiffs." (Doc. 288 at p. 8.) This Court 'Alliant improperly compensated Doran by offering him a financial interest in the outcome of this action. Doran, upon severance of employment, negotiated a contingent fee agreement of five percent of Alliant's recovery from Vince Murphy-related recoveries (including this action and presumably Thomasville), in exchange for his testimony as a Rule 30(b)(6) witness. (Docs. 390-2, 390-3 and 390-4.) 6 Case 1:11-cv-00832-RWS Document 6131/4 613 **SEALED* SEALED* Filed 09/11/17 Page 7 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 140 of 228 denied further relief in 2013, however.6 Alliant's pronouncement was false and its fourth lost opportunity; this Court required Alliant to file what amounted to hundreds of pages in 2017. (See, e.g., Does. 602-2, 602-13, 602-18, 602-19 and 602-21.) 3. Alliant has not shown that Alliant Tax Credit Fund XI, Ltd. is composed entirety of "citizens of states." Doran testified that as of March 17, 2011, its partners in Alliant Tax Credit Fund XI, Ltd. were Inc. and, Ltd. He testified with "99.9%" confidence. (Ex. 9; Doran depo. at 132:21 - 136:1). Most notably, he omitted Bank, NA, and, Ltd. He also omitted, Inc., Bank, and Corp. (Doc. 603, pp. 16 and 17.) The person (or one of the people) Doran consulted with was Alliant chief executive Shawn Horwitz. (Ex. 9; Doran depo of 9/3/13 at 145:11-25.). Doran himself was not well-versed in Alliant's ownership structure. (Ex. 6; Depo of Doran of 5/1/2013 43:19-44:22.) The deposition of September 2013 was Alliant's fifth missed opportunity. This Court denied additional discovery at the time "based on Plaintiffs' representation that they have already produced all of the information that Marilyn Murphy seeks to compel...." (Doc. 333 at p. 6.) 7 Case 1:11-cv-00832-RWS Document 6131/4 613 **SEALED* SEALED* Filed 09/11/17 Page 8 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 141 of 228 This is discovery abuse of the worst order. The parties were all required to litigate for years and try an eight day-long civil case to an eight- member jury—and this Court to waste judicial resources—in spite of this one Alliant plaintiff that Alliant must have believed was nondiverse. Otherwise, there was no reason for Mr. Doran not to fully disclose all of Alliant's partners once specifically ordered to resume deposition. That a partnership interest in Alliant Tax Credit Fund XI, Ltd. has in recent years been an asset owned under FDIC receivership, while this action was initiated in 2011, is a rational explanation for Doran's omission. (FDIC is well- known to be stateless and nondiverse.)7 Next to testify about Alliant ownership structure was Kathleen Balderrama: "general counsel of Alliant Asset Management Company, LLC," who was "overseeing compliance matters for the Alliant family of entities." (Doc. 576-1) Alliant entities number over 6,000. (Ex. 9; Doran depo of 9/3/13 at 118:11-14.) Ms. Balderrama does not testify when she joined Alliant. This may be because Ms. Balderrama only joined Alliant in 2014. (Appx. "11;" Declaration of Shawn M. Winterich at ¶ 2.) Fulfilling As will be explained in detail below, the original limited partner in Alliant Tax Credit Fund XI, Ltd. was then- Bank, N.A., which was acquired by which in turn failed in and entered FDIC receivership; a purchase of this and other banking assets was contracted for by, also in. Receivership has not terminated. 8 Case 1:11-cv-00832-RWS Document 613,.*SEALED* 613 *SEALED* Filed 09/11/17 Page 9 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 142 of 228 the role of "fact witness" in addition to "general counsel" in 2017 would have thwarted—not simplified—jurisdictional discovery, had this Court ordered it. Availability of non-attorney witnesses is not an issue for Alliant. In response, this Court ruled: The Court notes that Plaintiffs' Amended Complaint [Doc. No. 244] alleges that Plaintiffs are all citizens of Florida. Now that Plaintiffs have been questioned as to their citizenship, Plaintiffs concede that they are in fact citizens of California, Delaware, the District of Columbia, Florida, Illinois, Nebraska, New York, Ohio, and Texas. Under these circumstances, in which Plaintiffs have not been candid with the Court and the Court has received a limited remand for the purposes of determining whether diversity exists, declarations and affidavits are insufficient-the Court requires documentary evidence that establishes the jurisdictional facts. (Doc. 596 at 2.) This Court reiterates that testimonial evidence about partnerships, companies and trusts is not sufficient—three additional times. (Id. at 4, 5 and 6) This means that Alliant's citizenship submission of May 2017 is Alliant's sixth missed opportunity over four years. The Court is moved to comment on Alliant's lack of candor about its citizenship, which it has not ever done before in any of its orders in over six years of this litigation. (Doc. 596.) Mr. Horwitz, though he initially only testified about his state citizenship (See, e.g., Doc. 576-14), steered clear of testifying about Alliant ownership structure for as long as possible. Alliant has also repeatedly 9 Case 1:11-cv-00832-RWS Document 613ZSEALED* 613 *SEALED* Filed 09/11/17 Page 10 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 143 of 228 refused to use him to testify about its company structure earlier in this action and in Thomasville and instead has called on several surrogates (such as Alliant in-house counsel Ms. Baldarrama, Mr. Doran, trustee witness PF, and in Thomasville, Mr. Gevisser), violating the principle of leading with the most knowledgeable witness. Here, the exception proves the rule. 3. Alliant filed other misleading information. Alliant submitted a proposed money judgment to this Court, including explicit language that all Alliant Plaintiffs were diverse from all Defendants and that this Court had subject matter jurisdiction over this action. (Doc. 475 at p. 3.) This Court had, in fact, only evaluated the citizenships of Gazebo Park Apartments of Acworth, LLC and Alliant Tax Credit Fund 31-A, Ltd. (ultimately ordering each dismissed for reasons of non-diversity) (Does. 291, 331 and 584), not the five remaining Alliant Plaintiffs.8 C. This Court set aside the similar Thomasville judgment. In July 2011, four Alliant plaintiffs filed a related contract action against a limited liability company owned by Vince Murphy in this Court, s The five Alliant plaintiffs whose citizenship was not litigated in this action (before 2017) were Alliant Tax Credit 31, LLC, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, LLC, Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC. 10 Case 1:11-cv-00832-RWS Document 613ZSEALED* 613 *SEALED* Filed 09/11/17 Page 11 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 144 of 228 referred to herein as "Thomasville," but assigned to a different division.9 (Two of the Thomasville Alliant plaintiffs were also plaintiffs in this action: Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC.)1° The Thomasville Alliant Plaintiffs included a citizenship acknowledgment of only Florida (Thomasville Doc. 1, pp. 1-2) and amended their pleadings, again without full disclosure (Thomasville Doc. 22, pp. 1-2), and prevailed in the contract action in Thomasville. Vince Murphy appealed Thomasville to the U.S. Court of Appeals for the Eleventh Circuit." This Court, on remand from the Eleventh Circuit in a jurisdictional question almost identical to the one presented here, meticulously pointed out, in short, "myriad" reasons for doubt. These mostly stemmed from the witness Alliant used, Melvin Gevisser, lacking a clear relationship to and understanding of the entities and documents Gevisser was testifying about, and that Alliant's opaque evidentiary submissions to 9 Alliant Tax Credit Fund XVI, Ltd., et al., v. Thomasville Community Housing, LLC, et al, U.S.D.C., N.D., Georgia, case no. 11-CV-2234-AJB. 10 This Court declined to permit discovery about whether state citizenship of Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC changed between the of March 2011 filing date of this action and the July 2011 filing date of Thomasville. 11 Thomasville Community Housing, LLC, et al. v. Alliant Tax Credit Fund XVI, Ltd., et al, U.S. Court of Appeals for the Eleventh Circuit, appeal no. 14-14886-AA. 11 1 Case 1:11-cv-00832-RWS Document 613 613 *SEALED* *SEALED* Filed 09/11/17 Page 12 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 145 of 228 try to show complete diversity in Thomasville lacked "trustworthiness." See Thomasville (Doe. 168, e.g., at p. 34)12 II. ARGUMENT AND CITATION OF AUTHORITY A. Introduction Even in the absence of Alliant's jurisdictional factual history now before this Court, courts generally give little weight to a party's profession of domicile as these declarations are often self-serving. Lustig v. Stone, 2017 U.S. App. LEXIS 2154 *3, 2017 WL 491149 (11th Cir. 2017) citing Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 (11th Cir. 2011). Affidavits offered for the purpose of establishing personal jurisdiction need not be construed in a light most favorable to plaintiff; there is also no presumption of truthfulness. Houston v. Marod Supermarkets, 12 Specifically, the District Court found that "the testimony and other evidence proffered by [the Alliant] Plaintiffs lacks indicia of trustworthiness and completeness sufficient to establish that they have accounted for all of the persons and entities relevant to the analysis of [Alliant] Plaintiffs' citizenships." (Thomasville Doc. 168 at p. 33.) The District Court found that the testimony it struck "set[ ] forth few details signaling trustworthiness." Id. at 27. The District Court cited more details than need be recounted here showing exactly the opposite, including the print date of a document relied upon being "well after" the date of the testimony for which it purportedly had been reviewed. Id. at 32. (Emphasis in original). Finally, the Court concluded that "myriad other issues. . . lead the [District] Court to seriously question the accuracy and reliability of any of [the witness'] testimony" (Id. at 29) and the Court expressed frustration with the "hopelessly imprecise" terminology (i.e., "related entities") the Alliant witness used. Id. at 24. Finally, the Court observed that Alliant tried to use arguments in briefing as a substitute for certain essential testimony absent from the record. 12 Case 1:11-cv-00832-RWS Document 613 613 *SEALED* *SEALED* Filed 09/11/17 Page 13 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 146 of 228 Inc. 733 F.3d 1323, 1336 (11 th Cir. 2013). In fact, if anything, the opposite is true. Courts generally give little weight to a party's profession of domicile as these declarations are often self-serving. Lustig v. Stone, 2017 U.S. App. LEXIS 2154 *3, 2017 WL 491149 (11th Cir. 2017) citing Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 (11th Cir. 2011). It is not unusual at the appellate stage of a proceeding for a federal court to reject even the joint jurisdictional blandishments of the parties. Morrison v. Allstate Indemn. Co. 228 F.3d 1255, 1261 (11th Cir. 2000). B. Alliant's submissions of August 2017 are inadmissible in evidence or are otherwise insufficient to establish complete diversity of parties. 1. Alliant has introduced contradictory and incomplete trust information. Brian Doran, Alliant's Rule 30(b)(6) witness, though ordered to testify about Alliant's ownership structure (Doe. 243), denied knowledge of the trustees and beneficiaries of trusts created for LK and RK. (Ex. "9;" Depo. of Doran of 9/3/13 at 144:16-146:14.) a. Declaration of PF (Doc. 576-18) PF, an officer of P.Corp, which claims that it is the trustee of the LK trust, testifies that LK was the sole beneficiary of the LK trust when this action was filed in 2011. (Doe. 576-18.) LK also initially testified about his 13 1 Case 1:11-cv-00832-RWS Document 613 613 *SEALED* *SEALED* Filed 09/11/17 Page 14 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 147 of 228 state citizenship but this testimony omitted discussion of his trust. (Doc. 576-19.) Once required to file his trust instrument, LK does testify about his trust, and not only about his state citizenship. LK testifies not to one beneficiary, but four beneficiaries: JEK, MAK, JMK, and himself.13 (Doc. 602-58.) This Court's order that Alliant introduce the trust documents themselves had a remarkable effect: a declaration from a more knowledgeable person in August 2017 claiming four beneficiaries (Doc. 602-58), after the "less knowledgeable" person in May 2017 had affirmed under oath that there was only one beneficiary. (Doc. 576-18.) If ever called to account, the more knowledgeable witness testifying later can simply blame the changing story on the "ignorance" of the previous witness—if they care to explain the contradiction at all (which Alliant does not). This is not a "hedging" to avoid giving erroneous testimony. This is a "hedging" of the truth, that is, to see how little truthful information Alliant can impart before this Court (or the Eleventh Circuit) catches on. " The LK trust instrument provides for "any one or more of the group consisting of the Donor's son [i.e., LK] with whose name such fund is designated, and any issue of the Donor's said son...." (Emphasis supplied.) (Does. 602-58, 602-1, 602-2 at p. 2.) 14 Case 1:11-cv-00832-RWS Document 613*SEALED* *SEALED* Filed 09/11/17 Page 15 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 148 of 228 b. Declaration of SK (Doc. 602-1) SK is the "donor" of the LK and RK trusts. SK identifies, and testifies that he "signed," these two intrafamilial inter vivos trusts originating in the 1970s, each arising from a separate original instrument. (Does. 602-1, 602-2, 602-3.) SK does not say who "created" them. He further names three beneficiaries. (Id.) SK professes no knowledge of the trusts he signed, nor of their management or administration. SK does not indicate whether, between 1972 and 2011, there were any amendments to these LK and RK trust instruments which could affect the identity of trust beneficiaries, i.e., to expand the class of beneficiaries and therefore the number of constituents of the Alliant Plaintiffs' ownership structure. SK's testimony is that the original LK trust remained "in effect" when this action was filed in 2011. SK does not testify about the trust document of RK being "in effect" in 2011 or at any other time. (Id.) As to LK, this does not rule out the possibility of amendments additionally being "in effect." Amendments are specifically contemplated by the trust instruments. See, e.g., (Does. 602-2, pp. 6-7 and 602-3, pp. 6-7). Further, the original trustees are named in the LK and RK trust instruments of 1972 (Does. 602-2, p. 14, 602-3, p. 14), and they are not P. Corp., which 15 1 Case 1:11-cv-00832-RWS Document 613 613 *SEALED* *SEALED* Filed 09/11/17 Page 16 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 149 of 228 claims it was the Trustee in 2011. (Does. 576-16, 576-18.) A change of trustees suggests omitted trust amendments. Yet omitted amendments are not discussed (or, as mentioned, in evidence). SK attaches the LK and RK trust document copies filed with blacked out areas, which this court indicated is permissible provided that beneficiary information is not included within the areas blacked out. (Doc. 596 at 6.) SK provides no assurance through his testimony that the redactions do not conceal beneficiary or other Alliant plaintiffs' constituent information, or that the type of trust in question is a "traditional" trust (rather than one with different attributes that may involve a different analysis under the diversity statute). The Statements of Citizenship reflects the names of a limited number of beneficiaries (Doc. 603, p. 17), but not the sworn testimony. This has been a recurrent issue.14 Finally, the trusts are intrafamilial, but testimony is so sparse that whether SK remains in close enough contact 45 years later to know about how many children (beneficiaries) LK and RK have (or not) is not spelled out. Nor is there anything ruling out children—or (in trust language) Thomasville Order at 24, i.e., Alliant Tax Credit Fund XVI, Ltd., et al. v. 14 Thomasville Community Housing, LLC, U.S.D.C., N.D.Ga. (October 25, 2016) (Doc. 168). 16 Case 1:11-cv-00832-RWS Document 613ZSEALED* 613 *SEALED* Filed 09/11/17 Page 17 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 150 of 228 "issue"—from past relationships. The most basic testimony about SK's personal knowledge of the state of family as of 2011 is not shown, whether acquired by maintaining a close family relationship, by trust administration or management, or otherwise, is not shown. The SK testimony about the number of beneficiaries and prospective beneficiaries is objectionable under Fed.R.Evid. 602. 2. Brian Doran omitted four of at least six partners of Alliant Tax Credit Fund XI, Ltd. from his 2013 deposition. Brian Doran was asked to identify all components of Alliant Tax Credit Fund XI, Ltd. as of March 17, 2011. (Ex. "9;" Doran depo. at 123:21-135-21.) One of them was, Ltd. As mentioned, he further omitted at least four additional partners, the assets of one of which is or was in FDIC receivership (Bank, N.A.) See, e.g., (Doc. 603 at p. 17.) Alliant first mentioned, Ltd. when the Eleventh Circuit raised a Jurisdictional Question. See, e.g., (Doc. 603 at p. 17). Alliant, specifically, provided no explanation for omitting these partners from the record over the years. There are at least two possible explanations for this: (1) to obscure the role of the FDIC receivership—the FDIC is well known to be stateless — over at least one of Alliant's banking 17 Case 1:11-cv-00832-RWS Document 613* 613 *SEALED* SEALED* Filed 09/11/17 Page 18 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 151 of 228 partnerships or (2) to obscure Georgia citizenship, or lack of state citizenship, of additional and undisclosed Alliant partners. Alliant has done exactly that in the instance of Alliant Tax Credit Fund 31-A, Ltd. 3. Alliant obscured FDIC receivership involving a partner in Alliant Tax Credit Fund XI, Ltd. In May 2017, Alliant filed a declaration from of in this action, where he testified that as of the date this action was initiated: ", was a limited partner of Alliant Tax Credit Fund, XI, Ltd., having acquired the assets formerly owned by Bank, F.S.B." (Doc. 576-20.) There is also no closing date set out. Or if transferred its interest in this particular Alliant partnership to one of its banking entities, or to a subsidiary. In August 2017, Alliant similarly described the complicated history of Alliant Tax Credit Fund XI, Ltd. partnership shown above, Alliant simply responded: " subsequently failed and entered receivership, whereupon its assets were acquired by as of ." (Doc. 603 at p. 2.) Neither account mentions anything about any entity, its bankruptcy, or the FDIC. 18 Case 1:11-cv-00832-RWS Document 613 *SEALED* *SEALED* Filed 09/11/17 Page 19 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 152 of 228 a. This is a diversity action, and not a federal question action. The purpose of the inquiry before this Court is to determine diversity jurisdiction within the meaning of 28 U.S.C. § 1332. This Court has observed that this is not additionally a federal question action under 28 U.S.C. § 1331.15 (Doc. 331 at p. 9, th 2.) b. Bank, FSB was a limited partner within the ownership structure of Plaintiff Alliant Tax Credit Fund XI, Ltd. -based Bank, FSB was once a limited partner of Alliant Tax Credit Fund XI, Ltd. (Does. 576-20, 576-6 at pp. 5-6.) c. acquired the assets of Bank in. As Alliant correctly reports, " acquired the assets of Bank, FSB [in] ." (Doc. 603 at p. 2.) d. was closed by the FDIC in and the FDIC contracted to sell its assets to Alliant further reports: " subsequently failed and entered receivership, whereupon its assets were acquired by 'Additionally, no federal jurisdiction in this action for the reason of FDIC being a party. See Star Home Builders, Inc. at *14 at fn 5, citing 28 U.S.C. § 1819. 19 Case 1:11-cv-00832-RWS Document 613 613 *SEALED* *SEALED* Filed 09/11/17 Page 20 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 153 of 228. as of. (Citations omitted; Emphasis supplied.) Supp. Stint. of Citizenship for Alliant Tax Credit Fund XI, Ltd. (Doc. 603 at p. 2.) The receiver was the FDIC. (Doc. 602-30.) The source of this information is .'s 10-K form filed with the Securities and Exchange Commission for year .16 This 10-K form reflects that this report "includes subsidiaries." But nothing shows when owned this asset or claim to the partnership free and clear of FDIC receivership. e. filed a Chapter 11 bankruptcy case in. After the FDIC became receiver of in, its holding company,, immediately filed for 16Admission is sought of the publications cited here and below as provided in Fed.R.Evid. 201(B)(2) and 803(17) and (18). SEC.gov, Form 10-K () https://www.sec.gov/Archivesiedgaridata/933136/000110465907015590/a07 -3851 110k.htm, retrieved on 8/19/2017. See also BusinessWire, 20 Case 1:11-cv-00832-RWS Document 613ZSEALED* 613 *SEALED* Filed 09/11/17 Page 21 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 154 of 228 Chapter 11 bankruptcy reorganization (this case remains open). All sales of assets, the receiver appointment, and 's Chapter 11 filing all took place within two days. As the FDIC points out, "the interests of equity, debt holders or other creditors of, are not included in the closure or receivership of " I8 It is noteworthy that the bankruptcy court did not confirm the debtor's Amended Plan until, approving a settlement agreement allowing certain financial transactions, which was after this action was filed.' 9 And there would be no reason for In re U.S. Bankruptcy Court for the. 18 Federal Deposit Insurance Corp., Failed Bank Information, Information for retrieved from on 8/19/2017. 19The commencement of a bankruptcy case creates an estate comprised of all the following property, wherever located and by whomever held which includes all legal or equitable interests of the debtor in property. The bankruptcy court has exclusive jurisdiction over estate property and to decide what is and is not estate property. The miscellaneous and other assets of were found to be part of bankruptcy estate. In re citing 28 U.S.C. § 1334(e). The U.S. Bankruptcy Court found that it had jurisdiction to confirm 's Chapter 11 Plan. Id. With court approval, a receiver may compromise claims for and against the estate. Id. at. (As a result of this bankruptcy case, there is little or no litigation elsewhere where 21 Case 1:11-cv-00832-RWS Document 613*SEALED* *SEALED* Filed 09/11/17 Page 22 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 155 of 228 FDIC to continue as receiver today if it has already transferred title to all assets of the former, free and clear of that receivership. f. The FDIC receivership has not terminated. The FDIC receivership of assets of the former has been continuous since and, as mentioned, appears to be ongoing to this day, there being no sign of termination.20 If Alliant had some indication that 's partnership interest in Alliant Tax Credit Fund XI, Ltd. was finally clear of FDIC receivership, they would not only have volunteered the fact of the FDIC receivership (which, as mentioned, Alliant did not do), but they would have shown how and when it terminated. g. The FDIC was the real party in interest. It is settled that representatives may stand upon their own citizenship in the federal courts irrespective of the citizenship of the persons whom they is a party.) Several principals, including the receivership arm of the FDIC and JP Morgan Chase Bank, N.A. contested the ownership of $20B in assets. These principals settled. After a neutral evaluation of the fairness of this settlement, the Bankruptcy Court confirmed the 's Plan in, and this confirmed Plan incorporated the settlement. FDIC.gov, "Status of " last updated /16. Link: Retrieved 8/12/17. 22 1 Case 1:11-cv-00832-RWS Document 613 613 *SEALED* *SEALED* Filed 09/11/17 Page 23 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 156 of 228 represent, such as executors, administrators, guardians, trustees, receivers, etc. Nunn v. Feltinton, 294 F.2d 450, 453 (5th Cir. 1961), citing City of New Orleans v. Gaines' Administrator, 138 U.S. 595, 606 (1891) and. Commercial Bank v. Warthen, 119 Ga. 990, 47 S.E. 536, 537 (1904). See also Mitchell v. Maurer, 293 U.S. 237, 55 S. Ct. 162, 79 L.Ed.. 338 (1934). h. The FDIC is stateless for diversity jurisdiction purposes. The FDIC is a federally-chartered corporation. Federally-chartered corporations, in general, are not citizens of any state for purposes of diversity of citizenship. The presence of a federally chartered corporation as a party to a suit thus destroys complete diversity. Courts have generally concluded that, where the FDIC is a member of an LLC or a member of an LLCs member, the LLC will be deemed "stateless" and diversity jurisdiction will not exist. Orchid Quay, LLC v. Suncor Bristol Bay, LLC, 178 F. Supp. 3d 1300, 1307 n.8 (S.D. Fla. 2016), citing RES-GA Creekside Manor, LLC v. Star Home Builders, Inc., Civil Action No. 2:10-CV-207- RWS, 2011 U.S. Dist. LEXIS 138676, 2011 WL 6019904, at *3 (N.D. Ga. Dec. 2, 2011) (Court dismissed action for lack of complete diversity, and in footnote discussed FDIC existing within membership structure of plaintiff LLC, but receivership status of FDIC did not appear to factor into dismissal.) But see Bank of the Ozarks v. IS Motel Corp., No. 4:12-CV- 23 Case 1:11-cv-00832-RWS Document 613 613 *SEALED* *SEALED* Filed 09/11/17 Page 24 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 157 of 228 0024-HLM, 2012 U.S. Dist. LEXIS 55661, at *6 (N.D. Ga. Apr. 2, 2012)(Defense motion to dismiss denied because nature of FDIC's receivership relationship to plaintiff for purposes of establishing diversity of parties, though FDIC is "stateless," was not established by admissible evidence.) See also DeWeese v. JPMorgan Chase Bank, N.A., No. 2:13-CV- 00059-RWS, 2013 U.S. Dist. LEXIS 166925, at *2 (N.D. Ga. Nov. 25, 2013), Purchase agreement at (DeWeese Doc. 4-3), for background. 4. Alliant's evidentiary submissions contain inadmissible evidence. The remainder of this briefing, until the Conclusion, is devoted to the admissibility of certain evidentiary submissions, including documentary anomalies, and what weight they should receive. Shawn D. Horwitz declaration (Doc. 602-4.) The Declaration of Shawn Horwitz, and the documents the Alliant Plaintiffs filed in May 2017 and August 2017 to try to show complete diversity of citizenship, does not set out evidence sufficient to show that the respective ownerships of the five Alliant plaintiffs are comprised of a limited number of constituents. (References shown in captions to subparts are to paragraph numbers.) Shawn Horwitz, acting as president of Alliant, Inc. in its Woodland Hills, California headquarters, appears to have been the source 24 Case 1:11-cv-00832-RWS Document 613ZSEALED* 613 *SEALED* Filed 09/11/17 Page 25 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 158 of 228 (or a source) of information for the Alliant Plaintiffs' Rule 30(b)(6) witness Brian Doran. (Ex. "9;" Depo. of Doran of 9/3/13 at 122:18-20; 145: 7-20.) a. Alliant Tax Credit 31, LLC (If 4) does not introduce documentary proof of single-member status. Alliant Tax Credit 31, LLC is one of three Alliant Plaintiffs; all of them are limited liability companies that began as corporations. The Court made it clear that it is unwilling to accept testimony alone to support a Alliant's citizenship allegations regarding limited liability companies, which is why it requires current documents. (Doc. 596 at pp. 4-5.) Plaintiff Alliant Tax Credit 31, LLC claims to be comprised of only one member, which is not required to have an operating agreement. See (Doc. 602 at pp. 1-3). Mr. Horwitz testifies that there is no operating agreement, but that he did sign the conversion certificate. This testimony, by itself, puts the Court right back in the position of being asked to "believe" testimony of how many LLC members there were, though it is documents this Court is specifically requiring. With no "operating agreement," the next best thing to prove single member LLC status in 2011 would be a shareholder registry, share certificates or other documentation showing that there had only been one 25 Case 1:11-cv-00832-RWS Document 613ZSEALED* 613 *SEALED* Filed 09/11/17 Page 26 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 159 of 228 shareholder in the pre-conversion Alliant Tax Credit 31, Inc.—which would be the logical precursor to a converted single-member LLC—but Alliant does not do so. The conversion certificate does not contain this information and would be inadmissible hearsay if offered for this purpose anyway.21 Mr. Horwitz testifies that as to Alliant Tax Credit 31, LLC "no members have been admitted... in addition to Alliant Capital, Ltd." The documentation the Court is requiring to show that there was only one single member in Alliant Tax Credit 31, LLC at time this action was filed is not present here; no document shows only one shareholder in the original corporation at time of conversion to LLC. Additionally, Plaintiff Alliant Tax Credit XXVII, though likewise purporting to be a single-member LLC, does introduce what Mr. Horwitz claims is its operating agreement. (Doc. 602-6.) b. Alliant Tax Credit XXVII, LLC (If 5), claiming to be a single member LLC, does not rule out additional members. Mr. Horwitz claims that Alliant Tax Credit XXVII, LLC was a single- member LLC when formed in 2008 and that it has not added additional members through the 2011 date of this action. That the operating agreement 21The conversion certificate itself (Doc. 576-5) is inadmissible hearsay for purposes of proving the truth of whatever statements appear therein, and is also not the best evidence. Fed.R.Evid. 803 and 1001, et seq. Nor do Mr. Horwitz or Ms. Balderrama affirm the truth of the statements appearing in the certificate of conversion. 26 Case 1:11-cv-00832-RWS Document 613 613 *SEALED* *SEALED* Filed 09/11/17 Page 27 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 160 of 228 he points to as an exhibit "remained in effect" for a particular time frame does not itself rule out additional members. Mr. Horwitz does not explain how he can be positive of this, and nor does his testimony rule out the new members being added without his personal approval. He may have achieved the same thing by testifying that only he could execute a document adding or changing the LLC membership—which is possible—but he did not so testify. This testimony lacks foundation and is inadmissible as provided in Fed.R.Evid. 602. It is difficult enough to prove a negative (i.e., the absence of a change of membership in small, dynamic, companies over perhaps eight years). It does not help Alliant's cause that a number of the operating and partnership agreements Alliant claims were still current in March 2011 do not reflect recent Alliant company business and date back to around 2002 or 2003, leaving this Court no alternative but to rely on Alliant's witnesses (or not) that there is nothing more recent, with no witness credibility to draw upon. See, e.g., (Does. 602-8, 602-9 and 602-10). The "page numbering issue" The operating agreement Exhibit Mr. Horwitz refers to (Doc. 602-6) for Alliant Tax Credit XXVII, LLC is objectionable, for the reasons following. Pages 1 and 2 show page number footers rendered in Courier New font. Page numbers 6 and 7 are rendered in Arial font. 27 Case 1:11-cv-00832-RWS Document 613ZSEALED* 613 *SEALED* Filed 09/11/17 Page 28 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 161 of 228 If it is even possible to do so, it is exceedingly uncommon for the page numbering font within a single document to be internally inconsistent.22 (Compare (Doc. 576-7), where all page numbers throughout the document are rendered in the same Aria I font.) Nothing else within the document directly ties pages 1 and 2 to pages 6 and 7. (Pages 3, 4 and 5 are wholly redacted (permissibly) or at least not filed.) This Exhibit is most likely either a hybrid of two separate documents, or perhaps a later revision tacked onto an earlier one. There is a trustworthiness problem for reasons of disorder (or personal knowledge of the witness). There is nothing from Alliant remotely approaching an explanation, nor anything else suggesting meaningful review. The witness provides no assurance through his testimony that redactions do not conceal membership or other Alliant plaintiffs' constituent information. This exhibit is inadmissible hearsay not compliant with the business records exception appearing at Fed.R.Evid. 803(6). This document is likewise inadmissible due to issues with relevance and authenticity. Fed.R.Evid. 401 and 901. 22Courier New font numerals are rendered as 1, 2, 3, 4, 5, 6, 7, 8, 9 and O. Arial font numerals are rendered as 1, 2, 3, 4, 5, 6, 7, 8, 9 and 0. 28 Case 1:11-cv-00832-RWS Document 613Z.SEALED* 613 *SEALED* Filed 09/11/17 Page 29 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 162 of 228 c. Alliant Tax Credit XI, LLC 7), claiming to be a single member LLC, does not rule out additional members. Mr. Horwitz's testimony supporting the claim that Alliant Tax Credit Xl, LLC is a single member LLC is inadmissible for the same reasons shown in Subpart b. above. Fed.R.Evid. 602. The accompanying exhibit (Doc. 602-7) is inadmissible hearsay not compliant with the business records exception appearing at Fed.R.Evid. 803(6) due to the same anomalies discussed at length in Subpart b. above, including page numbering. This document is likewise inadmissible due to issues with authenticity and relevance. Fed.R.Evid. 901. d. The Company, LLC Off 12), claiming to be a single member LLC, does not rule out additional members. Mr. Horwitz's testimony supporting Plaintiffs' claim that The Company LLC is a single member LLC is inadmissible for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. e. Alliant Tax Credit Fund XXVII, Ltd. (411 6) does not rule out additional partners. Mr. Horwitz's testimony supporting the claim that Alliant Tax Credit Fund XXVII, Ltd. was comprised of a specified and limited number of partners is inadmissible for the same reasons shown in Subpart b. above 29 1 Case 1:11-cv-00832-RWS Document 613 613 *SEALED* *SEALED* Filed 09/11/17 Page 30 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 163 of 228 (excluding page numbering). Fed.R.Evid. 602. Objections to the exhibit were filed in May 2017. The copy filed in May 2017 is missing many pages though this Court did not grant Alliant leave to redact partnership agreements. (Doc. 596 at p. 4.) f. Alliant Tax Credit Fund XI, Ltd. includes partners not identified before 2013. Because Mr. Horwitz's testimony supporting the claim that Alliant Tax Credit Fund XI, Ltd. was comprised of a specified and limited number of partners is inadmissible for the foregoing reasons set out in this Subpart f., and also for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. Objections to the supporting exhibit (Doc. 576-6) were filed in May 2017. The copy filed in May 2017 is not intelligible as nearly all of its content is missing or redacted, though this Court did not grant Alliant leave to redact partnership agreements. (Doc. 596 at p. 4.) 30 Case 1:11-cv-00832-RWS Document 613*SEALED* *SEALED* Filed 09/11/17 Page 31 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 164 of 228 g. Alliant did not reveal the existence of, Ltd. (¶ 9) until this jurisdictional question. As mentioned, Katheleen Balderrama, by her Declaration of 2017 (Doc. 576-1) testified and introduced documents (Doc. 576-6) for the first time establishing the partnership of, Ltd. in the ownership structure of Alliant Tax Credit Fund XI, Ltd., in spite of jurisdictional discovery sought and other documents Alliant produced in 2013. Mr. Horwitz's testimony supporting the claim that, Ltd. was comprised of a specified and limited number of partners is inadmissible for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. The exhibit copy filed in May 2017 (See, e.g., 576-10, 602-10, 602-11 and 602-12) is missing pages though this Court did not grant Alliant leave to redact partnership agreements. (Doc. 596 at p. 4.) Fed.R.Evid. 901. h., Ltd. (If 10) does not rule out additional partners. Mr. Horwitz's testimony supporting the claim that Ltd. was comprised of a specified and limited number of partners is inadmissible for the same reasons shown in Subpart b. above (excluding 31 Case 1:11-cv-00832-RWS Document 613 613 *SEALED* *SEALED* Filed 09/11/17 Page 32 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 165 of 228 page numbering). Fed.R.Evid. 602. The exhibit copy filed in May 2017 (See, e.g., 576-7) is missing pages though this Court did not grant Alliant leave to redact partnership agreements. (Doc. 596 at p. 4.) Fed.R.Evid. 901. t. The Company, LLC Of 12), claiming to be a single member LLC, does not rule out additional members. Mr. Horwitz's testimony supporting Plaintiffs' claim that The Company LLC is a single member LLC is inadmissible for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. j. Associates, LLC (¶ 13), claiming to be a single member LLC, does not rule out additional members. Mr. Horwitz's testimony supporting Plaintiffs' claim that Associates, LLC has the number of members claimed is inadmissible for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. Declarations of SK and JJ k. SK's testimony about company, Partnership, LP (Doc. 602-15) does not rule out additional members. SK's testimony supporting Plaintiffs' claim that Partnership, LP has the number of members claimed is inadmissible for the 32 Case 1:11-cv-00832-RWS Document 613*SEALED* *SEALED* Filed 09/11/17 Page 33 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 166 of 228 same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. 1. JJ's testimony about company, LLC (Doc. 602-20) does not rule out additional members. JJ's testimony supporting Plaintiffs' claim that, LLC has the number of members claimed is inadmissible for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. Declaration of Brian Netter (Doc. 602-27) The Alliant Plaintiffs' attorney Brian Netter executed and filed a Declaration seeking to admit printouts from various state and federal government websites, and from banks, corporations, California real estate records and voting records. First, Mr. Netter urges that this Court take judicial notice "of this declaration" and all of his filings. (¶ 4.) This is objectionable. Very briefly, none of the matters sought to be proven by judicial notice are "conclusive," simply for the reason that Alliant elected to copy, compile and file these documents, or have one of their lawyers testify about them. Fed.R.Evid. 201(f). More specifically, none of the facts sought to be proven by judicial notice are of common knowledge within this judicial district. Fed.R.Evid. 201(b)(1). Additionally, none of the facts sought to be proven a "can be 33 Case 1:11-cv-00832-RWS Document 6132 613 *SEALED* SEALED* Filed 09/11/17 Page 34 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 167 of 228 accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Very briefly, each piece of evidence Alliant asks this Court to take judicial notice of may be (1) subject to change because of facts or additional details that have arisen since the infottnation sought to be admitted originated; and (2) subject to contrary evidence, or of such a nature that additional evidence may shed additional light. Fed.R.Evid. 201(b)(2). A snapshot is only accurate as of the time and subject matter it covers. Second, Mr. Netter attaches a document from the National Information Center of the Federal Reserve. (Doc. 602-31.) This correctly reflects the widely known closing date of of (about) and the eventual acquisition of banking assets of by. This document is not the best evidence of when the Alliant Tax Credit Fund XI, Ltd. partnership interest—once owned by —was released from the FDIC receivership, as more detailed evidence already discussed in this brief illustrates the same issue in greater detail. See, e.g., Fed.R.Evid. 1008 (c), et seq. Third and finally, the complaint from an unrelated lawsuit apparently not involving any party to this lawsuit (Doc. 602-36) is irrelevant and inadmissible hearsay. Fed.R.Evid. 401 and 801(c). 34 *SEALED* 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 168 of 228 CONCLUSION This Court correctly found that Alliant's evidentiary submissions of May 2017 did not establish diversity subject matter jurisdiction by a preponderance of the evidence. Alliant's supplemental documents filed in August 2017 are insufficient to change this Court's conclusion. Alliant has not confirmed by trustworthy means, as it was ordered to do (1) that all persons, partnerships and entities relevant to analysis of Alliant's citizenships have been accounted for, and (2) that accuracy of citizenship of every constituent for purposes of this analysis, that is, to confirm that no constituent partners, members, corporations, or individuals are neither "stateless" nor Georgia citizens. At some point the various iterations of Alliant's testimony must come to rest. This action must be dismissed for these reasons and for the reasons shown in this Court's Order of July 31, 2017. (Doc. 596.) Date: September 10, 2017 /s/ Shawn M Winterich The Winterich Law Firm, LLC State Bar No. 771030 P.O. Box 71203 Marietta, GA 30007-1203 404 668-7766 swinterich@winterichlaw.com 35 Case 1:11-cv-00832-RWS Document 613ZSEALED* 613 *SEALED* Filed 09/11/17 Page 36 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 169 of 228 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND I Case no.: 1:11-CV-0832-RWS 31, LLC, et al. Plaintiffs, vs. M. VINCENT MURPHY, III, et al., ] ] Defendants. ] CERTIFICATE OF SERVICE I CERTIFY that on today's date the foregoing RESPONSE BRIEF AND OBJECTIONS OF DEFENDANT MARILYN W. MURPHY TO SUPPLEMENTAL CITIZENSHIP MATERIALS OF PLAINTIFFS was filed with the Clerk of Court using the Court's CM/ECF system, which automatically sends email notification of this filing to all parties of record. Pursuant to LR 7.1 D, I further certify that the foregoing complies with the font and point selections approved by this Court in LR 5.1B. The foregoing was prepared with use of Microsoft Word software, using a 14-point Times New Roman font. Date of service: September 10, 2017 Isl Shawn M Winterich 36 1 Case: 15-14634 Date Filed: 12/18/2017 Page: 170 of 228 TAB 617 Case 1:11-cv-00832-RWS Document 617 Filed 09/14/17 Page 1 1 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 171 of 228 REDACTED UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND I Case no.: 1:11-CV-0832-RWS 31, LLC, et al. I I Plaintiffs, I vs. I I M. VINCENT MURPHY, HI, et al., I Defendants. I I RESPONSE BRIEF AND OBJECTIONS OF DEFENDANT MARILYN W. MURPHY TO SUPPLEMENTAL CITIZENSHIP MATERIALS OF PLAINTIFFS COMES NOW Defendant Marilyn Murphy and files this her Response Brief and Objections to Evidentiary and Other Citizenship Materials of Plaintiffs (Does. 602, 603, 604, 605 and 606), and as provided in this Court's Order of July 31, 2017 (Doe. 596) shows the following. Summary of argument The story of the Alliant plaintiffs' state citizenship is not only a story that has never been told the same way twice. The story itself has never stayed the same. For reasons of complexity alone, for the five Alliant Plaintiffs to establish reliably that they have revealed all constitutent partners, members and individuals who are citizens of states and not 1 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 172 of 228 "stateless," who are relevant to an analysis of complete diversity, is an insurmountable order. Experience has shown that Alliant has not been forthcoming in their jurisdictional reporting dating back 10 years or by the supporting evidence they filed in 2017, which has involved factual and testimonial gaps, and otherwise lacks trustworthiness. Alliant has only made significant revelations when Alliant — as a result of rulings by the Eleventh Circuit and by this Court — felt they had no choice. The Alliant Plaintiffs have now made substantial omissions in their state citizenships in three lawsuits (including the related Thomasville case, the Kentucky litigation and this action), in spite of each of the three actions involving amendments to complaints, plus in each the three resulting appeals, until the Eleventh Circuit caught on in 2016. This Court's Order that Alliant supplement their findings so that they may try to establish diversity subject matter jurisdiction by a preponderance of evidence (Doc. 596), is one of many "second chances." That Alliant found it necessary to respond by filings totaling nearly 500 pages in August 2017 shows that no fast or easy solution is possible. 2 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 173 of 228 I. STATEMENT OF FACTS AND PROCEDURE A. Alliant failed to report its citizenship in the Kentucky Litigation filed in 2007. In 2007, the Alliant Plaintiffs Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit 31, LLC, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, LLC, Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC f filed a breach of contract and guaranty diversity action against Georgia citizen Vince Murphy and others in the U.S. District Court for the Eastern District of Kentucky2 (the "Kentucky Litigation"). The Alliant Plaintiffs incompletely reported their citizenships as Florida. They did so both in the original complaint of 2007 (Kentucky Doc. 1 at pp. 1-3), again in their amended complaint of 2009 (Kentucky Doc. 85 at pp. 1-3)3 and eventually prevailed. Specifically, one of the Plaintiffs in the Kentucky Litigation was Alliant Tax Credit Fund 31-A, Ltd. Although the Plaintiffs in the Kentucky Litigation said that all Plaintiffs were diverse from all Defendants, this was false. In this action, Appellants discovered that one of Alliant Tax Credit Fund 31-A, Ltd.'s partners as of 2007— Three Alliant corporations converted to limited liability companies. 2 Alliant Tax Credit Fund 31-A, Ltd., et al., v. Nicholasville Community Housing, LLC, et al., U.S.D.C., E.D., Kentucky, case no 07-CV-0388-KKL. See Does. 356-2, 356-4. 3 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 174 of 228 LLC—had a member as of 2007-1111111111111=111 Inc.—that was a Georgia corporation in 2007 when the Kentucky Litigation was commenced. en has been headquartered in Georgia since.", so Alliant Tax Credit 31-A, Ltd. was a Georgia citizen in 2007. (See Does. 356-13, 356-15, 356- 19.) As was Vince Murphy. Complete diversity was lacking in the Kentucky litigation. Defendant Vince Murphy appealed the Kentucky judgment to the U.S. Court of Appeals for the Sixth Circuit (unsuccessfully)! There Alliant imparted no further citizenship information; Vince Murphy appears to have been unaware of their shared Georgia citizenship. Alliant never explained their incomplete reporting in Kentucky. B. Alliant's citizenship reporting has been incomplete and misleading in this action filed in 2011. 1. Alliant Tax Credit Fund 31, Ltd. remained nondiverse. The Alliant Plaintiffs filed this action in 2011, again including Alliant Tax Credit Fund 31-A, Ltd. This was their first chance to truthfully report their citizenships. Alliant reported their various citizenships as being solely Florida. (Doc. 1, pp. 3-5.) They amended their Complaint in 2013, but 4Alliant Tax Credit Fund 31-A, Ltd, et al. v. Murphy, U.S. Court of Appeals for the Sixth Circuit, appeal. no. 10-5454. 4 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 175 of 228 repeated false jurisdictional reporting. (Doc. 244, pp. 3-5.) This was their second chance. 2. The defense conducted jurisdictional discovery in 2013. The defense served a Rule 30(b)(6) deposition notice on Plaintiffs inquiring about their "ownership structure." (Ex. "5.") Alliant designated Brian Doran their Rule 30(b)(6) witness. When deposed in May 2013 about ownership structure, Doran denied preparedness and knowledge. (Ex. "6;" Doran depo. of 5/1/13 43:20 — 44:22.) This office had prepared a loose outline of jurisdictional questions for Mr. Doran, including questions about all six of the Alliant Plaintiffs' office locations (and non- brick and mortar addresses), which he could not or would not answer. A copy was shared with Alliant's lawyers at deposition. Three weeks passed with no answers. This office filed a motion to compel. (Doe. 219.) The next day came Alliant's reply through its lawyer M. Brent McDonald. "Florida" was Alliant's sole written answer as to its locations. (Ex. "7" (Doc. 226-3).) For all six plaintiffs, the correct answers to the questions posed were Florida and California. (Ex. "8;" Depo of Doran of 9/3/13 at, e.g, 118:5 — 129:21.) More importantly, it was Alliant's missed third chance to truthfully report something, anything, relating to their citizenship. 5 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 176 of 228 Then-defense counsel Puja Patel contacted this writer by phone the day Alliant's response to the motion to compel was due, in June 2013. She asked this writer to drop the motion to compel. The only response Alliant ever provided was the written answers described in the paragraph above— which were not truthful. This writer declined. (Appx. "11;" Declaration of Shawn M. Winterich at ¶ 1.) The idea, obviously, was to keep Doran from deposing about Alliant's numerous citizenships. Shawn Horwitz, the chief executive of Alliant, had promised Doran— a jurisdictional fact witness—five-percent financial stake in this litigation and was therefore improperly compensated.5 (Doc. 401.) Alliant opposed the motion to compel (Doc. 226), unsuccessfully. The defense served document subpoenas. (Ex. "8.") Doran deposed over two dates in September 2013. There arose a discovery dispute about document production. The defense moved for a supplemental discovery order. Alliant declared: "The Plaintiffs submit that the Defendants have more than sufficient documents and testimony showing the organizational structure of the Plaintiffs." (Doc. 288 at p. 8.) This Court Alliant improperly compensated Doran by offering him a financial interest in the outcome of this action. Doran, upon severance of employment, negotiated a contingent fee agreement of five percent of Alliant's recovery from Vince Murphy-related recoveries (including this action and presumably Thomasville), in exchange for his testimony as a Rule 30(b)(6) witness. (Does. 390-2, 390-3 and 390-4.) 6 1 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 177 of 228 denied further relief in 2013, however.6 Alliant's pronouncement was false and its fourth lost opportunity; this Court required Alliant to file what amounted to hundreds of pages in 2017. (See, e.g., Does. 602-2, 602-13, 602-18, 602-19 and 602-21.) 3. Alliant has not shown that Alliant Tax Credit Fund XI, Ltd. is composed entirely of "citizens of states." Doran testified that as of March 17, 2011, its partners in Alliant Tax Credit Fund XI, Ltd. were, Inc. and Ltd. He testified with "99.9%" confidence. (Ex. 9; Doran depo. at 132:21 - 136:1). Most notably, he omitted Bank, NA, and 11111111111111111 11.11.1, Ltd. He also omitted, Bank, and Corp. (Doe. 603, pp. 16 and 17.) The person (or one of the people) Doran consulted with was Alliant chief executive Shawn Horwitz. (Ex. 9; Doran depo of 9/3/13 at 145:11-25.). Doran himself was not well-versed in Alliant's ownership structure. (Ex. 6; Depo of Doran of 5/1/2013 43:19-44:22.) The deposition of September 2013 was Alliant's fifth missed opportunity. 6This Court denied additional discovery at the time "based on Plaintiffs' representation that they have already produced all of the information that Marilyn Murphy seeks to compel...." (Doc. 333 at p. 6.) 7 -NO Case 1:11-cv-00832-RWS Document Documeot 617 Filed 09/14/17 Page 8 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 178 of 228 This is discovery abuse of the worst order. The parties were all required to litigate for years and try an eight day-long civil case to an eight- member jury—and this Court to waste judicial resources—in spite of this one Alliant plaintiff that Alliant must have believed was nondiverse. Otherwise, there was no reason for Mr. Doran not to fully disclose all of Alliant's partners once specifically ordered to resume deposition. That a partnership interest in Alliant Tax Credit Fund XI, Ltd. has in recent years been an asset owned under FDIC receivership, while this action was initiated in 2011, is a rational explanation for Doran's omission. (FDIC is well- known to be stateless and nondiverse.)7 Next to testify about Alliant ownership structure was Kathleen Balderrama: "general counsel of Alliant Asset Management Company, LLC," who was "overseeing compliance matters for the Alliant family of entities." (Doc. 576-1) Alliant entities number over 6,000. (Ex. 9; Doran depo of 9/3/13 at 118:11-14.) Ms. Balderrama does not testify when she joined Alliant. This may be because Ms. Balderrama only joined Alliant in 2014. (Appx. "11;" Declaration of Shawn M. Winterich at If 2.) Fulfilling As will be explained in detail below, the ori mal limited partner in Alliant Tax Credit Fund XI, Ltd. was then- Bank, N.A., which was acquired by which in turn failed in and entered FDI receivership; a pure ase of this and other banking assets was contracted for by lalso in Receivership has not terminated. 8 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 179 of 228 the role of "fact witness" in addition to "general counsel" in 2017 would have thwarted—not simplified—jurisdictional discovery, had this Court ordered it. Availability of non-attorney witnesses is not an issue for Alliant. In response, this Court ruled: The Court notes that Plaintiffs' Amended Complaint [Doc. No. 244] alleges that Plaintiffs are all citizens of Florida. Now that Plaintiffs have been questioned as to their citizenship, Plaintiffs concede that they are in fact citizens of California, Delaware, the District of Columbia, Florida, Illinois, Nebraska, New York, Ohio, and Texas. Under these circumstances, in which Plaintiffs have not been candid with the Court and the Court has received a limited remand for the purposes of determining whether diversity exists, declarations and affidavits are insufficient-the Court requires documentary evidence that establishes the jurisdictional facts. (Doc. 596 at 2.) This Court reiterates that testimonial evidence about partnerships, companies and trusts is not sufficient—three additional times. (Id. at 4, 5 and 6) This means that Alliant's citizenship submission of May 2017 is Alliant's sixth missed opportunity over four years. The Court is moved to comment on Alliant's lack of candor about its citizenship, which it has not ever done before in any of its orders in over six years of this litigation. (Doc. 596.) Mr. Horwitz, though he initially only testified about his state citizenship (See, e.g., Doc. 576-14), steered clear of testifying about Alliant ownership structure for as long as possible. Alliant has also repeatedly 9 Case 1:11-cv-00832-RWS Document Documeni 617 Filed 09/14/17 Page 10 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 180 of 228 refused to use him to testify about its company structure earlier in this action and in Thomasville and instead has called on several surrogates (such as Alliant in-house counsel Ms. Baldarrama, Mr. Doran, trustee witness PF, and in Thomasville, Mr. Gevisser), violating the principle of leading with the most knowledgeable witness. Here, the exception proves the rule. 3. Alliant filed other misleading information. Alliant submitted a proposed money judgment to this Court, including explicit language that all Alliant Plaintiffs were diverse from all Defendants and that this Court had subject matter jurisdiction over this action. (Doc. 475 at p. 3.) This Court had, in fact, only evaluated the citizenships of Gazebo Park Apartments of Acworth, LLC and Alliant Tax Credit Fund 31-A, Ltd. (ultimately ordering each dismissed for reasons of non-diversity) (Does. 291, 331 and 584), not the five remaining Alliant Plaintiffs.8 C. This Court set aside the similar Thomasville judgment. In July 2011, four Alliant plaintiffs filed a related contract action against a limited liability company owned by Vince Murphy in this Court, 'The five Alliant plaintiffs whose citizenship was not litigated in this action (before 2017) were Alliant Tax Credit 31, LLC, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, LLC, Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC. 10 1 -NO 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 181 of 228 referred to herein as "Thomasville," but assigned to a different division.9 (Two of the Thomasville Alliant plaintiffs were also plaintiffs in this action: Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC.)I° The Thomasville Alliant Plaintiffs included a citizenship acknowledgment of only Florida (Thomasville Doc. 1, pp. 1-2) and amended their pleadings, again without full disclosure (Thomasville Doc. 22, pp. 1-2), and prevailed in the contract action in Thomasville. Vince Murphy appealed Thomasville to the U.S. Court of Appeals for the Eleventh Circuit." This Court, on remand from the Eleventh Circuit in a jurisdictional question almost identical to the one presented here, meticulously pointed out, in short, "myriad" reasons for doubt. These mostly stemmed from the witness Alliant used, Melvin Gevisser, lacking a clear relationship to and understanding of the entities and documents Gevisser was testifying about, and that Alliant's opaque evidentiary submissions to 9 Alliant Tax Credit Fund XVI, Ltd., et al., v. Thomasville Community Housing, LLC, et al, U.S.D.C., N.D., Georgia, case no. 11-CV-2234-AJB. I° This Court declined to permit discovery about whether state citizenship of Alliant Tax Credit Fund XI, Ltd., and Alliant Tax Credit XI, LLC changed between the of March 2011 filing date of this action and the July 2011 filing date of Thomasville. " Thomasville Community Housing, LLC, et al. v. Alliant Tax Credit Fund XVI, Ltd, et al, U.S. Court of Appeals for the Eleventh Circuit, appeal no. 14-14886-AA. 11 Case 1:11-cv-00832-RWS Document Documen1 617 Filed 09/14/17 Page 12 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 182 of 228 try to show complete diversity in Thomasville lacked "trustworthiness." See Thomasville (Doc. 168, e.g., at p. 34.)12 IL ARGUMENT AND CITATION OF AUTHORITY A. Introduction Even in the absence of Alliant's jurisdictional factual history now before this Court, courts generally give little weight to a party's profession of domicile as these declarations are often self-serving. Lustig v. Stone, 2017 U.S. App. LEXIS 2154 *3, 2017 WL 491149 (11th Cir. 2017) citing Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 (11th Cir. 2011). Affidavits offered for the purpose of establishing personal jurisdiction need not be construed in a light most favorable to plaintiff; there is also no presumption of truthfulness. Houston v. Marod Supermarkets, '2 Specifically, the District Court found that "the testimony and other evidence proffered by [the Alliant] Plaintiffs lacks indicia of trustworthiness and completeness sufficient to establish that they have accounted for all of the persons and entities relevant to the analysis of [Alliant] Plaintiffs' citizenships." (Thomasville Doc. 168 at p. 33.) The District Court found that the testimony it struck "set[ ] forth few details signaling trustworthiness." Id. at 27. The District Court cited more details than need be recounted here showing exactly the opposite, including the print date of a document relied upon being "well after" the date of the testimony for which it purportedly had been reviewed. Id. at 32. (Emphasis in original). Finally, the Court concluded that "myriad other issues. . lead the [District] Court to seriously question the accuracy and reliability of any of [the witness'] testimony" (Id. at 29) and the Court expressed frustration with the "hopelessly imprecise" terminology (i.e., "related entities") the Alliant witness used. Id. at 24. Finally, the Court observed that Alliant tried to use arguments in briefing as a substitute for certain essential testimony absent from the record. 12 -NO 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 183 of 228 Inc. 733 F.3d 1323, 1336 (11th Cir. 2013). In fact, if anything, the opposite is true. Courts generally give little weight to a party's profession of domicile as these declarations are often self-serving. Lustig v. Stone, 2017 U.S. App. LEXIS 2154 *3, 2017 WL 491149 (11th Cir. 2017) citing Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 (11th Cir. 2011). It is not unusual at the appellate stage of a proceeding for a federal court to reject even the joint jurisdictional blandishments of the parties. Morrison v. Allstate Indernn. Co. 228 F.3d 1255, 1261 (1 i th Cir. 2000). B. Alliant's submissions of August 2017 are inadmissible in evidence or are otherwise insufficient to establish complete diversity of parties. 1. Alliant has introduced contradictory and incomplete trust information. Brian Doran, Alliant's Rule 30(b)(6) witness, though ordered to testify about Alliant's ownership structure (Doc. 243), denied knowledge of the trustees and beneficiaries of trusts created for LK and RK. (Ex. "9;" Depo. of Doran of 9/3/13 at 144:16-146:14.) a. Declaration of PF (Doc. 576-18) PF, an officer of P.Corp, which claims that it is the trustee of the LK trust, testifies that LK was the sole beneficiary of the LK trust when this action was filed in 2011. (Doc. 576-18.) LK also initially testified about his 13 Case 1:11-cv-00832-RWS Document DocumenX 617 Filed 09/14/17 Page 14 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 184 of 228 state citizenship but this testimony omitted discussion of his trust. (Doc. 576-19.) Once required to file his trust instrument, LK does testify about his trust, and not only about his state citizenship. LK testifies not to one beneficiary, but four beneficiaries: JEK, MAK, JMK, and himself.13 (Doc. 602-58.) This Court's order that Alliant introduce the trust documents themselves had a remarkable effect: a declaration from a more knowledgeable person in August 2017 claiming four beneficiaries (Doe. 602-58), after the "less knowledgeable" person in May 2017 had affirmed under oath that there was only one beneficiary. (Doc. 576-18.) If ever called to account, the more knowledgeable witness testifying later can simply blame the changing story on the "ignorance" of the previous witness—if they care to explain the contradiction at all (which Alliant does not). This is not a "hedging" to avoid giving erroneous testimony. This is a "hedging" of the truth, that is, to see how little truthful information Alliant can impart before this Court (or the Eleventh Circuit) catches on. 'The LK trust instrument provides for "any one or more of the group consisting of the Donor's son [i.e., LK] with whose name such fund is designated, and any issue of the Donor's said son...." (Emphasis supplied.) (Does. 602-58, 602-1, 602-2 at p. 2.) 14 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 185 of 228 b. Declaration of SK (Doc. 602-1) SK is the "donor" of the LK and RK trusts. SK identifies, and testifies that he "signed," these two intrafarnilial inter vivos trusts originating in the 1970s, each arising from a separate original instrument. (Does. 602-1, 602-2, 602-3.) SK does not say who "created" them. He further names three beneficiaries. (Id.) SK professes no knowledge of the trusts he signed, nor of their management or administration. SK does not indicate whether, between 1972 and 2011, there were any amendments to these LK and RK trust instruments which could affect the identity of trust beneficiaries, i.e., to expand the class of beneficiaries and therefore the number of constituents of the Alliant Plaintiffs' ownership structure. SK's testimony is that the original LK trust remained "in effect" when this action was filed in 2011. SK does not testify about the trust document of RK being "in effect" in 2011 or at any other time. (Id.) As to LK, this does not rule out the possibility of amendments additionally being "in effect." Amendments are specifically contemplated by the trust instruments. See, e.g., (Does. 602-2, pp. 6-7 and 602-3, pp. 6-7). Further, the original trustees are named in the LK and RK trust instruments of 1972 (Does. 602-2, p. 14, 602-3, p. 14), and they are not P. Corp., which 15 Case 1:11-cv-00832-RWS Document Documen1 617 Filed 09/14/17 Page Page 16 16 of 36 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 186 of 228 claims it was the Trustee in 2011. (Does. 576-16, 576-18.) A change of trustees suggests omitted trust amendments. Yet omitted amendments are not discussed (or, as mentioned, in evidence). SK attaches the LK and RK trust document copies filed with blacked out areas, which this court indicated is permissible provided that beneficiary information is not included within the areas blacked out. (Doc. 596 at 6.) SK provides no assurance through his testimony that the redactions do not conceal beneficiary or other Alliant plaintiffs' constituent information, or that the type of trust in question is a "traditional" trust (rather than one with different attributes that may involve a different analysis under the diversity statute). The Statements of Citizenship reflects the names of a limited number of beneficiaries (Doc. 603, p. 17), but not the sworn testimony. This has been a recurrent issue.' 4 Finally, the trusts are intrafamilial, but testimony is so sparse that whether SK remains in close enough contact 45 years later to know about how many children (beneficiaries) LK and RK have (or not) is not spelled out. Nor is there anything ruling out children—or (in trust language) 14 Thomasville Order at 24, i.e., Alliant Tax Credit Fund XVI, Ltd., et al. v. Thomasville Community Housing, LLC, U.S.D.C., N.D.Ga. (October 25, 2016) (Doc. 168). 16 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 187 of 228 "issue"—from past relationships. The most basic testimony about SK's personal knowledge of the state of family as of 2011 is not shown, whether acquired by maintaining a close family relationship, by trust administration or management, or otherwise, is not shown. The SK testimony about the number of beneficiaries and prospective beneficiaries is objectionable under Fed.R.Evid. 602, 2. Brian Doran omitted four of at least six partners of Alliant Tax Credit Fund XI, Ltd. from his 2013 deposition. Brian Doran was asked to identify all components of Alliant Tax Credit Fund XI, Ltd. as of March 17, 2011. (Ex. "9;" Doran depo. at 123:21-135-21.) One of them was 111.111.11111111111111„ Ltd. As mentioned, he further omitted at least four additional partners, the assets of one of which is or was in FDIC receivership Bank, N.A.) See, e.g., (Doc. 603 at p. 17.) Alliant first mentioned, Ltd. when the Eleventh Circuit raised a Jurisdictional Question. See, e.g., (Doe. 603 at p. 17). Alliant, specifically, provided no explanation for omitting these partners from the record over the years. There are at least two possible explanations for this: (1) to obscure the role of the FDIC receivership—the FDIC is well known to be stateless — over at least one of Alliant's banking 17 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 188 of 228 partnerships or (2) to obscure Georgia citizenship, or lack of state citizenship, of additional and undisclosed Alliant partners. Alliant has done exactly that in the instance of Alliant Tax Credit Fund 31-A, Ltd. 3. Alliant obscured FDIC receivership involving a partner in Alliant Tax Credit Fund XI, Ltd. In May 2017, Alliant filed a declaration from of, in this action, where he testified that as of the date this action was initiated: "111111111111111111111111111111111 was a limited partner of Alliant Tax Credit Fund, XI, Ltd., having acquired the assets formerly owned by Bank, F.S.B." (Doc. 576-20.) There is also no closing date set out. Or if transferred its interest in this particular Alliant partnership to one of its banking entities, or to a subsidiary. In August 2017, Alliant similarly described the complicated history of Alliant Tax Credit Fund. XI, Ltd. partnership shown above, Alliant simply responded: " subsequently failed and entered receivership, whereupon its assets were acquired by as of (Doc. 603 at p. 2.) Neither account mentions anything about any entity, its bankruptcy, or the FDIC. 18 Case 1:11-cv-00832-RWS Document Documeni 617 Filed 09/14/17 Page 19 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 189 of 228 a. This is a diversity action, and not a federal question action. The purpose of the inquiry before this Court is to determine diversity jurisdiction within the meaning of 28 U.S.C. § 1332. This Court has observed that this is not additionally a federal question action under 28 U.S.C. § 1331.15 (Doe. 331 at p. 9, fn 2.) b. ank, FSB was a limited partner within the ownership structure of Plaintiff Alliant Tax Credit Fund Xi, Ltd. -based Bank, FSB was once a limited partner of Alliant Tax Credit Fund XI, Ltd. (Does. 576-20, 576-6 at pp. 5-6.) c. acquired the assets of ank in MI As Alliant correctly reports, "1111111111111acquired the assets of Bank, FSB (Doc. 603 at p. 2.) d. was closed by the FDIC in and the FDIC contracted to sell its assets to Alliant further reports: " subsequently failed and entered receivership, whereupon its assets were acquired by 15Additionally, no federal jurisdiction in this action for the reason of FDIC being a party. See Star Home Builders, Inc. at *14 at fn 5, citing 28 U.S.C. § 1819. 19 Case 1:11-cv-00832-RWS Document Documen1 617 Filed 09/14/17 Page 20 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 190 of 228 as of (Citations omitted; Emphasis supplied.) Supp. Stint. of Citizenship for Alliant Tax Credit Fund X7, Ltd. (Doc. 603 at p. 2.) The receiver was the FDIC. (Doc. 60230.) The source of this information is 's 10-K form filed with the Securities and Exchange Commission for year I This 10-K form reflects that this report "includes subsidiaries." But nothing shows when owned this asset or claim to the partnership free and clear of FDIC receivership. e. filed a Chapter 11 bankruptcy case in After the FDIC became receiver of 1111111111111111M its holding company, immediately filed for '6Admission is sought of the publications cited here and below as provided in Fed.R.Evid. 201(B)(2) and 803(17) and (18). SEC.gov, 11111111111111, Form 10-K IN https://www.sec.gov/Archives/edgar/data/933136/000110465907015590/a07 -3851 110k.htm, retrieved on 8/19/2017. See also BusinessWire, 20 g 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 191 of 228 Chapter 11 bankruptcy reorganization (this case remains open)." All sales of assets, the receiver appointment, and s Chapter 11 filing all took place within two days. As the FDIC points out, "the interests of equity, debt holders or other creditors of Illare not included in the closure or receivership of Mt18 It is noteworthy that the bankruptcy court did not confirm the debtor's1111114mended Plan until.. approving a settlement agreement allowing certain financial transactions, which was 111111111111after this action was filed.'9 And there would be no reason for "In re, U.S. Bankruptcy Court for the ill11111111111111111M1111111 18 Federal Deposit Insurance Corp., Failed Bank Information, Information for retrieved from on 8/19/2017. 1 g The commencement of a bankruptcy case creates an estate comprised of all the following property, wherever located and by whomever held which includes all legal or equitable interests of the debtor in property. The bankruptcy court has exclusive jurisdiction over estate property and to decide what is and is not estate property. The miscellaneous and other assets of were found to be part of MI bankruptcy estate. In re citing 1., • Bank ru tc Court found that it had jurisdiction to confirm 1111111..1111 's Chapter 11 Plan. Id With court approval, a receiver may compromise claims for and against the estate, Id. at NM (As a result of this bankruptcy case, there is little or no litigation elsewhere where 21 Case 1:11-cv-00832-RWS Document Documeni 617 Filed 09/14/17 Page 22 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 192 of 228 FDIC to continue as receiver today if it has already transferred title to all assets of the former, free and clear of that receivership. f. The FDIC receivership has not terminated. The FDIC receivership of assets of the former has been continuous since III and, as mentioned,20 appears to be ongoing to this day, there being no sign of termination. If Alliant had some indication that s partnership interest in Alliant Tax Credit Fund XI, Ltd. was finally clear of FDIC receivership, they would not only have volunteered the fact of the FDIC receivership (which, as mentioned, Alliant did not do), but they would have shown how and when it terminated. g. The FDIC was the real party in interest. It is settled that representatives may stand upon their own citizenship in the federal courts irrespective of the citizenship of the persons whom they is a party.) Several principals, including the receivership arm of the FDIC and JP Morgan Chase Bank, N.A. contested the ownership of $20B in. assets. These principals settled. After a neutral evaluation of the fairness of this settlement, the Bankruptcy Court confirmed the s Plan ink and this confirmed Plan incorporated the settlement, zo FDIC.gov, "Status of " last updated ®/ l6. Link: etrieve 22 Case 1:11-cv-00832-RWS Document Documen1 617 Filed 09/14/17 Page 23 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 193 of 228 represent, such as executors, administrators, guardians, trustees, receivers, etc. Nunn v. Feltinton, 294 F.2d 450, 453 (5th Cir. 1961), citing City of New Orleans v. Gaines' Administrator, 138 U.S. 595, 606 (1891) and Commercial Bank v. Warthen, 119 Ga. 990, 47 S.E. 536, 537 (1904). See also Mitchell v. Maurer, 293 U.S. 237, 55 S. Ct. 162, 79 L.Ed. 338 (1934). h. The FDIC is stateless for diversity jurisdiction purposes. The FDIC is a federally-chartered corporation. Federally chartered corporations, in general, are not citizens of any state for purposes of diversity of citizenship. The presence of a federally chartered corporation as a party to a suit thus destroys complete diversity. Courts have generally concluded that, where the FDIC is a member of an LLC or a member of an LLCs member, the LLC will be deemed "stateless" and diversity jurisdiction will not exist. Orchid Quay, LLC v. Suncor Bristol Bay, LLC, 178 F. Supp. 3d 1300, 1307 n.8 (S.D. Fla. 2016), citing RES-GA Creekside Manor, LLC v. Star• Horne Builders, Inc., Civil Action No. 2:10-CV-207- RWS, 2011 U.S. Dist. LEXIS 138676, 2011 WL 6019904, at *3 (N.D. Ga. Dec. 2, 2011) (Court dismissed action for lack of complete diversity, and in footnote discussed FDIC existing within membership structure of plaintiff LLC, but receivership status of FDIC did not appear to factor into dismissal.) But see Bank of the Ozarks v. IS Motel Corp., No. 4:12-CV- 23 1 -NO Documerit 617 Filed 09/14/17 Page 24 of 36 Case 1:11-cv-00832-RWS Document Case: 15-14634 Date Filed: 12/18/2017 Page: 194 of 228 0024-HLM, 2012 U.S. Dist. LEXIS 55661, at *6 (N.D. Ga. Apr. 2, 2012)(Defense motion to dismiss denied because nature of FDIC's receivership relationship to plaintiff for purposes of establishing diversity of parties, though FDIC is "stateless," was not established by admissible evidence.) See also DeWeese v. JPMorgan Chase Bank, NA., No. 2:13-CV- 00059-RWS, 2013 U.S. Dist. LEXIS 166925, at *2 (N.D. Ga. Nov. 25, 2013), Purchase agreement at (DeWeese Doc. 4-3), for background. 4. Alliant's evidentiary submissions contain inadmissible evidence. The remainder of this briefing, until the Conclusion, is devoted to the admissibility of certain evidentiary submissions, including documentary anomalies, and what weight they should receive. Shawn D. Horwitz declaration (Doc. 602-4.) The Declaration of Shawn Horwitz, and the documents the Alliant Plaintiffs filed in May 2017 and August 2017 to try to show complete diversity of citizenship, does not set out evidence sufficient to show that the respective ownerships of the five Alliant plaintiffs are comprised of a limited number of constituents. (References shown in captions to subparts are to paragraph numbers.) Shawn Horwitz, acting as president of Alliant, Inc. in its Woodland Hills, California headquarters, appears to have been the source 24 -NO 1 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 195 of 228 (or a source) of information for the Alliant Plaintiffs' Rule 30(b)(6) witness Brian Doran. (Ex. "9;" Depo. of Doran of 9/3/13 at 122:18-20; 145: 7-20.) a. Alliant Tax Credit 31, LLC (11 4) does not introduce documentary proof of single-member status. Alliant Tax Credit 31, LLC is one of three Alliant Plaintiffs; all of them are limited liability companies that began as corporations. The Court made it clear that it is unwilling to accept testimony alone to support a Alliant's citizenship allegations regarding limited liability companies, which is why it requires current documents. (Doc. 596 at pp. 4-5.) Plaintiff Alliant Tax Credit 31, LLC claims to be comprised of only one member, which is not required to have an operating agreement. See (Doc. 602 at pp. 1-3). Mr. Horwitz testifies that there is no operating agreement, but that he did sign the conversion certificate. This testimony, by itself, puts the Court right back in the position of being asked to "believe" testimony of how many LLC members there were, though it is documents this Court is specifically requiring. With no "operating agreement," the next best thing to prove single member LLC status in 2011 would be a shareholder registry, share certificates or other documentation showing that there had only been one shareholder in the pre-conversion Alliant Tax Credit 31, Inc.—which would 25 -NO 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 196 of 228 be the logical precursor to a converted single-member LLC—but Alliant does not do so. The conversion certificate does not contain this information and would be inadmissible hearsay if offered for this purpose anyway.21 Mr. Horwitz testifies that as to Alliant Tax Credit 31, LLC "no members have been admitted...in addition to Alliant Capital, Ltd." The documentation the Court is requiring to show that there was only one single member in Alliant Tax Credit 31, LLC at time this action was filed is not present here; no document shows only one shareholder in the original corporation at time of conversion to LLC. Additionally, Plaintiff Alliant Tax Credit XXVII, though likewise purporting to be a single-member LLC, does introduce what Mr. Horwitz claims is its operating agreement. (Doc. 602-6.) b. Alliant Tax Credit XXVII, LLC (11 5), claiming to be a single member LLC, does not rule out additional members. Mr. Horwitz claims that Alliant Tax Credit XXVII, LLC was a single- member LLC when formed in 2008 and that it has not added additional members through the 2011 date of this action. That the operating agreement he points to as an exhibit "remained in effect" for a particular time frame The conversion certificate itself (Doc. 576-5) is inadmissible hearsay for purposes of proving the truth of whatever statements appear therein, and is also not the best evidence. Fed.R.Evid. 803 and 1001, et seq. Nor do Mr. Horwitz or Ms. Balderrama affirm the truth of the statements appearing in the certificate of conversion. 26 -NO 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 197 of 228 does not itself rule out additional members. Mr. Horwitz does not explain how he can be positive of this, and nor does his testimony rule out the new members being added without his personal approval. He may have achieved the same thing by testifying that only he could execute a document adding or changing the LLC membership—which is possible—but he did not so testify. This testimony lacks foundation and is inadmissible as provided in Fed.R.Evid. 602. It is difficult enough to prove a negative (i.e., the absence of a change of membership in small, dynamic, companies over perhaps eight years). It does not help Alliant's cause that a number of the operating and partnership agreements Alliant claims were still current in March 2011 do not reflect recent Alliant company business and date back to around 2002 or 2003, leaving this Court no alternative but to rely on Alliant's witnesses (or not) that there is nothing more recent, with no witness credibility to draw upon. See, e.g., (Does. 602-8, 602-9 and 602-10). The "page numbering issue" The operating agreement Exhibit Mr. Horwitz refers to (Doc. 602-6) for Alliant Tax Credit XXVII, LLC is objectionable, for the reasons following. Pages 1 and 2 show page number footers rendered in Courier New font. Page numbers 6 and 7 are rendered in Arial font. If it is even possible to do so, it is exceedingly uncommon for the page 27 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 198 of 228 numbering font within a single document to be internally inconsistent.22 (Compare (Doc. 576-7), where all page numbers throughout the document are rendered in the same Arial font.) Nothing else within the document directly ties pages 1 and 2 to pages 6 and 7. (Pages 3, 4 and 5 are wholly redacted (permissibly) or at least not filed.) This Exhibit is most likely either a hybrid of two separate documents, or perhaps a later revision tacked onto an earlier one. There is a trustworthiness problem for reasons of disorder (or personal knowledge of the witness). There is nothing from Alliant remotely approaching an explanation, nor anything else suggesting meaningful review. The witness provides no assurance through his testimony that redactions do not conceal membership or other Alliant plaintiffs' constituent information. This exhibit is inadmissible hearsay not compliant with the business records exception appearing at Fed.R.Evid. 803(6). This document is likewise inadmissible due to issues with relevance and authenticity. Fed.R.Evid. 401 and 901. 22Courier New font numerals are rendered as 1, 2, 3, 4, 5, 6, 7, 8, 9 and O. Arial font numerals are rendered as 1, 2, 3, 4, 5, 6, 7, 8, 9 and 0. 28 Case 1:11-cv-00832-RWS Document DocumeRt 617 Filed 09/14/17 Page 29 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 199 of 228 c. Alliant Tax Credit XI, LLC (If 7), claiming to be a single member LLC, does not rule out additional members. Mr. Horwitz's testimony supporting the claim that Alliant Tax Credit XI, LLC is a single member LLC is inadmissible for the same reasons shown in Subpart b. above. Fed.R.Evid. 602. The accompanying exhibit (Doc. 602-7) is inadmissible hearsay not compliant with the business records exception appearing at Fed.R.Evid. 803(6) due to the same anomalies discussed at length in Subpart b. above, including page numbering. This document is likewise inadmissible due to issues with authenticity and relevance. Fed.R.Evid. 901. d. The 11.111 Company, LLC (¶ 12), claiming to be a single member LLC, does not rule out additional members. Mr. Horwitz's testimony supporting Plaintiffs' claim that The im Company LLC is a single member LLC is inadmissible for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. e. Alliant Tax Credit Fund XXVII, Ltd. elf 6) does not rule out additional partners. Mr. Horwitz's testimony supporting the claim that Alliant Tax Credit Fund XXVII, Ltd. was comprised of a specified and limited number of partners is inadmissible for the same reasons shown in Subpart b. above 29 1 Documerd 617 Filed 09/14/17 Page 30 of 36 1:11-cv-00832-RWS Document Case 1:11-cv-00832-RWS Case: 15-14634 Date Filed: 12/18/2017 Page: 200 of 228 (excluding page numbering). Fed.R.Evid. 602. Objections to the exhibit were filed in May 2017. The copy filed in May 2017 is missing many pages though this Court did not grant Alliant leave to redact partnership agreements. (Doc. 596 at p. 4.) f. Alliant Tax Credit Fund XI, Ltd. includes partners not identified before 2013. Because Mr. Horwitz's testimony supporting the claim that Alliant Tax Credit Fund XI, Ltd. was comprised of a specified and limited number of partners is inadmissible for the foregoing reasons set out in this Subpart f., and also for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. Objections to the supporting exhibit (Doc. 576-6) were filed in May 2017. The copy filed in May 2017 is not intelligible as nearly all of its content is missing or redacted, though this Court did not grant Alliant leave to redact partnership agreements. (Doc. 596 at p. 4.) 30 • 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 201 of 228 g. Alliant did not reveal the existence of Ltd. (If 9) until this jurisdictional question. As mentioned, Kathleen Balderrama, by her Declaration of 2017 (Doc. 576-1) testified and introduced documents (Doc. 576-6) for the first time establishing the partnership of, Ltd. in the ownership structure of Alliant Tax Credit Fund XI, Ltd., in spite of jurisdictional discovery sought and other documents Alliant produced in 2013. Mr. Horwitz's testimony supporting the claim that 111111111111111111 115111, Ltd. was comprised of a specified and limited number of partners is inadmissible for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. The exhibit copy filed in May 2017 (See, e.g., 576-10, 602-10, 602-11 and 602-12) is missing pages though this Court did not grant Alliant leave to redact partnership agreements. (Doc. 596 at p. 4.) Fed.R.Evid. 901. h., Ltd. (¶ 10) does not rule out additional partners. Mr. Horwitz's testimony supporting the claim that Ltd. was comprised of a specified and limited number of partners is inadmissible for the same reasons shown in Subpart b. above (excluding 31 Document 617 Filed 09/14/17 Page 32 of 36 Case 1:11-cv-00832-RWS DocumeRt Case: 15-14634 Date Filed: 12/18/2017 Page: 202 of 228 page numbering). Fed.R.Evid. 602. The exhibit copy filed it.. May 2017 (See, e.g., 576-7) is missing pages though this Court did not grant Alliant leave to redact partnership agreements. (Doc. 596 at p. 4.) Fed.R.Evid. 901. i. The NMI Company, LLC 12), claiming to be a single member LLC, does not rule out additional members. Mr. Horwitz's testimony supporting Plaintiffs' claim that The IIEM Company LLC is a single member LLC is inadmissible for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. j. Associates, LLC (IT 13), claiming to be a single member LLC, does not rule out additional members. Mr. Horwitz's testimony supporting Plaintiffs' claim that NM Associates, LLC has the number of members claimed is inadmissible for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. Declarations of SK and JJ k. SK's testimony about company, Partnership, LP (Doc. 602-15) does not rule out additional members. SK's testimony supporting Plaintiffs' claim that Partnership, LP has the number of members claimed is inadmissible for the 32 Case 1:11-cv-00832-RWS Document Documeni 617 Filed 09/14/17 Page 33 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 203 of 228 same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. 1. JJ's testimony about company LLC (Doc. 602-20) does not rule out additional members. JJ's testimony supporting Plaintiffs' claim that LLC has the number of members claimed is inadmissible for the same reasons shown in Subpart b. above (excluding page numbering). Fed.R.Evid. 602. Declaration of Brian Netter (Doc. 602-27) The Alliant Plaintiffs' attorney Brian Netter executed and filed a Declaration seeking to admit printouts from various state and federal government websites, and from banks, corporations, California real estate records and voting records. First, Mr. Netter urges that this Court take judicial notice "of this declaration" and all of his filings. (¶ 4.) This is objectionable. Very briefly, none of the matters sought to be proven by judicial notice are "conclusive," simply for the reason that Alliant elected to copy, compile and file these documents, or have one of their lawyers testify about them. Fed.R.Evid. 201(f). More specifically, none of the facts sought to be proven by judicial notice are of common knowledge within this judicial district. Fed.R.Evid. 201(b)(1). Additionally, none of the facts sought to be proven a "can be 33 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 204 of 228 accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Very briefly, each piece of evidence Alliant asks this Court to take judicial notice of may be (1) subject to change because of facts or additional details that have arisen since the information sought to be admitted originated; and (2) subject to contrary evidence, or of such a nature that additional evidence may shed additional light. Fed.R.Evid. 201(b)(2). A snapshot is only accurate as of the time and subject matter it covers. Second, Mr. Netter attaches a document from the National Information Center of the Federal Reserve. (Doc. 602-31.) This correctly reflects the widely known closing date of (about)IIIIIIIIIand the eventual acquisition of banking assets of by. This document is not the best evidence of when the Alliant Tax Credit Fund XI, Ltd. partnership interest—once owned was released from the by111111 FDIC receivership, as more detailed evidence already discussed in this brief illustrates the same issue in greater detail. See, e.g., Fed.R.Evid. 1008 (c), et seq. Third and finally, the complaint from an unrelated lawsuit apparently not involving any party to this lawsuit (Doc. 602-36) is irrelevant and inadmissible hearsay. Fed.R.Evid. 401 and 801(c). 34 Case 1:11-cv-00832-RWS Document Documeni 617 Filed 09/14/17 Page 35 of 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 205 of 228 CONCLUSION This Court correctly found that Alliant's evidentiary submissions of May 2017 did not establish diversity subject matter jurisdiction by a preponderance of the evidence. Alliant's supplemental documents filed in August 2017 are insufficient to change this Court's conclusion. Alliant has not confirmed by trustworthy means, as it was ordered to do (1) that all persons, partnerships and entities relevant to analysis of Alliant's citizenships have been accounted for, and (2) that accuracy of citizenship of every constituent for purposes of this analysis, that is, to confirm that no constituent partners, members, corporations, or individuals are neither "stateless" nor Georgia citizens. At some point the various iterations of Alliant's testimony must come to rest. This action must be dismissed for these reasons and for the reasons shown in this Court's Order ofJuly 31, 2017. (Doc. 596.) Date: September 11, 2017 Isl Shawn M. Winterich The Winterich Law Firm, LLC State Bar No. 771030 P.O. Box 71203 Marietta, GA 30007-1203 404 668-7766 swinterich@winterichlaw.com 35 Document 617 Filed 09/14/17 Page 36 of 36 Case 1:11-cv-00832-RWS Documen1 Case: 15-14634 Date Filed: 12/18/2017 Page: 206 of 228 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND I Case no.: 1:11-CV-0832-RWS 31, LLC, et al. I I Plaintiffs, I I vs. I I M. VINCENT MURPHY, III, et I al., I Defendants.I I CERTIFICATE OF SERVICE I CERTIFY that on today's date the foregoing RESPONSE BRIEF AND OBJECTIONS OF DEFENDANT MARILYN W. MURPHY TO SUPPLEMENTAL CITIZENSHIP MATERIALS OF PLAINTIFFS was filed with the Clerk of Court using the Court's CM/ECF system, which automatically sends email notification of this filing to all parties of record. Pursuant to LR 7.1 D, I further certify that the foregoing complies with the font and point selections approved by this Court in LR 5.1B. The foregoing was prepared with use of Microsoft Word software, using a 14-point Times New Roman font. Date of service: September 11, 2017 Is! Shawn M Winterich 36 Case: 15-14634 Date Filed: 12/18/2017 Page: 207 of 228 TAB 627 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 208 of 228 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND 31-A,) LTD., et al.,)) Plaintiffs,) Civil Action File v.) No. 1:11-CV-0832) Hon. Richard W. Story M. VINCENT MURPHY, III,) et. al.,)) Defendants.) RESPONSE BRIEF OF DEFENDANTS M. VINCENT MURPHY, III, COMMUNITY MANAGEMENT SERVICES, INC., AND MULTI FAMILY HOUSING DEVELOPERS, LLC TO PLAINTIFFS' SECOND SET OF SUPPLEMENTAL STATEMENTS OF CITIZENSHIP BACKGROUND This is the Plaintiffs' ("Alliant's") third attempt to establish diversity jurisdiction in this case.1 It was mandated by the Court's ultimatum to cure deficiencies in its previous filings. As per Alliant custom, it is cloaked in redactions, and buried in a half-thousand pages of doubtful provenance. As a result, it is impossible to determine, with any degree of reasonable certainty, whether it is complete, much less truthful. 1 The first was Alliant's Response to the Jurisdictional Question in the Eleventh Circuit, which was insufficient and lead to the Remand Order. The second was Alliant's response to this Court's Order dated April 17, 2017. [Doc. 568]. 1 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 209 of 228 As the Court will recall, Alliant was also ordered to provide jurisdictional discovery prior to the trial of this case, due to Defendants' awareness of jurisdictional issues in other Alliant cases. In response to Defendants' requests for more accurate information, Alliant stated to this Court that the Defendants had "more than sufficient documents and testimony" to determine Alliant's organizational structure. [Doc. 289, p. 6]. It is now clear that Alliant's statement was false, by at least 500 pages. Following a remand Order from the Eleventh Circuit, this Court recognized that in fact Alliant's submittals were not sufficient, and more importantly noted that Alliant had "not been candid" in its filings. [Doc. 596]. Accordingly, the Court issued an Order which explained in painstaking detail the type of documents that would suffice. Faced with imminent dismissal, Alliant deluged the Court with 500 pages of previously undisclosed information. This is the same strategy that Alliant's parent (The Alliant Company) employed – albeit unsuccessfully — in the Thomasville case 2: to dole out snippets of information for as long as the Court will tolerate. The Thomasville court condemned this tactic as "sand-bagging", and dismissed the case for lack of jurisdiction. 2 See, Alliant Tax Credit Fund XVI, et al. v. Thomasville Community Housing, LLC, et al. N.D. Ga. Case No. 11-cv-02234 (the "Thomasville case"). 2 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 210 of 228 In some respects, Alliant's conduct in this case is more egregious than its conduct in the Thomasville case, first because the issue of diversity was raised prior to trial, and second because it has repeated the same tactics that the Thomasville Court abjured. It has also employed tactics that this Court has sanctioned. In the case at bar, this Court issued a specific Order requiring full disclosure of jurisdictional information, as noted above. When served with a 30(b)(6) notice regarding Alliant's citizenship structure, Alliant produced a witness, Mr. Doran, who did not possess the requisite knowledge, and in fact provided incomplete information as discussed in the Marilyn Murphy Brief and incorporated by reference. When Defendants later learned that Mr. Doran was being improperly compensated with a 5% contingency fee interest in the case, they objected strenuously, and he did not appear at trial (Mr. Horwitz did). In the case at bar, Alliant has also attempted to authenticate documents with witnesses who lacked knowledge, despite being expressly criticized for this practice in the Thomasville case, and with full knowledge that Mr. Horwitz is a more knowledgeable source of information. Lastly, Alliant has again submitted filings with the same sort of discrepancies and omissions that resulted in dismissal in the Thomasville case, as discussed below. 3 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 211 of 228 FACTS Defendants incorporate by reference the Statement of Facts submitted by Defendant Marilyn Murphy in her Response to Plaintiffs' Second Set of Supplemental Statements of Citizenship ("Marilyn Brief"). As shown by the Marilyn Brief, a key issue in this matter is Alliant's lack of disclosure (i.e., concealment) of the partners of Alliant Tax Credit Fund XI, Ltd. ("Fund XI"). Of particular concern is when and how became a limited partner in Fund XI. From the documents submitted, it appears that acquired its interest from while it was subject to the bankruptcy estate of the largest bank failure in American history. In re U.S. Bankruptcy Court, District of Delaware, These bankruptcy proceedings continued long past the date this lawsuit was filed (March 2011). So far as Defendants can determine from the mass of documents submitted, there is no evidence to show what assets allegedly acquired from; or, for that matter, that even had an interest in Fund XI at the time of its bankruptcy/receivership. In any case, the evidence does not establish that owned an interest in Fund XI at the time its assets were allegedly conveyed to. 4 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 212 of 228 It also appears that the FDIC may still have been the legal owner of Fund XI at the time this action was filed. If so, diversity jurisdiction did not exist, because FDIC is a stateless entity. 3 This issue is discussed more fully in the Marilyn Murphy Brief and incorporated by reference. What is important to the instant dispute is the fact that Alliant did not fully disclose the identity of and several other limited partners, when ordered to do so by this Court in 2013. As discussed in the Marilyn Murphy Brief, Alliant was at best misleading, if not deceptive, about acquisition of its interest. For example, the declaration of Mark Lenhardt misleadingly states that "acquired the assets formerly owned by " [Doc. 576-20]. This statement contains no mention whatsoever of the intervening interests of and/or the FDIC, and falsely implies that obtained its interest directly from CCB. The Declaration of Kathleen Balderrama is similarly uninformative. [Doc. 576-1 at ¶ 7.] Alliant also filed its first set of documents to prove jurisdiction and attempted to authenticate them through its General Counsel, Katie Balderrama. This was the same procedure that the Thomasville Court rejected when Alliant attempted to authenticate its submissions through the CFO of a "related" entity, 3 As the Court will recall, Alliant dismissed Gazebo Park because it too was a stateless entity. It's not unlikely that Alliant's concern for this issue caused it to conceal the full provenance of interest in Fund XI. 5 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 213 of 228 Mr. Melvin Gevisser. The Thomasville Court found that Mr. Gevisser lacked sufficient knowledge to authenticate the pertinent documents. In the case at bar, this Court presumably reached a similar conclusion about Ms. Balderrama, which is why it ordered Alliant to produce additional documents. Only after its previous attempts to prove documents through unqualified witnesses (Gevisser, Doran, and Balderrama) had proved unacceptable, did Alliant at last provide a Declaration from its chief officer, Mr. Shawn Horwitz. Defendants therefore submit that Alliant should have designated Mr. Horwitz for deposition, not Mr. Doran, back in 2013. This conduct is similar to the conduct that was sanctioned by this Court in the recent case of Consumer Finance Protection Bureau v. Universal Debt Solutions, LLC, et al., C.A. No. 15CV99859 [Doc. 436] (plaintiffs failed to produce knowledgeable witnesses at a Court-ordered discovery deposition; Court dismissed case as a discovery sanction) (the "CFPB" case). Alliant also failed to provide paper documents at Mr. Doran's deposition, regarding Alliant's organizational structure, as required by subpoena. Instead, Mr. Doran produced a diskette that could not be utilized at the deposition and was therefore useless. This too is the type of evasive conduct that was sanctioned by this Court in the CFPB case. Lastly, Alliant has redacted many of the supplemental documents provided, without any indication as to the nature of the redacted information, or even a 6 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 214 of 228 perfunctory assurance that it isn't material. Consequently, there is no way to determine whether the redacted information includes evidence pertaining to persons or entities that are non-diverse. The Declaration of Sidney Kohl states that did not have any descendants on March 17, 2011. [Doc. 602-1, ¶ 7]. There is no foundation for this assertion. By its nature, it is either hearsay (via) or lacks personal knowledge, as there is no other way Mr. Kohl would know how many offspring his son had sired. In addition, the Trust Agreements are heavily redacted, at pp. 21-22. [Docs. 602-2, 602-3]. Consequently, it is impossible to determine whether they accurately disclose all beneficiaries. Defendants therefore object to these documents. Fed. R. Evid. 802, 602. The Declaration of Shawn Horwitz [Doc. 602-4] contains numerous discrepancies and anomalies. At Paragraph 5 he purports to authenticate a portion of the Operating Agreement for Alliant Tax Credit XXVII, LLC. [Doc. 602-6]. However, this document is incomplete and there is no assurance that the missing pages do not pertain to membership issues. In addition, the page numbers clearly appear to be from different documents (the pagination numerals on pp. 1 and 2 are smaller than the numbers on pp. 6 and 7 and appear to be a different font). This unexplained anomaly—though arguably minor — casts doubt on the authenticity of the document. It might be a composite of other documents and not 7 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 215 of 228 genuine at all. Also, Mr. Doran testified that Alliant has over 6,000 different 4 partners. Therefore it is possible, if not likely, that Mr. Horwitz does not have personal knowledge of Alliant's hundreds of different limited partnership agreements, not to mention the countless amendments with unexplained irregularities, which are discussed below. In his artful recitals about having "access" to various books and records, Mr. Horwitz notably does not state how or why, or even if he has knowledge of their actual contents. However, common sense suggests that the President of such a large company, with hundreds of different limited partnership agreements and amendments, would not have the time, or any reason whatsoever, to be familiar with the contents of so many documents. That is typically a job for the Secretary, or even an administrative person. This is but one of many reasons that Defendants have asked for the right to take depositions. As discussed in the Marilyn Murphy Brief, Alliant has repeatedly made false claims of diversity jurisdiction, in at least three different Federal Courts, and possibly four, if you include the Thomasville case. One or two misstatements could perhaps be chalked off to carelessness; but three or four such misstatements, in three or four separate actions, can only be viewed as a reckless disregard for the truth, if not outright dishonesty. 4 Doran deposition at p. 118. 8 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 216 of 228 At Paragraph 8 Mr. Doran states that he is the President of Alliant Capital, Ltd., which is the General Partner of Alliant Tax Credit Fund XI, Ltd., and therefore he has "access" to the books and records of Alliant Tax Credit XI, Ltd. [Doc. 602-4, ¶ 8]. Upon this slim foundation, he claims to have "personal knowledge" that its Amended and Restated Agreement of Limited Partnership ("Amended LPA") remained in effect as of March 17, 2011, and that there was no intervening change in the identity of its members. However, he does not state what books and records he reviewed, or whether they are regularly maintained, or any of the other essential indicia of reliability set forth in Fed. R. Evid. 803(6). Because of Alliant's history of false statements in this and other Courts (outlined in detail in the Marilyn Murphy Brief), and the irregularities stated above, Defendants object to the statements in Paragraph 8 of Mr. Horwitz' Declaration. Fed. R. Evid. 802, 602. Another unexplained irregularity appears in the amended LPA, which states at Paragraph 1.3 that the names of the partners are set forth in the "Partnership Register". So does the attached Schedule A. [Doc. 602-8]. However, Alliant failed to submit the Partnership Register, or account for its absence. For this reason as well, Defendants object to Paragraph 8 of the Horwitz Declaration. Fed. R. Evid. 802, 602. 9 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 217 of 228 Document 602-9, apparently relied upon by Mr. Horwitz, is also infected with irregularities and anomalies. It is purportedly a "First Amendment" to the LPA, but Document 602-8 is also designated as an "Amended" version. Therefore 602-9 is actually the second amendment to the LPA, and possibly the third or fourth. We don't know. There is no explanation for this misnomer, and no way to know short of a deposition. Because Alliant swaps its partners like musical chairs, this is a significant concern, and creates significant doubt as to the existence of other amendments that were not disclosed, with still more undisclosed partners. This is why Defendants asked for audited financial statements as the most reliable evidence of Alliant's partnership structure at the time suit was filed, but none were produced. Document 602-9 also contains pagination discrepancies. The document attached as "Schedule A" bears a footer with the designation "4483118-2"; whereas the other pages of the document have different footers, which state "483118-2.DOC". Similarly, the first page of the document is paginated as "1" at the bottom of the page; whereas the other pages have no pagination numbers at all. These discrepancies may be entirely innocent, or they could be badges of fraud on the Court. Whatever the reason, Alliant either ignored or simply chose not to explain them. Therefore the documents are not trustworthy. They suggest that 10 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 218 of 228 the purported Schedule A was submitted at a different time and possibly even from a different document altogether. At Paragraph 11, Mr. Horwitz states that he is familiar with the corporate form "that has been employed by Alliant, Inc.", once again with no reference to any specific time frame. He concludes with the statement that Ex. P-8 is a correct copy of its Articles of Incorporation, and states vaguely that they "remain operative", whatever that means. Notably, he does not use the same language that he employed in every other paragraph, viz, that "there has been no intervening change" in the partnership status. Defendants therefore object to this paragraph on the ground that it lacks foundation and is too vague and ambiguous to prove the matter for which it is cited. Fed. R. Evid. 901, 602. At Paragraph 13, Mr. Horwitz states that he is the "Managing Member" of Palm Drive Associates, LLC. However, the attached document does not identify him as such. Other discrepancies are discussed in the Marilyn Murphy Brief, and incorporated by reference. Accordingly, Defendants object to the Declaration of Mr. Horwitz and ask that it be disregarded or stricken. ARGUMENT Defendants adopt and incorporate by reference Marilyn Murphy's Introduction regarding the standards for review of declarations and affidavits, and jurisdictional issues, at Section II (A). With respect to evidentiary matters, it is 11 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 219 of 228 well-settled that "Determinations of admissibility of evidence rest largely within the discretion of the trial court and will not be disturbed on appeal absent a clear showing of an abuse of discretion." Baylor v. Jefferson County Bd. of Education, 733 F.2d 1527 (11th Cir. 1984). Similarly, jurisdictional findings are reviewed for "clear error". Travaglio v. Am. Express Co., 735 F.3d 1266, 1270 (11th Cir. 2013). The clearly erroneous standard is "highly deferential" and requires the appellate Court to uphold the district court's factual determinations so long as they are "plausible in light of the record viewed in its entirety." Underwriters at Lloyds, London v. Ostwig-Schwin, 613 F. 3d 1079, 1085 (11th Cir. 2010). Even if there are two conflicting views of the evidence, ". . . the factfinder's choice between them cannot be clearly erroneous." Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1249 (11th Cir. 2005). See also Easley v. Cromartie, 532 U.S. 234, 237 (2001)(reviewing Court must have a "definite and firm conviction that a mistake has been committed.") Under these principles, the Court has discretion to view all of the jurisdictional evidence submitted by Alliant, and make factual determinations "so long as they are plausible in light of the record viewed in its entirety." When viewed in its entirety, the record contains numerous discrepancies and signs of untrustworthiness, as discussed above. 12 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 220 of 228 Of particular concern is the entity known as Alliant's Supplemental Statement of Citizenship for the entity named "Alliant Tax Credit XI, LTD" ("Fund 11") purports to identify all of its constituent entities, as of the date this action was filed. [Doc. 603, at pp. 16-17]. Paragraph 5 states that one of the entities is. The Affidavit of Brian Netter states that is the "successor-in- interest" to the rights of [Doc. 602-27, p. 3]. Notably, however, Mr. Netter does not state exactly how, or when acquired the rights of CCB—a critical fact in this case, because jurisdiction is determined as of the date suit is filed. Alliant's filings indicate that acquired the rights of CCB, and acquired its rights from but the dates of these alleged transfers are unclear. Alliant's Brief states that acquired interest as of September 25, 2008, citing to S-3 and S-4. Neither of these documents support this statement. S-3 is purportedly an Asset Purchase Agreement between the FDIC and, dated September 25, 2008. However, it does not show what assets were actually transferred to or, for that matter, that even owned an interest in Fund XI, at the time of its bankruptcy/receivership. Nor does it show, with any certainty, when the assets were actually conveyed. S-4 is purportedly a page from the National Information Center. It too does not show the assets acquired by or the date they were acquired. Alliant 13 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 221 of 228 offers neither facts nor authority to establish that acquired interest in Fund XI on September 25, 2008, or for that matter, at any other time. For all we know, divested itself of Fund XI, before the bankruptcy/receivership occurred. Alliant has the burden of proof on this issue, and is not simply entitled to the benefit of the doubt. Still more complex questions are raised by the fact that filed bankruptcy on or about September 25, 2008. Presumably the assets of were included in bankruptcy estate, and any transfer would have been subject to the approval of the Bankruptcy Court. However, Alliant's filings do not show any such approval, or any reason for its absence. This issue is discussed in the Marilyn Murphy Brief and incorporated by reference. Defendants also adopt Marilyn Murphy's arguments regarding Alliant's failure to show single member status of Tax Credit 31, LLC; Tax Credit XXVII, LLC; Tax Credit XI, LLC; The Alliant Company, LLC; Fund XXVII, Ltd. Defendants adopt Marilyn Murphy's arguments regarding Alliant's failure to disclose the identity of Fund XX, Ltd. Defendants adopt Marilyn Murphy's arguments about the Family Trusts of LK and RK, and the declaration of SK. Defendants adopt Marilyn Murphy's objections to the declaration of Brian Netter. 14 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 222 of 228 CONCLUSION Alliant does not have an unfettered right to use the Federal Courts at its whim, with a perfunctory allegation of diversity. It has the burden of proof to properly establish jurisdiction with competent and credible evidence. Viewed as a whole, the record of this case establishes only one thing: a consistent lack of candor coupled with a disregard for the truth. Therefore this action must be dismissed. DATED: This 10th day of September, 2017. /s/ Stan Kreimer, Jr. STAN KREIMER, JR. Georgia Bar No. 429550 Attorney for Defendants JOHNSON & WARD 100 Peachtree Street, NW Atlanta, Georgia 30303 (404) 524-5626 stan@johnsonward.com ATTORNEY CERTIFICATION AS TO FONT AND POINT In accordance with LR 7.1 D, I hereby certify that the foregoing Brief has been prepared with one of the font and point selections approved by the court in LR5.1B. /s/ Stan Kreimer, Jr. STAN KREIMER, JR. Georgia Bar No. 429550 15 6 Case: 15-14634 Date Filed: 12/18/2017 Page: 223 of 228 CERTIFICATE OF SERVICE I hereby certify that a correct copy of the Defendants' Response to Plaintiffs' Supplemental Statements of Citizenship was electronically filed with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to all counsel of record. This 10th day of September, 2017. /s/ Stan Kreimer, Jr. STAN KREIMER, JR. Georgia Bar No. 429550 JOHNSON & WARD 2100 The Equitable Building 100 Peachtree Street, NW Atlanta, Georgia 30303 (404) 524-5626p (404) 524-1769f stan@johnsonward.com 16 Case: 15-14634 Date Filed: 12/18/2017 Page: 224 of 228 TAB 628 Case: 15-14634 Date Filed: 12/18/2017 Page: 225 of 228 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT 31,: INC., et al.,:: Plaintiffs,:: CIVIL ACTION NO. v.: 1:11-CV-0832-RWS: M. VINCENT MURPHY, III, et: al.,:: Defendants.: ORDER This case is currently before the Court on a limited remand from the United States Court of Appeals for the Eleventh Circuit for the purpose of determining whether this Court had subject matter jurisdiction [Doc. No. 565]. As an initial matter, there are two pending motions in this case. Defendant Marilyn Murphy has filed a Motion to Vacate [Doc. No. 587] related to the Court's earlier order related to sealing. That motion [Doc. No. 587] is DENIED. Defendant Marilyn Murphy has also filed a Motion to Strike [Doc. No. 590] a declaration of Shawn Horwitz [Doc. No. 589-1], which was submitted by Plaintiffs. The Court has reviewed Defendant's objections but is unwilling to strike the declaration. Defendant's Motion [Doc. No. 590] is DENIED. AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 226 of 228 The Court finds that Plaintiffs have established diversity jurisdiction by a preponderance of the evidence. Specifically, the Court finds that the record reflects that at the time of filing of the Complaint, the citizenship of Plaintiffs was as follows: Alliant Tax Credit 31, Inc. = Florida, California, Illinois Alliant Tax Credit Fund XXVII, Ltd. = Florida, California, Illinois, District of Columbia Alliant Tax Credit XXVII, Inc. = Florida, California, Illinois Alliant Tax Credit XI, Inc. = Florida, California, Illinois Alliant Tax Credit XI, Ltd. = Florida, California, Illinois, Delaware, New York, Texas, Nevada, and Ohio At the time of filing of the Complaint, the citizenship of Defendants was as follows: M. Vincent Murphy, III = Georgia Community Management Services, Inc. = Georgia Multifamily Housing Developers, LLC = Georgia Marilyn Murphy = Georgia Gazebo Part Apartments of Acworth, LLC = stateless 2 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 227 of 228 The Court has already dismissed Defendant Gazebo Park [Doc. No. 584]. As a result, the parties were diverse in citizenship. The Clerk is DIRECTED to send a copy of this order to the Clerk of the United States Court of Appeals for the Eleventh Circuit. SO ORDERED, this 6th day of October, 2017. ________________________________ RICHARD W. STORY United States District Judge 3 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: 12/18/2017 Page: 228 of 228 CERTIFICATE OF SERVICE I hereby certify that I have this day served the within and foregoing SUPPLEMENTAL APPENDIX OF APPELLANTS via First Class U.S. Mail with sufficient postage to ensure delivery to the following counsel of record: Walter Henry Bundy, Jr. Keith Jerrod Barnett Bundy McDonald, LLC Troutman Sanders, LLP 1516 Old Trolley Rd, Floor 2 Bank of America Plaza Summerville, SC 29485 Suite 5200 600 Peachtree Street, N.E. Atlanta, GA 30308 Stanley Earle Kreimer, Jr. Johnson & Ward Brian David Netter 100 Peachtree Street, N.W. Evan Mark Tager 2100 The Equitable Building Mayer Brown, LLP Atlanta, GA 30303 1999 K St NW Washington, DC 20006 This 18th day of December, 2017. s/Mark R. Nash NELSON MULLINS RILEY & SCARBOROUGH LLP Mark R. Nash Georgia Bar No. 857055 Atlantic Station, 201 17th Street NW Suite 1700 Atlanta, Georgia 30363 T: (404) 322-6000 F: (404) 322-6050

Supplemental Appendix [2 VOLUMES] filed by Appellees-Cross Appellants Alliant Tax Credit 31, Inc, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc, Alliant Tax Credit XI, Inc. and Alliant Tax Credit XI, Ltd. (ECF: Brian Netter)

Case: 15-14634 Date Filed: (1 of 268) 12/22/2017 Page: 1 of 211 No. 15-14634 __________________________________________________________________ UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________________________________________ ALLIANT TAX CREDIT 31, INC., ALLIANT TAX CREDIT FUND XXVII, LTD.; ALLIANT TAX CREDIT FUND XXVII, INC.; ALLIANT TAX CREDIT XI, INC.; and ALLIANT TAX CREDIT XI, LTD., Plaintiffs/Appellees/Cross-Appellants, v. M. VINCENT MURPHY, III; MULTIFAMILY HOUSING DEVELOPERS, LLC; COMMUNITY MANAGEMENT SERVICES, INC.; MARILYN MURPHY, Defendants/Appellants/Cross-Appellees. __________________________________________________________________ On Appeals from the U.S. District Court for the Northern District of Georgia, No. 1:11-cv-00832-RWS __________________________________________________________________ ALLIANT'S SECOND SUPPLEMENTAL APPENDIX Volume I _________________________________________________________________ Edward D. Johnson Evan M. Tager wjohnson@mayerbrown.com etager@mayerbrown.com MAYER BROWN LLP Brian D. Netter Two Palo Alto Square, bnetter@mayerbrown.com Suite 300 MAYER BROWN LLP 3000 El Camino Real 1999 K Street, NW Palo Alto, CA 94306 Washington, DC 20006 (650) 331-2000 (202) 263-3000 Attorneys for Plaintiffs/Appellees/Cross-Appellants Alliant Tax Credit 31, Inc., et al. Case: 15-14634 Date Filed: (2 of 268) 12/22/2017 Page: 2 of 211 Volume I Case Docket .................................................................................. A Motion of Defendant Marilyn Murphy to Compel Discovery From Plaintiffs ........................................................................... 219 August 7, 2013 Order ................................................................ 243 Opposition Brief of Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC to Plaintiffs' Motion to Drop Alliant Tax Credit Fund 31-A, Ltd. ............................................. 271 October 17, 2013 Order ............................................................. 291 March 31, 2014 Order ............................................................... 333 April 17, 2017 Order .................................................................. 569 Alliant's Brief Providing Legal Support for Statements of Citizenship ................................................................................ 574 Proposed Discovery Requests of Defendants M. Vincent Murphy, III, Community Management Services, Inc., and Multi Family Housing Developers, LLC ................................................ 585 Volume II Transcript of May 30, 2017 Scheduling Conference Proceedings ............................................................................... 592 Case: 15-14634 Date Filed: (3 of 268) 12/22/2017 Page: 3 of 211 INDEX TO SECOND SUPPLEMENTAL APPENDIX Docket/ Tab # Volume III (UNDER SEAL) Alliant's Statement as to the Parties' Citizenship ........................ 576 Supplemental Statement of Citizenship for Alliant Tax Credit 31, LLC (pages 1 – 95) ................................................................ 602 Volume IV (UNDER SEAL) Supplemental Statement of Citizenship for Alliant Tax Credit 31, LLC (pages 96 – 334) ............................................................ 602 Volume V (UNDER SEAL) Supplemental Statement of Citizenship for Alliant Tax Credit 31, LLC (pages 335 – 395) .......................................................... 602 Supplemental Statement of Citizenship for Alliant Tax Credit Fund XI, Ltd .............................................................................. 603 Supplemental Statement of Citizenship for Alliant Tax Credit Fund XXVII, Ltd. ........................................................................ 604 Supplemental Statement of Citizenship for Alliant Tax Credit XI, LLC ..................................................................... 605 Supplemental Statement of Citizenship for Alliant Tax Credit XXVII, LLC ................................................................ 606 Case: 15-14634 Date Filed: (4 of 268) 12/22/2017 Page: 4 of 211 Tab A CM/ECF-GA Northern District Court Page 1 of 71 Case: 15-14634 Date Filed: (5 of 268) 12/22/2017 Page: 5 of 211 8months,APPEAL,CLOSED,SUBMDJ U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:11-cv-00832-RWS Alliant Tax Credit Fund 31-A, Ltd. et al v. Murphy et al Date Filed: 03/17/2011 Assigned to: Judge Richard W. Story Date Terminated: 09/11/2015 Case in other court: USCA - 11th Circuit., 00-00000-00 Jury Demand: Defendant USCA - 11th Circuit., 15-14634-G Nature of Suit: 370 Other Fraud USCA - 11th Circuit., 15-14634-GG Jurisdiction: Diversity USCA - 11th Circuit, 15-14634-GG USCA - 11th Circuit, 15-14634-GG USCA - 11th Circuit., 15-14634-GG USCA - 11th Circuit., 15-14634-GG USCA - 11th Circuit., 15-14634-GG Cause: 28:1332 Diversity-Fraud Plaintiff Alliant Tax Credit Fund 31-A, Ltd. represented by Brian David Netter a Florida limited partnership Mayer Brown LLP-DC TERMINATED: 10/17/2013 1999 K Street, N.W. Washington, DC 20006-1101 202-263-3000 Email: bnetter@mayerbrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Edward David Johnson Mayer Brown LLP-CA 3000 El Camino Real Suite 300 Palo Alto, CA 94306 650-331-2000 Email: wjohnson@mayerbrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Evan Mark Tager Mayer Brown LLP-DC 1999 K Street, N.W. Washington, DC 20006-1101 202-263-3000 Email: etager@mayerbrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Brent McDonald Smith Bundy Bybee Barnett, P.C. Building F 1037 Chuck Dawley Blvd. Mount Pleasant, SC 29465 843-881-1623 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 2 of 71 Case: 15-14634 Date Filed: (6 of 268) 12/22/2017 Page: 6 of 211 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Walter Henry Bundy, Jr. Smith Bundy Bybee Barnett, P.C. Building F 1037 Chuck Dawley Blvd. Mount Pleasant, SC 29465 843-881-1623 Email: whbesq@s3blaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED David B. Darden Parker, Hudson, Rainer & Dobbs, LLP 303 Peachtree Street NE Suite 3600 Atlanta, GA 30308 404-523-5300 Fax: 404-522-8409 Email: ddarden@phrd.com TERMINATED: 05/01/2013 John P. Hutchins LeClairRyan, A Professional Corporation Suite 2350 1170 Peachtree Street, N.E. Atlanta, GA 30309 404-942-2801 Fax: 404-942-2810 Email: john.hutchins@leclairryan.com TERMINATED: 03/03/2015 Keith Jerrod Barnett Troutman Sanders, LLP-ATL Bank of America Plaza, Suite 5200 600 Peachtree St. NE Atlanta, GA 30308-2216 404-885-3000 Fax: 404-885-3900 Email: keith.barnett@troutmansanders.com ATTORNEY TO BE NOTICED Puja Patel Lea Troutman Sanders, LLP-ATL Bank of America Plaza, Suite 5200 600 Peachtree St. NE Atlanta, GA 30308-2216 404-885-3838 Email: puja.lea@troutmansanders.com TERMINATED: 03/04/2015 Vincent Justin Arpey Parker, Hudson, Rainer & Dobbs, LLP https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 3 of 71 Case: 15-14634 Date Filed: (7 of 268) 12/22/2017 Page: 7 of 211 303 Peachtree Street NE Suite 3600 Atlanta, GA 30308 404-523-5300 Email: vja@phrd.com TERMINATED: 05/01/2013 Plaintiff Alliant Tax Credit 31, Inc. represented by Brian David Netter a Florida corporation (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Edward David Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Evan Mark Tager (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Brent McDonald (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Walter Henry Bundy, Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED David B. Darden (See above for address) TERMINATED: 05/01/2013 John P. Hutchins (See above for address) TERMINATED: 03/03/2015 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Kurt Eric Lentz McGuire Woods LLP-GA 1230 Peachtree Street, N.E. Promenade, Suite 2100 Atlanta, GA 30309-3534 404-443-5300 Fax: 404-443-5599 Email: klentz@mcguirewoods.com TERMINATED: 07/20/2015 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 4 of 71 Case: 15-14634 Date Filed: (8 of 268) 12/22/2017 Page: 8 of 211 Patricia Anne Gorham Sutherland Asbill & Brennan 999 Peachtree Street, N.E. Suite 2300 Atlanta, GA 30309-3996 404-853-8298 Fax: 404-853-8806 Email: patriciagorham@eversheds- sutherland.com TERMINATED: 06/15/2015 Puja Patel Lea (See above for address) TERMINATED: 03/04/2015 Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 Plaintiff Alliant Tax Credit Fund XXVII, Ltd. represented by Brian David Netter a Florida limited partnership (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Edward David Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Evan Mark Tager (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Brent McDonald (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Walter Henry Bundy, Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED David B. Darden (See above for address) TERMINATED: 05/01/2013 John P. Hutchins (See above for address) TERMINATED: 03/03/2015 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 5 of 71 Case: 15-14634 Date Filed: (9 of 268) 12/22/2017 Page: 9 of 211 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Kurt Eric Lentz (See above for address) TERMINATED: 07/20/2015 Patricia Anne Gorham (See above for address) TERMINATED: 06/15/2015 Puja Patel Lea (See above for address) TERMINATED: 03/04/2015 Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 Plaintiff Alliant Tax Credit Tax Credit XXVII, Inc. represented by Brian David Netter a Florida corporation (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Edward David Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Evan Mark Tager (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Brent McDonald (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Walter Henry Bundy, Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED David B. Darden (See above for address) TERMINATED: 05/01/2013 John P. Hutchins (See above for address) TERMINATED: 03/03/2015 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 6 of 71 Case: 15-14634 Date Filed: (10 of12/22/2017 268) Page: 10 of 211 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Kurt Eric Lentz (See above for address) TERMINATED: 07/20/2015 Patricia Anne Gorham (See above for address) TERMINATED: 06/15/2015 Puja Patel Lea (See above for address) TERMINATED: 03/04/2015 Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 Plaintiff Alliant Tax Credit XI, Inc. represented by Brian David Netter a Florida corporation (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Edward David Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Evan Mark Tager (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Brent McDonald (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Walter Henry Bundy, Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED David B. Darden (See above for address) TERMINATED: 05/01/2013 John P. Hutchins (See above for address) TERMINATED: 03/03/2015 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 7 of 71 Case: 15-14634 Date Filed: (11 of12/22/2017 268) Page: 11 of 211 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Kurt Eric Lentz (See above for address) TERMINATED: 07/20/2015 Patricia Anne Gorham (See above for address) TERMINATED: 06/15/2015 Puja Patel Lea (See above for address) TERMINATED: 03/04/2015 Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 Plaintiff Alliant Tax Credit XI, Ltd. represented by Brian David Netter a Florida limited partnership (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Edward David Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Evan Mark Tager (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Brent McDonald (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Walter Henry Bundy, Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED David B. Darden (See above for address) TERMINATED: 05/01/2013 John P. Hutchins (See above for address) TERMINATED: 03/03/2015 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 8 of 71 Case: 15-14634 Date Filed: (12 of12/22/2017 268) Page: 12 of 211 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Kurt Eric Lentz (See above for address) TERMINATED: 07/20/2015 Patricia Anne Gorham (See above for address) TERMINATED: 06/15/2015 Puja Patel Lea (See above for address) TERMINATED: 03/04/2015 Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 V. Defendant M. Vincent Murphy, III represented by Stanley Earle Kreimer, Jr. Johnson & Ward 100 Peachtree Street, N.W. 2100 The Equitable Building Atlanta, GA 30303-1962 404-524-5626 Email: stan@johnsonward.com ATTORNEY TO BE NOTICED Defendant Marilyn Murphy represented by Henry Lane Young, II Hawkins & Parnell 303 Peachtree Street, N.E. 4000 SunTrust Plaza Atlanta, GA 30308-3243 404-614-7400 Fax: 404-614-7500 Email: lyoung@hptylaw.com ATTORNEY TO BE NOTICED Shawn Michael Winterich The Winterich Law Firm, LLC P.O. Box 71203 Marietta, GA 30007-1203 404-668-7766 Email: swinterich@winterichlaw.com ATTORNEY TO BE NOTICED Defendant Patrick Carroll represented by Michael Anthony Dunn TERMINATED: 06/04/2012 Beazer Homes USA, Inc. 1000 Abernathy Road https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 9 of 71 Case: 15-14634 Date Filed: (13 of12/22/2017 268) Page: 13 of 211 Suite 260 Atlanta, GA 30328 770-829-3702 Fax: 770-481-6762 Email: Michael.dunn@beazer.com TERMINATED: 03/15/2012 Pelham Wilder, IV Morris Manning & Martin, LLP 1600 Atlanta Financial Center 3343 Peachtree Road NE Atlanta, GA 30326-1044 404-233-7000 Email: pwilder@mmmlaw.com ATTORNEY TO BE NOTICED Simon Robert Malko Morris Manning & Martin, LLP 1600 Atlanta Financial Center 3343 Peachtree Road NE Atlanta, GA 30326-1044 404-233-7000 Email: smalko@mmmlaw.com ATTORNEY TO BE NOTICED Defendant Multifamily Housing Developers, L.L.C. represented by Stanley Earle Kreimer, Jr. a Georgia limited liability company (See above for address) ATTORNEY TO BE NOTICED Defendant Community Management Services, Inc. represented by Stanley Earle Kreimer, Jr. a Georgia corporation (See above for address) ATTORNEY TO BE NOTICED Defendant Gazebo Park Apartments of Acworth, LLC represented by Richard Kennon Hines, V a Georgia limited liability company Nelson Mullins Riley & Scarborough-ATL Suite 1700 201 17th Street, N.W. Atlanta, GA 30363 404-322-6154 Email: richard.hines@nelsonmullins.com ATTORNEY TO BE NOTICED Shawn Michael Winterich (See above for address) ATTORNEY TO BE NOTICED Defendant Affordable Realty Management represented by Michael Anthony Dunn Incorporated (See above for address) a Georgia corporation TERMINATED: 03/15/2012 TERMINATED: 06/04/2012 Pelham Wilder, IV https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 10 of 71 Case: 15-14634 Date Filed: (14 of12/22/2017 268) Page: 14 of 211 (See above for address) ATTORNEY TO BE NOTICED Simon Robert Malko (See above for address) ATTORNEY TO BE NOTICED Defendant Gazebo Park Apartments of Acworth, LLC represented by Richard Kennon Hines, V (See above for address) ATTORNEY TO BE NOTICED Shawn Michael Winterich (See above for address) ATTORNEY TO BE NOTICED Counter Claimant Marilyn Murphy represented by Henry Lane Young, II TERMINATED: 03/15/2012 (See above for address) ATTORNEY TO BE NOTICED Shawn Michael Winterich (See above for address) ATTORNEY TO BE NOTICED V. Counter Defendant Alliant Tax Credit 31, Inc. represented by David B. Darden a Florida corporation (See above for address) TERMINATED: 03/15/2012 TERMINATED: 05/01/2013 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 Counter Defendant Alliant Tax Credit Fund 31-A, Ltd. represented by David B. Darden a Florida limited partnership (See above for address) TERMINATED: 03/15/2012 TERMINATED: 05/01/2013 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 Counter Defendant represented by https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 11 of 71 Case: 15-14634 Date Filed: (15 of12/22/2017 268) Page: 15 of 211 Alliant Tax Credit Fund XXVII, Ltd. David B. Darden a Florida limited partnership (See above for address) TERMINATED: 03/15/2012 TERMINATED: 05/01/2013 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 Counter Defendant Alliant Tax Credit Tax Credit XXVII, Inc. represented by David B. Darden a Florida corporation (See above for address) TERMINATED: 03/15/2012 TERMINATED: 05/01/2013 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 Counter Defendant Alliant Tax Credit XI, Inc. represented by David B. Darden a Florida corporation (See above for address) TERMINATED: 03/15/2012 TERMINATED: 05/01/2013 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 Counter Defendant Alliant Tax Credit XI, Ltd. represented by David B. Darden a Florida limited partnership (See above for address) TERMINATED: 03/15/2012 TERMINATED: 05/01/2013 Keith Jerrod Barnett (See above for address) ATTORNEY TO BE NOTICED Vincent Justin Arpey (See above for address) TERMINATED: 05/01/2013 Date Filed # Docket Text 03/17/2011 1 COMPLAINT filed by Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 12 of 71 Case: 15-14634 Date Filed: (16 of12/22/2017 268) Page: 16 of 211 Credit XI, Inc. and Alliant Tax Credit XI, Ltd.; and Summon(s) issued. Consent form to proceed before U.S. Magistrate and pretrial instructions provided. (Filing fee $ 350.00 receipt number 33661.) (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(eop) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Additional attachment (s) added on 9/6/2012: # 3 Corrected Main Document (Omitting Exhibit F Per 27 Order)) (adg). (Entered: 03/18/2011) 03/17/2011 2 Certificate of Interested Persons by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc. and Alliant Tax Credit XI, Ltd.. (eop) (Entered: 03/18/2011) 04/11/2011 3 MOTION to Dismiss Complaint with Brief In Support by Community Management Services, Inc.. (Attachments: # 1 Brief Brief in Support)(Kreimer, Stanley) (Entered: 04/11/2011) 04/11/2011 4 MOTION for More Definite Statement with Brief In Support by Community Management Services, Inc.. (Attachments: # 1 Brief Brief in Support)(Kreimer, Stanley) (Entered: 04/11/2011) 04/11/2011 5 Return of Service Executed by Plaintiffs. Community Management Services, Inc. served on 3/22/2011, answer due 4/12/2011; Gazebo Park Apartments of Acworth, LLC served on 4/5/2011, answer due 4/26/2011; M. Vincent Murphy, III served on 3/28/2011, answer due 4/18/2011; Marilyn Murphy served on 3/25/2011, answer due 4/15/2011. (cem) (Entered: 04/12/2011) 04/12/2011 6 ACKNOWLEDGMENT OF SERVICE Executed filed by Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. Affordable Realty Management Incorporated served on 4/11/2011, answer due 5/2/2011. (Arpey, Vincent) Modified on 4/13/2011 to add "answer due" text. Incorrect event used. (cem) (Entered: 04/12/2011) 04/12/2011 7 NOTICE Of Filing Acknowledgment of Service by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. re 6 Acknowledgment of Service, (Arpey, Vincent) (Entered: 04/12/2011) 04/12/2011 8 NOTICE Of Filing by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Attachments: # 1 Exhibit A)(Arpey, Vincent) (Entered: 04/12/2011) 04/14/2011 9 NOTICE Of Filing by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. Acknowledgement of Service for Multifamily Housing Developers, LLC (Attachments: # 1 Exhibit A)(Arpey, Vincent) (Entered: 04/14/2011) 04/14/2011 10 MOTION to Dismiss Counts One, Two and Nine of Complaint with Brief In Support by Marilyn Murphy. (Attachments: # 1 Memorandum in Support, # 2 Certificate of Service)(cem) (Entered: 04/14/2011) 04/14/2011 11 NOTICE by Marilyn Murphy re 10 MOTION to Dismiss Counts One, Two and Nine of Complaint (Winterich, Shawn) (Entered: 04/14/2011) 04/15/2011 12 MOTION to Dismiss with Brief In Support by M. Vincent Murphy, III. (Attachments: # 1 Brief Brief in Support)(Kreimer, Stanley) (Entered: 04/15/2011) 04/15/2011 13 MOTION for More Definite Statement with Brief In Support by M. Vincent Murphy, III. (Attachments: # 1 Brief Brief in Support)(Kreimer, Stanley) (Entered: 04/15/2011) 04/20/2011 14 NOTICE by Marilyn Murphy of Leave of Absence for 7/6/11-7/18/11 and 12/22/11-1/3/12 (Winterich, Shawn) (Entered: 04/20/2011) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 13 of 71 Case: 15-14634 Date Filed: (17 of12/22/2017 268) Page: 17 of 211 04/20/2011 15 Notice for Leave of Absence for the following date(s): 7/6, 7/7, 7/8, 7/11, 7/12, 7/13, 7/14, 7/15, 7/18/11, 12/22, 12/23, 12/26, 12/27, 12/28, 12/29, 12/30/11, 1/2/12, 1/3/12, by Shawn Michael Winterich. (Winterich, Shawn) (Entered: 04/20/2011) 04/21/2011 16 Notice for Leave of Absence for the following date(s): 05/16/11,05/17/11,05/18/11,05/19/11,05/20/11,05/23/11,05/24/11,05/25/11,05/26/11, 05/27/11,07/18/11,07/19/11,07/20/11,07/21/11,07/22/11,07/25/11,07/26/11,07/27/11,07/28/11, 07/29/11, by Stanley Earle Kreimer, Jr. (Kreimer, Stanley) (Entered: 04/21/2011) 04/25/2011 17 MOTION to Dismiss Counts Seven and Nine of Complaint with Brief In Support by Gazebo Park Apartments of Acworth, LLC. (Winterich, Shawn) (Entered: 04/25/2011) 04/28/2011 18 RESPONSE in Opposition re 3 MOTION to Dismiss Complaint for Failure to Comply With Federal Rules of Civil Procedure filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 04/28/2011) 04/28/2011 19 RESPONSE in Opposition re 4 MOTION for More Definite Statement filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 04/28/2011) 04/28/2011 20 RESPONSE in Opposition re 12 MOTION to Dismiss for Failure to Comply With Federal Rules of Civil Procedure filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 04/28/2011) 04/28/2011 21 RESPONSE in Opposition re 13 MOTION for More Definite Statement filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 04/28/2011) 04/29/2011 22 Consent MOTION to Seal Exhibit and to File Corrected Exhibit by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit Part I, # 2 Exhibit Part II, # 3 Exhibit Part III, # 4 Text of Proposed Order)(Arpey, Vincent) (Entered: 04/29/2011) 05/02/2011 23 First MOTION to Dismiss Complaint for Failure to Comply with Federal Rules of Civil Procedure with Brief In Support by Multifamily Housing Developers, L.L.C.. (Attachments: # 1 Brief Brief of Defendant, Multi Family Housing Developers, LLC, in Support of Motion to Dismiss)(Kreimer, Stanley) (Entered: 05/02/2011) 05/02/2011 24 RESPONSE in Opposition re 10 MOTION to Dismiss filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 05/02/2011) 05/02/2011 25 MOTION to Dismiss with Brief In Support by Affordable Realty Management Incorporated. (Attachments: # 1 Brief in support of Defendant Affordable Realty Management Incorporated's Motion to Dismiss)(Dunn, Michael) (Entered: 05/02/2011) 05/02/2011 26 MOTION to Dismiss with Brief In Support by Patrick Carroll. (Attachments: # 1 Brief in support of Defendant Patrick Carroll's Motion to Dismiss)(Dunn, Michael) (Entered: 05/02/2011) 05/04/2011 27 ORDER granting 22 Consent Motion to Seal Exhibit F to Complaint and to File Corrected Exhibit F. Signed by Judge Richard W. Story on 5/3/11. (cem) (Entered: 05/04/2011) 05/12/2011 28 RESPONSE in Opposition re 17 MOTION to Dismiss Counts Seven and Nine of Complaint filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 14 of 71 Case: 15-14634 Date Filed: (18 of12/22/2017 268) Page: 18 of 211 Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 05/12/2011) 05/19/2011 Submission of 3 MOTION to Dismiss Complaint, 4 MOTION for More Definite Statement, 12 MOTION to Dismiss, and 13 MOTION for More Definite Statement, submitted to District Judge Richard W. Story. (cem) (Entered: 05/19/2011) 05/19/2011 29 RESPONSE in Opposition re 26 MOTION to Dismiss filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 05/19/2011) 05/19/2011 30 RESPONSE in Opposition re 25 MOTION to Dismiss filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 05/19/2011) 05/19/2011 31 RESPONSE in Opposition re 23 First MOTION to Dismiss Complaint for Failure to Comply with Federal Rules of Civil Procedure filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 05/19/2011) 05/24/2011 Submission of 10 MOTION to Dismiss Counts One, Two and Nine of Complaint, submitted to District Judge Richard W. Story. (cem) (Entered: 05/24/2011) 05/31/2011 32 Notice for Leave of Absence for the following date(s): 07/06/11, 07/07/11, 07/08/11, 07/11/11,07/12/11,07/13/11,07/14/11,07/15/11, and 7/16/11 by Stanley Earle Kreimer, Jr. (Kreimer, Stanley) Modified on 6/1/2011 (cem). (Entered: 05/31/2011) 06/02/2011 Submission of 17 MOTION to Dismiss Counts Seven and Nine of Complaint, submitted to District Judge Richard W. Story. (cem) (Entered: 06/02/2011) 06/02/2011 33 STRICKEN PER ORDER 53 REPLY to Response to Motion re 25 MOTION to Dismiss filed by Affordable Realty Management Incorporated. (Dunn, Michael) Modified on 7/26/2011 (cem). (Entered: 06/02/2011) 06/02/2011 34 STRICKEN PER ORDER 53 REPLY to Response to Motion re 26 MOTION to Dismiss filed by Patrick Carroll. (Dunn, Michael) Modified on 7/26/2011 (cem). (Entered: 06/02/2011) 06/08/2011 Submission of 23 First MOTION to Dismiss Complaint for Failure to Comply with Federal Rules of Civil Procedure, 25 MOTION to Dismiss, 26 MOTION to Dismiss, submitted to District Judge Richard W. Story. (cem) (Entered: 06/08/2011) 06/10/2011 35 MOTION to Strike 34 Reply to Response to Motion or in the Alternative for Leave to File Surreply in Opposition by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief)(Arpey, Vincent) (Entered: 06/10/2011) 06/10/2011 36 MOTION to Strike 33 Reply to Response to Motion or in the Alternative for Leave to File Surreply in Opposition by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief)(Arpey, Vincent) (Entered: 06/10/2011) 06/13/2011 37 RESPONSE in Opposition re 36 MOTION to Strike 33 Reply to Response to Motion or in the Alternative for Leave to File Surreply in Opposition MOTION to Strike 33 Reply to Response to Motion or in the Alternative for Leave to File Surreply in Opposition filed by Affordable Realty Management Incorporated. (Dunn, Michael) (Entered: 06/13/2011) 06/13/2011 38 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 15 of 71 Case: 15-14634 Date Filed: (19 of12/22/2017 268) Page: 19 of 211 RESPONSE in Opposition re 35 MOTION to Strike 34 Reply to Response to Motion or in the Alternative for Leave to File Surreply in Opposition MOTION to Strike 34 Reply to Response to Motion or in the Alternative for Leave to File Surreply in Opposition filed by Patrick Carroll. (Dunn, Michael) (Entered: 06/13/2011) 06/14/2011 39 Joint PRELIMINARY REPORT AND DISCOVERY PLAN filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 06/14/2011) 06/15/2011 40 SCHEDULING ORDER: approving 39 Joint Preliminary Report and Discovery Plan. The case shall be placed on an 8-month discovery track. Signed by Judge Richard W. Story on 6/15/11. (cem) (Entered: 06/15/2011) 06/24/2011 41 Initial Disclosures by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D) (Arpey, Vincent) (Entered: 06/24/2011) 06/24/2011 42 Initial Disclosures by Affordable Realty Management Incorporated.(Dunn, Michael) (Entered: 06/24/2011) 06/24/2011 43 Initial Disclosures by Patrick Carroll.(Dunn, Michael) (Entered: 06/24/2011) 06/24/2011 44 Corporate Disclosure Statement by Affordable Realty Management Incorporated, Patrick Carroll by Affordable Realty Management Incorporated, Patrick Carroll.(Dunn, Michael) (Entered: 06/24/2011) 06/24/2011 45 INITIAL DISCLOSURES PLAN filed by M. Vincent Murphy, III. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Kreimer, Stanley) Modified on 6/27/2011 to correct docket entry to reflect efiled pleading. (cem) (Entered: 06/24/2011) 06/24/2011 46 INITIAL DISCLOSURES filed by Multifamily Housing Developers, L.L.C.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Kreimer, Stanley) Modified on 6/27/2011 to correct the docket entry to reflect efiled pleading. (cem) (Entered: 06/24/2011) 06/24/2011 47 INITIAL DISCLOSURES filed by Community Management Services, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Kreimer, Stanley) Modified on 6/27/2011 to correct docket entry to reflect efiled pleading. (cem) (Entered: 06/24/2011) 06/27/2011 48 Certificate of Interested Persons by Gazebo Park Apartments of Acworth, LLC. (Winterich, Shawn) (Entered: 06/27/2011) 06/28/2011 49 Initial Disclosures by Marilyn Murphy.(Winterich, Shawn) (Entered: 06/28/2011) 06/28/2011 50 Initial Disclosures by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company).(Winterich, Shawn) (Entered: 06/28/2011) 07/08/2011 Submission of 35 MOTION to Strike 34 Reply to Response, and 36 MOTION to Strike 33 Reply to Response, submitted to District Judge Richard W. Story. (cem) (Entered: 07/08/2011) 07/13/2011 51 Joint MOTION for Order for Consent Order Providing for Escrow of Net Sale Proceeds from Sale of the Marital Residence by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Arpey, Vincent) (Entered: 07/13/2011) 07/15/2011 52 CONSENT ORDER granting 51 Joint Motion for Consent Order Providing for Escrow of Net Sale Proceeds from Sale of the Martial Residence. Signed by Judge Richard W. Story on 7/14/11. (cem) (Entered: 07/15/2011) 07/26/2011 53 ORDER granting in part and denying in part Defendants' Motions to Dismiss 3, 10, 12, 17, 23, 25 and 26; denying Defendants' Motions for More Definite Statement 4 and 13. Plaintiffs' https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 16 of 71 Case: 15-14634 Date Filed: (20 of12/22/2017 268) Page: 20 of 211 Motions to Strike Defendants Carroll 35 and ARM's 36 Reply Briefs are granted. Defendants shall respond to Plaintiffs' Complaint 1 in accordance with the Federal Rules of Civil Procedure. Signed by Judge Richard W. Story on 7/26/11. (cem) (Entered: 07/26/2011) 08/03/2011 54 CERTIFICATE OF SERVICE Rule 5.4 by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd..(Arpey, Vincent) (Entered: 08/03/2011) 08/03/2011 55 ANSWER AND DEFENSES of Gazebo Park Apartments, LLC and ANSWER to 1 COMPLAINT with Jury Demand and Counterlclaim by Marilyn Murphy. Discovery ends on 1/3/2012.(Winterich, Shawn) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/03/2011) 08/03/2011 56 COUNTERCLAIM against All Plaintiffs with Jury Demand, filed by Marilyn Murphy. (Contained in Answer.) (cem) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/04/2011) 08/09/2011 57 Affirmative Defenses and ANSWER to 1 COMPLAINT with Jury Demand by Affordable Realty Management Incorporated.(Dunn, Michael) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/09/2011) 08/09/2011 58 Affirmative Defenses and ANSWER to 1 COMPLAINT with Jury Demand by Patrick Carroll. (Dunn, Michael) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/09/2011) 08/09/2011 59 ANSWER to 1 COMPLAINT with Jury Demand by M. Vincent Murphy, III.(Kreimer, Stanley) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/09/2011) 08/09/2011 60 ANSWER to 1 COMPLAINT with Jury Demand by Community Management Services, Inc.. (Kreimer, Stanley) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/09/2011) 08/09/2011 61 ANSWER to 1 COMPLAINT with Jury Demand by Multifamily Housing Developers, L.L.C.. (Kreimer, Stanley) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/09/2011) 08/29/2011 62 MOTION to Dismiss Counterclaim of Defendant Marilyn Murphy with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief, # 2 Exhibit A)(Arpey, Vincent) (Entered: 08/29/2011) 09/19/2011 63 RESPONSE in Opposition re 62 MOTION to Dismiss Counterclaim of Defendant Marilyn Murphy filed by Marilyn Murphy. (Winterich, Shawn) (Entered: 09/19/2011) 10/02/2011 64 CERTIFICATE OF SERVICE re 54 Certificate of Service, of Discovery Responses by Marilyn Murphy.(Winterich, Shawn) (Entered: 10/02/2011) 10/02/2011 65 CERTIFICATE OF SERVICE of Discovery Responses by Gazebo Park Apartments of Acworth, LLC.(Winterich, Shawn) (Entered: 10/02/2011) 10/03/2011 66 CERTIFICATE OF SERVICE of Responses to Plaintiffs' Discovery Requests by Affordable Realty Management Incorporated.(Dunn, Michael) (Entered: 10/03/2011) 10/03/2011 67 CERTIFICATE OF SERVICE of Responses to Plaintiffs' Discovery Requests by Patrick Carroll.(Dunn, Michael) (Entered: 10/03/2011) 10/03/2011 68 REPLY BRIEF re 62 MOTION to Dismiss Counterclaim of Defendant Marilyn Murphy filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 17 of 71 Case: 15-14634 Date Filed: (21 of12/22/2017 268) Page: 21 of 211 XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 10/03/2011) 10/04/2011 Submission of 62 MOTION to Dismiss Counterclaim of Defendant Marilyn Murphy, submitted to District Judge Richard W. Story. (cem) (Entered: 10/04/2011) 10/05/2011 69 CERTIFICATE OF SERVICE by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 10/05/2011) 01/06/2012 70 NOTICE of Change of Address for Michael Anthony Dunn, counsel for Affordable Realty Management Incorporated, Patrick Carroll (Dunn, Michael) (Entered: 01/06/2012) 01/09/2012 71 CERTIFICATE OF SERVICE by Alliant Tax Credit Fund 31-A, Ltd..(Arpey, Vincent) (Entered: 01/09/2012) 02/02/2012 72 Second MOTION to Dismiss Counts One and Two of Plaintiff's Complaint, with Brief In Support by Marilyn Murphy. (Winterich, Shawn) (Entered: 02/02/2012) 02/02/2012 73 CERTIFICATE OF SERVICE of Amended Discovery Responses by Marilyn Murphy. (Winterich, Shawn) (Entered: 02/02/2012) 02/02/2012 74 CERTIFICATE OF SERVICE of Amended Discovery Responses by Gazebo Park Apartments of Acworth, LLC.(Winterich, Shawn) (Entered: 02/02/2012) 02/03/2012 75 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 02/03/2012) 02/07/2012 76 MOTION to Compel Discovery from Gazebo Park Apartments of Acworth, LLC with Brief In Support by Alliant Tax Credit Fund 31-A, Ltd.. (Attachments: # 1 Brief, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Arpey, Vincent) Modified on 2/8/2012 to correct text in all caps. (cem) (Entered: 02/07/2012) 02/07/2012 77 MOTION to Compel Discovery from Defendant Marilyn Murphy with Brief In Support by Alliant Tax Credit Fund 31-A, Ltd.. (Attachments: # 1 Brief, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Arpey, Vincent) Modified on 2/8/2012 to correct text in all caps. (cem) (Entered: 02/07/2012) 02/16/2012 78 RESPONSE in Opposition re 10 MOTION to Dismiss Counts One and Two of Plaintiffs' Complaint filed by Alliant Tax Credit Fund 31-A, Ltd.. (Arpey, Vincent) (Entered: 02/16/2012) 02/17/2012 79 MOTION to Compel Discovery from Defendant M. Vincent Murphy, III with Brief In Support by Alliant Tax Credit Fund 31-A, Ltd.. (Attachments: # 1 Brief, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Arpey, Vincent) (Entered: 02/17/2012) 02/21/2012 80 REPLY BRIEF re 77 MOTION to Compel Discovery from Defendant Marilyn Murphy filed by Marilyn Murphy. (Winterich, Shawn) Modified on 2/22/2012 to correct text in all caps. (cem) (Entered: 02/21/2012) 02/21/2012 81 REPLY BRIEF re 76 MOTION to Compel Discovery from Gazebo Park Apartments of Acworth, LLC filed by Gazebo Park Apartments of Acworth, LLC. (Winterich, Shawn) Modified on 2/22/2012 to correct docket entry of text in all caps. (cem) (Entered: 02/21/2012) 02/23/2012 Submission of 72 Second MOTION to Dismiss Counts One and Two of Plaintiff's Complaint, submitted to District Judge Richard W. Story. (cem) (Entered: 02/23/2012) 02/24/2012 82 NOTICE by Alliant Tax Credit Fund 31-A, Ltd. of Subpoena to Warner, Mayoue, Bates & McGough (Attachments: # 1 Exhibit)(Arpey, Vincent) (Entered: 02/24/2012) 02/27/2012 83 RESPONSE re 79 MOTION to Compel Discovery from Defendant M. Vincent Murphy, III filed by M. Vincent Murphy, III. (Attachments: # 1 Exhibit Exhibit A)(Kreimer, Stanley) (Entered: 02/27/2012) 02/27/2012 84 MOTION for Extension of Time Respond to Motion to Compel re: 79 MOTION to Compel Discovery from Defendant M. Vincent Murphy, III with Brief In Support by M. Vincent https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 18 of 71 Case: 15-14634 Date Filed: (22 of12/22/2017 268) Page: 22 of 211 Murphy, III. (Attachments: # 1 Brief Brief in Support, # 2 Exhibit Exhibit A to Brief in Support)(Kreimer, Stanley) (Entered: 02/27/2012) 03/01/2012 85 REPLY to Response to Motion re 72 Second MOTION to Dismiss Counts One and Two of Plaintiff's Complaint, filed by Marilyn Murphy. (Winterich, Shawn) (Entered: 03/01/2012) 03/02/2012 86 REPLY BRIEF re 76 MOTION to Compel Discovery from Gazebo Park Apartments of Acworth, LLC filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) Modified on 3/5/2012 to correct docket entry of text in all caps. (cem) (Entered: 03/02/2012) 03/02/2012 87 REPLY BRIEF re 77 MOTION to Compel Discovery from Defendant Marilyn Murphy filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) Modified on 3/5/2012 to correct docket entry of text in all caps. (cem) (Entered: 03/02/2012) 03/05/2012 88 CERTIFICATE OF SERVICE by Alliant Tax Credit Fund 31-A, Ltd..(Arpey, Vincent) (Entered: 03/05/2012) 03/06/2012 89 MOTION to Withdraw Michael Anthony Dunn as Attorneyby Affordable Realty Management Incorporated. (Attachments: # 1 Exhibit A)(Dunn, Michael) (Entered: 03/06/2012) 03/06/2012 90 MOTION to Withdraw Michael Anthony Dunn as Attorneyby Patrick Carroll. (Attachments: # 1 Exhibit A)(Dunn, Michael) (Entered: 03/06/2012) 03/07/2012 91 Withdrawal of Motion 84 MOTION for Extension of Time Respond to Motion to Compel re: 79 MOTION to Compel Discovery from Defendant M. Vincent Murphy, III MOTION for Extension of Time Respond to Motion to Compel re: 79 MOTION to Compel Discovery from Defendant M. Vincent Murphy, III filed by M. Vincent Murphy, III filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 03/07/2012) 03/09/2012 92 CERTIFICATE OF SERVICE by Alliant Tax Credit Fund 31-A, Ltd..(Arpey, Vincent) (Entered: 03/09/2012) 03/14/2012 Submission of 77 MOTION to Compel DISCOVERY FROM DEFENDANT MARILYN MURPHY, 76 MOTION to Compel DISCOVERY FROM GAZEBO PARK APARTMENTS OF ACWORTH, LLC, submitted to District Judge Richard W. Story. (cem) (Entered: 03/14/2012) 03/14/2012 93 NOTICE of Appearance by Simon Robert Malko on behalf of Affordable Realty Management Incorporated, Patrick Carroll (Malko, Simon) (Entered: 03/14/2012) 03/15/2012 94 ORDER granting 62 Plaintiffs' Motion to Dismiss Marilyn Murphy's Counterclaim, and denying 72 Defendant Marilyn Murphy's Second Motion to Dismiss Counts I and II. Plaintiffs' 76 Motion to Compel Discovery from Gazebo Park Apartments of Acworth, LLC, Plaintiffs' 77 Motion to Compel Discovery from Marilyn Murphy, and Plaintiffs' 79 Motion to Compel Discovery from Defendant M. Vincent Murphy are all GRANTED. Plaintiffs' Counsel should produce its statements of costs and fees as to the Motions to Compel within 10 days of this order. Finally, Counsel Michael Dunn's Motions to Withdraw as Attorney for Patrick Carroll and ARMI 89 90 are GRANTED. Signed by Judge Richard W. Story on 3/14/12. (cem) (Entered: 03/15/2012) 03/19/2012 95 Notice for Leave of Absence for the following date(s): 06/04/12, 06/05/12, 06/06/12, 06/07/12, 06/08/12, 06/11/12, 06/12/12, 06/13/12, 06/14/12, 06/15/12, 06/18/12, 06/19/12, 06/20/12, 06/21/12, 06/22/12, 07/09/12, 07/10/12, 07/11/12, 07/12/12, 07/13/12, 07/16/12, 07/17/12, https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 19 of 71 Case: 15-14634 Date Filed: (23 of12/22/2017 268) Page: 23 of 211 07/18/12, 07/19/12, 07/20/12, 07/23/12, 07/24/12, 07/25/12, 07/26/12, 07/27/12, by Stanley Earle Kreimer, Jr. (Attachments: # 1 Exhibit A)(Kreimer, Stanley) (Entered: 03/19/2012) 03/20/2012 96 Notice for Leave of Absence for the following date(s): 5/3, 5/4, 5/7, 5/8, 5/9, 5/10, 5/11, 5/24, 5/25, 5/28, 5/29, 6/20, 6/21, 6/22, 6/25, 6/26, 6/27, 6/28, 6/29, 7/2, 7/3, 7/4, 7/5, 7/6, 8/27, 8/28, 8/29, 8/30, 8/31, 9/3, 9/4, 9/5, 9/6, 9/7, 12/21, 12/24, 12/25, 12/26, 12/27, 12/28, 1/1/13, 1/2, 1/3, by Shawn Michael Winterich. (Winterich, Shawn) (Entered: 03/20/2012) 03/21/2012 97 RESPONSE re 96 Leave of Absence, 95 Leave of Absence, Plaintiffs' Objection to Notices of Leave of Absence Filed by Stan Kreimer and Shawn Winterich filed by Alliant Tax Credit Fund 31-A, Ltd.. (Arpey, Vincent) (Entered: 03/21/2012) 03/22/2012 98 Unopposed MOTION for Extension of Time to Complete Discovery by Affordable Realty Management Incorporated, Patrick Carroll. (Malko, Simon) (Entered: 03/22/2012) 03/23/2012 99 MOTION for Attorney Fees and Expenses Pursuant to the Court's Order by Alliant Tax Credit Fund 31-A, Ltd.. (Attachments: # 1 Affidavit Declaration of Counsel)(Arpey, Vincent) (Entered: 03/23/2012) 03/23/2012 100 MOTION for Attorney Fees and Expenses Pursuant to the Court's Order by Alliant Tax Credit Fund 31-A, Ltd.. (Attachments: # 1 Affidavit Declaration of Counsel)(Arpey, Vincent) (Entered: 03/23/2012) 03/23/2012 101 MOTION for Attorney Fees and by Alliant Tax Credit Fund 31-A, Ltd.. (Attachments: # 1 Affidavit Declaration of Counsel)(Arpey, Vincent) (Entered: 03/23/2012) 03/23/2012 102 ORDER granting 98 Unopposed Motion of Defendants Patrick Carroll and Affordable Realty Management Incorporated to Extend the Discovery period through and including 7/31/2012. Dispositive motions in this case shall be due 30 days after the close of discovery. Signed by Judge Richard W. Story on 3/23/12. (cem) (Entered: 03/26/2012) 03/28/2012 103 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 03/28/2012) 04/02/2012 104 CERTIFICATE OF SERVICE by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd..(Arpey, Vincent) (Entered: 04/02/2012) 04/03/2012 105 Notice for Leave of Absence for the following date(s): 4/25/12 - 5/3/12, and 7/2/12 - 7/6/12, by Vincent Justin Arpey. (Arpey, Vincent) Modified on 4/4/2012: Incorrect event used to efile pleading. Entry correct to reflect efiled pleading. (cem) (Entered: 04/03/2012) 04/11/2012 Submission of 99 MOTION for Attorney Fees and Expenses Pursuant to the Court's Order, 100 MOTION for Attorney Fees and Expenses Pursuant to the Court's Order, 101 MOTION for Attorney Fees and Expenses Pursuant to the Court's Order, submitted to District Judge Richard W. Story. (cem) (Entered: 04/11/2012) 04/11/2012 106 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 04/11/2012) 04/17/2012 107 ORDER granting Plaintiffs' 99 Motion for Attorney's Fees and Expenses against Defendant M. Vincent Murphy, and Plaintiff is awarded attorney's fees in the sum of $3,690 against M. Vincent Murphy. Plaintiffs' Motion for Attorney's Fees and Expenses against Defendant Marilyn Murphy 100 is GRANTED, and Plaintiff is awarded attorney's fees in the sum of $6,710 against Defendant Marilyn Murphy. Plaintiffs' Motions for Attorney's Fees and Expenses against Defendant Gazebo Park 101 is GRANTED, and Plaintiff is awarded attorney's fees in the sum of $4,819 against Defendant Gazebo Park. Signed by Judge Richard W. Story on 4/17/12. (cem) (Entered: 04/18/2012) 04/18/2012 108 CLERK'S JUDGMENT entered awarding plaintiff attorneys fees in the sum of $3,690 against defendant M. Vincent Murphy. Plaintiff is awarded attorneys fees in the sum of $6,710 against defendant Marilyn Murphy. And plaintiff is awarded attorneys fees in the sum of $4,819 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 20 of 71 Case: 15-14634 Date Filed: (24 of12/22/2017 268) Page: 24 of 211 against defendant Gazebo Park. (cem)--Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist-- (Entered: 04/18/2012) 04/20/2012 109 CERTIFICATE OF SERVICE of First Request for Production to Defendant M. Vincent Murphy, III by Marilyn Murphy.(Winterich, Shawn) (Entered: 04/20/2012) 04/20/2012 110 CERTIFICATE OF SERVICE of First Request for Production to Defendant Affordable Realty Management, Inc. by Gazebo Park Apartments of Acworth, LLC.(Winterich, Shawn) (Entered: 04/20/2012) 04/20/2012 111 CERTIFICATE OF SERVICE of First Request for Production to Defendant Community Management Services, Inc. by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company).(Winterich, Shawn) (Entered: 04/20/2012) 04/20/2012 112 CERTIFICATE OF SERVICE of First Request for Production to Defendant M. Patrick Carroll by Gazebo Park Apartments of Acworth, LLC.(Winterich, Shawn) (Entered: 04/20/2012) 04/20/2012 113 CERTIFICATE OF SERVICE by Alliant Tax Credit Fund 31-A, Ltd..(Arpey, Vincent) (Entered: 04/20/2012) 05/02/2012 114 CERTIFICATE OF SERVICE of Amended Discovery Responses by Marilyn Murphy. (Winterich, Shawn) (Entered: 05/02/2012) 05/02/2012 115 CERTIFICATE OF SERVICE of Amended Discovery Responses by Gazebo Park Apartments of Acworth, LLC.(Winterich, Shawn) (Entered: 05/02/2012) 05/02/2012 116 CERTIFICATE OF SERVICE of Discovery Requests on M. Vincent Murphy, III by Marilyn Murphy.(Winterich, Shawn) (Entered: 05/02/2012) 05/02/2012 117 CERTIFICATE OF SERVICE of Discovery Requests on Affordable REalty Management, Inc. by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company).(Winterich, Shawn) (Entered: 05/02/2012) 05/02/2012 118 CERTIFICATE OF SERVICE of Discovery Requests on Community Management Services, Inc. by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company). (Winterich, Shawn) (Entered: 05/02/2012) 05/02/2012 119 CERTIFICATE OF SERVICE of Discovery Requests on M. Patrick Carroll by Gazebo Park Apartments of Acworth, LLC.(Winterich, Shawn) (Entered: 05/02/2012) 05/04/2012 120 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 05/04/2012) 05/08/2012 121 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 05/08/2012) 05/11/2012 122 Consent MOTION to Dismiss Defendants Patrick Carroll And Affordable Realty Management Incorporated With Prejudice by Affordable Realty Management Incorporated, Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Patrick Carroll. (Attachments: # 1 Text of Proposed Order)(Malko, Simon) (Entered: 05/11/2012) 05/18/2012 123 CERTIFICATE OF SERVICE re 110 Certificate of Service Defendant Affordable Realty Management, Inc.'s Responses and Objections To Defendant Gazebo Park Apartments of Acworth, LLC's First Request for Production of Documents by Affordable Realty Management Incorporated.(Wilder, Pelham) (Entered: 05/18/2012) 05/18/2012 124 CERTIFICATE OF SERVICE re 112 Certificate of Service for Defendant M. Patrick Carroll's Responses and Objections to Defendant Gazebo Park Apartments of Acworth, LLC's First Request For Production of Documents by Patrick Carroll.(Wilder, Pelham) (Entered: 05/18/2012) 05/21/2012 125 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 21 of 71 Case: 15-14634 Date Filed: (25 of12/22/2017 268) Page: 25 of 211 CERTIFICATE OF SERVICE by Community Management Services, Inc., M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 05/21/2012) 05/30/2012 Submission of 122 Consent MOTION to Dismiss Defendants Patrick Carroll And Affordable Realty Management Incorporated With Prejudice, submitted to District Judge Richard W. Story. (cem) (Entered: 05/30/2012) 05/30/2012 126 CERTIFICATE OF SERVICE by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd..(Arpey, Vincent) (Entered: 05/30/2012) 06/04/2012 127 ORDER granting 122 Consent Motion to Dismiss Defendants Patrick Carroll and Affordable Realty Management Incorporated with prejudice. Plaintiff, Carroll and Affordable Realty Management Incorporated shall bear their own costs. Signed by Judge Richard W. Story on 6/4/12. (cem) (Entered: 06/04/2012) 06/05/2012 128 CERTIFICATE OF SERVICE of Discovery Requests on M. Vincent Murphy, III by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company).(Winterich, Shawn) (Entered: 06/05/2012) 06/07/2012 129 NOTICE to Take Deposition of Marilyn Murphy filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Arpey, Vincent) (Entered: 06/07/2012) 06/12/2012 130 CERTIFICATE OF SERVICE of Privilege Log by Marilyn Murphy.(Winterich, Shawn) (Entered: 06/12/2012) 06/20/2012 131 CERTIFICATE OF SERVICE of Notice of Deposition of Plainitffs by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company).(Winterich, Shawn) (Entered: 06/20/2012) 06/20/2012 132 CERTIFICATE OF SERVICE of Discovery Requests on Plaintiffs by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company).(Winterich, Shawn) (Entered: 06/20/2012) 06/27/2012 133 CERTIFICATE OF SERVICE filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Arpey, Vincent) (Entered: 06/27/2012) 07/02/2012 134 MOTION to Compel Discovery with Brief In Support by M. Vincent Murphy, III. (Attachments: # 1 Exhibit MTC Attachment A, # 2 Brief, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D)(Kreimer, Stanley) (Entered: 07/02/2012) 07/13/2012 135 CERTIFICATE OF SERVICE filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Arpey, Vincent) (Entered: 07/13/2012) 07/14/2012 136 CERTIFICATE OF SERVICE of Responses to Plaintiff's First Requests for Admission by Marilyn Murphy.(Winterich, Shawn) (Entered: 07/14/2012) 07/18/2012 137 APPLICATION for Admission of Walter Henry Bundy, Jr. Pro Hac Vice (Application fee $ 150, receipt number 113E-4049226)by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Text of Proposed Order)(Darden, David) (Entered: 07/18/2012) 07/18/2012 138 APPLICATION for Admission of Michael Brent McDonald Pro Hac Vice (Application fee $ 150, receipt number 113E-4049282)by Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Text of Proposed Order)(Darden, David) (Entered: 07/18/2012) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 22 of 71 Case: 15-14634 Date Filed: (26 of12/22/2017 268) Page: 26 of 211 07/18/2012 139 Joint MOTION for Extension of Time to Complete Discovery and to Amend Scheduling Order by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., M. Vincent Murphy, III, Marilyn Murphy. (Arpey, Vincent) Modified on 7/18/2012, at attorney's request, to correct filers (ddm). (Entered: 07/18/2012) 07/18/2012 140 Consent MOTION for Extension of Time to Extend Plaintiffs' Deadline to Respond to Defendant M. Vincent Murphy, III's Motion to Compel re: 134 MOTION to Compel Discovery by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Text of Proposed Order)(Arpey, Vincent) (Entered: 07/18/2012) 07/18/2012 141 ORDER granting 140 Consent Motion to Extend Plaintiffs' Deadline up to and including 8/9/2012 to Respond to the 134 Motion to Compel. Signed by Judge Richard W. Story on 7/18/12. (cem) (Entered: 07/19/2012) 07/18/2012 142 ORDER granting 139 Joint Motion to Extend Discovery and to Amend Scheduling Order. It is hereby ORDERED that the factual discovery period in this action is extended through and including September 15, 2012 and amending the Scheduling Order to provide for a one-month expert discovery period to begin on September 16, 2012 and run up to and through October 16, 2012, and extending all subsequent deadlines accordingly. Signed by Judge Richard W. Story on 7/18/12. (cem) (Entered: 07/19/2012) 07/20/2012 143 NOTICE to Take Deposition of M. Vincent Murphy, III filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Arpey, Vincent) (Entered: 07/20/2012) 07/23/2012 APPROVAL by Clerks Office re: 137 APPLICATION for Admission of Walter Henry Bundy, Jr. Pro Hac Vice (Application fee $ 150, receipt number 113E-4049226), 138 APPLICATION for Admission of Michael Brent McDonald Pro Hac Vice (Application fee $ 150, receipt number 113E-4049282). Attorney Walter Henry Bundy, Jr, Michael Brent McDonald added appearing on behalf of Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (pb) (Entered: 07/23/2012) 07/25/2012 144 ORDER granting 137 Application for Admission Pro Hac Vice as to Walter Henry Bundy, Jr. Signed by Judge Richard W. Story on 7/25/12. (cem) (Entered: 07/25/2012) 07/25/2012 145 ORDER granting 138 Application for Admission Pro Hac Vice as to Michael Brent McDonald. Signed by Judge Richard W. Story on 7/25/12. (cem) (Entered: 07/25/2012) 07/25/2012 Clerks Certificate of Mailing as to Michael McDonald and Walter Bundy, Jr. re 144 Order on Application for Admission PHV, 145 Order on Application for Admission PHV. (cem) (Entered: 07/25/2012) 07/26/2012 146 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 07/26/2012) 07/26/2012 147 CERTIFICATE OF SERVICE of Responses to Plaintiff's Third Requests for Production by Marilyn Murphy.(Winterich, Shawn) (Entered: 07/26/2012) 07/30/2012 148 CERTIFICATE OF SERVICE by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 07/30/2012) 08/07/2012 149 Consent MOTION for Extension of Time to Respond to Defendant M. Vincent Murphy, III's Motion to Compel re: 134 MOTION to Compel Discovery by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Text of Proposed Order)(Arpey, Vincent) (Entered: 08/07/2012) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 23 of 71 Case: 15-14634 Date Filed: (27 of12/22/2017 268) Page: 27 of 211 08/07/2012 150 ORDER granting 149 Consent Motion to Extend Plaintiffs' Deadline up to and including 8/17/12, to Respond to the 134 Motion to Compel. Signed by Judge Richard W. Story on 8/7/12. (cem) (Entered: 08/08/2012) 08/08/2012 Clerks Certificate of Mailing as to Michael Brent McDonald and Walter Henry Bundy, Jr. re 150 Order. (cem) (Entered: 08/08/2012) 08/10/2012 151 CERTIFICATE OF SERVICE of Discovery by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 08/10/2012) 08/10/2012 152 CERTIFICATE OF SERVICE of Discovery by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd..(Arpey, Vincent) (Entered: 08/10/2012) 08/16/2012 153 Consent MOTION for Extension of Time to Respond to Defendant M. Vincent Murphy, III's re: 134 MOTION to Compel Discovery by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Text of Proposed Order)(Arpey, Vincent) Modified on 8/16/2012 to delete duplicate text. (cem) (Entered: 08/16/2012) 08/20/2012 Submission of 153 Consent MOTION for Extension of Time to Respond to Defendant M. Vincent Murphy, III's Motion to Compel re: 134 MOTION to Compel Discovery, submitted to District Judge Richard W. Story. (cem) (Entered: 08/20/2012) 08/20/2012 154 ORDER granting 153 Consent Motion to Extend Plaintiffs' Deadline up to and including 8/27/12 to respond to the 134 Motion to Compel Discovery. Signed by Judge Richard W. Story on 8/16/12. (cem) (Entered: 08/21/2012) 08/21/2012 Clerks Certificate of Mailing as to Michael Brent McDonald and Walter Henry Bundy, Jr. re 154 Order. (cem) (Entered: 08/21/2012) 08/25/2012 155 NOTICE to Take Deposition of Alliant Tax Credit Fund 31-A, et al. filed by Marilyn Murphy (Winterich, Shawn) (Entered: 08/25/2012) 08/25/2012 156 Amended NOTICE to Take Deposition of Alliant Tax Credit Fund 31-A, et al. filed by Gazebo Park Apartments of Acworth, LLC (Winterich, Shawn) (Entered: 08/25/2012) 08/27/2012 157 BRIEF in Opposition to the 134 MOTION to Compel Discovery by Defendant M. Vincent Murphy, III filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Arpey, Vincent) Modified on 8/28/2012: Incorrect event used to efile pleading. Docket entry modified to reflect efiled pleading. (cem). (Entered: 08/27/2012) 09/11/2012 158 MOTION for Sanctions against Defendant M. Vincent Murphy, III with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Arpey, Vincent) (Entered: 09/11/2012) 09/12/2012 159 REPLY BRIEF in Support of 134 MOTION to Compel Discovery filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 09/12/2012) 09/14/2012 160 CERTIFICATE OF SERVICE by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd..(Arpey, Vincent) (Entered: 09/14/2012) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 24 of 71 Case: 15-14634 Date Filed: (28 of12/22/2017 268) Page: 28 of 211 09/14/2012 161 MOTION for Order Compelling Discovery From Defendant M. Vincent Murphy, III with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief, # 2 Exhibit A1, # 3 Exhibit A2, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G)(Arpey, Vincent) (Entered: 09/14/2012) 09/14/2012 162 Joint MOTION for Discovery Document Production Schedule by Marilyn Murphy. (Attachments: # 1 Text of Proposed Order)(Winterich, Shawn) (Entered: 09/14/2012) 09/17/2012 163 ORDER granting 162 Joint Motion for Document Production Schedule. Close of factual discovery to 9/15/2012. (See order for details) Signed by Judge Richard W. Story on 09/17/2012. (bdb) (Entered: 09/18/2012) 09/24/2012 164 RESPONSE re 158 MOTION for Sanctions against Defendant M. Vincent Murphy, III filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 09/24/2012) 10/01/2012 Submission of 158 MOTION for Sanctions against Defendant M. Vincent Murphy, III, and 134 MOTION to Compel Discovery. Submitted to District Judge Richard W. Story. (bdb) (Entered: 10/01/2012) 10/01/2012 165 RESPONSE in Opposition re 161 MOTION for Order Compelling Discovery From Defendant M. Vincent Murphy, III filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 10/01/2012) 10/01/2012 166 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 10/01/2012) 10/03/2012 167 CERTIFICATE OF SERVICE of Discovery Responses by Marilyn Murphy.(Winterich, Shawn) (Entered: 10/03/2012) 10/05/2012 168 REPLY BRIEF re 158 MOTION for Sanctions against Defendant M. Vincent Murphy, III filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Arpey, Vincent) (Entered: 10/05/2012) 10/11/2012 169 MOTION to Allow Supplemental Brief with Brief In Support by M. Vincent Murphy, III. (Attachments: # 1 Brief in Support)(Kreimer, Stanley) (Entered: 10/11/2012) 10/12/2012 170 MOTION for Extension of Time to Complete Discovery and to Extend Case Deadlines with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Text of Proposed Order, # 2 Brief, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K)(Arpey, Vincent) (Entered: 10/12/2012) 10/12/2012 171 Consent MOTION for Leave to Conduct Certain Additional Discovery and to Extend Case Deadlines Adopting Agreement between Plaintiffs and Defendant Marilyn Murphy by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Marilyn Murphy. (Attachments: # 1 Text of Proposed Order)(Arpey, Vincent) Modified to accurately reflect entry on 10/16/2012 (bdb). (Entered: 10/12/2012) 10/15/2012 172 Joint MOTION for Discovery by Defendants for Leave to Conduct Depositions of Plaintiffs' Domestic Relations Expert and for Other Relief with Brief In Support by Marilyn Murphy. (Attachments: # 1 Brief in Support, # 2 Affidavit)(Winterich, Shawn) (Entered: 10/15/2012) 10/25/2012 173 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 25 of 71 Case: 15-14634 Date Filed: (29 of12/22/2017 268) Page: 29 of 211 Notice for Leave of Absence for the following date(s): 11/26/12 - 12/4/12, 12/19/12 - 1/2/13, by Stanley Earle Kreimer, Jr. (Kreimer, Stanley) Modified on 10/25/2012 to consolidate dates. (jtj) (Entered: 10/25/2012) 10/29/2012 Submission of 161 MOTION for Order Compelling Discovery From Defendant M. Vincent Murphy, III. Submitted to District Judge Richard W. Story. (bdb) (Entered: 10/29/2012) 10/29/2012 Submission of 169 MOTION to Allow Supplemental Brief. Submitted to District Judge Richard W. Story. (bdb) (Entered: 10/29/2012) 10/29/2012 174 RESPONSE in Opposition re 171 MOTION for Leave to Conduct Certain Additional Discovery filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 10/29/2012) 10/29/2012 175 REPLY BRIEF re 170 MOTION for Extension of Time to Complete Discovery and to Extend Case Deadlines by Plaintiffs filed by Marilyn Murphy. (Attachments: # 1 Affidavit)(Winterich, Shawn) (Entered: 10/29/2012) 11/01/2012 176 RESPONSE re 172 Joint MOTION for Discovery filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Attachments: # 1 Exhibit A)(Arpey, Vincent) Modified on 11/5/2012 to edit text. (jtj) (Entered: 11/01/2012) 11/13/2012 177 Joint MOTION for Extension of Time to Complete Discovery by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 11/13/2012) 11/14/2012 Submission of 170 MOTION for Extension of Time to Complete Discovery and to Extend Case Deadlines, 171 MOTION for Leave to Conduct Certain Additional Discovery. Submitted to District Judge Richard W. Story. (bdb) (Entered: 11/14/2012) 11/15/2012 178 REPLY BRIEF to Response of Marilyn Murphy to Plaintiffs' 170 MOTION for Leave to Conduct Certain Additional Discovery and to to Extend Case Deadlines filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Arpey, Vincent) (Entered: 11/15/2012) 11/15/2012 179 BRIEF IN REPLY to Response of Defendants M. Vincent Murphy, III, Community Management Services, Inc. and Multifamily Housing Developers, LLC to 170 MOTION for Leave to Conduct Certain Additional Discovery and to Extend Case Deadlines filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Arpey, Vincent) (Entered: 11/15/2012) 11/16/2012 180 ORDER granting 177 Joint Motion to Modify Scheduling Order. Time for filing dispositive motions, Daubert motions, pretrial order, and any other related filings is extended until a date to be set following the Court's ruling on the pending discovery motions. Signed by Judge Richard W. Story on 11/16/2012. (bdb) (Entered: 11/16/2012) 11/26/2012 Submission of 172 Joint MOTION for Discovery by Defendants for Leave to Conduct Depositions of Plaintiffs' Domestic Relations Expert and for Other Relief. Submitted to District Judge Richard W. Story. (bdb) (Entered: 11/26/2012) 11/30/2012 181 Emergency MOTION for Leave to File Supplemental Brief and Attachments with Brief In Support by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 11/30/2012) 12/31/2012 Submission of 181 Emergency MOTION for Leave to File Supplemental Brief and Attachments. Submitted to District Judge Richard W. Story. (bdb) (Entered: 12/31/2012) 02/06/2013 182 Consent MOTION for Order Adopting Agreement Between Plaintiffs and Defendant Marilyn Murphy by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 26 of 71 Case: 15-14634 Date Filed: (30 of12/22/2017 268) Page: 30 of 211 Alliant Tax Credit XI, Ltd., Marilyn Murphy. (Attachments: # 1 Text of Proposed Order) (Arpey, Vincent) (Entered: 02/06/2013) 02/26/2013 Submission of 182 Consent MOTION for Order Adopting Agreement Between Plaintiffs and Defendant Marilyn Murphy, submitted to District Judge Richard W. Story. (cem) (Entered: 02/26/2013) 03/04/2013 183 Notice for Leave of Absence for the following date(s): 04/08/13,04/09/13,04/10/13,04/11/13,04/12/13,04/15/13,04/16/13,04/17/13,05/27/13, 05/28/13,05/29/13,05/30/13,05/31/13,06/03/13,06/04/13,06/05/13,06/07/13,06/10/13,06/11/13, 06/12/13,06/13/13,06/14/13,07/08/13,07/09/13,07/10/13,07/11/13,07/12/13,07/15/13,07/16/13, 07/17/13,07/18/13,07/19/13, by Stanley Earle Kreimer, Jr. (Kreimer, Stanley) (Entered: 03/04/2013) 03/18/2013 184 MOTION for Leave to File First Amended Complaint with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1-19 to Complaint, # 3 Brief, # 4 Exhibit 1 to Brief)(Arpey, Vincent) (Entered: 03/18/2013) 03/22/2013 185 ORDER granting Motions to Supplement 169 and 181. After reviewing the remaining motions that are pending before the Court, the Court concludes that each party has failed to meet its discovery obligations. Each party is ORDERED to fully respond to all discovery requests previously served upon that party. To that end, within seven (7) days of the entry of this Order, each party shall serve upon other parties notice of any discovery obligations with which the requesting party believes the responding party has failed to comply. Within fourteen (14) days of that notice, the responding party shall comply with the discovery requests or file a motion for protective order. It is further ORDERED that the discovery period be extended for an additional two (2) months from the date of entry of this Order. Except to the extent granted herein, all of the pending Motions 134, 158, 161, 170, 171, 172 and 182 are DENIED. Signed by Judge Richard W. Story on 3/22/13. (See Order for further details.) (cem) (Entered: 03/25/2013) 03/25/2013 Clerks Certificate of Mailing as to Michael Brent McDonald and Walter Henry Bundy, Jr. re 185 Order. (cem) (Entered: 03/25/2013) 04/03/2013 186 Consent MOTION for Extension of Time Comply with Order of 03/22/13 re: 185 Order on Motion to Compel, Order on Motion for Sanctions,, Order on Motion to Supplement, Order on Motion for Extension of Time to Complete Discovery,, Order on Motion for Discovery, Order on Motion for Leave to File, Order on Motion for Order,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 04/03/2013) 04/04/2013 187 REPLY BRIEF re 184 MOTION for Leave to File First Amended Complaint filed by Marilyn Murphy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Winterich, Shawn) (Entered: 04/04/2013) 04/04/2013 188 RESPONSE re 184 MOTION for Leave to File First Amended Complaint filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 04/04/2013) 04/05/2013 189 CONSENT ORDER granting 186 Motion to Extend Deadline to Comply with Court's Order dated 3/22/2013, to and through 4/22/2013. Signed by Judge Richard W. Story on 4/5/13. (cem) (Entered: 04/05/2013) 04/05/2013 Clerks Certificate of Mailing as to Michael Brent McDonald andWalter Henry Bundy, Jr. re 189 Order. (cem) (Entered: 04/05/2013) 04/11/2013 190 CERTIFICATE OF SERVICE by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd..(Arpey, Vincent) (Entered: 04/11/2013) 04/12/2013 191 CERTIFICATE OF SERVICE of Notices of Deposition by Marilyn Murphy.(Winterich, Shawn) (Entered: 04/12/2013) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 27 of 71 Case: 15-14634 Date Filed: (31 of12/22/2017 268) Page: 31 of 211 04/19/2013 192 CERTIFICATE OF SERVICE of Discovery by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 04/19/2013) 04/22/2013 193 NOTICE of Appearance by Puja R. Patel on behalf of Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Patel, Puja) (Entered: 04/22/2013) 04/22/2013 194 NOTICE of Appearance by John P. Hutchins on behalf of Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Hutchins, John) (Entered: 04/22/2013) 04/22/2013 195 REPLY to Response to Motion re 184 MOTION for Leave to File First Amended Complaint Reply to Marilyn Murphy's Response filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Patel, Puja) (Entered: 04/22/2013) 04/22/2013 196 REPLY to Response to Motion re 184 MOTION for Leave to File First Amended Complaint Reply to Vincent Murphy, et. al. Response filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Affidavit McDonald Declaration, # 2 Exhibit 1 to McDonald Decl., # 3 Exhibit 2 to McDonald Decl.)(Patel, Puja) (Entered: 04/22/2013) 04/22/2013 197 CERTIFICATE OF SERVICE of Discovery by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 04/22/2013) 04/22/2013 198 MOTION for Protective Order with Brief In Support by M. Vincent Murphy, III. (Attachments: # 1 Brief in Support)(Kreimer, Stanley) (Entered: 04/22/2013) 04/23/2013 Submission of 184 MOTION for Leave to File First Amended Complaint, submitted to District Judge Richard W. Story. (cem) (Entered: 04/23/2013) 04/26/2013 199 Amended Initial Disclosures by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 04/26/2013) 04/29/2013 200 CERTIFICATE OF SERVICE of Discovery Responses and First Amendment to Initial Disclosures by Marilyn Murphy.(Winterich, Shawn) (Entered: 04/29/2013) 04/29/2013 201 Amended Initial Disclosures by Marilyn Murphy.(Winterich, Shawn) (Entered: 04/29/2013) 04/30/2013 202 Notice for Leave of Absence for the following date(s): 06/12/13-06/19/13, 07/08/13-07/19/13, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 04/30/2013) 04/30/2013 203 Notice for Leave of Absence for the following date(s): 06/17/2013, 06/18/2013, 06/19/2013, 06/20/2013, 06/21/2013, 06/22/2013, 06/28/2013, 06/29/2013, 06/30/2013, 07/01/2013, 07/02/2013, 07/03/2013, 07/04/2013, 07/05/2013, 07/06/2013, 07/07/2013, 07/08/2013, 07/09/2013, by John P. Hutchins. (Hutchins, John) (Entered: 04/30/2013) 05/01/2013 204 Certification of Consent to Substitution of Counsel by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Hutchins, John) Modified on 5/2/2013: Incorrect event used to efile pleading. Entry modified to reflect efiled pleading. (cem) (Entered: 05/01/2013) 05/07/2013 205 Consent MOTION to Amend 185 Order on Motion to Compel, Order on Motion for Sanctions,, Order on Motion to Supplement, Order on Motion for Extension of Time to Complete Discovery,, Order on Motion for Discovery, Order on Motion for Leave to File, Order on Motion for Order,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, by Marilyn Murphy. (Attachments: # 1 Text of Proposed Order Proposed Order)(Winterich, Shawn) (Entered: 05/07/2013) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 28 of 71 Case: 15-14634 Date Filed: (32 of12/22/2017 268) Page: 32 of 211 05/07/2013 206 ORDER granting 205 Joint Motion to Modify Scheduling Order. It is hereby ORDERED that the parties shall be permitted to take following already noticed depositions after the current deadline of May 22, 2013: Kurt Kegel, Esq., John Wilson, Esq., Emily S. Bair, Esq., Stan Kreimer, Esq., C. Edward Dobbs, Esq., Edward Bates, Esq., Robert McMaster, and Vince Murphy, to and through June 28, 2013; that the deadline for filing dispositive motions is hereby extended to and through July 29, 2013; and that any motions to compel as to the above-listed depositions be filed by or before July 30, 2013. It is further ORDERED that except as provided herein, this Court's Order of March 22,2013 [Doc. 185] remains in force. Signed by Judge Richard W. Story on 5/7/2013. (cem) (Entered: 05/07/2013) 05/07/2013 Clerks Certificate of Mailing as to Michael Brent McDonald re 206 Order. (cem) (Entered: 05/07/2013) 05/07/2013 207 ORDER granting W.H. Bundy, Jr.'s 202 Leave of Absence request from 6/12/2013 through 6/19/2013, 7/8/2013 through 7/19/2013, for planned vacations. Signed by Judge Richard W. Story on 5/7/2013. (cem) (Entered: 05/08/2013) 05/09/2013 208 RESPONSE re 198 MOTION for Protective Order filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Affidavit of M. Brent McDonald, # 2 Exhibit A, # 3 Exhibit B (Part 1), # 4 Exhibit B (Part 2), # 5 Exhibit B (Part 3), # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L)(Patel, Puja) (Entered: 05/09/2013) 05/15/2013 209 Notice for Leave of Absence for the following date(s): June 12, 2013-June 28, 2013 and July 8, 2013 -July 19, 2013, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 05/15/2013) 05/15/2013 210 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 05/15/2013) 05/15/2013 211 CERTIFICATE OF SERVICE re 130 Certificate of Service of First Amended Privilege Log by Marilyn Murphy.(Winterich, Shawn) (Entered: 05/15/2013) 05/15/2013 212 CERTIFICATE OF SERVICE of Notice of Deposition of C. Edward Dobbs by Marilyn Murphy.(Winterich, Shawn) (Entered: 05/15/2013) 05/15/2013 213 CERTIFICATE OF SERVICE of objection to Subpoena of Edward E. Bates, Jr. by Marilyn Murphy.(Winterich, Shawn) (Entered: 05/15/2013) 05/15/2013 214 CERTIFICATE OF SERVICE of objection to Subpoena of John P. Wilson, III by Marilyn Murphy.(Winterich, Shawn) (Entered: 05/15/2013) 05/15/2013 215 CERTIFICATE OF SERVICE (Corrected) by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 05/15/2013) 05/16/2013 216 Notice for Leave of Absence for the following date(s): 06/17/2013,06/18/2013,06/19/2013,06/20/2013,06/21/2013,06/22/2013,06/28/2013,06/29/2013, 06/30/2013,07/01/2013,07/02/2013,07/03/2013,07/04/2013,07/05/2013,07/06/2013,07/07/2013, 07/08/2013,07/09/2013,07/29/2013,07/30/2013,07/31/2013,08/01/2013,08/02/2013, by John P. Hutchins. (Hutchins, John) (Entered: 05/16/2013) 05/20/2013 217 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 05/20/2013) 05/20/2013 218 CERTIFICATE OF SERVICE of Responses and Objections to Plaintiffs' Requests for Admissions by Gazebo Park and by Marilyn Murphy.(Winterich, Shawn) (Entered: 05/20/2013) 05/22/2013 219 MOTION to Compel Discovery from Plaintiffs with Brief In Support by Marilyn Murphy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Winterich, Shawn) (Entered: 05/22/2013) 05/23/2013 220 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 29 of 71 Case: 15-14634 Date Filed: (33 of12/22/2017 268) Page: 33 of 211 REPLY BRIEF re 198 MOTION for Protective Order filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 05/23/2013) 05/24/2013 Submission of 198 MOTION for Protective Order, submitted to District Judge Richard W. Story. (jtj) (Entered: 05/24/2013) 05/30/2013 221 Notice for Leave of Absence for the following date(s): 6/14, 6/15, 6/16, 6/17, 6/18, 6/19, 6/20, 6/21, 6/22, 6/23, 6/24, 6/25, 6/26, 6/27, 6/28, 6/29, 6/30, 7/1, 7/2, 7/3, 7/25, 7/26, 7/27, 7/28, 7/29, 7/30, 12/23, 12/24, 12/25, 12/26, 12/27, 12/28, 12/29, 12/30, 12/31, 1/3/14, by Shawn Michael Winterich. (Winterich, Shawn) (Entered: 05/30/2013) 06/03/2013 222 CERTIFICATE OF SERVICE of Notice of Deposition (C. Edward Dobbs) by Marilyn Murphy.(Winterich, Shawn) (Entered: 06/03/2013) 06/03/2013 223 CERTIFICATE OF SERVICE of Notice of Deposition of Kurt A. Kegel by Marilyn Murphy. (Winterich, Shawn) (Entered: 06/03/2013) 06/10/2013 224 Joint MOTION to Seal Exhibit A with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Patel, Puja) (Entered: 06/10/2013) 06/10/2013 225 Consent MOTION for Order Adopting Agreement between Plaintiffs and Defendant Marilyn Murphy with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Patel, Puja) (Entered: 06/10/2013) 06/10/2013 226 RESPONSE re 219 MOTION to Compel Discovery from Plaintiffs filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Affidavit of Brent McDonald, # 2 Exhibit A to McDonald Declaration, # 3 Exhibit B to McDonald Declaration)(Patel, Puja) (Entered: 06/10/2013) 06/12/2013 227 ORDER granting 224 Joint Motion for an Order permitting Exhibit A to Consent Motion for Entry of Order Adopting Agreement Between Plaintiffs and Defendant Marilyn Murphy to be filed Under Seal. Signed by Judge Richard W. Story on 6/11/2013. (cem) (Entered: 06/13/2013) 06/12/2013 228 ORDER granting 225 Consent Motion for Order Adopting Agreement between Plaintiffs and Defendant Marilyn Murphy. Signed by Judge Richard W. Story on 6/11/2013. (cem) FILED UNDER SEAL (Additional attachment(s) added on 6/13/2013: # 1 Exhibit A - Agreement) (cem). Modified on 6/13/2013 (cem). (Entered: 06/13/2013) 06/16/2013 229 REPLY to Response to Motion re 219 MOTION to Compel Discovery from Plaintiffs filed by Marilyn Murphy. (Winterich, Shawn) (Entered: 06/16/2013) 06/17/2013 Submission of 219 MOTION to Compel Discovery from Plaintiffs, submitted to District Judge Richard W. Story. (cem) (Entered: 06/17/2013) 07/26/2013 230 NOTICE Of Filing Deposition Transcript by M. Vincent Murphy, III (Kreimer, Stanley) (Entered: 07/26/2013) 07/26/2013 231 MOTION for Summary Judgment with Brief In Support by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Attachments: # 1 Brief Brief in Support, # 2 Statement of Material Facts Statement of Facts)(Kreimer, Stanley) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- (Entered: 07/26/2013) 07/29/2013 232 MOTION to Seal by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Patel, Puja) (Entered: 07/29/2013) 07/29/2013 233 MOTION for Partial Summary Judgment (Counts One and Two) with Brief In Support by Marilyn Murphy. (Attachments: # 1 Brief, # 2 Statement of Material Facts)(Winterich, Shawn) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 30 of 71 Case: 15-14634 Date Filed: (34 of12/22/2017 268) Page: 34 of 211 --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- (Entered: 07/29/2013) 07/29/2013 234 MEMORANDUM in Support of 240 MOTION for Summary Judgment with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Statement of Material Facts, # 2 Exhibit 1-2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5-8, # 6 Exhibit 9-10, # 7 Exhibit 11 (Part 1), # 8 Exhibit 11 (Part 2), # 9 Exhibit 11 (Part 3), # 10 Exhibit 12-13, # 11 Exhibit 14-15, # 12 Exhibit 16-22, # 13 Exhibit 23-28, # 14 Exhibit 29-33, # 15 Exhibit 34-42, # 16 Exhibit 43, # 17 Exhibit 44, # 18 Exhibit 45, # 19 Exhibit 46-48, # 20 Exhibit 49-50, # 21 Exhibit 51-52, # 22 Exhibit 53-55, # 23 Exhibit 56, # 24 Exhibit 57-60, # 25 Exhibit 61-63, # 26 Exhibit 64-65, # 27 Exhibit 66-67, # 28 Exhibit 68-70, # 29 Exhibit 71-75, # 30 Exhibit 76)(Patel, Puja) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- Modified on 7/31/2013: Attorney used the incorrect event to efile pleading. Entry modified to reflect efiled pleading and to link to Motion for Summary Judgment. (cem) (Entered: 07/29/2013) 07/29/2013 235 DEPOSITION of Brian Doran taken on August 31, 2012 by Marilyn Murphy.(Winterich, Shawn) (Entered: 07/29/2013) 07/29/2013 236 DEPOSITION of Brian Doran taken on May 1, 2013 by Marilyn Murphy.(Winterich, Shawn) (Entered: 07/29/2013) 07/29/2013 237 DEPOSITION of M. Vincent Murphy, III taken on August 26, 2010 by Marilyn Murphy. (Winterich, Shawn) (Entered: 07/29/2013) 07/29/2013 238 BRIEF in Support of 233 Motion for Partial Summary Judgment with additional Exhibit summary and exhibits by Marilyn Murphy. (Attachments: # 1 Affidavit A Aff of Marilyn 1, # 2 Affidavit C Aff of Vince, # 3 Exhibit F KY lit compl, # 4 Exhibit G KY lit ROS, # 5 Exhibit H KY Lit amended compl, # 6 Exhibit I KY Lit Aff of Doran, # 7 Exhibit J KY Lit Motion, # 8 Affidavit K Aff of Wilson, # 9 Exhibit L Resp to Interrog, # 10 Exhibit M Marketwatch report) (Winterich, Shawn) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- Modified on 7/30/2013: Attorney used the incorrect event to efile additional exhibits to docket entry no. 233. Entry modified to reflect efiled pleading. (cem) (Entered: 07/29/2013) 07/29/2013 239 BRIEF in Support of 233 Motion for Partial Summary Judgment with additional Exhibit summary and exhibits by Marilyn Murphy. (Attachments: # 1 Affidavit Ex B Aff of Marilyn 2, pt. 1, # 2 Affidavit Ex B Aff of Marilyn 2, pt 2, # 3 Exhibit Ex E Depo of Doran, pt 1, # 4 Exhibit Ex E Depo of Doran pt 2, # 5 Appendix Ex N, Summary of Murphy net worth, pt. 1, # 6 Appendix Ex N, summary of Murphy net worth, pt 2, # 7 Exhibit Ex D Deposition of Doran 1, pt 1, # 8 Exhibit Ex D Deposition of Doran 1, pt 2, # 9 Exhibit Ex D Deposition of Doran 1, pt 3, # 10 Exhibit Ex D Deposition of Doran 1, pt 4, # 11 Exhibit Ex D Deposition of Doran 1, pt 5, # 12 Exhibit Ex D Deposition of Doran 1, pt 6)(Winterich, Shawn) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- Modified on 7/30/2013: Attorney used incorrect event to efile additional exhibits to docket entry no. 233. Entry modified to reflect efiled pleading. (cem) (Entered: 07/29/2013) 07/30/2013 240 MOTION for Summary Judgment by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Patel, Puja) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- (Entered: 07/30/2013) 07/30/2013 241 NOTICE Of Filing by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. re 234 MOTION for Summary Judgment (Attachments: # 1 Exhibit 54, # 2 Exhibit 5, # 3 Exhibit 6, # 4 Deposition of Vincent Murphy, August 2, 2012, # https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 31 of 71 Case: 15-14634 Date Filed: (35 of12/22/2017 268) Page: 35 of 211 5 Deposition of Vincent Murphy, June 5, 2013, # 6 Deposition of Robert McMaster, June 22, 2013, # 7 Deposition of Marilyn Murphy, June 25, 2012)(Patel, Puja) (Entered: 07/30/2013) 07/31/2013 242 ORDER granting Plaintiffs' 232 Motion for an Order permitting certain documents to be filed Under Seal. IT IS ORDERED that Plaintiffs be permitted to file the following documents under seal: (1) 2011 Tax Return for Michael V. Murphy, III,; (2)Divorce Agreement between Marilyn Wilcox Murphy and Michael Vincent Murphy; (3) Personal Financial Statement of M. Vincent Murphy, III; and (4) Financial Statement Affidavit and Financial Statement Certification of M. Vincent Murphy, III. Signed by Judge Richard W. Story on 7/31/2013. (cem) Exhibits Filed Under Seal (Additional attachment(s) added on 8/1/2013: # 1 Exhibit 4, # 2 Exhibit 9, # 3 Exhibit 17, # 4 Exhibit 74) (cem). (Entered: 08/01/2013) 08/07/2013 243 ORDER granting Plaintiffs' 184 Motion for Leave to File First Amended Complaint. Vincent Murphy's 198 Motion for Protective Order is DENIED, and Marilyn Murphy's 219 Motion to Compel Discovery is GRANTED. Plaintiffs are ORDERED to make Mr. Brian Doran available to complete his deposition within thirty (30) days of the docketing of this order. Because the Court has re-opened pleadings by granting Plaintiffs' Motion for Leave to Amend, Community Management Services, Inc., Multifamily Housing Developers, LLC and Vincent Murphy's 231 Motion for Summary Judgment is DENIED AS MOOT, and Marilyn Murphy's 233 Motion for Partial Summary Judgment is DENIED AS MOOT. The discovery period is EXTENDED for 45 days following the entry of this Order. Signed by Judge Richard W. Story on 8/7/2013. (cem) (Entered: 08/07/2013) 08/07/2013 Clerks Certificate of Mailing as to Michael Brent McDonald re 243 Order. (cem) (Entered: 08/07/2013) 08/07/2013 244 FIRST AMENDED COMPLAINT against Community Management Services, Inc., Gazebo Park Apartments of Acworth, LLC, Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III, Marilyn Murphy, filed by Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit 31, Inc., Alliant Tax Credit Tax Credit XXVII, Inc. (Attachments: # 1 Exhibit 1 - 19)(cem) Please visit our website at http://www.gand.uscourts.gov/forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 08/07/2013) 08/07/2013 Discovery ends on 9/21/2013. (rth) (Entered: 08/09/2013) 08/20/2013 245 CERTIFICATE OF SERVICE of Discovery by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd..(Patel, Puja) (Entered: 08/20/2013) 08/20/2013 246 ANSWER to 244 Amended Complaint by M. Vincent Murphy, III.(Kreimer, Stanley) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/20/2013) 08/20/2013 247 ANSWER to 244 Amended Complaint by Community Management Services, Inc..(Kreimer, Stanley) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/20/2013) 08/20/2013 248 ANSWER to 244 Amended Complaint by Multifamily Housing Developers, L.L.C..(Kreimer, Stanley) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/20/2013) 08/20/2013 249 Joint ANSWER to 244 Amended Complaint by Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC .(Winterich, Shawn) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. Modified on 8/21/2013 to add party Gazebo Park Apartments of Acworth, LLC and to delete duplicate text. (cem) (Entered: 08/20/2013) 08/21/2013 250 MOTION for Reconsideration with Brief In Support by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Attachments: # 1 Brief Brief in Support)(Kreimer, Stanley) (Entered: 08/21/2013) 08/21/2013 251 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 32 of 71 Case: 15-14634 Date Filed: (36 of12/22/2017 268) Page: 36 of 211 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 08/21/2013) 08/23/2013 252 DEPOSITION of Marilyn Murphy taken on January 29, 2013 by Marilyn Murphy.(Winterich, Shawn) (Entered: 08/23/2013) 08/23/2013 253 CERTIFICATE OF SERVICE by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 08/23/2013) 08/23/2013 254 RESPONSE re 240 MOTION for Summary Judgment filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Attachments: # 1 Statement of Material Facts Statement of Facts)(Kreimer, Stanley) (Entered: 08/23/2013) 08/23/2013 255 Response to Statement of Material Facts re 240 MOTION for Summary Judgment filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 08/23/2013) 08/23/2013 256 OPPOSITION to Plaintiffs' re 240 MOTION for Summary Judgment filed by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Statement of Material Facts) (Winterich, Shawn) Modified on 8/26/2013 to correct docket entry to reflect efiled pleading. (cem) (Entered: 08/23/2013) 08/25/2013 257 NOTICE Of Filing Opposing Exhibits by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy re 256 Reply Brief to Plaintiffs' Motion for Summary Judgment (Attachments: # 1 Exhibit B, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit I, # 5 Exhibit K, # 6 Exhibit P, # 7 Exhibit Q)(Winterich, Shawn) (Entered: 08/25/2013) 08/27/2013 258 CERTIFICATE OF SERVICE of Subpoenas and Notices of Deposition of Plaintiffs under FRCP 30(b)(6) by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company), Marilyn Murphy.(Winterich, Shawn) (Entered: 08/27/2013) 08/28/2013 259 CERTIFICATE OF SERVICE by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd..(Bundy, Walter) (Entered: 08/28/2013) 08/30/2013 260 NOTICE of Change of Address for Shawn Michael Winterich, counsel for Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy (Winterich, Shawn) (Entered: 08/30/2013) 08/30/2013 261 MOTION for Protective Order by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Text of Proposed Order) (Bundy, Walter) (Entered: 08/30/2013) 09/03/2013 262 MOTION to Drop a party pursuant to Rule 21 by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit Amended Judgment)(Bundy, Walter) (Entered: 09/03/2013) 09/03/2013 263 RESPONSE re 250 MOTION for Reconsideration filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Bundy, Walter) (Entered: 09/03/2013) 09/03/2013 264 CONSENT PROTECTIVE ORDER of Confidentiality Based Upon the Stipulations of the Parties granting 261 Motion for Protective Order. Signed by Judge Richard W. Story on 9/3/2013. (cem) (Entered: 09/04/2013) 09/04/2013 Clerks Certificate of Mailing as to Michael Brent McDonald re 264 Consent Protective Order. (cem) (Entered: 09/04/2013) 09/09/2013 265 REPLY to the Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC's re 256 Response to 240 Motion for Summary Judgment filed by Alliant Tax Credit 31, Inc., https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 33 of 71 Case: 15-14634 Date Filed: (37 of12/22/2017 268) Page: 37 of 211 Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Bundy, Walter) Modified on 9/10/2013 to correct docket entry to reflect efiled pleading. (cem) (Entered: 09/09/2013) 09/09/2013 266 REPLY to the Defendants M.Vincent Murphy, III, Multifamily Housing Developers, LLC and Community Management Services, Inc.'s re 254 Response to 240 Motion for Summary Judgment filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Bundy, Walter) Modified on 9/10/2013 to correct docket entry to reflect efiled pleading. (cem) (Entered: 09/09/2013) 09/09/2013 267 RESPONSE of Plaintiffs' to the 256 Statement of Material Facts as to which there remain genuine issues filed by Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Bundy, Walter) Modified on 9/10/2013 to correct docket entry to reflect efiled pleading. (cem) (Entered: 09/09/2013) 09/09/2013 268 RESPONSE of Plaintiffs to the 254 Statement of Additional Facts which are material and present a genuine issue for trial of Defendants M. Vincent Murphy, III, Multifamily Housing Developers, LLC and Community Management Services, Inc. filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Bundy, Walter) Modified on 9/10/2013 to correct docket entry to reflect filed pleading. (cem) (Entered: 09/09/2013) 09/11/2013 269 NOTICE by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. re 243 Order on Motion for Leave to File, Order on Motion for Protective Order, Order on Motion to Compel, Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,,,,,,,,,,,,,,, M. Vincent Murphy's Failure to Comply with Court Order [Dkt 243] (Bundy, Walter) (Entered: 09/11/2013) 09/16/2013 270 CERTIFICATE OF SERVICE of Subpoena and Notice of Deposition of U.S. Bank, N.A. by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy.(Winterich, Shawn) (Entered: 09/16/2013) 09/17/2013 Submission of 240 MOTION for Summary Judgment, submitted to District Judge Richard W. Story. (cem) (Entered: 09/17/2013) 09/18/2013 271 RESPONSE in Opposition re 262 MOTION to Drop a party pursuant to Rule 21 filed by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Exhibit A - Ky lit Amended Judgment 8/31/10, # 2 Exhibit B Ky lit MSJ, # 3 Exhibit C Ky lit MSJ memorandum, # 4 Exhibit D Ky lit MSJ bench memo)(Winterich, Shawn) (Entered: 09/18/2013) 09/19/2013 272 CERTIFICATE OF SERVICE re 245 Certificate of Service, of Responses to Requests for Admissions, Requests for Production and Interrogatories of Plaintiffs by Marilyn Murphy. (Winterich, Shawn) (Entered: 09/19/2013) 09/19/2013 273 CERTIFICATE OF SERVICE Plaintiffs Responses to Defendant M. Vincent Murphy IIIs Third Set of Discovery Requests to Plaintiffs by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd..(Bundy, Walter) (Entered: 09/19/2013) 09/20/2013 274 MOTION to Deem Discovery Responses Timely, or in the alternative, for Withdrawal of Admissions and Substitute Previously Served Responses with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 34 of 71 Case: 15-14634 Date Filed: (38 of12/22/2017 268) Page: 38 of 211 Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit Murphy 2nd set of Discovery Requests, # 2 Exhibit Declaration of David Darden, # 3 Exhibit Declaration of Justin Arpey, # 4 Exhibit Alliant Response to Murphy 2nd Discovery Request)(Bundy, Walter) Modified on 9/23/2013 to correct docket entry to reflect efiled pleading. (cem) (Entered: 09/20/2013) 09/20/2013 275 RESPONSE in Opposition re 262 MOTION Motion to Drop a party pursuant to Rule 21 filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 09/20/2013) 09/23/2013 276 Notice for Leave of Absence for the following date(s): 10/22/13- 10/29/13, 11/18/13- 11/22/13, 12/11/13-12/16/13, 3/31/14- 4/7/14, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 09/23/2013) 09/23/2013 277 MOTION for Extension of Time to Complete Discovery with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A Deposition Transcript of Vincent Murphy 6.5.13 p 47, # 2 Exhibit B Deposition Transcript of Vincent Murphy 6.5.13 p 167, # 3 Exhibit C Financial Transactions (1), # 4 Exhibit D Financial Transactions (2), # 5 Exhibit E Deposition Transcript of Vincent Murphy 6.5.13 pp 138-142, # 6 Exhibit F Marilyn Murphy Responses to Alliant Discovery Requests 9.23.13, # 7 Exhibit G Chart of Attempted Service on Talalai.)(Bundy, Walter) (Entered: 09/23/2013) 09/23/2013 278 Second MOTION to Compel Jurisdiction-Related Discovery Responses from Plaintiffs; MOTION for Leave for File Supporting Material Under Seal, or in the Alternative, Not Under Seal with Brief In Support by Marilyn Murphy. (Attachments: # 1 Brief, # 2 Exhibit A - Subpoena and depo notice, # 3 Exhibit B - Amended deposition notice for 9/17/13, # 4 Exhibit C - Organization charts (redacted), # 5 Exhibit D - Plaitifffs' Certificate of Interested Parties) (Winterich, Shawn) . Added MOTION to Seal on 9/24/2013 (cem). (Entered: 09/23/2013) 09/24/2013 Submission of 250 MOTION for Reconsideration, submitted to District Judge Richard W. Story. (cem) (Entered: 09/24/2013) 09/24/2013 279 Amended MOTION to Compel Discovery from Plaintiffs Pertaining to Jurisdiction, Amended MOTION to Seal, or In the Alternative, Not File Under Seal by Marilyn Murphy. (Winterich, Shawn) (Entered: 09/24/2013) 09/24/2013 280 NOTICE Of Filing Motion for Leave to File Supporting Material Under Seal, or in the Alternative, Not Under Seal by Marilyn Murphy re 278 Second MOTION to Compel Jurisdiction-Related Discovery Responses from Plaintiffs; Motion for Leave for File Supporting Material Under Seal, or in the Alternative, Not Under Seal MOTION to Seal, 279 Amended MOTION to Compel Discovery from Plaintiffs Pertaining to JurisdictionAmended MOTION to Seal, or In the Alternative, Not File Under Seal (Winterich, Shawn) (Entered: 09/24/2013) 09/26/2013 281 RESPONSE re 269 Notice (Other),, filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 09/26/2013) 10/01/2013 282 Notice for Leave of Absence for the following date(s): 10/16/2013-10/22/2013, by John P. Hutchins. (Hutchins, John) (Entered: 10/01/2013) 10/04/2013 283 CERTIFICATE OF SERVICE of Amended Responses to Plaintiffs' Discovery Requests of 8/20/13 by Marilyn Murphy.(Winterich, Shawn) (Entered: 10/04/2013) 10/07/2013 284 REPLY to Response to Motion re 262 MOTION Motion to Drop a party pursuant to Rule 21 of Marilyn Murphy and Gazebo Park filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Bundy, Walter) (Entered: 10/07/2013) 10/07/2013 285 REPLY to Response to Motion re 262 MOTION Motion to Drop a party pursuant to Rule 21 of Vincent Murphy, Community Management Services and Multifamily Housing Developers filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 35 of 71 Case: 15-14634 Date Filed: (39 of12/22/2017 268) Page: 39 of 211 XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Bundy, Walter) (Entered: 10/07/2013) 10/07/2013 286 RESPONSE re 274 MOTION for Discovery Motion to Deem Discovery Responses Timely filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 10/07/2013) 10/08/2013 Submission of 262 MOTION to Drop a party pursuant to Rule 21, submitted to District Judge Richard W. Story. (cem) (Entered: 10/08/2013) 10/10/2013 287 RESPONSE re 277 MOTION for Extension of Time to Complete Discovery filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 10/10/2013) 10/10/2013 288 RESPONSE re 278 Second MOTION to Compel Jurisdiction-Related Discovery Responses from Plaintiffs, MOTION for Leave to File Supporting Material Under Seal, or in the Alternative, Not Under Seal, filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit Declaration of W.H. Bundy, # 2 Exhibit Amended Judgment)(Bundy, Walter) (Entered: 10/10/2013) 10/14/2013 289 REPLY to re 281 Response of Defendant M. Vincent Murphy to NOTICE of Murphy Failure to Comply with Order 243 filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A -Declaration of M. Brent McDonald)(Bundy, Walter) Modified on 10/15/2013 to correct docket entry to reflect efiled pleading. (cem) (Entered: 10/14/2013) 10/16/2013 Submission of 279 Amended MOTION to Compel Discovery from Plaintiffs Pertaining to Jurisdiction,Amended MOTION to Seal, or In the Alternative, Not File Under Seal, submitted to District Judge Richard W. Story. (cem) (Entered: 10/16/2013) 10/16/2013 290 Notice for Leave of Absence for the following date(s): 11/25/13,11/26/13,11/27/13,11/28/13,11/29/13,12/23/13,12/24/13,12/25/13,12/26/13, 12/27/13,12/30/13,12/31/13,01/01/14,01/02/14,01/03/14,01/06/2014,04/07/14,04/08/14, 04/09/14,04/10/14,04/11/14, by Stanley Earle Kreimer, Jr. (Kreimer, Stanley) Modified on 10/17/2013 to add the 1/6/2014 date into entry. (cem) (Entered: 10/16/2013) 10/17/2013 291 ORDER granting Plaintiffs' 262 Motion to Drop Plaintiff Alliant Tax Credit Fund 31-A, Ltd. from this action. Plaintiff Alliant Tax Credit Fund 31-A, Ltd. is DROPPED as a party to this action. Signed by Judge Richard W. Story on 10/17/2013. (cem) (Entered: 10/18/2013) 10/18/2013 Clerks Certificate of Mailing as to Michael Brent McDonald re 291 Order. (cem) (Entered: 10/18/2013) 10/22/2013 292 CERTIFICATE OF SERVICE Supplemental Response to Requests for Production of all Defendants by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd..(Bundy, Walter) (Entered: 10/22/2013) 10/23/2013 293 NOTICE Of Filing Supporting Exhibits and Deposition Transcript in Support of Motion for Partial Summary Judgment of Marilyn Murphy by Marilyn Murphy (Attachments: # 1 Exhibit R Depo excerpt of Vince 8/26/10, # 2 Exhibit S Depo excerpt of Emily S. Bair of 6/5/13, # 3 Exhibit T Affidavit of John P Wilson III of 10/17/13, # 4 Exhibit U Affidavit of Shawn M. Winterich of 10/17/13, # 5 Exhibit V Depo excerpt of M. Murphy of 1/29/13)(Winterich, Shawn) (Entered: 10/23/2013) 10/23/2013 294 DEPOSITION of Emily S. Bair taken on June 5, 2013 by Marilyn Murphy.(Winterich, Shawn) (Entered: 10/23/2013) 10/23/2013 295 MOTION for Partial Summary Judgment Involving Counts One through Four and Nine and Ten, with Brief In Support by Marilyn Murphy. (Attachments: # 1 Statement of Material Facts, https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 36 of 71 Case: 15-14634 Date Filed: (40 of12/22/2017 268) Page: 40 of 211 # 2 Brief)(Winterich, Shawn) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- (Entered: 10/23/2013) 10/23/2013 296 Second MOTION for Summary Judgment with Brief In Support by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Attachments: # 1 Brief Brief in Support, # 2 Statement of Material Facts Statement of Facts) (Kreimer, Stanley) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- (Entered: 10/23/2013) 10/23/2013 297 MOTION for Partial Summary Judgment with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief in Support of Alternative Motion for Partial Summary Judgment, # 2 Statement of Material Facts Exhibit A, # 3 Exhibit B-Excerpts from Deposition of M. Vincent Murphy 8.2.12, # 4 Exhibit C-Excerpts from Deposition of Marilyn Murphy 6.5.12, # 5 Exhibit D-Marilyn Murphy Responses to Pltffs 2nd Interrogatories, # 6 Exhibit E-Excerpts from Deposition of M. Vincent Murphy 6.5.13, # 7 Exhibit F-Excerpts from Deposition of Marilyn Murphy 1.29.13, # 8 Exhibit G-Excerpts from Deposition of Marilyn Murphy 1.29.13, # 9 Exhibit H-Excerpts from Deposition of Marilyn Murphy 1.29.13, # 10 Exhibit I-Excerpts from Deposition of Marilyn Murphy 1.29.13)(Bundy, Walter) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- (Entered: 10/23/2013) 10/23/2013 298 NOTICE Of Filing by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Attachments: # 1 Exhibit Deposition of M. Vincent Murphy III, 8.2.12, # 2 Exhibit Deposition of M. Vincent Murphy, III 6.5.13, # 3 Exhibit Deposition of Marilyn Murphy 1.29.13, # 4 Exhibit Deposition of Marilyn Murphy 6.25.12)(Bundy, Walter) (Entered: 10/23/2013) 10/24/2013 299 Minute Entry for proceedings held before Judge Richard W. Story: Telephone Conference held on 10/24/2013. Court held a telephonic conference re: Discovery. Order to follow. (Court Reporter Sharon Upchurch) (cem) (Entered: 10/24/2013) 10/25/2013 300 ORDER: On October 24, 2013, the Court conducted a phone conference with counsel for Plaintiff and Defendant Marilyn Murphy. As a result of the conference, the Court enters the following Order. Defendant Marilyn Murphy is ORDERED to supplement her Responses to Plaintiff's Request to Admit Nos. 5, 15, 16, 17, and 20 within fourteen (14) days of the entry of this Order. Defendant Marilyn Murphy shall also provide full account information for her accounts at Five County Credit Union and Key Bank. Plaintiff is authorized to issue subpoenas for records at those institutions. It is also ORDERED that Defendants Marilyn Murphy's Responses to Plaintiff's Statement of Material Facts associated with Plaintiff's Motion for Summary Judgment may be treated as admissions by Defendant Marilyn Murphy at the trial of the case. Counsel were also cautioned that prior to trial, counsel will be expected to attempt in good faith to reach a stipulation as to the authenticity of all bank records and other relevant documents that may be tendered at the trial of the case. Signed by Judge Richard W. Story on 10/25/2013. (cem) (Entered: 10/25/2013) 10/25/2013 Clerks Certificate of Mailing as to Alliant Tax Credit 31, Inc. re 300 Order. (cem) (Entered: 10/25/2013) 10/29/2013 Submission of 274 MOTION to Deem Discovery Responses Timely, or in the alternative, for Withdrawal of Admisssions and Substitute Previously Served Responses; 277 MOTION for Extension of Time to Complete Discovery; and 278 Second MOTION to Compel Jurisdiction- Related Discovery Responses from Plaintiffs; Motion for Leave for File Supporting Material Under Seal, or in the Alternative, Not Under Seal, submitted to District Judge Richard W. Story. (cem) (Entered: 10/29/2013) 11/06/2013 301 CERTIFICATE OF SERVICE of Second Amended Responses to Plaintiffs' Discovery Requests of 8/20/13 by Marilyn Murphy.(Winterich, Shawn) (Entered: 11/06/2013) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 37 of 71 Case: 15-14634 Date Filed: (41 of12/22/2017 268) Page: 41 of 211 11/18/2013 302 NOTICE by Marilyn Murphy re 297 MOTION for Partial Summary Judgment of Filing Opposing Exhibits (Attachments: # 1 Exhibit Exhibit W Market report of KO stock 01/09/08) (Winterich, Shawn) (Entered: 11/18/2013) 11/18/2013 303 RESPONSE in Opposition re 296 Second MOTION for Summary Judgment filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1 Final Judgment and Decree of Divorce 1.9.08, # 2 Exhibit 2 Affidavit of Emily Bair p 3, # 3 Exhibit 3 Deposition of Emily Bair 6.5.13 p 58 pp72-73, # 4 Exhibit 4 Kurt Kegel Report 10.8.12, # 5 Exhibit 5 Deposition of Marilyn Murphy 1.29.13 p 14, # 6 Exhibit 6 Deposition of M Vincent Murphy 6.5.13 p 156, # 7 Exhibit 7 Deposition of M Vincent Murphy 8.2.12 pp 126-128, # 8 Exhibit 8 Deposition of Marilyn Murphy 1.29.13, # 9 Exhibit 9 Deposition of Marilyn Murphy 1.29.13 pp 71-7, # 10 Exhibit 10 Am Resp of Marilyn Murphy to Discovery, # 11 Exhibit 11 SunTrust 34 and 41, # 12 Exhibit 12 Deposition of Marilyn Murphy 1.29.13 p 48, # 13 Exhibit 13 Deposition of Marilyn Murphy 1.29.13 p 53, # 14 Exhibit 14 Order of Fulton County State Court 10.15.1)(Bundy, Walter) (Entered: 11/18/2013) 11/18/2013 304 RESPONSE in Opposition re 297 MOTION for Partial Summary Judgment filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 11/18/2013) 11/18/2013 305 Response to Statement of Material Facts re 297 MOTION for Partial Summary Judgment filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 11/18/2013) 11/18/2013 306 Statement of Material Facts re 297 MOTION for Partial Summary Judgment filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 11/18/2013) 11/18/2013 307 RESPONSE in Opposition re 297 MOTION for Partial Summary Judgment of Plaintiffs filed by Marilyn Murphy. (Attachments: # 1 Statement of Material Facts Responses)(Winterich, Shawn) (Entered: 11/18/2013) 11/18/2013 308 Response to Statement of Material Facts re 296 Second MOTION for Summary Judgment filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1 Deposition of Vince Murphy. 8.2.12, # 2 Exhibit 2 Deposition of Vince Murphy. 12.29.08, # 3 Exhibit 3 Marilyn Murphy BB&T & BOA Bank, # 4 Exhibit 4 Marilyn Murphy BB&T& Regions Bank, # 5 Exhibit 5 Deposition of Gary Alexander, # 6 Exhibit 6 Deposition of Vince Murphy 6.5.13, # 7 Exhibit 7 Deposition of Marilyn Murphy 1.29.13, # 8 Exhibit 8 Deposition of Marilyn Murphy 6.25.12, # 9 Exhibit 8 Deposition of Marilyn Murphy 6.25.12, # 10 Exhibit 10 Secured Promissory Note, # 11 Exhibit 11 Banking Documents, # 12 Exhibit 12 Deposition of Marilyn Murphy 6.25.12, # 13 Exhibit 13 Deposition of Marilyn Murphy 6.25.12, # 14 Exhibit 14 Deposition of Marilyn Murphy 6.25.12, # 15 Exhibit 15 Deposition of Marilyn Murphy 6.25.1, # 16 Exhibit 16 Deposition of Marilyn Murphy 6.25.12, # 17 Exhibit 17 Deposition of M. Vincent Murphy. 12.29.0, # 18 Exhibit 18 Deposition of Marilyn Murphy 1.29.13, # 19 Exhibit 19 Deposition of Marilyn Murphy 1.29.13, # 20 Exhibit 20 Sailboat Sale documents, # 21 Exhibit 21 Deposition of Marilyn Murphy 6.25.12, # 22 Exhibit 22 Deposition of Marilyn Murphy 1.29.13, # 23 Exhibit 23 Banking documents., # 24 Exhibit 24 Deposition of Marilyn Murphy, # 25 Exhibit 25 Deposition of M. Vincent Murphy 6.5.13)(Bundy, Walter) (Entered: 11/18/2013) 11/18/2013 309 Response to Statement of Material Facts re 296 Second MOTION for Summary Judgment Local Rule 56.1(B)(2)(b) Statement filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Bundy, Walter) (Entered: 11/18/2013) 11/18/2013 310 RESPONSE in Opposition re 295 MOTION for Partial Summary Judgment Involving Counts One through Four and Nine and Ten, filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 38 of 71 Case: 15-14634 Date Filed: (42 of12/22/2017 268) Page: 42 of 211 Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1 Deposition of Marilyn Murphy 1.29.13 pp 220-221)(Bundy, Walter) (Entered: 11/18/2013) 11/18/2013 311 Response to Statement of Material Facts re 295 MOTION for Partial Summary Judgment Involving Counts One through Four and Nine and Ten, filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1 Final Judgment and Decree of Divorce, # 2 Exhibit 2 Deposition of Marilyn Murphy 6.25.12, # 3 Exhibit 3 Deposition of Marilyn Murphy 6.25.12, # 4 Exhibit 4 Deposition of Marilyn Murphy 6.25.12, # 5 Exhibit 5 Deposition of Vince Murphy 6.5.13, # 6 Exhibit 6 Deposition of Gary Alexander 5.13.13, # 7 Exhibit 7 Deposition of Marilyn Murphy 1.29.13, # 8 Exhibit 8 Deposition of Kurt Kegel 5.26.13)(Bundy, Walter) (Entered: 11/18/2013) 11/18/2013 312 Response to Statement of Material Facts re 295 MOTION for Partial Summary Judgment Involving Counts One through Four and Nine and Ten, Local Rule 56.1(B)(2)(b) Statement filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Bundy, Walter) (Entered: 11/18/2013) 12/05/2013 313 REPLY to Response to Motion re 297 MOTION for Partial Summary Judgment of Marilyn Murphy filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A Marilyn Murphys 2nd Amended Responses to Pltffs 1st Interrogatories, # 2 Exhibit B Vincent Murphy Response to Alliant Discovery Notice, # 3 Exhibit C Deposition of Vincent Murphy. 6.5.13)(Bundy, Walter) (Entered: 12/05/2013) 12/05/2013 314 REPLY to Response to Motion re 297 MOTION for Partial Summary Judgment of M. Vincent Murphy, III filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A Exhibit 49 to the Deposition of Vincent Murphy 12.29.08, # 2 Exhibit B Deposition of Vincent Murphy 12.29.08, # 3 Exhibit C Marilyn Murphys 2nd Amended Response to the Pltffs 1st INT, # 4 Exhibit D Vincent Murphys Response to Plaintiffs Discovery Notice, # 5 Exhibit E Deposition of Vincent Murphy 6.5.13, # 6 Exhibit F Deposition of Vincent Murphy 6.5.13, # 7 Exhibit G Deposition of Vincent Murphy 8.2.12) (Bundy, Walter) (Entered: 12/05/2013) 12/05/2013 315 Response to Statement of Material Facts re 297 MOTION for Partial Summary Judgment ofVincent Murphy's Second Statement of Fact filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Bundy, Walter) (Entered: 12/05/2013) 12/05/2013 316 REPLY to Response to Motion re 296 Second MOTION for Summary Judgment filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 12/05/2013) 12/05/2013 317 REPLY to Response to Motion re 296 Second MOTION for Summary Judgment filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 12/05/2013) 12/05/2013 318 DEPOSITION of Kurt A. Kegel taken on June 26, 2013 by Marilyn Murphy.(Winterich, Shawn) (Entered: 12/05/2013) 12/11/2013 Submission of 295 MOTION for Partial Summary Judgment Involving Counts One through Four and Nine and Ten, 296 Second MOTION for Summary Judgment, and 297 MOTION for Partial Summary Judgment, submitted to District Judge Richard W. Story. (cem) (Entered: 12/11/2013) 12/16/2013 319 Notice for Leave of Absence for the following date(s): 3/5/2014-3/7/2014, 3/12/14-3/14/14, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 12/16/2013) 12/17/2013 320 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 39 of 71 Case: 15-14634 Date Filed: (43 of12/22/2017 268) Page: 43 of 211 MOTION for Order Certifying Questions of Law to the Supreme Court of the State of Georgia with Brief In Support by Marilyn Murphy. (Winterich, Shawn) (Entered: 12/17/2013) 12/18/2013 321 Response to Statement of Material Facts re 297 MOTION for Partial Summary Judgment (Corrected to include missing p. 6) filed by Marilyn Murphy. (Winterich, Shawn) (Entered: 12/18/2013) 12/23/2013 322 MOTION to Dismiss with Brief In Support by Gazebo Park Apartments of Acworth, LLC. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I)(Winterich, Shawn) (Entered: 12/23/2013) 12/24/2013 323 NOTICE Of Filing Exhibits and Affidavit of Elizabeth A. Murphy by Gazebo Park Apartments of Acworth, LLC re 322 MOTION to Dismiss (Attachments: # 1 Affidavit of Elizabeth A. Murphy, # 2 Exhibit Ex A, Pt 1, Gazebo Agreement, # 3 Exhibit Ex A, Pt 2, Gazebo Agreement)(Winterich, Shawn) (Entered: 12/24/2013) 01/03/2014 324 RESPONSE in Opposition re 320 MOTION for Order Certifying Questions of Law to the Supreme Court of the State of Georgia filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A Discovery Responses of Marilyn Murphy, # 2 Exhibit B Second Affidavit of Marilyn Murphy 2.21.12, # 3 Exhibit C Second Amended responses of Marilyn Murphy)(Bundy, Walter) (Entered: 01/03/2014) 01/08/2014 325 RESPONSE in Opposition re 322 MOTION to Dismiss filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A Judgment Registered in the NDGA 11.12.10, # 2 Exhibit B Reyes-Fuentes v. Shannon Produce Farm, Inc., 2012 WL 1557368 (2012 S.D.Ga.), # 3 Exhibit C Reyes-Fuentes v. Shannon Produce Farm, Inc., 2012 WL 1557399 (2012 S.D.Ga))(Bundy, Walter) (Entered: 01/08/2014) 01/20/2014 326 REPLY BRIEF in Support re 320 MOTION for Order Certifying Questions of Law to the Supreme Court of the State of Georgia filed by Marilyn Murphy. (Winterich, Shawn) Modified on 1/21/2014: Incorrect event used to efile pleading. Entry modified to reflect efiled pleading. (cem) (Entered: 01/20/2014) 01/21/2014 Submission of 320 MOTION for Order Certifying Questions of Law to the Supreme Court of the State of Georgia, submitted to District Judge Richard W. Story. (cem) (Entered: 01/21/2014) 01/27/2014 327 REPLY to Response to Motion re 322 MOTION to Dismiss filed by Gazebo Park Apartments of Acworth, LLC. (Attachments: # 1 Exhibit A Doran 30b6 depo cover 5/1/13, # 2 Exhibit B Doran 30b6 depo cover 9/1/13, # 3 Exhibit C Doran 30b6 depo cover 9/17/13, # 4 Exhibit D Fulton original Complaint excerpt, # 5 Exhibit E Fulton Amended Complaint, # 6 Exhibit F Pro hac order Bundy, # 7 Exhibit G Pro hac order McD)(Winterich, Shawn) (Entered: 01/27/2014) 01/28/2014 Submission of 322 MOTION to Dismiss, submitted to District Judge Richard W. Story. (cem) (Entered: 01/28/2014) 02/12/2014 328 Notice for Leave of Absence for the following date(s): 4/2/14-4/15/14, 8/4/14-8/12-14, 9/9/14-9/19/14, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 02/12/2014) 03/17/2014 329 Consent MOTION for Order Modifying Consent order of July 15, 2011 by Marilyn Murphy. (Attachments: # 1 Text of Proposed Order Proposed order)(Winterich, Shawn) (Entered: 03/17/2014) 03/21/2014 330 CONSENT ORDER granting 329 Consent Motion to Modify Consent Order of July 15, 2011. Signed by Judge Richard W. Story on 3/18/2014. (See Order for full details.) (cem) (Entered: 03/21/2014) 03/21/2014 Clerks Certificate of Mailing as to Michael Brent McDonald re 330 Order. (cem) (Entered: 03/21/2014) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 40 of 71 Case: 15-14634 Date Filed: (44 of12/22/2017 268) Page: 44 of 211 03/28/2014 331 ORDER granting in part and denying in part Defendant Gazebo Park Apartments of Acworth, LLC's 322 Motion to Dismiss. Counts VIII (civil conspiracy), IX(attorneys fees), and X (punitive damages) are DISMISSED against Gazebofor lack of subject matter jurisdiction. Count VII (fraudulent transfer) remains. Signed by Judge Richard W. Story on 3/28/2014. (cem) (Entered: 03/31/2014) 03/31/2014 Clerks Certificate of Mailing as to Alliant Tax Credit 31, Inc. re 331 Order. (cem) (Entered: 03/31/2014) 03/31/2014 332 ORDER granting Defendants' 250 Motion for Reconsideration, to the extent it seeks clarification of the Court's prior Order 243. To clarify, the Court's denial was without prejudice and Defendants are entitled to resubmit their motion for summary judgment at the close of discovery. Signed by Judge Richard W. Story on 3/31/2014. (cem) (Entered: 03/31/2014) 03/31/2014 Clerks Certificate of Mailing as to Michael Brent McDonald re 332 Order. (cem) (Entered: 03/31/2014) 03/31/2014 333 ORDER: Plaintiffs' Rule 36(b) Motion to Withdraw Admissions and Substitute Previously Served Responses 274 is DENIED, Plaintiffs' Motion for Extension of Discovery Deadline 277 is DENIED, Defendant Marilyn Murphy's Motion to Compel Jurisdiction-Related Discovery (278 as amended by 279) is DENIED. Signed by Judge Richard W. Story on 3/31/2014. (cem) (Entered: 04/01/2014) 04/01/2014 Clerks Certificate of Mailing as to Michael Brent McDonald re 333 Order. (cem) (Entered: 04/01/2014) 04/02/2014 334 Notice for Leave of Absence for the following date(s): 06/03/14,06/04/14,06/05/14,06/06/14,06/09/14,06/10/14,06/11/14,06/12/14,06/13/14, 06/16/14,06/17/14,06/18/14,07/07/14,07/08/14,07/09/14,07/10/14,07/11/14,07/14/14,07/15/14, 07/16/14,07/17/14,07/18/14,07/21/14,07/22/14, by Stanley Earle Kreimer, Jr. (Kreimer, Stanley) (Entered: 04/02/2014) 04/14/2014 335 ORDER denying Plaintiffs' 240 Motion for Summary Judgment. Signed by Judge Richard W. Story on 4/14/2014. (cem) (Entered: 04/14/2014) 04/14/2014 Clerks Certificate of Mailing as to Michael Brent McDonald re 335 Order on Motion for Summary Judgment. (cem) (Entered: 04/14/2014) 04/14/2014 336 AMENDED STATEMENT of Material Facts based on Order 333 of April 1, 2014, Involving Counts One through Four and Nine and Ten, re 295 MOTION for Partial Summary Judgment filed by Marilyn Murphy (Doc. 333) (Winterich, Shawn) Modified on 4/15/2014 to modify docket entry to reflect efiled pleading. (cem). (Entered: 04/14/2014) 04/15/2014 337 Notice for Leave of Absence for the following date(s): 5/12/14-5/22/14, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 04/15/2014) 04/21/2014 338 Brief in Support of 296 MOTION for Summary Judgment Number Two with Brief In Support by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Attachments: # 1 Brief Brief in Support, # 2 Statement of Material Facts Statement of Facts)(Kreimer, Stanley) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- Modified on 4/22/2014 to edit text (ddm). (Entered: 04/21/2014) 04/23/2014 339 Amended MOTION for Summary Judgment Number Two by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- (Entered: 04/23/2014) 04/24/2014 340 MOTION for Reconsideration of the Court's re 333 Order dated 3/31/2014 with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief in support of Motion for reconsideration of Order [Dkt 333])(Bundy, https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 41 of 71 Case: 15-14634 Date Filed: (45 of12/22/2017 268) Page: 45 of 211 Walter) Modified on 4/25/2014 to correct docket entry to reflect efiled pleading. (cem) (Entered: 04/24/2014) 04/25/2014 341 MOTION for Reconsideration re 331 Order on Motion to Dismiss, with Brief In Support by Gazebo Park Apartments of Acworth, LLC. (Attachments: # 1 Brief Memorandum in Support) (Winterich, Shawn) (Entered: 04/25/2014) 04/29/2014 342 Notice for Leave of Absence for the following date(s): 6/27, 6/30, 7/1, 7/2, 7/3, 7/7, 7/8, 7/9, 8/22, 8/25, 8/26, 8/27, 8/28, 8/29, 9/1, 9/2, 9/3, 9/4, 9/5, 9/8, 9/9, 9/10, 9/11, 9/12, 9/17, 9/18, 9/19, 9/22, 9/23, 9/24, 11/21, 11/24, 11/25, 11/26, 11/27, 11/28, 12/1, 12/2, 12/19, 12/22, 12/23, 12/24, 12/26, 12/29, 12/30, 12/31/14, 1/1, 1/2, 1/5, 1/6/15, by Shawn Michael Winterich. (Winterich, Shawn) (Entered: 04/29/2014) 05/06/2014 343 RESPONSE re 340 MOTION for Reconsideration re 333 Order on Motion for Discovery, Order on Motion for Extension of Time to Complete Discovery, Order on Motion to Compel, Order on Motion to Seal,,,,,,,, filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 05/06/2014) 05/08/2014 344 RESPONSE in Opposition re 340 MOTION for Reconsideration re 333 Order on Motion for Discovery, Order on Motion for Extension of Time to Complete Discovery, Order on Motion to Compel, Order on Motion to Seal,,,,,,,,, 274 MOTION for Discovery Motion to Deem Discovery Responses Timely filed by Gazebo Park Apartments of Acworth, LLC. (Winterich, Shawn) (Entered: 05/08/2014) 05/08/2014 345 RESPONSE in Opposition re 341 MOTION for Reconsideration re 331 Order on Motion to Dismiss, filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Bundy, Walter) (Entered: 05/08/2014) 05/20/2014 346 REPLY to Response to Motion re 340 MOTION for Reconsideration re 333 Order on Motion for Discovery, Order on Motion for Extension of Time to Complete Discovery, Order on Motion to Compel, Order on Motion to Seal,,,,,,,, filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Bundy, Walter) (Entered: 05/20/2014) 05/20/2014 Submission of 339 Amended MOTION for Summary Judgment Number Two, submitted to District Judge Richard W. Story. (cem) (Entered: 05/20/2014) 05/22/2014 347 REPLY to Response to Motion re 341 MOTION for Reconsideration re 331 Order on Motion to Dismiss, filed by Gazebo Park Apartments of Acworth, LLC. (Attachments: # 1 Exhibit A KY complaint, # 2 Exhibit B KY cert of interested persons, # 3 Exhibit C KY amended complaint, # 4 Exhibit D KY judgment, # 5 Exhibit E Aff of Vince Murphy, # 6 Exhibit F Aff of Marilyn Murphy, # 7 Exhibit G UPS company info, # 8 Exhibit H NV Great Plains LLC docs, # 9 Exhibit I 30b6 depo of Plaintiff 090313, # 10 Exhibit J 30b6 depo of Plaintifff 091713, # 11 Exhibit K cert of interested persons UPS, # 12 Exhibit L cert of interested persons UPS, # 13 Exhibit M FL Alliant LP 31-A docs)(Winterich, Shawn) (Entered: 05/22/2014) 05/28/2014 Submission of 340 MOTION for Reconsideration re 333 Order; and 341 MOTION for Reconsideration re 331 Order, submitted to District Judge Richard W. Story. (cem) (Entered: 05/28/2014) 06/06/2014 348 Notice for Leave of Absence for the following date(s): 11/14/14-11/24/14, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 06/06/2014) 06/10/2014 349 Notice for Leave of Absence for the following date(s): 9/25, 9/26, 9/29, 9/30, 10/1, 10/2, 10/3, 10/6, by Shawn Michael Winterich. (Winterich, Shawn) (Entered: 06/10/2014) 08/12/2014 350 ORDER denying Plaintiffs' 340 Motion for Reconsideration and Gazebo Park Apartments of Acworth, LLC's 341 Motion for Reconsideration is DENIED. Signed by Judge Richard W. Story on 8/11/2014. (cem) (Entered: 08/12/2014) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 42 of 71 Case: 15-14634 Date Filed: (46 of12/22/2017 268) Page: 46 of 211 08/12/2014 351 ORDER denying Marilyn Murphy's 320 Motion for Order Certifying Questions of Law to the Supreme Court of the State of Georgia. Signed by Judge Richard W. Story on 8/11/2014. (cem) (Entered: 08/12/2014) 08/12/2014 352 ORDER: Marilyn Murphy's 295 Motion for Partial Summary Judgment is GRANTED in part and DENIED in part; Plaintiffs' 297 Motion for Partial Summary Judgment is DENIED; and Community Management Services, Inc., Multifamily Housing Developers, LLC, and Vince Murphy's 296, 339 Second Motion for Summary Judgment is DENIED. The Parties are ORDERED to file a proposed consolidated pretrial order within 30 days of the entry of this Order. Counsel are reminded of the Court's admonition in the October 25, 2013 Order 300 to attempt in good faith to reach a stipulation as to the authenticity of all bank records and other relevant documents that may be tendered at the trial of the case. Counsel should also explore other stipulations that may facilitate the efficient trial of the case as the Court will impose time limits on the presentation of evidence at trial. Signed by Judge Richard W. Story on 8/11/2014. (cem) (Entered: 08/12/2014) 08/12/2014 Clerks Certificate of Mailing as to Michael Brent McDonald re 350, 351, 352 Orders. (cem) (Entered: 08/12/2014) 09/03/2014 SCHEDULING ORDER: Proposed Pretrial Order due by 10/14/2014.Verbal Order by Judge Richard W. Story on 9/3/2014. (rag) (Entered: 09/03/2014) 09/16/2014 353 Notice for Leave of Absence for the following date(s): 12/8/13 through 12/12/14, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 09/16/2014) 10/07/2014 SCHEDULING ORDER: Proposed Pretrial Order due by 11/14/2014. Verbal Order by Judge Richard W. Story on 10/7/2014. (rag) (Entered: 10/07/2014) 10/09/2014 354 Notice for Leave of Absence for the following date(s): 11/24/14,11/25/14,11/26/14,11/27/14,11/28/14,12/01/14,12/02/14,12/22/14,12/23/14, 12/24/14,12/25/14,12/26/14,12/29/14,12/30/14,12/31/14,01/01/15,01/02/15, by Stanley Earle Kreimer, Jr. (Kreimer, Stanley) (Entered: 10/09/2014) 10/09/2014 355 Notice for Leave of Absence for the following date(s): 12/15, 16, 17, 18, 19, 2014, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 10/09/2014) 10/22/2014 356 MOTION to Set Aside Order/Judgment with Brief In Support by Marilyn Murphy. (Attachments: # 1 Brief in Support, # 2 Exhibit A (KY lit complaint), # 3 Exhibit B (Ky disc. stmt.), # 4 Exhibit C (Ky lit amended complaint), # 5 Exhibit D (Ky lit civil cover sheet), # 6 Exhibit E (Ky lit disclosure stmt.), # 7 Exhibit F (Ky lit Motion to Correct), # 8 Exhibit G (Ky lit order grtg correction), # 9 Exhibit H Reg of Ky jud in Georgia, # 10 Exhibit I Plaintiffs' partial responses to Movants Interrogatories, # 11 Exhibit J Aff excerpt of Vince Murphy 7/25/13, # 12 Exhibit K Aff of Marilyn of 1/4/12, # 13 Exhibit L UPS company HQ info, # 14 Exhibit M Great Plains public filings, # 15 Exhibit N 30b6 redacted depo of Plaintiffs 9/3/13, # 16 Exhibit O 30b6 redacted depo of Plainitffs 9/17/13, # 17 Exhibit P proof of affiliation of GP and UPS, # 18 Exhibit Q proof of affiliation of GP and UPS, # 19 Exhibit R 31-A, Ltd FL partnership filings, # 20 Exhibit S 31-A redacted LP agrmnt, # 21 Exhibit T UPS Georgia corp info)(Winterich, Shawn) (Entered: 10/22/2014) 11/05/2014 357 NOTICE setting Trial: Jury Trial set for 12/8/2014 at 09:30 AM in ATLA Courtroom 2105 before Judge Richard W. Story. (rag) (Entered: 11/05/2014) 11/05/2014 358 RESPONSE in Opposition re 356 MOTION to Set Aside Order/Judgment filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit Alliant v Murphy Financial Transaction Summary, # 2 Exhibit 6th Court of Appeals Opinion, # 3 Exhibit USDC KY Amended Judgment, # 4 Exhibit Financial Transactions, # 5 Exhibit Assignment of Invester Interest)(Bundy, Walter) (Entered: 11/05/2014) 11/07/2014 359 NOTICE of Appearance by Richard Kennon Hines, V on behalf of Gazebo Park Apartments of Acworth, LLC (Hines, Richard) (Entered: 11/07/2014) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 43 of 71 Case: 15-14634 Date Filed: (47 of12/22/2017 268) Page: 47 of 211 11/07/2014 360 Request for Leave of Absence for the following date(s): 01/22/2015 - 02/03/2015; 02/12/2015 - 02/13/2015; 02/26/2015 - 02/27/2015, by Richard Kennon Hines, V. (Hines, Richard) (Entered: 11/07/2014) 11/15/2014 361 Notice for Leave of Absence for the following date(s): 1/22, 1/23, 2/19, 2/20, 3/23, 3/24, 3/25, 3/26., 3/27, 6/8, 6/9, 6/10, 6/11, 6/12, 6/15, 6/29, 6/30, 7/1, 7/2, 7/3, 9/21, 9/22, 9/23, 9/24, 9/25, 10/26, 10/27, 10/28, 10/29, 11/23, 11/24, 11/25, 11/26, 11/27, 12/21, 12/22, 12/23, 12/24, 12/28, 12/29, 12/30, 12/31/15, 1/4, 1/5/16, by Shawn Michael Winterich. (Winterich, Shawn) (Entered: 11/15/2014) 11/17/2014 Submission of Scheduling Order: Proposed Pretrial Order due by 11/14/2014, submitted to District Judge Richard W. Story. (cem) (Entered: 11/17/2014) 11/17/2014 362 First MOTION in Limine with Brief In Support by Marilyn Murphy. (Attachments: # 1 Brief) (Winterich, Shawn) (Entered: 11/17/2014) 11/17/2014 363 MOTION in Limine Testimony from Stan Kreimer with Brief In Support by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Attachments: # 1 Brief Brief in Support)(Kreimer, Stanley) (Entered: 11/17/2014) 11/17/2014 364 MOTION in Limine Testimony of Kurt Kegel with Brief In Support by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Attachments: # 1 Brief Brief in Support)(Kreimer, Stanley) (Entered: 11/17/2014) 11/17/2014 365 Proposed Pretrial Order by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A Qualifying Questions, # 2 Exhibit B Voir Dire, # 3 Exhibit C Plaintiff Case Outline, # 4 Exhibit D Defendants Case Outlines, # 5 Exhibit F Plaintiff Witnesses, # 6 Exhibit G Defendants Witnesses, # 7 Exhibit H Brief, # 8 Exhibit I Verdict form, # 9 Exhibit J Objection to voir Dire, # 10 Exhibit K Objection to Voir Dire, # 11 Exhibit L Objection to Voir Dire, # 12 Exhibit M Designation, # 13 Exhibit N Designations, # 14 Exhibit O Designations, # 15 Exhibit P Legal Issues, # 16 Exhibit Q Legal Issues, # 17 Exhibit R Legal Issues)(Bundy, Walter) (Entered: 11/17/2014) 11/21/2014 366 REPLY BRIEF re 356 MOTION to Set Aside Order/Judgment filed by Marilyn Murphy. (Winterich, Shawn) (Entered: 11/21/2014) 11/25/2014 Submission of 356 MOTION to Set Aside Order/Judgment, submitted to District Judge Richard W. Story. (cem) (Entered: 11/25/2014) 12/03/2014 367 RESPONSE in Opposition re 363 MOTION in Limine Testimony from Stan Kreimer filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A Vince Murphy Deposition Exhibit 12.29.08, # 2 Exhibit B Notice letters, # 3 Exhibit C Vince Murphy Deposition Excerpts 12.29.08, # 4 Exhibit D Vince Murphy Deposition Excerpts 12.29.08, # 5 Exhibit E Alliant Rule 1006 Transaction Summary Spreadsheet, # 6 Exhibit F Stanley Kreimer Deposition Excerpts 6.5.13, # 7 Exhibit G Quit Claim Deed 3.28.07, # 8 Exhibit H Closing Statement, # 9 Exhibit I Financial Transaction, # 10 Exhibit J Financial Transaction, # 11 Exhibit K Financial Transaction, # 12 Exhibit L Account Statement-1374 4.24.09, # 13 Exhibit M Financial Transaction, # 14 Exhibit N Stanley Kreimer Deposition Excerpts 6.5.13, # 15 Exhibit O Financial Transaction, # 16 Exhibit P Financial Transaction, # 17 Exhibit Q Hunter to Kreimer letter 10.8.07, # 18 Exhibit Ex R Marilyn Murphy Deposition Excerpts 1.29.13)(Bundy, Walter) (Entered: 12/03/2014) 12/03/2014 368 E-FILED IN ERROR - RESPONSE in Opposition re 364 MOTION in Limine Testimony of Kurt Kegel filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A Vince Murphy Deposition Exhibit t 12.29.08, # 2 Exhibit B Notice letters, # 3 Exhibit C Vince Murphy Deposition Excerpts 12.29.08, # 4 Exhibit D Vince Murphy Deposition Excerpts 12.29.08, # 5 Exhibit E 4629 Alliant Rule 1006 Transaction Summary Spreadsheet, # 6 Exhibit F Pltffs 5th Am Resp to V. Murphy 1st Int 4.11.13, # 7 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 44 of 71 Case: 15-14634 Date Filed: (48 of12/22/2017 268) Page: 48 of 211 Exhibit G Pltff 4th RFP to V. Murphy 4.17.13, # 8 Exhibit H V. Murphy Resp to Pltff 4th RFP 5.20.13, # 9 Exhibit I V Murphy Resp to Pltff RFP 10.2.11, # 10 Exhibit J Vince Murphy Deposition Excerpts 8.2.12, # 11 Exhibit K Vince Murphy Deposition Excerpts 6.5.13, # 12 Exhibit L Vince Murphy Deposition Excerpts 12.29.08)(Bundy, Walter) Modified on 12/4/2014: Filing contains the same PDFs as entry no. 367. Attorney instructed to re-efile with correct pdfs. (cem) (Entered: 12/03/2014) 12/03/2014 369 RESPONSE in Opposition re 362 First MOTION in Limine filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A Alliant Rule 1006 Transaction Summary Spreadsheet, # 2 Exhibit B Pltffs 5th Am Resp to V. Murphy 1st Int 4.11.13, # 3 Exhibit C Pltff 4th RFP to V. Murphy 4.17.13, # 4 Exhibit D V. Murphy Resp t Pltff 4th RFP 5.20.13, # 5 Exhibit E Hurst Report and CV 6.12.13, # 6 Exhibit F Pltffs Supp Resp to RFP of all Def 6.14.13, # 7 Exhibit G Notice of Deposition of McMaster 5.14.14, # 8 Exhibit H Transcript of Deposition of Robert McMaster 6.22.13, # 9 Exhibit I Transcript of Deposition of Kurt Kegel 6.26.13, # 10 Exhibit J Vince Murphy Deposition Excerpts 8.2.12, # 11 Exhibit K Vince Murphy Deposition Excerpts 6.5.13, # 12 Exhibit L Vince Murphy Deposition Excerpts 12.29.08)(Bundy, Walter) (Entered: 12/03/2014) 12/04/2014 370 RESPONSE in Opposition re 364 MOTION in Limine Testimony of Kurt Kegel filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A Vince Murphy Deposition Exhibit t 12.29.08, # 2 Exhibit Ex B Notice letters, # 3 Exhibit C Vince Murphy Deposition Excerpts 12.29.08, # 4 Exhibit D Vince Murphy Deposition Excerpts 12.29.08, # 5 Exhibit E Alliant Rule 1006 Transaction Summary Spreadsheet, # 6 Exhibit F Pltffs 5th Am Resp to V. Murphy 1st Int 4.11.13, # 7 Exhibit G Pltff 4th RFP to V. Murphy 4.17.13, # 8 Exhibit H V. Murphy Resp to Pltff 4th RFP 5.20.13, # 9 Exhibit I V Murphy Resp to Pltff RFP 10.2.11, # 10 Exhibit J Vince Murphy Deposition Excerpts 8.2.12, # 11 Exhibit K Vince Murphy Deposition Excerpts 6.5.13, # 12 Exhibit L Vince Murphy Deposition Excerpts 12.29.08)(Bundy, Walter) (Entered: 12/04/2014) 12/12/2014 371 REPLY BRIEF re 364 MOTION in Limine Testimony of Kurt Kegel filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 12/12/2014) 12/16/2014 372 NOTICE by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company) of Certification of Client Consent to Substitute Attorneys (Hines, Richard) (Entered: 12/16/2014) 12/18/2014 373 REPLY BRIEF re 362 First MOTION in Limine filed by Marilyn Murphy. (Attachments: # 1 Exhibit Order of 7/18/12, # 2 Exhibit Correspondence of 6/7/13)(Winterich, Shawn) (Entered: 12/18/2014) 12/18/2014 374 REPLY BRIEF re 363 MOTION in Limine Testimony from Stan Kreimer filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 12/18/2014) 12/19/2014 Submission of 362 First MOTION in Limine, 363 MOTION in Limine Testimony from Stan Kreimer, 364 MOTION in Limine Testimony of Kurt Kegel, submitted to District Judge Richard W. Story. (cem) (Entered: 12/19/2014) 12/22/2014 375 NOTICE to Take Deposition of Patrick J. Poff filed by Marilyn Murphy (Winterich, Shawn) (Entered: 12/22/2014) 12/22/2014 376 NOTICE to Take Deposition of Amy L. Drushal filed by Marilyn Murphy (Winterich, Shawn) (Entered: 12/22/2014) 12/22/2014 377 NOTICE to Take Deposition of Brian Doran filed by Marilyn Murphy (Winterich, Shawn) (Entered: 12/22/2014) 01/06/2015 378 NOTICE to Take Deposition of Brian Doran filed by Gazebo Park Apartments of Acworth, LLC (Hines, Richard) (Entered: 01/06/2015) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 45 of 71 Case: 15-14634 Date Filed: (49 of12/22/2017 268) Page: 49 of 211 01/06/2015 379 NOTICE to Take Deposition of Brian Doran filed by M. Vincent Murphy, III (Kreimer, Stanley) (Entered: 01/06/2015) 01/07/2015 380 Notice for Leave of Absence for the following date(s): 2/25/15 - 3/4/15, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 01/07/2015) 01/26/2015 381 NOTICE by Marilyn Murphy and Certificate of Service of Subpoena for Preservation Deposition of Brian Doran (Winterich, Shawn) (Entered: 01/26/2015) 01/26/2015 382 NOTICE by Marilyn Murphy and Certificate of Service of Subpoena for Preservation Deposition of Amy L. Drushal (Winterich, Shawn) (Entered: 01/26/2015) 01/26/2015 383 NOTICE by Marilyn Murphy and Certificate of Service of Subpoena for Preservation Deposition of Patrick J. Poff (Winterich, Shawn) (Entered: 01/26/2015) 01/27/2015 384 Notice for Leave of Absence for the following date(s): 04/06/15,04/07/15,04/08/15,04/09/15,04/10/15,05/04/15,05/05/15,05/06/15,05/07/15, 05/08/15,05/11/15,05/12/15,05/13/15,05/14/15,05/15/15,05/18/15,05/19/15,05/20/15,05/21/15, 05/22/15, by Stanley Earle Kreimer, Jr. (Kreimer, Stanley) (Entered: 01/27/2015) 02/02/2015 385 Amended NOTICE to Take Deposition of Brian Doran filed by Gazebo Park Apartments of Acworth, LLC (Hines, Richard) (Entered: 02/02/2015) 03/03/2015 386 NOTICE of Appearance by Keith Jerrod Barnett on behalf of Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Barnett, Keith) (Entered: 03/03/2015) 03/03/2015 387 Certification of Consent to Substitution of Counsel. Keith Jerrod Barnett replacing attorney John P. Hutchins. (Barnett, Keith) (Entered: 03/03/2015) 03/04/2015 388 Notice for Leave of Absence for the following date(s): 5/4/15, 5/5/15, 5/6/15, 5/7/15, 5/8/15, 5/11/15, 5/12/15, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 03/04/2015) 03/04/2015 389 Certification of Consent to Substitution of Counsel. Keith Jerrod Barnett replacing attorney Puja R. Patel. (Barnett, Keith) (Entered: 03/04/2015) 03/04/2015 390 MOTION to Revoke Pro Hac Vice Admission of Walter H. Bundy and for Other Relief with Brief In Support by Community Management Services, Inc., Gazebo Park Apartments of Acworth, LLC, Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III, Marilyn Murphy. (Attachments: # 1 Brief, # 2 Exhibit 1 - Consulting Agreement, # 3 Exhibit 2 - Doran Deposition Excerpts, # 4 Exhibit 3 - Doran Trial Testimony Excerpts, # 5 Exhibit 6 - Order in Ward Matter)(Hines, Richard) (Entered: 03/04/2015) 03/12/2015 391 NOTICE Of Filing Additional Exhibits to Memorandum by Community Management Services, Inc., Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company), Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III, Marilyn Murphy re 390 MOTION to Revoke Pro Hac Vice Admission of Walter H. Bundy and for Other Relief (Attachments: # 1 Exhibit 4--Bundy 2010 Fee Agreement, # 2 Exhibit 5--Bundy 2012 Fee Agreement)(Hines, Richard) (Entered: 03/12/2015) 03/12/2015 392 STIPULATION re 390 MOTION to Revoke Pro Hac Vice Admission of Walter H. Bundy and for Other Relief Extending Time to File an Opposition by Affordable Realty Management Incorporated, Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 03/12/2015) 04/08/2015 393 NOTICE of Appearance by Patricia Anne Gorham on behalf of Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Gorham, Patricia) (Entered: 04/08/2015) 04/08/2015 394 RESPONSE in Opposition re 390 MOTION to Revoke Pro Hac Vice Admission of Walter H. Bundy and for Other Relief filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 46 of 71 Case: 15-14634 Date Filed: (50 of12/22/2017 268) Page: 50 of 211 XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1 (Declaration of Shawn Horwitz), # 2 Exhibit 2 (Excerpt from Brian Doran February 6, 2015 Deposition), # 3 Exhibit 3 (New York State Bar Ass'n Op. 668))(Gorham, Patricia) (Entered: 04/08/2015) 04/27/2015 395 REPLY BRIEF re 390 MOTION to Revoke Pro Hac Vice Admission of Walter H. Bundy and for Other Relief filed by Community Management Services, Inc., Gazebo Park Apartments of Acworth, LLC, Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III, Marilyn Murphy. (Attachments: # 1 Exhibit A - Doran Depo Excerpt)(Hines, Richard) (Entered: 04/27/2015) 04/28/2015 Submission of 390 MOTION to Revoke Pro Hac Vice Admission of Walter H. Bundy and for Other Relief, submitted to District Judge Richard W. Story. (cem) (Entered: 04/28/2015) 04/29/2015 396 Notice for Leave of Absence for the following date(s): 6/29/15, 6/30/15, 7/1/15, 7/2/15, 7/3/15, by Walter Henry Bundy, Jr. (Bundy, Walter) (Entered: 04/29/2015) 05/06/2015 397 NOTICE of Appearance by Shawn Michael Winterich on behalf of Gazebo Park Apartments of Acworth, LLC (Winterich, Shawn) (Entered: 05/06/2015) 05/07/2015 398 NOTICE by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company) re 390 MOTION to Revoke Pro Hac Vice Admission of Walter H. Bundy and for Other Relief Certification of Client and Withdrawal of Counsel in Respect of Motion Only (Hines, Richard) (Entered: 05/07/2015) 05/08/2015 399 NOTICE by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III re 390 MOTION to Revoke Pro Hac Vice Admission of Walter H. Bundy and for Other Relief (Kreimer, Stanley) (Entered: 05/08/2015) 05/14/2015 400 Notice for Leave of Absence for the following date(s): 6/19/15, 6/20/15, 6/21/15, 6/22/15, 6/23/15, 6/24/15, 6/25/15, 6/26/15, 6/27/15, 6/28/15, 6/29/15, 6/30/15, 7/1/15, by Patricia Anne Gorham. (Gorham, Patricia) (Entered: 05/14/2015) 05/19/2015 401 ORDER denying Defendants' 390 Motion to Revoke Pro Hac Vice Admission of Walter H. Bundy. Signed by Judge Richard W. Story on 5/19/2015. (cem) (Entered: 05/19/2015) 05/19/2015 Clerks Certificate of Mailing as to Michael Brent McDonald re 401 Order. (cem) (Entered: 05/19/2015) 05/28/2015 NOTICE setting Trial: Pretrial Conference set for 7/24/2015 at 02:30 PM in ATLA Courtroom 2105 before Judge Richard W. Story. Jury Trial specially set for 8/17/2015 at 09:30 AM in ATLA Courtroom 2105 before Judge Richard W. Story. (rag) (Entered: 05/28/2015) 06/10/2015 402 MOTION for Sanctions with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief Brief in Support of Motion for Sanctions, # 2 Exhibit 1-Gorham letter to Kreimer, Winterich and Hines. April 3, 2015, # 3 Exhibit 2-E-mail from Hines to Gorham & Barnett. April 9, 2015, # 4 Exhibit 3-Gorham letter to Kreimer, Winterich and Hines. April 10, 2015, # 5 Exhibit 4-Hines letter to Gorham. April 14, 2015, # 6 Exhibit 5-Gorham letter to Kreimer, Winterich and Hine. April 17, 2015, # 7 Exhibit 6-Kreimer letter to Gorham. May 8, 2015, # 8 Exhibit 7-Winterich letter to Gorham. May 6, 2015)(Bundy, Walter) (Entered: 06/10/2015) 06/11/2015 403 MOTION to Withdraw Patricia Anne Gorham as Attorneyby Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Text of Proposed Order) (Gorham, Patricia) (Entered: 06/11/2015) 06/15/2015 404 ORDER GRANTING 403 Motion to Withdraw Patricia Anne Gorham as Attorney for Plaintiffs. Signed by Judge Richard W. Story on 6/15/2015. (jtj) (Entered: 06/15/2015) 06/23/2015 405 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 47 of 71 Case: 15-14634 Date Filed: (51 of12/22/2017 268) Page: 51 of 211 ORDER denying Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC's 356 Motion to Set Aside Judgment and for Other Relief. Signed by Judge Richard W. Story on 6/23/2015. (cem) (Entered: 06/23/2015) 06/23/2015 Clerks Certificate of Mailing as to Michael Brent McDonald re 405 Order. (cem) (Entered: 06/23/2015) 06/28/2015 406 RESPONSE in Opposition re 402 MOTION for Sanctions filed by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Exhibit Doran depo excerpts 020615) (Winterich, Shawn) (Entered: 06/28/2015) 06/29/2015 407 MOTION to Supplement 365 Proposed Pretrial Order,,, with Brief In Support by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Supplement F-2 witn list, # 2 Supplement G-2 exhibit list, # 3 Supplement N depo design, # 4 Supplement I verdict form ct 1, # 5 Supplement I verdict form ct 2, # 6 Supplement I verdict form ct 3, # 7 Supplement I verdict form ct 4)(Winterich, Shawn) (Entered: 06/29/2015) 07/03/2015 408 REPLY BRIEF re 402 MOTION for Sanctions Against Defendants filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 07/03/2015) 07/06/2015 Submission of 402 MOTION for Sanctions, submitted to District Judge Richard W. Story. (cem) (Entered: 07/06/2015) 07/11/2015 409 Certification of Consent to Substitution of Counsel's Firm Name only. Keith Jerrod Barnett replacing attorney Keith Jerrod Barnett. (Barnett, Keith) Modified on 7/13/2015 (bdb). (Entered: 07/11/2015) 07/13/2015 410 RESPONSE in Opposition re 407 MOTION to Supplement 365 Proposed Pretrial Order, filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Bundy, Walter) (Entered: 07/13/2015) 07/17/2015 411 MOTION to Withdraw Kurt Eric Lentz as Attorneyby Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Text of Proposed Order)(Lentz, Kurt) (Entered: 07/17/2015) 07/19/2015 412 REPLY BRIEF re 407 MOTION to Supplement 365 Proposed Pretrial Order,,, filed by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Winterich, Shawn) (Entered: 07/19/2015) 07/20/2015 Submission of 407 MOTION for Leave to Supplement Defendants' Selected Portions of 365 Proposed Pretrial Order, submitted to District Judge Richard W. Story. (cem) (Entered: 07/20/2015) 07/20/2015 413 ORDER granting 411 Motion for Order Granting Withdrawal of Attorney Kurt E. Lentz. Attorney Kurt Eric Lentz terminated. Attorneys Keith J. Barnett, W. H. Bundy, Jr., and Michael Brent McDonald shall remain counsel of record for Plaintiffs. Signed by Judge Richard W. Story on 7/20/2015. (cem) (Entered: 07/20/2015) 07/20/2015 Clerks Certificate of Mailing as to Michael Brent McDonald re 413 Order. (cem) (Entered: 07/20/2015) 07/22/2015 414 ORDER ALLOWING AUDIO/VISUAL EQUIPMENT IN THE COURTROOM on 7/24/15, 8/17/15 for W.H. Bundy, Jr., Brent McDonald and Alex Rosen. Signed by Judge Richard W. Story on 7/22/15. (dr) (Entered: 07/23/2015) 07/23/2015 415 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 48 of 71 Case: 15-14634 Date Filed: (52 of12/22/2017 268) Page: 52 of 211 MOTION to Supplement Defendants' Selected Portions of Proposed Pretrial Order with Brief In Support by M. Vincent Murphy, III. (Attachments: # 1 Brief in Support of Motion for Leave to Supplement Defendants' Selected Portions of Proposed Pretrial Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Kreimer, Stanley) (Entered: 07/23/2015) 07/24/2015 416 ORDER dismissing as moot 364 Motion in Limine to exclude the testimony of Kurt Kegal. Marilyn Murphy's Motion in Limine 362 is DENIED IN PART and DISMISSED AS MOOT IN PART. Motion in Limine regarding Stan Kreimer 363 is DISMISSED AS MOOT. The Motions to Supplement Proposed Pretrial Order 407 and 415 are GRANTED. Defendant Marilyn Murphy's motion as to evidence of attorney's fees is DENIED, with a right to refile. Signed by Judge Richard W. Story on 7/24/2015. (cem) (Entered: 07/27/2015) 07/24/2015 417 Minute Entry for proceedings held before Judge Richard W. Story: Motion Hearing and Pretrial Conference held on 7/24/2015. Trial set for 8/17/2015. Written order to follow. (Court Reporter Amanda Lohnaas) (cem) (Entered: 07/27/2015) 07/27/2015 Clerks Certificate of Mailing as to Michael Brent McDonald re 416 Order. (cem) (Entered: 07/27/2015) 07/27/2015 418 MOTION in Limine (II) with Brief In Support by Marilyn Murphy. (Attachments: # 1 Brief Memorandum in Support)(Winterich, Shawn) (Entered: 07/27/2015) 07/27/2015 419 MOTION in Limine (III) with Brief In Support by Marilyn Murphy. (Attachments: # 1 Brief, # 2 Exhibit Check ex. 1-4, # 3 Exhibit Fin stmts ex. 19, # 4 Exhibit Motion for discovery ex. 20, # 5 Exhibit Resp to post jud discov ex. 21, # 6 Exhibit V. Murph depo 082610 ex. 22, # 7 Exhibit Excerpt from 2013 letter ex. 23, # 8 Exhibit UFTA excerpt ex. 24)(Winterich, Shawn) (Entered: 07/27/2015) 07/27/2015 420 MOTION in Limine (IV) with Brief In Support by Marilyn Murphy. (Attachments: # 1 Brief, # 2 Exhibit Ex 5-18 (check copies))(Winterich, Shawn) (Entered: 07/27/2015) 07/27/2015 421 MOTION in Limine (V) with Brief In Support by Marilyn Murphy. (Attachments: # 1 Brief, # 2 Exhibit Ex 1 list of allegedly fraudulent transfers, # 3 Exhibit Ex 2 apartment equity calculation)(Winterich, Shawn) (Entered: 07/27/2015) 07/30/2015 422 MOTION to Amend 365 Proposed Pretrial Order,,, with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief In Support of Motion to Amend Plaintiffs' Proposed Pre-Trial Order, # 2 Exhibit C - Document Handed to the Court during the Pre-Trial Conference, # 3 Exhibit P - Document Handed to the Court during the Pre-Trial Conference)(Barnett, Keith) (Entered: 07/30/2015) 07/30/2015 423 ORDER: At the pretrial conference on July 24, 2015, Plaintiffs requested the Court's assistance in serving Kay P. Talali, the wife of Defendant M. Vincent Murphy, III. The United States Marshals Service is DIRECTED to serve the attached subpoena by August 12, 2015. Plaintiffs are ORDERED to pay any costs associated with service of the subpoena. Plaintiffs are ORDERED to place on deposit certified funds (bank certified or cashiers check made payable to the U.S. Marshals Service) with the Marshals in the amount of $250. Plaintiff are ORDERED to complete a USM Form 285. Any remaining funds will be refunded, and any further expenses beyond $250 will be billed and paid as directed in this order. Signed by Judge Richard W. Story on 7/30/2015. (Attachments: # 1 Attachment of Subpoena) (cem) (Entered: 07/31/2015) 07/31/2015 Clerks Certificate of Mailing as to Michael Brent McDonald re 423 Order. (cem) (Entered: 07/31/2015) 07/31/2015 424 ORDER denying Plaintiffs' 402 Motion for Sanctions. Signed by Judge Richard W. Story on 7/31/2015. (cem) (Entered: 08/03/2015) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 49 of 71 Case: 15-14634 Date Filed: (53 of12/22/2017 268) Page: 53 of 211 07/31/2015 425 TRANSCRIPT of the Pretrial Trial Conference Proceedings held on July 24, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/21/2015. Redacted Transcript Deadline set for 8/31/2015. Release of Transcript Restriction set for 10/29/2015. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 08/03/2015) 08/03/2015 Clerks Certificate of Mailing as to Alliant Tax Credit 31, Inc. re 424 Order. (cem) (Entered: 08/03/2015) 08/03/2015 426 ORDER: This case comes the Court on Defendant Marilyn Murphy's Motions in Limine [Doc. Nos. 418, 419, 420, and 421] and Plaintiffs' Motion to Amend the Proposed Pretrial Order [Doc. No. 422]. The parties are ORDERED to file response briefs by August 7, 2015. The parties are ORDERED to file reply briefs by August 13, 2015. Signed by Judge Richard W. Story on 8/3/2015. (cem) (Entered: 08/04/2015) 08/04/2015 Clerks Certificate of Mailing as to Michael Brent McDonald re 426 Order. (cem) (Entered: 08/04/2015) 08/07/2015 427 RESPONSE in Opposition re 422 MOTION to Amend 365 Proposed Pretrial Order,,, filed by Marilyn Murphy. (Attachments: # 1 Exhibit Deft First RPD to Pltff 11/9/11, # 2 Exhibit Pltff Resp to First RPD of Deft 1/9/12, # 3 Exhibit First Interrog of Pltff 11/9/11, # 4 Exhibit Pltff Resp to Deft First Interrog 1/9/12, # 5 Exhibit M D Georgia Civil LR 26, # 6 Exhibit S D Georgia Civil Local Rule 26, # 7 Exhibit Plainitffs' exhibit production)(Winterich, Shawn) (Entered: 08/07/2015) 08/07/2015 428 RESPONSE in Opposition re 422 MOTION to Amend 365 Proposed Pretrial Order,,, filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 08/07/2015) 08/07/2015 429 RESPONSE in Opposition re 418 MOTION in Limine (II) of Defendant Marilyn Murphy filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 08/07/2015) 08/07/2015 430 RESPONSE in Opposition re 419 MOTION in Limine (III) Defendant Marilyn Murphy filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 08/07/2015) 08/07/2015 431 RESPONSE in Opposition re 420 MOTION in Limine (IV) Defendant Marilyn Murphy filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 08/07/2015) 08/07/2015 432 RESPONSE in Opposition re 421 MOTION in Limine (V) Defendant Marilyn Murphy filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 08/07/2015) 08/10/2015 433 REPLY BRIEF re 418 MOTION in Limine (II), 419 MOTION in Limine (III), 420 MOTION in Limine (IV), 421 MOTION in Limine (V) filed by Marilyn Murphy. (Winterich, Shawn) (Entered: 08/10/2015) 08/11/2015 Submission of 418 MOTION in Limine (II), 419 MOTION in Limine (III), 420 MOTION in Limine (IV), 421 MOTION in Limine (V), submitted to District Judge Richard W. Story. (cem) (Entered: 08/11/2015) 08/12/2015 434 REPLY BRIEF re 422 MOTION to Amend 365 Proposed Pretrial Order,,, filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 50 of 71 Case: 15-14634 Date Filed: (54 of12/22/2017 268) Page: 54 of 211 Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 08/12/2015) 08/12/2015 435 Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Text of Proposed Order) (Hines, Richard) (Entered: 08/12/2015) 08/12/2015 436 Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Attachments: # 1 Text of Proposed Order)(Kreimer, Stanley) (Entered: 08/12/2015) 08/13/2015 Submission of 422 MOTION to Amend 365 Proposed Pretrial Order, submitted to District Judge Richard W. Story. (cem) (Entered: 08/13/2015) 08/13/2015 437 ORDER granting 435 Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom on 8/17/2015 at 9:30 a.m. Signed by Judge Richard W. Story on 8/13/2015. (cem) (Entered: 08/13/2015) 08/13/2015 438 MOTION To Take Judicial Notice with Brief In Support by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Winterich, Shawn) (Entered: 08/13/2015) 08/14/2015 439 ORDER granting 436 Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom on 8/17/2015 at 9:30 a.m. Signed by Judge Richard W. Story on 8/14/2015. (cem) (Entered: 08/14/2015) 08/14/2015 Clerks Certificate of Mailing as to Michael Brent McDonald re 439 Order on Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom, 437 Order on Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom. (cem) (Entered: 08/14/2015) 08/14/2015 440 NOTICE Of Filing Original Depositions by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company), Marilyn Murphy (Hines, Richard) (Entered: 08/14/2015) 08/14/2015 441 DEPOSITION of M. Vincent Murphy, III taken on August 26, 2010 by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3 Part 1, # 4 Exhibit 3 Part 2, # 5 Exhibit 4, # 6 Exhibit 5)(Hines, Richard) (Entered: 08/14/2015) 08/14/2015 442 DEPOSITION of Brian Doran taken on May 1, 2013 by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Hines, Richard) (Entered: 08/14/2015) 08/14/2015 443 DEPOSITION of Brian Doran taken on February 6, 2015 by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Exhibit 5, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 14, # 5 Exhibit 21 Part 1, # 6 Exhibit 21 Part 2, # 7 Exhibit 24, # 8 Exhibit 26, # 9 Exhibit 30, # 10 Exhibit 34, # 11 Exhibit 41, # 12 Exhibit 46, # 13 Exhibit 86, # 14 Exhibit 88 Part 1, # 15 Exhibit 88 Part 2, # 16 Exhibit 88 Part 3, # 17 Exhibit 89, # 18 Exhibit 90, # 19 Exhibit 91, # 20 Exhibit 92, # 21 Exhibit 175, # 22 Exhibit 176)(Hines, Richard) (Entered: 08/14/2015) 08/14/2015 444 DEPOSITION of Amy L. Drushal taken on February 23, 2015 by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Exhibit A, # 2 Exhibit 18, # 3 Exhibit 19, # 4 Exhibit 20, # 5 Exhibit 80)(Hines, Richard) (Entered: 08/14/2015) 08/14/2015 445 DEPOSITION of Patrick J. Poff taken on February 23, 2015 by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Exhibit A, # 2 Exhibit 17 Part 1, # 3 Exhibit 17 Part 2, # 4 Exhibit 18, # 5 Exhibit 19, # 6 Exhibit 79)(Hines, Richard) (Entered: 08/14/2015) 08/14/2015 446 DEPOSITION of Robert A. McMaster taken on April 25, 2015 by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 McMaster Transcript Part 2, # 2 McMaster https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 51 of 71 Case: 15-14634 Date Filed: (55 of12/22/2017 268) Page: 55 of 211 Transcript Part 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 10, # 8 Exhibit 11, # 9 Exhibit 12)(Hines, Richard) (Entered: 08/14/2015) 08/16/2015 447 Requests to Charge by M. Vincent Murphy, III. (Attachments: # 1 Exhibit Statement of Contentions)(Kreimer, Stanley) (Entered: 08/16/2015) 08/16/2015 448 Requests to Charge by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Statement of Contentions, # 2 Proposed General Preliminary Instruction) (Hines, Richard) (Entered: 08/16/2015) 08/16/2015 449 Proposed Jury Instructions by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. and Statement of Contentions. (Barnett, Keith) (Entered: 08/16/2015) 08/16/2015 450 Requests to Charge by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. and Statement of Contentions. (Barnett, Keith) (Entered: 08/16/2015) 08/16/2015 451 Amended Requests to Charge by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. and Statement of Contentions. (Barnett, Keith) (Entered: 08/16/2015) 08/17/2015 452 EVIDENTIARY OBJECTIONS to re 442 Deposition, 443 Deposition,, to M. Vincent Murphy's Deposition Designations filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Supplement Part 2 - Pages 37-74 of Objections, # 2 Exhibit A - Estoppel Brief, # 3 Exhibit B - Assets Brief) (Barnett, Keith) Modified on 8/18/2015: Incorrect event used to efile pleading. Entry modified to reflect efiled pleading. (cem) (Entered: 08/17/2015) 08/17/2015 453 EVIDENTIARY OBJECTIONS to re 441 Deposition, 444 Deposition, 445 Deposition, 443 Deposition,, 442 Deposition to Marilyn Murphy's Deposition Designations filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Supplement to Main Document Pages 39-75, # 2 Supplement to Main Document Pages 76-102 -, # 3 Supplement to Main Document Pages 103-123, # 4 Exhibit Exhibit A Estoppel Brief, # 5 Exhibit Exhibit B Assets Brief)(Barnett, Keith) Modified on 8/18/2015: Incorrect event used to efile pleading. Entry modified to reflect efiled pleading. (cem) (Entered: 08/17/2015) 08/17/2015 454 Amended Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Text of Proposed Order)(Hines, Richard) (Entered: 08/17/2015) 08/17/2015 455 ORDER granting 454 Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom on 8/18/2015 through end of trial. Signed by Judge Richard W. Story on 8/17/2015 (sek). (Entered: 08/17/2015) 08/17/2015 456 Amended Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Attachments: # 1 Text of Proposed Order)(Kreimer, Stanley) (Entered: 08/17/2015) 08/17/2015 457 Minute Entry for proceedings held before Judge Richard W. Story: Jury Trial began on 8/17/2015. Jury was sworn. The Rule of Sequestration was not invoked. Motions Ruled On: 418 Motion in Limine GRANTED; 419 Motion in Limine GRANTED; 420 Motion in Limine DENIED; 421 Motion in Limine DENIED; 422 Motion to Amend DENIED. Jury voir dire. https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 52 of 71 Case: 15-14634 Date Filed: (56 of12/22/2017 268) Page: 56 of 211 Jury selected and sworn. Parties opening arguments. Hearing not concluded. Court adjourned and will reconvene at 9:30 a.m., on 8/18/2015. Jurors excused until the above time under the usual caution of the Court. (Attachments: # 1 Jury Peremptory Challenges) (Court Reporter Amanda Lohnaas) (cem) (Entered: 08/18/2015) 08/18/2015 458 Exhibit List by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd... (Barnett, Keith) (Entered: 08/18/2015) 08/18/2015 459 Minute Entry for proceedings held before Judge Richard W. Story: Jury Trial continued on 8/18/2015. Witness sworn and testified. Plaintiffs and Defendants exhibits admitted. Hearing not concluded. Court adjourned and will reconvene at 9:00 a.m., on 8/19/2015. Jurors excused until the above time under the usual caution of the Court. (Court Reporter Amanda Lohnaas) (cem) (Entered: 08/19/2015) 08/19/2015 460 ORDER granting 456 Motion to Bring Audio/Visual/Electronic Equipment in the Courtroom on 8/20/2015 through end of trial. Signed by Judge Richard W. Story on 8/19/2015 (sek). (Entered: 08/19/2015) 08/19/2015 461 Minute Entry for proceedings held before Judge Richard W. Story: Jury Trial continued on 8/19/2015. The Rule of Sequestration was invoked. Witnesses sworn and testified. Hearing not concluded. Court adjourned and will reconvene at 9:00 a.m., on 8/20/2015. Jurors excused until the above time under the usual caution of the Court. (Court Reporter Amanda Lohnaas) (cem) (Entered: 08/20/2015) 08/20/2015 462 Minute Entry for proceedings held before Judge Richard W. Story: Jury Trial continued on 8/20/2015. Witnesses sworn and testified. Hearing not concluded. Court adjourned and will reconvene at 9:00 a.m., on 8/21/2015. Jurors excused until the above time under the usual caution of the Court. (Court Reporter Amanda Lohnaas)(cem) (Entered: 08/21/2015) 08/21/2015 463 USM 285 Form Executing a Subpoena for Trial, as to Kay P. Talalai on 8/14/2015. (cem) (Entered: 08/21/2015) 08/21/2015 464 Minute Entry for proceedings held before Judge Richard W. Story: Jury Trial continued on 8/21/2015. Witnesses sworn and testified. Court adjourned and will reconvene at 9:00 a.m., on 8/24/2015. Jurors excused until the above time under the usual caution of the Court. (Court Reporter Amanda Lohnaas) (cem) (Entered: 08/21/2015) 08/23/2015 465 Second Requests to Charge by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. . (Barnett, Keith) (Entered: 08/23/2015) 08/23/2015 466 MOTION for Order For A Jury Charge Re Spoliation of Evidence with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 08/23/2015) 08/24/2015 467 Minute Entry for proceedings held before Judge Richard W. Story: Jury Trial continued on 8/24/2015. Witnesses sworn and testified. Hearing not concluded. Court adjourned and will reconvene at 9:00 a.m., on 8/25/2015. Jurors excused until the above time under the usual caution of the Court. (Court Reporter Amanda Lohnaas) (cem) (Entered: 08/25/2015) 08/25/2015 469 Minute Entry for proceedings held before Judge Richard W. Story: Jury Trial continued on 8/25/2015. Witnesses sworn and testified. Defendants rest. Plaintiffs rebuttal. Plaintiffs rest. Charge conference held. Hearing not concluded. Court adjourned and will reconvene at 9:00 a.m., on 8/26/2015. Jurors excused until the above time under the usual caution of the Court. (Court Reporter Amanda Lohnaas) (cem) (Entered: 08/26/2015) 08/26/2015 468 Third Requests to Charge by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 53 of 71 Case: 15-14634 Date Filed: (57 of12/22/2017 268) Page: 57 of 211 Ltd. re Statute of Limitations Issue. (Attachments: # 1 Supplement Requests to Charge) (Barnett, Keith) (Entered: 08/26/2015) 08/26/2015 ORAL MOTION for Rule 50 Dismissal filed by Gazebo Park Apartments of Acworth, LLC, Gazebo Park Apartments of Acworth, LLC, M. Vincent Murphy, III, Marilyn Murphy. (cem) (Entered: 08/27/2015) 08/26/2015 470 Minute Entry for proceedings held before Judge Richard W. Story: Jury Trial concluded on 8/26/2015. 466 Motion for Order WITHDRAWN. Court Denied Defendants Oral Motion for Rule 50 Dismissal. Parties closing arguments. Court charges the jury. Jury deliberations. Jury Verdict. Exhibits returned to all parties. Parties to submit proposed judgment. Hearing Concluded. VERDICT: In favor of the Plaintiffs and against the Defendants. Punitive Damages as to Vincent Murphy in the amount of $1,000,000.00 and Marilyn Murphy in the amount of $100,000.00. (Court Reporter Amanda Lohnaas) (cem) (Entered: 08/27/2015) 08/26/2015 471 JURY VERDICT for Plaintiffs and against Defendants. Punitive Damages as to Vincent Murphy in the amount of $1,000,000.00, and Marilyn Murphy in the amount of $100,000.00. (Attachments: # 1 Verdict as to Punitive Damages)(cem) (Entered: 08/27/2015) 08/26/2015 473 TRANSCRIPT of the Jury Trial Proceedings held on August 17, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/16/2015. Redacted Transcript Deadline set for 9/28/2015. Release of Transcript Restriction set for 11/24/2015. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 08/27/2015) 08/26/2015 474 TRANSCRIPT of the Jury Trial Hearing Proceedings held on August 17, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/16/2015. Redacted Transcript Deadline set for 9/28/2015. Release of Transcript Restriction set for 11/24/2015. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 08/27/2015) 08/27/2015 472 ORDER: On August 26, 2015, the jury returned a verdict in favor of Plaintiffs. The Court is awaiting briefing regarding a proposed judgment. In the meantime, Defendants are ORDERED not to transfer or encumber the assets that were at issue in this litigation, including but not limited to the proceeds from sale of the marital residence that are currently held in escrow, the Coca-Cola stock, furnishings, and the mountain cabin. Any party violating this order shall be subject to a citation for contempt. Signed by Judge Richard W. Story on 8/27/2015. (cem) (Entered: 08/27/2015) 08/27/2015 Clerks Certificate of Mailing as to Michael McDonald re 472 Order. (cem) (Entered: 08/27/2015) 08/30/2015 475 Proposed MOTION for Judgment with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 08/30/2015) 08/31/2015 476 MOTION to Supplement 475 Proposed MOTION for Judgment Exhibit 1 to Proposed Final Judgment, Proposed MOTION for Writ of Execution by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 08/31/2015) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 54 of 71 Case: 15-14634 Date Filed: (58 of12/22/2017 268) Page: 58 of 211 08/31/2015 477 CERTIFICATE OF SERVICE filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd. (Barnett, Keith) (Entered: 08/31/2015) 09/02/2015 478 ORDER terminating Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC's 438 Motion to Take Judicial Notice. Signed by Judge Richard W. Story on 9/2/2015. (cem) (Entered: 09/02/2015) 09/02/2015 Clerks Certificate of Mailing as to Michael Brent McDonald re 478 Order. (cem) (Entered: 09/02/2015) 09/02/2015 479 RESPONSE in Opposition re 475 Proposed MOTION for Judgment filed by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Winterich, Shawn) (Entered: 09/02/2015) 09/02/2015 480 RESPONSE in Opposition re 475 Proposed MOTION for Judgment filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 09/02/2015) 09/04/2015 481 REPLY to Response to Motion re 475 Proposed MOTION for Judgment, 476 MOTION to Supplement 475 Proposed MOTION for Judgment Exhibit 1 to Proposed Final JudgmentProposed MOTION for Writ of Execution filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1 Proposed Final Judgment, # 2 Exhibit 2 Writ of Execution, # 3 Exhibit 3 Comparison of Proposed Judgments)(Barnett, Keith) (Attachment 2 replaced on 8/11/2016) (vlm). (Entered: 09/04/2015) 09/08/2015 482 MOTION for Reconsideration of August 17, 2015 denial of Plaintiffs' Motion to Bifurcate Trial to Allow a Jury to Decide on Plaintiffs' Requests for Legal Fees Under OCGA 13-6-11 with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 09/08/2015) 09/11/2015 483 FINAL JUDGMENT entered in favor of Plaintiffs Alliant Tax Credit Fund 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, Inc., Alliant Tax Credit XI, Ltd. and Alliant Tax Credit XI, Inc. against Defendants M. Vincent Murphy, III, Marilyn Murphy, Multifamily Housing Developers, LLC, Community Management Services, Inc., and Gazebo Park Apartments of Acworth, LLC. (See Final Judgment for Complete Details.) Plaintiffs are entitled to recover their costs and must file a costs bill within 14 days of entry of this Final Judgment. The Court retains jurisdiction to grant further relief in order to effectuate this ruling if Defendants fail to comply with this order, or if the levy on any of the assets listed is no longer possible. Signed by Judge Richard W. Story on 9/11/2015. (Attachments: # 1 Exhibit 1 - Writ of Execution)--Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist--(cem) (Entered: 09/11/2015) 09/11/2015 Civil Case Terminated. (cem) (Entered: 09/11/2015) 09/11/2015 WRIT of Execution issued in the amount of $12,937,462.54. Original returned to attorney via certified mail (9171999991703195865293). (cem) (Entered: 09/11/2015) 09/11/2015 Clerks Certificate of Mailing as to Michael McDonald re 483 Final Judgment. (cem) (Entered: 09/11/2015) 09/14/2015 AMENDED WRIT of Execution issued in the amount of $10,137,285.84. Original returned to attorney via certified mail (9171999991703195865286). (cem) (Entered: 09/14/2015) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 55 of 71 Case: 15-14634 Date Filed: (59 of12/22/2017 268) Page: 59 of 211 09/16/2015 484 RESPONSE in Opposition re 482 MOTION for Reconsideration of August 17, 2015 denial of Plaintiffs' Motion to Bifurcate Trial to Allow a Jury to Decide on Plaintiffs' Requests for Legal Fees Under OCGA 13-6-11 filed by Marilyn Murphy. (Winterich, Shawn) (Entered: 09/16/2015) 09/22/2015 485 RESPONSE in Opposition re 482 MOTION for Reconsideration of August 17, 2015 denial of Plaintiffs' Motion to Bifurcate Trial to Allow a Jury to Decide on Plaintiffs' Requests for Legal Fees Under OCGA 13-6-11 filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 09/22/2015) 09/23/2015 486 BILL OF COSTS by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit Itemization of Costs, # 2 Exhibit Documents Supporting Costs)(Barnett, Keith) (Entered: 09/23/2015) 09/24/2015 487 MOTION to Alter 483 Judgment,,, or Amend Judgment to Add Prejudgment Interest Pursuant to Rule 59(e) with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1 - Interest Calculation)(Barnett, Keith) (Entered: 09/24/2015) 09/26/2015 488 MOTION for Judgment as a Matter of Law (Renewed) under Fed.R.Civ.P. 50(b) with Brief In Support by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Brief)(Winterich, Shawn) (Entered: 09/26/2015) 09/27/2015 489 MOTION to Stay Enforcement of Judgment with Brief In Support by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Winterich, Shawn) (Entered: 09/27/2015) 09/29/2015 490 Certified Mail Returned Receipt re Amended Writ of Execution. (cem) (Entered: 09/29/2015) 10/02/2015 491 RENEWED MOTION for Judgment as a Matter of Law by M. Vincent Murphy, III. (Attachments: # 1 Brief Brief in support of Renewed Motion)(Kreimer, Stanley) Modified on 10/5/2015 (cem). (Entered: 10/02/2015) 10/06/2015 492 MOTION to Alter of Amend 483 Judgment of Defendants M. Vincent Murphy, III, Multifamily Housing Associates, LLC and Community Management Services, Inc. by M. Vincent Murphy, III. (Attachments: # 1 Brief)(Kreimer, Stanley) Modified on 10/7/2015 to reflect efiled pleading. (cem) (Entered: 10/06/2015) 10/09/2015 493 RESPONSE in Opposition re 487 MOTION to Alter 483 Judgment,,, or Amend Judgment to Add Prejudgment Interest Pursuant to Rule 59(e) filed by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Winterich, Shawn) (Entered: 10/09/2015) 10/09/2015 495 USM 285 FORM AFFIDAVIT of Service for Writ of Execution, as to M. Vincent Murphy, III, Executed on 10/8/2015. (cem) (Entered: 10/13/2015) 10/12/2015 494 RESPONSE re 487 MOTION to Alter 483 Judgment,,, or Amend Judgment to Add Prejudgment Interest Pursuant to Rule 59(e) filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 10/12/2015) 10/13/2015 496 MOTION to Amend 489 MOTION to Stay Enforcement of Judgment with Brief In Support by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Winterich, Shawn) (Entered: 10/13/2015) 10/13/2015 497 NOTICE OF APPEAL as to 471 Jury Verdict and 483 Judgment by Marilyn Murphy. Filing fee $505, receipt number 113E-6092899. Transcript Order Form due on 10/27/2015 (Winterich, Shawn) Modified on 10/14/2015 to include document relationship (kac). (Entered: 10/13/2015) 10/13/2015 498 NOTICE OF APPEAL as to 471 Jury Verdict and 483 Judgment by Gazebo Park Apartments of Acworth, LLC. Filing fee $505, receipt number 113E-6092921. Transcript Order Form due https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 56 of 71 Case: 15-14634 Date Filed: (60 of12/22/2017 268) Page: 60 of 211 on 10/27/2015 (Winterich, Shawn) Modified on 10/14/2015 to include document relationship (kac). (Entered: 10/13/2015) 10/13/2015 499 RESPONSE in Opposition re 488 MOTION for Judgment as a Matter of Law (Renewed) under Fed.R.Civ.P. 50(b) filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 10/13/2015) 10/14/2015 Submission of 482 MOTION for Reconsideration of August 17, 2015 denial of Plaintiffs' Motion to Bifurcate Trial to Allow a Jury to Decide on Plaintiffs' Requests for Legal Fees Under OCGA 13-6-11, submitted to District Judge Richard W. Story. (cem) (Entered: 10/14/2015) 10/14/2015 500 NOTICE Of Filing Appeal Transmission Letter by Marilyn Murphy re: 497 Notice of Appeal. (kac) (Entered: 10/14/2015) 10/14/2015 501 Transmission of Certified Copy of Notice of Appeal, Jury Verdict, Final Judgment and Docket Sheet to US Court of Appeals re: 497 Notice of Appeal. (kac) (Entered: 10/14/2015) 10/14/2015 502 NOTICE Of Filing Appeal Transmission Letter by Gazebo Park Apartments of Acworth, LLC, re: 498 Notice of Appeal. (kac) (Entered: 10/14/2015) 10/14/2015 503 Transmission of Certified Copy of Notice of Appeal, Final Judgment, Jury Verdict and Docket Sheet to US Court of Appeals re: 498 Notice of Appeal. (kac) (Entered: 10/14/2015) 10/14/2015 504 RESPONSE in Opposition re 489 MOTION to Stay Enforcement of Judgment filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Affidavit Keith Barnett Declaration, # 2 Exhibit Exhibit 1 - Letter to Counsel re Writ of Execution)(Barnett, Keith) (Entered: 10/14/2015) 10/15/2015 505 Costs Taxed in amount of $ 31,522.69 against M. Vincent Murphy, III et al. (cem) (Entered: 10/15/2015) 10/16/2015 506 Application for Refund of Fees paid online through Pay.gov for receipt number 113E-6092901. (Winterich, Shawn) (Main Document 506 replaced on 8/11/2016) (vlm). (Entered: 10/16/2015) 10/19/2015 507 RESPONSE in Opposition re 491 MOTION for Judgment as a Matter of Law filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1 - 2014 Amendments to UFTA)(Barnett, Keith) (Entered: 10/19/2015) 10/19/2015 508 MOTION for Order to Show Cause As to Why Defendant Marilyn Murphy Should Not Be Held in Contempt of Court with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Affidavit Barnett Declaration)(Barnett, Keith) (Entered: 10/19/2015) 10/19/2015 509 RESPONSE in Support re 487 MOTION to Alter 483 Judgment,,, or Amend Judgment to Add Prejudgment Interest Pursuant to Rule 59(e) filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 57 of 71 Case: 15-14634 Date Filed: (61 of12/22/2017 268) Page: 61 of 211 Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 10/19/2015) 10/19/2015 510 RESPONSE in Opposition re 492 MOTION to Alter 483 Judgment,,, filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 10/19/2015) 10/20/2015 Clerks Approval re 506 Application for Refund of Fees paid online. (mmc) (Entered: 10/20/2015) 10/20/2015 Refund in the amount of $505.00 has been processed, effective 10/20/2015, in response to Clerks Action on Application for Refund of Fees paid online. (kns) (Entered: 10/20/2015) 10/20/2015 511 USCA Acknowledgment of 497 Notice of Appeal filed by Marilyn Murphy. Case Appealed to USCA - 11th Circuit. USCA Case Number 15-14634-G. (kac) (Entered: 10/20/2015) 10/20/2015 512 USCA Acknowledgment of 498 Notice of Appeal filed by Gazebo Park Apartments of Acworth, LLC. Case Appealed to USCA - 11th Circuit. USCA Case Number 15-14634-G. (kac) (Entered: 10/21/2015) 10/22/2015 513 ORDER: There are currently numerous pending motions before the Court [Doc. Nos. 482, 487, 488, 489, 491, 492, 496, and 508]. The Court will hear argument on these motions on Tuesday, December 1, 2015 at 2pm in Courtroom 2105 of the Richard B. Russell Federal Building, 75 Ted Turner Drive SW, Atlanta, Georgia 30303. Given the allegations of contempt against her, Defendant Marilyn Murphy is ORDERED to attend. Signed by Judge Richard W. Story on 10/22/2015. (cem) (Entered: 10/22/2015) 10/22/2015 Clerks Certificate of Mailing as to Michael Brent McDonald re 513 Order. Notice of street name change for the Atlanta courthouse included. (cem) (Entered: 10/22/2015) 10/23/2015 514 REPLY to Response to Motion re 488 MOTION for Judgment as a Matter of Law (Renewed) under Fed.R.Civ.P. 50(b) filed by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Winterich, Shawn) (Entered: 10/23/2015) 10/28/2015 515 NOTICE of Appearance by Henry Lane Young, II on behalf of Marilyn Murphy (Young, Henry) (Entered: 10/28/2015) 10/30/2015 516 RESPONSE in Opposition re 496 MOTION to Amend 489 MOTION to Stay Enforcement of Judgment filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 10/30/2015) 11/03/2015 517 TRANSCRIPT ORDER FORM for proceedings held on 8/17, 8/18, 8/19, 8/20, 8/21, 8/24, 8/25, 8/26, before Judge Richard W. Story, re 498 Notice of Appeal, 497 Notice of Appeal,. Court Reporter: Amanda Lohnaas. (Winterich, Shawn) (Entered: 11/03/2015) 11/03/2015 Set Financial Arrangements due date deadline re: 517 Transcript Order Form. Financial Arrangements due on 11/17/2015.(kac) (Entered: 11/04/2015) 11/04/2015 518 NOTICE by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy re 495 Affidavit of Service, 483 Judgment,,, OF SATISFACTION OF JUDGMENT (Attachments: # 1 Exhibit A (order effectuating payment of $10,137,285.84), # 2 Exhibit B (quote of payoff of $31,788.43), # 3 Exhibit C (payoff of $31,788.43))(Winterich, Shawn) (Entered: 11/04/2015) 11/04/2015 519 REPLY BRIEF re 491 MOTION for Judgment as a Matter of Law filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 11/04/2015) 11/05/2015 520 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 58 of 71 Case: 15-14634 Date Filed: (62 of12/22/2017 268) Page: 62 of 211 RESPONSE in Opposition re 508 MOTION for Order to Show Cause As to Why Defendant Marilyn Murphy Should Not Be Held in Contempt of Court filed by Marilyn Murphy. (Winterich, Shawn) (Entered: 11/05/2015) 11/06/2015 521 Minute Entry for proceedings held before Judge Richard W. Story: Telephone Conference held on 11/6/2015. Court held a telephone conference regarding the judgment. Motions hearing set for 12/1/2015. (Court Reporter Amanda Lohnaas)(cem) (Entered: 11/06/2015) 11/06/2015 522 TRANSCRIPT of the Jury Trial Proceedings (Volume 1) held on August 18, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/27/2015. Redacted Transcript Deadline set for 12/7/2015. Release of Transcript Restriction set for 2/4/2016. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 11/06/2015) 11/06/2015 523 TRANSCRIPT of the Jury Trial Proceedings (Volume 2) held on August 19, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/27/2015. Redacted Transcript Deadline set for 12/7/2015. Release of Transcript Restriction set for 2/4/2016. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 11/06/2015) 11/06/2015 524 TRANSCRIPT of the Jury Trial Proceedings (Volume 3) held on August 20, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/27/2015. Redacted Transcript Deadline set for 12/7/2015. Release of Transcript Restriction set for 2/4/2016. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 11/06/2015) 11/06/2015 525 TRANSCRIPT of the Jury Trial Proceedings (Volume 4) held on August 21, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/27/2015. Redacted Transcript Deadline set for 12/7/2015. Release of Transcript Restriction set for 2/4/2016. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 11/06/2015) 11/06/2015 526 TRANSCRIPT of the Jury Trial Proceedings (Volume 5) held on August 24, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/27/2015. Redacted Transcript Deadline set for 12/7/2015. Release of Transcript Restriction set for 2/4/2016. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 11/06/2015) 11/06/2015 527 TRANSCRIPT of the Jury Trial Proceedings (Volume 6) held on August 25, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/27/2015. Redacted Transcript Deadline set for 12/7/2015. Release of Transcript Restriction set for 2/4/2016. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 11/06/2015) 11/06/2015 528 TRANSCRIPT of the Jury Trial Proceedings (Volume 7) held on August 26, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 59 of 71 Case: 15-14634 Date Filed: (63 of12/22/2017 268) Page: 63 of 211 the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Electronic Certification of Record on Appeal due on 11/20/2015. Redaction Request due 11/27/2015. Redacted Transcript Deadline set for 12/7/2015. Release of Transcript Restriction set for 2/4/2016. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 11/06/2015) 11/10/2015 529 Notification of Transcript Filed in District Court re: 517 Transcript Order Form filed by Marilyn Murphy, Gazebo Park Apartments of Acworth, LLC. All transcripts for this request are now on file. (kac) (Entered: 11/13/2015) 11/17/2015 530 NOTICE Of Filing Financial Arrangements:re Transcript by Gazebo Park Apartments of Acworth, LLC(a Georgia limited liability company), Marilyn Murphy (Attachments: # 1 Exhibit A - paid invoice)(Winterich, Shawn) (Entered: 11/17/2015) 11/20/2015 Pursuant to F.R.A.P.11(c), the Clerk certifies that the record is complete for purposes of this appeal re: 498 Notice of Appeal and 497 Notice of Appeal. Case Appealed to USCA - 11th Circuit. USCA Case Number 15-14634-GG. The entire record on appeal is available electronically. (kac) (Entered: 11/20/2015) 11/20/2015 Clerk's Certificate of Mailing mailed to Michael Brent McDonald as to Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., re: Appeal Record Certified. Notice of street name change for the Atlanta courthouse included. (kac) (Entered: 11/20/2015) 11/23/2015 531 REPLY to Response to Motion re 508 MOTION for Order to Show Cause As to Why Defendant Marilyn Murphy Should Not Be Held in Contempt of Court filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 11/23/2015) 11/24/2015 Submission of 508 MOTION for Order to Show Cause As to Why Defendant Marilyn Murphy Should Not Be Held in Contempt of Court, submitted to District Judge Richard W. Story. (cem) (Entered: 11/24/2015) 11/24/2015 NOTICE of Hearing on Pending Motions. Motion Hearing set for 12/1/2015 at 02:00 PM in ATLA Courtroom 2105 before Judge Richard W. Story. (sek) (Entered: 11/24/2015) 12/01/2015 532 Minute Entry for proceedings held before Judge Richard W. Story: Motion Hearing held on 12/1/2015. Written order to follow. (Court Reporter Amanda Lohnaas)(cem) (Entered: 12/02/2015) 12/07/2015 533 BENCH BRIEF Re Prejudgment Interest re MOTION to Alter 483 Judgment by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) Modified on 12/11/2015 to reflect efiled pleading. (cem) (Entered: 12/07/2015) 12/11/2015 534 BENCH BRIEF re 532 Motion Hearing filed by M. Vincent Murphy, III, Community Management Services, Inc., and Multifamily Housing Developers, LLC. (Kreimer, Stanley) Modified on 12/14/2015 to reflect efiled pleading and to add missing filers. (cem) (Entered: 12/11/2015) 12/16/2015 535 POST-ARGUMENT Submission of Supplemental Authority regarding Prejudgment Interest under O.C.G.A. Section 7-4-15 re 533 Bench Brief Submitted During December 1 2015 Hearing filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 60 of 71 Case: 15-14634 Date Filed: (64 of12/22/2017 268) Page: 64 of 211 Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) Modified on 12/17/2015 to reflect efiled pleading. (cem) (Entered: 12/16/2015) 12/16/2015 536 ORDER: Plaintiffs' 482 Motion for Reconsideration is DENIED. Plaintiffs' 487 Motion to Alter Judgment is DENIED. Defendants Gazebo Park and Marilyn Murphy's 488 Motion for Judgment as a Matter of Law is DENIED. Defendants' 489 Motion to Stay Enforcement and Amended Motion to Stay Enforcement 496 are DENIED as moot. Defendant Vincent Murphy's 491 Renewed Motion for Judgment as a Matter of Law is GRANTED, in part, and DENIED, in part. The Motion is granted as to the June 2009 Carroll note and is otherwise denied. Defendant Vincent Murphy's 492 Motion to Alter or Amend Judgment is DENIED. Plaintiffs' 508 Motion for Order to Show Cause is DENIED. Signed by Judge Richard W. Story on 12/16/2015. (cem) (Entered: 12/16/2015) 12/16/2015 Clerks Certificate of Mailing as to Michael Brent McDonald re 536 Order. Notice of street name change for the Atlanta courthouse included. (cem) (Entered: 12/16/2015) 01/13/2016 537 NOTICE OF APPEAL as to 536 Order on Motion for Reconsideration, Order on Motion to Alter Judgment, Order on Motion for Judgment as a Matter of Law, Order on Motion to Stay, Order on Motion to Amend, Order on Motion for Order to Show Cause and 483 Clerk's Judgment by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. Filing fee $505, receipt number 113E-6233477. Transcript Order Form due on 1/27/2016 (Barnett, Keith) Modified on 1/14/2016 remove incorrect filer selected (kac). (Entered: 01/13/2016) 01/13/2016 538 NOTICE OF APPEAL as to 536 Order on Motion for Reconsideration, Order on Motion to Alter Judgment, Order on Motion for Judgment as a Matter of Law, Order on Motion to Stay, Order on Motion to Amend, Order on Motion for Order to Show Cause and 483 Clerk's Judgment by M. Vincent Murphy, III, Community Management Services, Inc., and Multi Family Housing Developers, LLC. Filing fee $505.00;, Receipt number 113E-6233683. Transcript Order Form due on 1/27/2016 (Kreimer, Stanley) Modified on 1/14/2016 (kac). (Entered: 01/13/2016) 01/14/2016 539 AMENDED NOTICE OF APPEAL as to 536 Order on Motion for Reconsideration, Order on Motion to Alter Judgment, Order on Motion for Judgment as a Matter of Law, Order on Motion to Stay, Order on Motion to Amend, Order on Motion for Order to Show Cause and 483 Clerk's Judgment by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. Transcript Order Form due on 1/28/2016 (Barnett, Keith) Modified on 1/14/2016 (kac). (Entered: 01/14/2016) 01/14/2016 540 NOTICE Of Filing Appeal Transmission Letter by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., re: 539 Amended Notice of Appeal and 537 Notice of Appeal. (kac) (Entered: 01/14/2016) 01/14/2016 541 Transmission of Certified Copy of Notices of Appeals, Clerk's Judgment, Order and Docket Sheet to US Court of Appeals re: 539 Amended Notice of Appeal and 537 Notice of Appeal. (kac) (Entered: 01/14/2016) 01/14/2016 542 NOTICE Of Filing Appeal Transmission Letter by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III, re: 538 Notice of Appeal. (kac) (Entered: 01/14/2016) 01/14/2016 543 Transmission of Certified Copy of Notice of Appeal, Clerk's Judgment, Order and Docket Sheet to US Court of Appeals re: 538 Notice of Appeal. (kac) (Entered: 01/14/2016) 01/27/2016 544 TRANSCRIPT ORDER FORM for proceedings held on 8/17/15 before Judge Story, re 538 Notice of Appeal,,. Court Reporter: Lohnaas. (Kreimer, Stanley) (Main Document 544 replaced on 8/11/2016) (vlm). (Entered: 01/27/2016) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 61 of 71 Case: 15-14634 Date Filed: (65 of12/22/2017 268) Page: 65 of 211 01/27/2016 Set Electronic Certification of Record on Appeal due date re: 544 Transcript Order Form. Electronic Certification of Record on Appeal due on 2/10/2016.(kac) (Entered: 01/27/2016) 01/27/2016 545 USCA Acknowledgment of 539 Amended Notice of Appeal filed by Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XI, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., 537 Notice of Appeal filed by Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XI, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc. Case Appealed to USCA - 11th Circuit. USCA Case Number 15-14634-GG. (kac) (Entered: 01/28/2016) 02/01/2016 546 Court Reporter Acknowledgment re: 544 Transcript Order Form filed by M. Vincent Murphy, III. Case Appealed to USCA - 11th Circuit. Case Number 00-00000-00. Transcipt is required. Court Reporter: Amanda Lohnaas. Satisfactory financial arrangements completed. Transcript due by 3/2/2016. (kac) (Entered: 02/01/2016) 02/04/2016 550 TRANSCRIPT of the Motions Hearing Proceedings held on December 1, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/25/2016. Redacted Transcript Deadline set for 3/7/2016. Release of Transcript Restriction set for 5/4/2016. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 02/05/2016) 02/05/2016 547 APPLICATION for Admission of Edward David Johnson Pro Hac Vice (Application fee $ 150, receipt number 113E-6273903)by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 02/05/2016) 02/05/2016 548 APPLICATION for Admission of Brian David Netter Pro Hac Vice (Application fee $ 150, receipt number 113E-6274026)by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 02/05/2016) 02/05/2016 549 APPLICATION for Admission of Evan Mark Tager Pro Hac Vice (Application fee $ 150, receipt number 113E-6274082)by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 02/05/2016) 02/09/2016 551 TRANSCRIPT ORDER FORM re 539 Notice of Appeal,,. (Barnett, Keith) (Entered: 02/09/2016) 02/09/2016 Set Electronic Certification due date deadline re: 551 Transcript Order Form. Electronic Certication due on 2/23/2016. (kac) (Entered: 02/10/2016) 02/09/2016 552 USCA Acknowledgment of 538 Notice of Appeal filed by Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III, Community Management Services, Inc. Case Appealed to USCA - 11th Circuit. USCA Case Number 15-14634-GG. (kac) (Entered: 02/10/2016) 02/17/2016 553 TRANSCRIPT of the Jury Trial Proceedings held on August 17, 2015, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Electronic Certification of Record on Appeal due on 3/2/2016. Redaction Request due 3/9/2016. Redacted Transcript Deadline set for 3/21/2016. https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 62 of 71 Case: 15-14634 Date Filed: (66 of12/22/2017 268) Page: 66 of 211 Release of Transcript Restriction set for 5/17/2016. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 02/17/2016) 02/17/2016 554 Notification of Transcript Filed in District Court re: 544 Transcript Order Form filed by M. Vincent Murphy, III. All transcripts for this request are now on file. (kac) (Entered: 02/19/2016) 02/18/2016 RETURN of 547 APPLICATION for Admission of Edward David Johnson Pro Hac Vice (Application fee $ 150, receipt number 113E-6273903) to attorney for correction re: form. (pb) (Entered: 02/18/2016) 02/18/2016 APPROVAL by Clerks Office re: 548 APPLICATION for Admission of Brian David Netter Pro Hac Vice (Application fee $ 150, receipt number 113E-6274026). Attorney Brian David Netter added appearing on behalf of Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (pb) (Entered: 02/18/2016) 02/18/2016 APPROVAL by Clerks Office re: 549 APPLICATION for Admission of Evan Mark Tager Pro Hac Vice (Application fee $ 150, receipt number 113E-6274082). Attorney Evan Mark Tager added appearing on behalf of Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (pb) (Entered: 02/18/2016) 02/23/2016 555 ORDER granting 549 Application for Admission Pro Hac Vice of Petitioner Evan Mark Tager. Signed by Judge Richard W. Story on 2/23/16. (rsg) (Entered: 02/23/2016) 02/23/2016 556 ORDER granting 548 Application for Admission Pro Hac Vice of Petitioner Brian David Netter. Signed by Judge Richard W. Story on 2/23/16. (rsg) (Entered: 02/23/2016) 02/23/2016 557 APPLICATION for Admission of Edward D. Johnson Pro Hac Vice by Alliant Tax Credit 31, Inc., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., Alliant Tax Credit XI, Ltd.. (Barnett, Keith) (Entered: 02/23/2016) 03/01/2016 Pursuant to F.R.A.P.11(c), the Clerk certifies that the record is complete for purposes of this appeal re: 537 Notice of Appeal, 538 Notice of Appeal, 539 Notice of Appeal. Case Appealed to USCA - 11th Circuit. USCA Case Number 15-14634-GG. The entire record on appeal is available electronically. (kac) (Entered: 03/01/2016) 03/01/2016 Clerk's Certificate of Mailing sent to counsel of record, Michael Brent McDonald, Brian David Netter, Evan Mark Tager, as to Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd., re: 539 Notice of Appeal, 537 Notice of Appeal. Notice of street name change for the Atlanta courthouse included. (kac) (Entered: 03/01/2016) 03/08/2016 558 Notice for Leave of Absence for the following date(s): 5/13, 5/16, 5/17, 5/18, 5/19, 5/20, 5/23, 5/24, 5/25, 5/26, 5/27, 5/30, 5/31, 7/1, 7/5, 7/6, 7/7, 7/8, 7/11, 11/21, 11/22, 11/23, 11/24, 11/25, 11/28, 11/29, 12/19, 12/20, 12/21, 12/22, 12/23, 12/26, 12/27, 12/28, 12/29, 12/30/16, 1/2/17, 1/3, 1/4, 1/5. 1/6, by Shawn Michael Winterich. (Winterich, Shawn) (Entered: 03/08/2016) 03/08/2016 APPROVAL by Clerks Office re: 557 APPLICATION for Admission of Edward D. Johnson Pro Hac Vice. Attorney Edward David Johnson added appearing on behalf of Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (pb) (Entered: 03/08/2016) 03/09/2016 559 ORDER granting 557 Application for Admission Pro Hac Vice of Edward David Johnson. Signed by Judge Richard W. Story on 03/09/16. (sk) (Entered: 03/09/2016) 03/21/2016 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 63 of 71 Case: 15-14634 Date Filed: (67 of12/22/2017 268) Page: 67 of 211 CASE REFERRED to Settlement Judge Magistrate Judge Alan J. Baverman re Eleventh Circuit Action - Case Number 15-14634-G. (fap) (Entered: 03/21/2016) 03/21/2016 560 ORDER scheduling Mediation. The Chief District Judge has given his approval for the undersigned to preside at a mediation in case number No. 15-14634-G currently pending in the Eleventh Circuit. Mediation Hearing set for 4/28/2016 and 4/29/2016 at 10:00 AM in ATLA Courtroom 1879 before Magistrate Judge Alan J. Baverman. All parties SHALL submit a BRIEF informal confidential ex parte memorandum to the undersigned no later than 12:00 p.m. on April 21, 2016. (See Complete Order for Other Specifics) Signed by Magistrate Judge Alan J. Baverman on 03/18/16. (fap) (Entered: 03/21/2016) 04/27/2016 562 ORDER ALLOWING AUDIO/VISUAL EQUIPMENT IN THE COURTROOM on 4/28- 29/16 at 10:00 AM in ATLA Courtroom 1879. Signed by Magistrate Judge Alan J. Baverman on 4/27/16. (rsg) (Entered: 04/27/2016) 04/28/2016 563 Minute Entry for proceedings held before Magistrate Judge Alan J. Baverman: Settlement Conference held on 4/28/2016. The parties were unable to settle the case. Related Appeals Cases Nos. 15-14634, 15-144654. (Court Reporter Lisa Enix)(rsg) Modified on 4/29/2016 (rth). Modified docket text date from the 29th to 28th on 7/14/2016 (rsg). (Entered: 04/29/2016) 09/21/2016 564 Notice for Leave of Absence for the following date(s): 9/23/2016, 9/26, 9/27, 9/28, 9/29, 9/30, 10/21, 10/24, 10/25, 10/26, 10/27. 10/28, 10/31, 11/21, 11/22, 11/23, 11/25, 11/28, 11/29, 11/30, 12/1, 12/2, 12/5, 12/6, 12/19, 12/20, 12/21, 12/22, 12/23, 12/26, 12/27, 12/28, 12/29, and 12/30/2016, 1/2/2017, 1/3, 1/4, 1/5 and 1/6/2017, by Shawn Michael Winterich. (Winterich, Shawn) (Entered: 09/21/2016) 04/10/2017 565 Certified copy of ORDER of USCA re: 539 Notice of Appeal 537 Notice of Appeal, 538 Notice of Appeal. We REMAND the appeal to the district court for the limited purpose of adjudicating Appellees' motion to voluntarily dismiss the claims against Gazebo Park pursuant to Federal Rule of Civil Procedure 21 and motion to amend and to seal the pleadings, and to fully resolve the question of the court's subject-matter jurisdiction over this action. The district court shall take any action that it deems necessary to address the motions and resolve the doubts about its diversity subject matter jurisdiction, including but not limited to jurisdictional discovery if appropriate. If the district court determines that it did not have subject matter jurisdiction over the case, it should vacate its judgment and dismiss the case for lack of subject matter jurisdiction, providing this Court with a copy of the dismissal order. Should the court determine that it had subject matter jurisdiction over the case, it should enter an order to that effect and return the record, as supplemented, to this Court for further proceedings. Case Appealed to USCA, 11th Circuit Case Number 15-14634-GG. (bdb) (Entered: 04/11/2017) 04/11/2017 Submission of 565 USCA Order on limited remand. (Proposed mandate order emailed to chambers) Submitted to District Judge Richard W. Story. (bdb) (Entered: 04/11/2017) 04/11/2017 566 Notice for Leave of Absence for the following date(s): 2/24, 5/25, 5/26 - 5/31/2017, 6/29 - 7/11/2017, 8/31, 9/1 - 9/6/2017, 9/21 - 9/30/2017, 10/1 - 10/3/2017, 11/16 - 11/28/2017, 12/21 - 12/24/2017, 12/26 - 12/31/2017 and 1/1 - 1/3/2018, by Shawn Michael Winterich. (Winterich, Shawn) Modified to remove each day individually on 4/11/2017 (bdb). (Entered: 04/11/2017) 04/12/2017 567 NOTICE of Hearing: Scheduling Conference set for 5/30/2017 at 01:30 PM in ATLA Courtroom 2105 before Judge Richard W. Story. (sek) (Entered: 04/12/2017) 04/12/2017 Clerks Certificate of Mailing as to Attorney Michael Brent McDonald re 567 Notice of Hearing. (sk) (Entered: 04/12/2017) 04/12/2017 568 ORDER making the USCA mandate the judgment of this Court re 539 Notice of Appeal, 537 Notice of Appeal, 538 Notice of Appeal on limited remand. Case Appealed to USCA - 11th Circuit Case Number 15-14634-GG. Signed by Judge Richard W. Story on 4/12/2017. (bdb) (Entered: 04/13/2017) 04/17/2017 569 ORDER re 568 USCA Mandate. The parties are ORDERED to file statements as to their citizenship at the time the Complaint was filed, including identity and citizenship of every https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 64 of 71 Case: 15-14634 Date Filed: (68 of12/22/2017 268) Page: 68 of 211 partner of the partnership entities and of every member of the limited liability companies. The parties must file evidentiary support for each of their statements and a brief providing legal support for the statements of citizenship. The filings shall be made simultaneously within fourteen days of this order. The parties may file responses, if necessary, within fourteen days. The parties should be prepared to discuss their filings at the scheduling hearing currently set for 1:30 PM on Tuesday, May 30, 2017. Signed by Judge Richard W. Story on 4/17/2017. (bdb) (Entered: 04/17/2017) 04/28/2017 570 AFFIDAVIT by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 04/28/2017) 04/28/2017 571 BRIEF In Support of Citizenship re: 570 affidavit of Defendants M. Vincent Murphy, III, Community Management Services, Inc., and Multi Family Housing Developers, LLC by M. Vincent Murphy, III. (Kreimer, Stanley) Modified to accurately reflect entry on 4/28/2017 (bdb). (Entered: 04/28/2017) 05/01/2017 572 NOTICE by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy re 569 Order,, Statements of Citizenships (Attachments: # 1 Affidavit of domicile by M. Murphy)(Winterich, Shawn) (Entered: 05/01/2017) 05/01/2017 573 Amended Certificate of Interested Persons and Corporate Disclosure Statement by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Netter, Brian) Modified on 5/2/2017 (jkl). (Entered: 05/01/2017) 05/01/2017 574 RESPONSE re 569 Order,, Brief Supporting Legal Support for Statements of Citizenship filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1 - Motion to Dismiss, # 2 Exhibit 2 - Response to Motion to Dismiss, # 3 Exhibit 3 - Motion to Amend, # 4 Exhibit 4 - Motion to Seal)(Netter, Brian) (Entered: 05/01/2017) 05/01/2017 575 RESPONSE re 569 Order,, Statement as to the Parties' Citizenship filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit A (Redacted Version), # 2 Exhibit A-1 (Redacted Version), # 3 Exhibit A-2 (Filed Under Seal), # 4 Exhibit A-3 (Redacted Version), # 5 Exhibit A-4 (Redacted Version), # 6 Exhibit A-5 (Filed Under Seal), # 7 Exhibit A-6 (Filed Under Seal), # 8 Exhibit A-7 (Redacted Version), # 9 Exhibit A-8 (Filed Under Seal), # 10 Exhibit A-9 (Filed Under Seal), # 11 Exhibit B (Filed Under Seal), # 12 Exhibit C (Filed Under Seal), # 13 Exhibit D (Filed Under Seal), # 14 Exhibit E (Filed Under Seal), # 15 Exhibit F (Filed Under Seal), # 16 Exhibit G (Filed Under Seal), # 17 Exhibit H (Filed Under Seal), # 18 Exhibit I (Filed Under Seal), # 19 Exhibit J (Filed Under Seal), # 20 Exhibit K (Filed Under Seal), # 21 Exhibit L (Filed Under Seal), # 22 Exhibit M (Filed Under Seal), # 23 Exhibit N (Filed Under Seal))(Netter, Brian) (Entered: 05/01/2017) 05/01/2017 576 SEALED RESPONSE re 575 Response Statement as to the Parties' Citizenship filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. (Attachments: # 1 Exhibit A, # 2 Exhibit A-1 (Unsealed), # 3 Exhibit A-2, # 4 Exhibit A-3 (Unsealed), # 5 Exhibit A-4 (Unsealed), # 6 Exhibit A-5, # 7 Exhibit A-6, # 8 Exhibit A-7 (Unsealed), # 9 Exhibit A-8, # 10 Exhibit A-9, # 11 Exhibit B, # 12 Exhibit C, # 13 Exhibit D, # 14 Exhibit E, # 15 Exhibit F, # 16 Exhibit G, # 17 Exhibit H, # 18 Exhibit I, # 19 Exhibit J, # 20 Exhibit K, # 21 Exhibit L, # 22 Exhibit M, # 23 Exhibit N)(Netter, Brian) Modified to remove provisionally on 5/8/2017 (bdb). (Entered: 05/01/2017) 05/01/2017 577 MOTION for Leave to File Matters Under Seal re: 576 Response (Non-Motion),,, with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Netter, Brian) (Entered: 05/01/2017) 05/08/2017 578 ORDER granting 577 Plaintiffs' Motion for Leave to File Statement of Citizenship and Certain Exhibits Thereto Under Seal. For good cause shown, IT IS ORDERED that Alliant be https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 65 of 71 Case: 15-14634 Date Filed: (69 of12/22/2017 268) Page: 69 of 211 permitted to file under seal Alliant's Statement as to the Parties' Citizenship, Exhibits A-N thereto, and Exhibits A-2, A-5, A-6, A-8, and A-9 to Exhibit A. Signed by Judge Richard W. Story on 5/8/2017. (bdb) (Entered: 05/08/2017) 05/12/2017 579 Unopposed MOTION for Extension of Time re: 569 Order,, to File Response by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III. (Attachments: # 1 Text of Proposed Order Prop order)(Winterich, Shawn) (Entered: 05/12/2017) 05/15/2017 580 ORDER granting 579 Unopposed Motion for Extension of Time to File Responses to 569 Order. The Defendants named herein shall have to and through May 25, 2017 to file their response. Signed by Judge Richard W. Story on 5/15/2017. (bdb) (Entered: 05/15/2017) 05/15/2017 581 RESPONSE re 573 Certificate of Interested Persons, 569 Order,, 574 Response (Non-Motion), 576 Response (Non-Motion),,, 575 Response (Non-Motion),,,, Response Brief and Objections of Defendants to Evidentiary and Other Citizenship Materials of Plaintiffs filed by Gazebo Park Apartments of Acworth, LLC, Marilyn Murphy. (Attachments: # 1 Appendix 11th Circuit motion, # 2 Appendix 11th Circuit reply)(Winterich, Shawn) (Entered: 05/15/2017) 05/25/2017 582 RESPONSE re 576 Response (Non-Motion),,, filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 05/25/2017) 05/30/2017 583 Minute Entry for proceedings held before Judge Richard W. Story: Scheduling Conference held on 5/30/2017. The Court directed Defendants to submit proposed discovery within seven days and Plaintiffs will then have seven days to respond. The Court will allow Defendants to file a brief concerning citizenship in seven days and Plaintiffs will then have seven days to respond. The Court GRANTED the Consent Motion to Dismiss Gazebo Park Apartment of Acworth, LLC. Plaintiffs' Motion to Amend the Complaint to Provide SpecificAllegations of the Parties' Citizenship is GRANTED. (Court Reporter Amanda Lohnaas)(jpa) Modified on 11/14/2017 to correct date of hearing (sk). (Entered: 06/01/2017) 05/30/2017 584 ORDER DIRECTING the Defendants to submit their proposed discovery within 7 days. Plaintiffs may then file a response within 7 days thereafter. As a separate matter, Defendants may submit a brief on the issue of Plaintiffs filing their statement of citizenship under seal within seven days of the date of this Order. Plaintiffs may then file a response within seven days thereafter. Finally, the Consent Motion to Dismiss Gazebo Park Apartments of Acworth, LLC and Plaintiffs' Motion to Amend Complaint to Provide Specific Allegations of the Parties' Citizenship are GRANTED. Signed by Judge Richard W. Story on 5/30/17. (jpa) (Entered: 06/01/2017) 06/06/2017 585 Joint Detailed Discovery Plan by M. Vincent Murphy, III.(Kreimer, Stanley) (Entered: 06/06/2017) 06/06/2017 586 NOTICE Of Filing proposed Discovery Requests about Subject Matter Jurisdiction and Memorandum in Support by Marilyn Murphy re 584 Order (Attachments: # 1 Appendix Requests for Admissions, # 2 Appendix Requests for Production, # 3 Appendix Interrogatories, # 4 Appendix Doran depo excerpts 092013)(Winterich, Shawn) Modified on 6/7/2017 (jkl). (Entered: 06/06/2017) 06/06/2017 587 MOTION to Vacate 584 Order Regarding Sealing (Docs. 264 and 578) with Brief In Support by Marilyn Murphy. (Winterich, Shawn) Modified on 6/7/2017 (jkl). (Entered: 06/06/2017) 06/13/2017 588 RESPONSE re 585 Joint Detailed Discovery Plan, 586 Notice of Filing, filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Netter, Brian) (Entered: 06/13/2017) 06/13/2017 589 RESPONSE in Opposition re 587 MOTION to Vacate 584 Order Regarding Sealing (Docs. 264 and 578) filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Declaration of Shawn Horwitz)(Netter, Brian) (Entered: 06/13/2017) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 66 of 71 Case: 15-14634 Date Filed: (70 of12/22/2017 268) Page: 70 of 211 06/28/2017 Submission of 587 MOTION to Vacate 584 Order Regarding Sealing (Docs. 264 and 578) to District Judge Richard W. Story. (jkl) (Entered: 06/28/2017) 06/29/2017 590 MOTION to Strike 589 Response in Opposition to 587 Motion to Vacate and Objection to Affidavit of Shawn Horwitz (Doc 589-1) with Brief In Support by Marilyn Murphy. (Attachments: # 1 Exhibit Doran deposit excerpt 09032013)(Winterich, Shawn) Modified to relate to 587 on 6/29/2017 (bdb). (Entered: 06/29/2017) 06/29/2017 591 OBJECTIONS to Response to 587 MOTION to Vacate 584 Order Regarding Sealing (Docs. 264 and 578) filed by Marilyn Murphy. (Filed in 590) (bdb) (Entered: 06/29/2017) 07/10/2017 592 TRANSCRIPT of the Scheduling Conference Hearing Proceedings held on May 30, 2017, before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas, Telephone number 404-215-1546. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/31/2017. Redacted Transcript Deadline set for 8/10/2017. Release of Transcript Restriction set for 10/10/2017. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 07/12/2017) 07/13/2017 593 RESPONSE in Opposition re 590 MOTION to Strike 589 Response in Opposition to Motion, and Objection to Affidavit of Shawn Horwitz (Doc 589-1) filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Netter, Brian) (Entered: 07/13/2017) 07/13/2017 594 RESPONSE re 591 Reply to Response to Motion filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Netter, Brian) (Entered: 07/13/2017) 07/27/2017 595 REPLY to Response to Motion re 590 MOTION to Strike 589 Response in Opposition to Motion, and Objection to Affidavit of Shawn Horwitz (Doc 589-1) filed by Marilyn Murphy. (Winterich, Shawn) (Entered: 07/27/2017) 07/31/2017 596 ORDER: Plaintiffs are ORDERED to file any supplemental information within fourteen days. For sake of clarity of the record, each Plaintiff may make a separate filing on the docket with relevant documents, but Plaintiffs need not make multiple filings of the same documents if there are common entities in their organizational structures. Defendants may file responses to Plaintiffs additional submissions, if desired, within fourteen days of Plaintiffs filing. If Plaintiffs fail to provide sufficient additional documentary support of their allegations, the Court will find that Plaintiffs have failed to prove diversity jurisdiction by a preponderance of the evidence. Signed by Judge Richard W. Story on 07/31/2017. (dgr) (Entered: 07/31/2017) 08/02/2017 Submission of 590 MOTION to Strike 589 Response in Opposition to Motion, and Objection to Affidavit of Shawn Horwitz (Doc 589-1), to District Judge Richard W. Story. (rsg) (Entered: 08/02/2017) 08/14/2017 597 STATEMENT OF CITIZENSHIP FOR ALLIANT TAX CREDIT 31, LLC (SUPPLEMENTAL) - Redacted by Alliant Tax Credit 31, Inc.. (Attachments: # 1 Exhibit AA Filed Under Seal, # 2 Exhibit AA-1 Filed Under Seal, # 3 Exhibit AA-2 Filed Under Seal, # 4 Exhibit P Declaration of Shawn Horwitz - Redacted, # 5 Exhibit P-1 Filed Under Seal, # 6 Exhibit P-2 Operating agreement - Redacted, # 7 Exhibit P-3 Operating agreement - Redacted, # 8 Exhibit P-4 Amended and Restated Agreement of Limited Partnership - Redacted, # 9 Exhibit P-5 Amended and Restated Agreement of Limited Partnership - Redacted, # 10 Exhibit P-6 Filed Under Seal, # 11 Exhibit P-7 Filed Under Seal, # 12 Exhibit P-8 Articles of Incorporation of Alliant, inc. - Redacted, # 13 Exhibit P-9 Filed Under Seal, # 14 Exhibit P-10 Filed Under Seal, # 15 Exhibit Q Filed Under Seal, # 16 Exhibit Q-1 Filed Under Seal, # 17 Exhibit Q-2 Filed Under Seal, # 18 Exhibit Q-3 Filed Under Seal, # 19 Exhibit Q-4 Filed Under Seal, # 20 Exhibit R Filed Under Seal, # 21 Exhibit R-1 Filed Under Seal, # 22 Exhibit R-2 Filed Under Seal, # 23 Exhibit R-3 Filed Under Seal, # 24 Exhibit R-4 Filed Under Seal, # 25 Exhibit R-5 Filed Under Seal, # 26 Exhibit R-6 Filed Under Seal, # 27 Exhibit S Declaration of Brian D. https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 67 of 71 Case: 15-14634 Date Filed: (71 of12/22/2017 268) Page: 71 of 211 Netter - Redacted, # 28 Exhibit S-1 Filed Under Seal, # 29 Exhibit S-2 Filed Under Seal, # 30 Exhibit S-3 Filed Under Seal, # 31 Exhibit S-4 Filed Under Seal, # 32 Exhibit S-5 Filed Under Seal, # 33 Exhibit S-6 Filed Under Seal, # 34 Exhibit S-7 Filed Under Seal, # 35 Exhibit S-8 Filed Under Seal, # 36 Exhibit S-9 Filed Under Seal, # 37 Exhibit S-10 Filed Under Seal, # 38 Exhibit S-11 Filed Under Seal, # 39 Exhibit S-12 Filed Under Seal, # 40 Exhibit S-13 Filed Under Seal, # 41 Exhibit S-14 Filed Under Seal, # 42 Exhibit S-15 Filed Under Seal, # 43 Exhibit S-16 Filed Under Seal, # 44 Exhibit S-17 Filed Under Seal, # 45 Exhibit S-18 Filed Under Seal, # 46 Exhibit S-19 Filed Under Seal, # 47 Exhibit S-20 Filed Under Seal, # 48 Exhibit S-21 Filed Under Seal, # 49 Exhibit S-22 Filed Under Seal, # 50 Exhibit T Filed Under Seal, # 51 Exhibit U Filed Under Seal, # 52 Exhibit V Filed Under Seal, # 53 Exhibit V-1 Filed Under Seal, # 54 Exhibit W Filed Under Seal, # 55 Exhibit W-1 Filed Under Seal, # 56 Exhibit X Filed Under Seal, # 57 Exhibit X-1 Filed Under Seal, # 58 Exhibit Y Filed Under Seal, # 59 Exhibit Y-1 Filed Under Seal, # 60 Exhibit Y-2 Filed Under Seal, # 61 Exhibit Y-3 Filed Under Seal, # 62 Exhibit Z Filed Under Seal, # 63 Exhibit Z-1 Filed Under Seal, # 64 Exhibit Z-2 Filed Under Seal)(Netter, Brian) (Entered: 08/14/2017) 08/14/2017 598 STATEMENT OF CITIZENSHIP FOR ALLIANT TAX CREDIT FUND XI, LTD. (SUPPLEMENTAL) - Redacted by Alliant Tax Credit XI, Ltd.. (Netter, Brian) (Entered: 08/14/2017) 08/14/2017 599 STATEMENT OF CITIZENSHIP FOR ALLIANT TAX CREDIT FUND XXVII, LTD. (SUPPLEMENTAL) - Redacted by Alliant Tax Credit Fund XXVII, Ltd.. (Netter, Brian) (Entered: 08/14/2017) 08/14/2017 600 STATEMENT OF CITIZENSHIP FOR ALLIANT TAX CREDIT FUND XI, Inc. (SUPPLEMENTAL) - Redacted by Alliant Tax Credit XI, Inc.. (Netter, Brian) (Entered: 08/14/2017) 08/14/2017 601 STATEMENT OF CITIZENSHIP FOR ALLIANT TAX CREDIT FUND XXVII, Inc. (SUPPLEMENTAL) - Redacted by Alliant Tax Credit Tax Credit XXVII, Inc.. (Netter, Brian) (Entered: 08/14/2017) 08/14/2017 602 *** SEALED (with the exception of Exhibits P-2, P-3, P-4, and P-8) *** NOTICE Of Filing by Alliant Tax Credit 31, Inc. (Attachments: # 1 Exhibit AA Declaration, # 2 Exhibit AA-1, # 3 Exhibit AA-2, # 4 Exhibit P Declaration, # 5 Exhibit P-1 Tax Return, # 6 Exhibit P-2 Operating agreement, # 7 Exhibit P-3 Operating agreement, # 8 Exhibit P-4 Amended and Restated Agreement of Limited Partnership, # 9 Exhibit P-5 Amended and Restated Agreement of Limited Partnership, # 10 Exhibit P-6 Amended and Restated Agreement of Limited Partnership, # 11 Exhibit P-7 First Amendment to the Amended and Restated Agreement of Limited Partnership, # 12 Exhibit P-8 Articles of Incorporation of Alliant, inc., # 13 Exhibit P-9 Operating agreement, # 14 Exhibit P-10 Certificate of Conversion, # 15 Exhibit Q Declaration, # 16 Exhibit Q-1 Tax Return, # 17 Exhibit Q-2 Articles of Organization, # 18 Exhibit Q-3 Operating Agreement, # 19 Exhibit Q-4 Limited Partnership Agreement, # 20 Exhibit R Declaration, # 21 Exhibit R-1 Operating Agreement, # 22 Exhibit R-2 Annual Report, # 23 Exhibit R-3 Articles of Incorporation, # 24 Exhibit R-4 Annual Report, # 25 Exhibit R-5 Articles of Incorporation, # 26 Exhibit R-6 Articles of Amendment to Articles of Incorporation, # 27 Exhibit S Declaration, # 28 Exhibit S-1 SEC Annual Report, # 29 Exhibit S-2, # 30 Exhibit S-3 Purchase and Assumption Agreement, # 31 Exhibit S-4, # 32 Exhibit S-5 Articles of Association, # 33 Exhibit S-6 Articles of Incorporation, # 34 Exhibit S-7 Amendment of Certificate of Incorporation, # 35 Exhibit S-8, # 36 Exhibit S-9 Complaint, # 37 Exhibit S-10 Texas Dept. of Banking Press Release, # 38 Exhibit S-11 Certificate of Authority, # 39 Exhibit S-12 Amended and Restated Articles of Association, # 40 Exhibit S-13, # 41 Exhibit S-14 SEC Annual Report, # 42 Exhibit S-15 Articles of Association, # 43 Exhibit S-16 Amendment of Certificate of Incorporation, # 44 Exhibit S-17, # 45 Exhibit S-18 SEC Amendment No. 1, # 46 Exhibit S-19 Business License Application, # 47 Exhibit S-20, # 48 Exhibit S-21, # 49 Exhibit S-22, # 50 Exhibit T Declaration, # 51 Exhibit U Declaration, # 52 Exhibit V Declaration, # 53 Exhibit V-1 Tax Return, # 54 Exhibit W Declaration, # 55 Exhibit W-1 Tax Return, # 56 Exhibit X Declaration, # 57 Exhibit X-1 Tax Return, # 58 Exhibit Y Declaration, # 59 Exhibit Y-1 Driver License, # 60 Exhibit Y-2 Tax Return, # 61 Exhibit Y-3 Marriage Dissolution, # 62 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 68 of 71 Case: 15-14634 Date Filed: (72 of12/22/2017 268) Page: 72 of 211 Exhibit Z Declaration, # 63 Exhibit Z-1 Driver's License, # 64 Exhibit Z-2 Tax Return)(Netter, Brian) Modified to remove names in exhibits per counsel on 8/15/2017 (bdb). Modified on 8/15/2017 to remove exhibit description (sk). Modified on 8/15/2017 (rsg). (Entered: 08/14/2017) 08/14/2017 603 *** SEALED *** NOTICE Of Filing by Alliant Tax Credit XI, Ltd. (Netter, Brian) Modified on 8/15/2017 (rsg). (Entered: 08/14/2017) 08/14/2017 604 *** SEALED *** NOTICE Of Filing by Alliant Tax Credit Fund XXVII, Ltd. (Netter, Brian) Modified on 8/15/2017 (rsg). (Entered: 08/14/2017) 08/14/2017 605 *** SEALED *** NOTICE Of Filing by Alliant Tax Credit XI, Inc. (Netter, Brian) Modified on 8/15/2017 (rsg). (Entered: 08/14/2017) 08/14/2017 606 *** SEALED *** NOTICE Of Filing by Alliant Tax Credit Tax Credit XXVII, Inc. (Netter, Brian) Modified on 8/15/2017 (rsg). (Entered: 08/14/2017) 08/14/2017 607 MOTION for Leave to File Matters Under Seal re: 604 Notice of Filing, 605 Notice of Filing, 603 Notice of Filing, 602 Notice of Filing,,,,,,,,,,, 606 Notice of Filing with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief In Support of Motion, # 2 Text of Proposed Order)(Netter, Brian) (Entered: 08/14/2017) 08/15/2017 Notification of Docket Correction re 602 Notice of Filing, (removed names in exhibits per counsel). (bdb) (Entered: 08/15/2017) 08/15/2017 608 ORDER granting 607 Motion for Leave to File Matters Under Seal. IT IS ORDERED that Alliant be permitted to file under seal: 1) Supplemental Statement of Citizenship for Alliant Tax Credit 31, Inc.; 2) Supplemental Statement of Citizenship for Alliant Tax Credit Fund XXVII, Ltd, 3) Supplemental Statement of Citizenship for Alliant Tax Credit XXVII, LLC; 4) Supplemental Statement of Citizenship for Alliant Tax Credit XI, LLC; 5) Supplemental Statement of Citizenship for Alliant Tax Credit Fund XI, Ltd.; 6) Documents in Support of the Supplemental Statements: Exhibits P, P-1, P-5, P-6, P-7, P-9, and P-10; Exhibit Q and Q-1 to Q-4; Exhibit R and R-1 to R-6; Exhibit S and S-1 to S-22; Exhibit T; Exhibit U; Exhibits V and V-1; Exhibit W and W-1; Exhibit X and X-1; Exhibit Y and Y-1 to Y-3; Exhibit Z and Z-1 to Z-2; and Exhibit AA and AA-1 to AA-2. Signed by Judge Richard W. Story on 08/15/2017. (rsg) (Entered: 08/15/2017) 08/23/2017 609 Unopposed MOTION for Extension of Time File Response to Supplemental Plaintiffs' Statements of Citizenship (Unopposed) re: 604 Notice of Filing, 598 Statement, 605 Notice of Filing, 601 Statement, 603 Notice of Filing, 596 Order,, 602 Notice of Filing,,,,,,,,,,, 606 Notice of Filing, 600 Statement, 599 Statement, 597 Statement,,,,,,,,,, by Affordable Realty Management Incorporated, Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III, Marilyn Murphy. (Attachments: # 1 Text of Proposed Order)(Winterich, Shawn) (Entered: 08/23/2017) 08/24/2017 610 ORDER granting 609 Motion for Extension of Time. It is ORDERED that the time within which the Defendants may file their responses and objections to Plaintiffs' Supplemental Statements of Citizenship is hereby extended to and through September 11, 2017. Signed by Judge Richard W. Story on 08/24/2017. (dgr) (Entered: 08/24/2017) 08/25/2017 Clerks Certificate of Mailing as to Plaintiff's Attorney, Michael Brent McDonald re 610 Order on Motion for Extension of Time. (sk) (Entered: 08/25/2017) 09/10/2017 611 SEALED--REDACTION Response to Plaintiff's Supplemental Statements of Citizenship by M. Vincent Murphy, III. (Kreimer, Stanley) Modified to place under seal on 9/15/2017 pursuant to 618 court order (bdb). (Entered: 09/10/2017) 09/10/2017 612 Joint MOTION for Leave to File Matters Under Seal re: 264 Order on Motion for Protective Order, 596 Order,, by Marilyn Murphy. (Attachments: # 1 Text of Proposed Order)(Winterich, Shawn) (Entered: 09/10/2017) https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 69 of 71 Case: 15-14634 Date Filed: (73 of12/22/2017 268) Page: 73 of 211 09/11/2017 613 SEALED RESPONSE re 596 Order,, regarding supplemental submissions of citizenship filed by Marilyn Murphy. (Attachments: # 1 Exhibit U.S. gov't press release, # 2 Exhibit U.S. gov't banking info, # 3 Exhibit U.S. gov't banking info, # 4 Exhibit Bank 10k, # 5 Exhibit Notice of 30b6 depo for 5/1/13, # 6 Exhibit Doran 30b6 trans 5/1/13, # 7 Exhibit Alliant resp to written questions, # 8 Exhibit Notices of 30b6 depo 9/3 and 9/17/13, # 9 Exhibit Doran 30b6 trans 9/3/13, # 10 Exhibit Doran 30b6 trans 9/17/13, # 11 Appendix Winterich declaration) (Winterich, Shawn) Modified on 9/13/2017 to remove word Provisionally in line with order (dgr). (Entered: 09/11/2017) 09/11/2017 614 SEALED--RESPONSE re 596 Order,, regarding supplemental submissions of citizenship filed by Marilyn Murphy. (Attachments: # 1 Exhibit U.S. gov't press release, # 2 Exhibit U.S. gov't banking info, # 3 Exhibit U.S. gov't banking info, # 4 Exhibit Bank 10k, # 5 Exhibit Notice of 30b6 depo for 5/1/13, # 6 Exhibit Doran 30b6 trans 5/1/13, # 7 Exhibit Alliant resp to written questions, # 8 Exhibit Notices of 30b6 depo 9/3 and 9/17/13, # 9 Exhibit Doran 30b6 trans 9/3/13, # 10 Exhibit Declaration Winterich)(Winterich, Shawn) Modified to place under seal on 9/15/2017 pursuant to 618 court order (bdb). (Entered: 09/11/2017) 09/13/2017 615 ORDER granting 612 Motion for Leave to File Matters Under Seal. For good cause shown, including confidentiality designations made by Plaintiffs, Defendants shall be permitted to file the following documents and exhibits under seal: 1. Response Brief of Defendants M. Vincent Murphy, III, et al. 2. Response Brief of Marilyn Murphy; 3. Brian Doran September 3, 2013 jurisdictional discovery deposition transcript (Ex. 9); and 4. Brian Doran September 17, 2013 jurisdictional discovery deposition transcript (Ex. 10). Signed by Judge Richard W. Story on 09/13/2017. (dgr) (Entered: 09/13/2017) 09/13/2017 616 Joint MOTION for Order Allowing Filing of Substitute Briefs by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Text of Proposed Order)(Netter, Brian) (Entered: 09/13/2017) 09/14/2017 617 RESPONSE re 604 Notice of Filing, 605 Notice of Filing, 603 Notice of Filing, 596 Order,, 602 Notice of Filing,,,,,,,,,,, 606 Notice of Filing Regarding Supplemental Submissions of Citizenship filed by Marilyn Murphy. (Attachments: # 1 Exhibit U.S. gov't press release, # 2 Exhibit U.S. gov't banking info, # 3 Exhibit U.S. gov't banking info, # 4 Exhibit Bank 10k, # 5 Exhibit Notice of 30b6 depo for 5/1/13, # 6 Exhibit Doran 30b6 trans 5/1/13, # 7 Exhibit Alliant resp to written questions, # 8 Exhibit Notices of 30b6 depo 9/3 and 9/17/13, # 9 Exhibit Doran 30b6 trans 9/3/13, # 10 Exhibit Doran 30b6 trans 9/17/13, # 11 Appendix Declaration Winterich)(Winterich, Shawn) (Entered: 09/14/2017) 09/15/2017 618 ORDER granting 616 Joint Motion for Order Allowing Filing of Substitute Briefs filed by Plaintiffs Alliant Tax Credit 31, Inc., et al.; Defendants M. Vincent Murphy, III, Community ManagementServices, Inc., and Multifamily Housing Developers, LLC and Defendant Marilyn Murphy. 1) The response filed on the docket as document number 611 shall be placed under seal and the Clerk of the Court shall ensure that this document is not publicly available; 2) Within 10 days of this Order, Mr. Murphy may file a new public version of his response which includes a revised redacted brief, and which will be treated for all purposes as if filed on September 10, 2017. 3) The response filed on the docket as document number 614, including the attachments filed as document numbers 614-1 to 614-11, shall be placed under seal and the Clerk of the Court shall ensure that these documents are not publicly available; and 4) Within 10 days of this Order, Ms. Murphy may file a new public version of her response which includes a revised redacted brief and removes exhibits 1-4 from the public record, and which will be treated for all purposes as if filed on September 11, 2017. Signed by Judge Richard W. Story on 9/15/2017. (bdb) (Entered: 09/15/2017) 09/15/2017 619 MOTION for Leave to File Reply in Support of Supplemental Statements of Citizenship with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief in Support, # 2 Exhibit A - Proposed Redacted Reply Brief, # 3 Exhibit https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 70 of 71 Case: 15-14634 Date Filed: (74 of12/22/2017 268) Page: 74 of 211 B - Proposed Exhibit 1 to Reply, # 4 Text of Proposed Order)(Netter, Brian) (Entered: 09/15/2017) 09/15/2017 620 SEALED NOTICE Of Filing by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. re 619 MOTION for Leave to File Reply in Support of Supplemental Statements of Citizenship (Attachments: # 1 Brief in Support, # 2 Exhibit A - Proposed Sealed Reply Brief, # 3 Exhibit B - Proposed Exhibit 1 to Reply, # 4 Text of Proposed Order)(Netter, Brian) Modified on 9/15/2017 (rsg). (Entered: 09/15/2017) 09/15/2017 621 MOTION for Leave to File Matters Under Seal re: 620 Notice of Filing,, with Brief In Support by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Brief in Support, # 2 Text of Proposed Order)(Netter, Brian) (Entered: 09/15/2017) 09/15/2017 622 ORDER granting 619 Motion for Leave to File. Signed by Judge Richard W. Story on 9/15/2017. (sek) (Entered: 09/15/2017) 09/15/2017 623 ORDER granting 621 Motion for Leave to File Matters Under Seal. For good cause shown, IT IS ORDERED that Alliant be permitted to file the Reply Brief under seal. The unredacted Reply Brief attached as Exhibit A to the unredacted version of Alliant's Motion for Leave may be filed under seal. Alliant may file the unredacted version of the Reply Brief under seal. Signed by Judge Richard W. Story on 09/15/2017. (rsg) (Entered: 09/15/2017) 09/15/2017 624 RESPONSE re 613 Response (Non-Motion),, 611 Redacted Document (Reply Brief in Support of Supplemental Statements of Citizenship - Redacted) filed by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd.. (Attachments: # 1 Exhibit 1 - Amicus Brief)(Netter, Brian) (Entered: 09/15/2017) 09/15/2017 625 Notice of Court Ordered Sealed Filing by Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., Alliant Tax Credit XI, Ltd. re: 613 Response (Non-Motion),, 611 Redacted Document, 623 Order on Motion for Leave to File Matters Under Seal, (Attachments: # 1 Exhibit 1 - Amicus Brief) (Netter, Brian) (Entered: 09/15/2017) 09/17/2017 626 REDACTION Murphy Response to Plaintiffs' Second Supplemental Statements of Citizenship by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 09/17/2017) 09/17/2017 627 PROVISIONALLY SEALED RESPONSE re 615 Order on Motion for Leave to File Matters Under Seal,, filed by M. Vincent Murphy, III. (Kreimer, Stanley) (Entered: 09/17/2017) 10/06/2017 628 ORDER denying 587 Motion to Vacate and denying 590 Motion to Strike a declaration of Shawn Horwitz [Doc. No. 589-1]. The Court has already dismissed Defendant Gazebo Park [Doc. No. 584]. As a result, the parties were diverse in citizenship. The Clerk is DIRECTED to send a copy of this order to the Clerk of the United States Court of Appeals for the Eleventh Circuit. Signed by Judge Richard W. Story on 10/06/2017. (rsg) (Entered: 10/06/2017) 10/06/2017 Clerks Certificate of Mailing to USCA for the 11th Circuit re 628 Order on Motion to Vacate, Order on Motion to Strike. (rsg) (Entered: 10/06/2017) 10/06/2017 629 Documents forwarded to USCA re 628 Order on Motion to Vacate, Order on Motion to Strike. Case Appealed to USCA - 11th Circuit Case Number 15-14634-GG. (rsg) (Entered: 10/06/2017) 11/02/2017 630 NOTICE OF APPEAL as to 628 Order on Motion to Vacate,, Order on Motion to Strike, 483 Judgment,,, by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III, Marilyn Murphy. Filing fee $ 505, receipt number 113E- 7486842. Transcript Order Form due on 11/16/2017 (Winterich, Shawn) (Entered: 11/03/2017) 11/03/2017 631 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 CM/ECF-GA Northern District Court Page 71 of 71 Case: 15-14634 Date Filed: (75 of12/22/2017 268) Page: 75 of 211 NOTICE Of Filing Appeal Transmission Letter by Community Management Services, Inc., Multifamily Housing Developers, L.L.C., M. Vincent Murphy, III, Marilyn Murphy re: 630 Notice of Appeal. (kac) (Entered: 11/03/2017) 11/03/2017 632 Transmission of Certified Copy of Notice of Appeal, Final Judgment, Order and Docket Sheet to US Court of Appeals re: 630 Notice of Appeal. (kac) (Entered: 11/03/2017) 11/14/2017 633 TRANSCRIPT ORDER FORM for proceedings held on 5/30/2017 before Judge Story, re 630 Notice of Appeal,. Court Reporter: Lohnaas. (Winterich, Shawn) (Entered: 11/14/2017) 11/14/2017 Set Financial Arrangements due date deadline re: 633 Transcript Order Form. Financial Arrangements due on 11/28/2017.(kac) (Entered: 11/14/2017) 11/14/2017 634 Court Reporter Acknowledgment re: 633 Transcript Order Form filed by Marilyn Murphy. Case Appealed to USCA - 11th Circuit. USCA Case Number 15-14634-GG. Transcript is required. Court Reporter: Amanda Lohnaas. Satisfactory financial arrangements completed. Transcript due by 12/14/2017. (kac) (Entered: 11/16/2017) 11/14/2017 635 Notification of Transcript Filed in District Court re: 633 Transcript Order Form filed by Marilyn Murphy. All transcripts for this request are now on file. (kac) (Entered: 11/16/2017) PACER Service Center Transaction Receipt 12/20/2017 14:39:31 PACER Login: MbLLP_300 Client Code: 15493746 Description: Docket Report Search Criteria: 1:11-cv-00832-RWS Billable Pages: 30 Cost: 3.00 https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?937924827026593-L_1_0-1 12/20/2017 Case: 15-14634 Date Filed: (76 of12/22/2017 268) Page: 76 of 211 Tab 219 2 Case: 15-14634 Date Filed: (77 of12/22/2017 268) Page: 77 of 211 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND ] Case no.: 1:11-CV-0832-RWS 31-A, LTD., et al. ] ] Plaintiffs, ] ] vs. ] ] M. VINCENT MURPHY, III, et ] al., ] ] Defendants. ] _____________________________ ] MOTION OF DEFENDANT MARILYN MURPHY TO COMPEL DISCOVERY FROM PLAINTIFFS COMES NOW Defendant Marilyn Murphy ("Defendant") and files this her Motion to Compel Discovery from Plaintiffs. Ms. Murphy shows that she noticed Plaintiffs' Rule 30(b)(6) deposition on April 12, 2013, itemizing eight areas of inquiry. On May 1, 2013, Mr. Brian Doran appeared on behalf of all Plaintiffs in Atlanta, Georgia for a Rule 30(b)(6) deposition, and claimed that he was unable to answer any questions from defense counsel about the ownership structure of the six Plaintiffs appearing on the docket as: Alliant Tax Credit Fund, 31-A, Ltd., Alliant Tax Credit Fund 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, Ltd., Alliant Tax Credit 31, Inc., and Alliant Tax Credit XI, 1 2 Case: 15-14634 Date Filed: (78 of12/22/2017 268) Page: 78 of 211 Inc. (the "Alliant Plaintiffs"). Ownership structure of the Plaintiffs was set out as an issue in the deposition notice (see Item No. 6), and the deposition notice was served well in advance. Defendant relies on (i) the record and pleadings; (ii) the attached Brief in Support; (iii) the Certificate of Good Faith Efforts; and (iv) all Exhibits attached. PRAYER FOR RELIEF WHEREFORE Ms. Murphy requests that this Court grant the following relief: (i) Enter an Order requiring that Plaintiffs resubmit to deposition in the person of one or more representatives under FRCP 30(b)(6) at the same location as deposition was originally taken on May 1, 2013, and fully answer all questions about Plaintiffs' ownership structure that were not answerable then, plus any follow-up inquiries that arise from the answers given; and (ii) An award of reasonable attorneys' fees and expenses for Marilyn Murphy and against Plaintiffs to be established by affidavit filed by defense counsel not later than 10 days after this Court rules on this Motion. 2 2 Case: 15-14634 Date Filed: (79 of12/22/2017 268) Page: 79 of 211 Date: May 22, 2013 /s/ Shawn M. Winterich Attorney Bar No. 771030 Attorney for Defendant Marilyn Murphy The Winterich Law Firm, LLC P.O. Box 29713 Atlanta, GA 30359-0713 404 668-7766 swinterich@winterichlaw.com 3 2 Case: 15-14634 Date Filed: (80 of12/22/2017 268) Page: 80 of 211 CERTIFICATE OF GOOD FAITH EFFORTS Ms. Murphy noticed Plaintiffs' Rule 30(b)(6) deposition on April 12, 2013, and the notice provided for a line of inquiry about the Plaintiffs' ownership structure. (Exhibit 1.) Plaintiffs agreed through counsel in deposition of May 1, 2013 to disclose their ownership structure (Exhibit 2), but did not do so before the close of discovery of May 22, 2013, as the discovery period closing date was determined by Orders of this Court appearing in the docket as Docs. 185 and 206. In the Plaintiffs' 30(b)(6) deposition of May 1, 2013, I read the basic questions about ownership structure of the Plaintiffs into the record (Exhibit 1, at 45), and indicated that all of these questions would be applicable to all six Plaintiffs. The transcript was promptly made available to all parties. I also photographed the typed questions at deposition and immediately e-mailed them to Plaintiffs' attorney then-present. (Exhibit 3.) At their request, I sent another copy of these questions by e-mail in .pdf format on May 10, 2013. (Exhibit 4.) I sent a "friendly reminder" e-mail to Plaintiffs' counsel on May 20, 2013 (Exhibit 5), explaining that the discovery deadline was in two days, and that their reply was needed to avoid motions practice. I received no reply or excuse whatsoever. My repeated efforts to obtain this information promptly and without the Court's 4 2 Case: 15-14634 Date Filed: (81 of12/22/2017 268) Page: 81 of 211 involvement failed. I certify the truth of the above information. This Certificate is provided as required under FRCP 37(a)(1), LR 37.1 and otherwise. Date: May 22, 2013 /s/ Shawn M. Winterich Shawn M. Winterich 5 2 Case: 15-14634 Date Filed: (82 of12/22/2017 268) Page: 82 of 211 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND ] Case no.: 1:11-CV-0832-RWS 31-A, LTD., et al. ] ] Plaintiffs, ] ] vs. ] ] M. VINCENT MURPHY, III, et ] al., ] ] Defendants. ] _____________________________ ] BRIEF IN SUPPORT COMES NOW Defendant Marilyn Murphy ("Defendant") and files this her Brief in Support of her Motion to Compel Discovery from Plaintiffs. Ms. Murphy shows the following: FACTS Ms. Murphy noticed Plaintiffs' Rule 30(b)(6) deposition on April 12, 2013, and the notice provided for a line of inquiry about the Plaintiffs' ownership structure. (Exhibit 1.) Plaintiffs agreed through counsel in deposition of May 1, 2013 to disclose their ownership structure (Exhibit 2), but did not do so before the close of discovery of May 22, 2013, as the discovery period closing date was 6 2 Case: 15-14634 Date Filed: (83 of12/22/2017 268) Page: 83 of 211 determined by Orders of this Court appearing in the docket as Docs. 185 and 206. Plaintiffs counsel received a photograph of the questions about ownership structure at the deposition itself. (Exhibit 3.) The questions, each of which was concerned with one of the company Plaintiffs, and which varied only by company name in the blank, were as follows: What form of business is ______? Corporation Limited partnership In what state(s) is it registered to do business with Secretary of State? In what state(s) does ____ maintain offices? In what state(s) does it maintain an address that is not necessarily a brick and mortar office? In what state(s) does it own real property? Plaintiffs attorneys received another copy of these questions by e-mail, in .pdf format, on May 10, 2013. (Exhibit 4.) They also received a reminder e-mail on May 20, 2013 (Exhibit 5), explaining that the discovery deadline was in two days, and that their reply was required to avoid motions practice. Plaintiffs did not reply, assert any excuse, or in any way provide any of the sought-after information. ARGUMENT AND CITATION OF AUTHORITY The benefit of knowing about Plaintiffs' ownership structures cannot yet be 7 2 Case: 15-14634 Date Filed: (84 of12/22/2017 268) Page: 84 of 211 fully known. For example, Plaintiffs have alleged that Defendant Vincent Murphy was once but since-removed general partner of various limited partnerships associated with Plaintiffs, one or more of which may also be Plaintiffs in this action. (Defendant's Motion for Leave to File First Amended Complaint, Ex. 1, ¶¶ 6, 8, 11, 20 and 31(Doc. 184)). At least two of the Alliant Plaintiffs in this lawsuit are also limited partnerships; it is unclear whether Vince Murphy was ever a general or limited partner with either of them, and further discovery may confirm his removal, or not. It is also unknown whether one or more of the Plaintiffs have, if not through Vince Murphy himself, some other tie to this state that would suggest that diversity jurisdiction is inappropriate. Specifically, for example, for the purpose of determining diversity jurisdiction, a limited liability company is a citizen of any state of which a member of the company is a citizen. A limited partnership is a citizen of each state in which any of its partners, limited, or general, are citizens. Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir., 2004). A corporation is considered a citizen of every state in which it has been incorporated and where it has its principal place of business. Flintlock Constr. Servs. v. Well- 8 2 Case: 15-14634 Date Filed: (85 of12/22/2017 268) Page: 85 of 211 Come Holdings, LLC, 710 F.3d 1221, (11th Cir., 2013). It appears that four Plaintiffs in this action are corporations, and two are limited partnerships. Additionally, Marilyn Murphy and other defendants may rely on a statute of limitations defense for financial transactions that Plaintiffs now call into question in 2013, but which occurred more than four years before. Knowledge of the ownership structure of Plaintiffs may show which managers or other witnesses may have had knowledge of these now-questioned transactions closer to the time they occurred.1 Under the discovery statutes, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence. See FRCP 26(b)(1). Additionally, the defense should be permitted to examine Plaintiffs' 30(b)(6) witnesses in person as their failure to disclose what is typically routine information makes follow-up questions more compelling; telephonic depositions are better suited to situations where an order compelling discovery is not necessary. There appears to be no dispute about discoverability of the information here 1 See Defendant's Motion for Leave to File First Amended Complaint, Ex. 1, ¶¶52-57, 113-122 (Doc. 184)). 9 2 Case: 15-14634 Date Filed: (86 of12/22/2017 268) Page: 86 of 211 sought. FRCP 37(a)(5) provides for sanctions when the conduct of one party requires the other to file a motion to compel, and if that motion is granted when the respondent's objections (and there were none expressed here) were not substantially justified. There is no legitimate reason for this delay. As this Court has sanctioned in the past,2 it should likewise do so here. Date: May 22, 2013 /s/ Shawn M. Winterich Attorney Bar No. 771030 Attorney for Defendant Marilyn Murphy The Winterich Law Firm, LLC P.O. Box 29713 Atlanta, GA 30359-0713 404 668-7766 swinterich@winterichlaw.com 2 Order at p. 20, Doc. 94 (March 15, 2012). 10 2 Case: 15-14634 Date Filed: (87 of12/22/2017 268) Page: 87 of 211 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND ] Case no.: 1:11-CV-0832-RWS 31-A, LTD., ] Plaintiffs, ] ] vs. ] ] M. VINCENT MURPHY, III, et ] al., ] ] Defendants. ] _____________________________ ] CERTIFICATE OF SERVICE This certifies that I have on this day served the following party or parties with a copy of the foregoing MOTION OF DEFENDANT MARILYN MURPHY TO COMPEL DISCOVERY FROM PLAINTIFFS, BRIEF IN SUPPORT and EXHIBITS 1 through 5 which, as required by LR 5.1(C) and 7.1(D), was created using Times New Roman 14 point font, by filing electronically with the Clerk of Court under the CM/ECF system: Stanley E. Kreimer, Jr., Esq. Johnson & Ward 100 Peachtree Street, N.W., Suite 2100 Atlanta, GA 30303 stan@johnsonward.com 11 2 Case: 15-14634 Date Filed: (88 of12/22/2017 268) Page: 88 of 211 Walter H. Bundy, Jr., Esq. M. Brent McDonald, Esq. Smith, Bundy Bybee & Barnett Suite 100, Building F 1037 Chuck Dawley Blvd. Mt. Pleasant, SC 29464 whbesq@s3blaw.com bmcdonald@s3blaw.com John P. Hutchins, Esq. Puja R. Patel, Esq. Troutman Sanders, LLP Bank of America Plaza 600 Peachtree Street, N.E., Suite 5200 Atlanta, GA 30308 john.hutchins@troutmansanders.com puja.patel@troutmansanders.com Service date: May 22, 2013 /s/ Shawn M. Winterich Shawn M. Winterich 12 Case 1:11-cv-00832-RWS Case: 15-14634 DateDocument Filed: 191 Filed 04/12/13 (89 of12/22/2017 268) Page: 89 Page of 2111of2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND ] Case no.: 1:11-CV-0832-RWS 31-A, LTD., et al. ] ] Plaintiffs, ] ] vs. ] ] M. VINCENT MURPHY, III, et ] al., ] ] Defendants. ] ] TO: Plaintiffs and attorneys of other parties on the attached distribution list CERTIFICATE OF SERVICE OF NOTICES OF DEPOSITION COMES NOW DEFENDANT Marilyn Murphy, through counsel, who certifies service of the following: 1. Notice of Deposition of Plaintiffs under FRCP 30(b)(6) (for May 1, 2013); and 2. Notice of Deposition of Amy Drushal (for April 30, 2013 with copy of served subpoena) to all other parties at their address/es of record (or last known address/es) described herein, by regular U.S. Mail by depositing same, correctly-addressed, in an official postal service receptacle with sufficient postage affixed thereto. This document was created using Times New Roman style 14 pt. font. 1 Case: 15-14634 Date Filed: (90 of12/22/2017 268) Page: 90 of 211 Service date: April 12, 2013 Isl Shawn M Winterich Attorney Bar No. 771030 Attorney for Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC The Winterich Law Firm, LLC P.O. Box 29713 Atlanta, GA 30359-0713 404 668-7766 swinterich@winterichlaw.com DISTRIBUTION LIST David B. Darden, Esq. Vincent J. Arpey, Esq. Parker, Hudson, Rainer & Dobbs, LLP 1500 Marquis Two Tower 285 Peachtree Center Avenue, N.E. Atlanta, GA 30303 Stanley E. Kreimer, Jr., Esq. Johnson & Ward 100 Peachtree Street, N.W., Suite 2100 Atlanta, GA 30303 2 Case: 15-14634 Date Filed: (91 of12/22/2017 268) Page: 91 of 211 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND ] Case no.: l:ll-CV-0832-RWS 31-A, LTD., et al. ] ] Plaintiffs, ] ] vs. ] ] M. VINCENT MURPHY, III, et ] al., ] ] Defendants. ] ] TO: Alliant Tax Credit Fund 31-A, Ltd., et al. 1 c/o David B. Darden, Esq. and Vincent J. Arpey, Esq. Parker, Hudson, Rainer & Dobbs, LLP 1500 Marquis Two Tower 285 Peachtree Center Avenue, N .E. Atlanta, GA 30303 NOTICE OF DEPOSITION OF PLAINTIFFS UNDER FRCP 30(b)(6) BY DEFENDANT MARILYN MURPHY COMES NOW Defendant Marilyn Murphy, through counsel, and serves her Notice of Pretrial Deposition on the above-named parties, as provided in FRCP 30(b)(6). 1 And all other plaintiffs including Alliant Tax Credit Fund 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, Inc., Alliant Tax Credit XI, Ltd., and Alliant Tax Credit IX, Inc. ! i Case: 15-14634 Date Filed: (92 of12/22/2017 268) Page: 92 of 211 As provided in FRCP 30(b)(6), the above-named public or private corporations, partnerships, or association ("Respondents") are hereby noticed to appear for deposition, to give testimony under oath at the offices of Plaintiffs' ! I attorney located at 1500 Marquis Two Tower, 285 Peachtree Center Avenue, N.E., Atlanta, GA 30303 before a licensed court reporter, who shall record testimony by stenographic and electronic means, before an officer duly authorized to administer oaths at 10:00 a.m. on May 1, 2013. Respondents shall designate one or more officers, directors or managing agents, or other persons who consent to testify on Respondent's behalf, to physically appear and testify as provided in this Notice, on matters known or reasonably available to Respondents, and Respondents may set forth the matters on which each such designee will testify. This deposition shall continue from day to day until completed, not in excess of the maximum time permitted by law. The subject matter of the deposition shall include, but not be limited to the following: . 1. The facts and allegations in Plaintiffs complaint and amended complaint, and the grounds, if any, supporting same; the grounds, if any, for the denials and defenses set out in Defendant's answer; discovery requests and answers to discovery requests between the parties to this action, and all facts, Case: 15-14634 Date Filed: (93 of12/22/2017 268) Page: 93 of 211 documents and other tangible things related to this matter. 2. Allegations of plaintiff filed in related lawsuits, and the factual basis for the same. 3. Plaintiffs' understanding, and the reporting, of the solvency or insolvency of Defendant M. Vincent Murphy, III. 4. Plaintiffs' recovery efforts through the Kentucky litigation, the Georgia District Court Litigation, the Georgia Superior Court Litigation, and otherwise, including post-judgment discovery requests. 5. Prejudgment contractual obligations Vince Murphy had to Plaintiffs. 6. Ownership structure of Plaintiffs. 7. Punitive damages. 8. Information Plaintiffs otherwise reported to courts. Date: April 9, 2013 Isl Shawn M Winterich Attorney Bar No. 771030 Attorney for Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC The Winterich Law Firm, LLC P.O. Box 29713 Atlanta, GA 30359-0713 404 668-7766 swinterich@winterichlaw.com 30(b)(6) Case: 15-14634 Date (94Brian Filed: Doran· 05/01/13 of12/22/2017 268) Page: 94 of 211 Page42 Page44 1 The Kentucky litigation is purely to establish a 1 a. Who are the partners? Who's the general partner? 2 judgment which once you obtain the judgment we're then 2 A. It's an Alliant -- it's an entity where an Alliant 3 finished with the Kentucky litigation, and then it's at that 3 entity is the general partner. 4 point, armed with the judgment, we seek satisfaction. And 4 a. What's the name of the Alliant entity that's the 5 It's only when we are armed with the judgment we would be 5 GP? 6 worrying about assets with which to satisfy the judgment. 6 A. I have to look at the partnership agreement. I 7 Q. The Kentucky litigation, there was a complaint 7 don't have it. There are so many funds. I just have to 8 filed In that obviously to start the litigation and the date 8 look at the partnership agreement on this one. I don't 9 of the complaint Is -- the original complaint was 9 recall it off the top of my head. 10 November 20, 2011. That original complaint didn't Include a 10 Q. I was going to ask you the same question about all 11 claim for any particular amount of money damages, did it? 11 the other Alliant plaintiffs but I don't want to take up 12 A. Would you repeat that? 12 your time if you don't have answers. 13 a. Sure. I have a copy of the Kentucky District 13 One of the things In the notice was the ownership 14 Court complaint. You can just look at it to refresh your 14 structures. What I'm going to do Is I'm going to give to 15 memory. 15 your lawyer a list of questions and we can reconvene or he 16 A. Okay. 16 can get back to me informally saying what the names and 17 a. That doesn't seek -- that complaint doesn't 17 addresses of all of them are because I don't want to take up 18 mention any specific amount of damages, does it? 18 your time, or I would like to reserve the right to reconvene 19 MR. BUNDY: Object to the form of the 19 the deposition. We can at least go telephonlcally and I can 20 question. 20 get answers to those. 21 THE WITNESS: No. 21 A. Sure. I mean, I understand what the deposition 22 BY MR. WINTERICH: ' 22 was but it's hard to memorize all those. 23 a. Mr. Doran, you can hand that to the court 23 MR. BUNDY: What about write me a letter 24 reporter. She'll mark that kindly as Exhibit 2. 24 and just tell me what it is you want to know and 25 A. Just to correct you, I think you referred to 2011. 25 I'll write you a letter back and tell you what Page 43 Page 45 1 a. No, sir. That original complaint was filed around 1 the answers are. 2 November 20th of 2007. 2 MR. WINTERICH: That's fine. 3 A. Right. You referred to 2011. 3 MR. BUNDY: We can attach your letter and 4 a. If I said that, I was incorrect. 4 my letter as an exhibit to this deposition. Is 5 (Defendant's Exhibit Number 2 5 that satisfactory? 6 was marked for identification.) 6 MR. WINTERICH: Yeah, if you'll bear with 7 a. There's also an amendment to that complaint that 7 me. 8 the Alliant plaintiffs filed April 8th, 2009, and that also 8 BY MR. WINTERICH: 9 didn't Include any specification of what damages -- what the 9 a. What I was going to ask with respect to all the 10 size of Alllant's claim against Vince Murphy was. 10 Alliant plaintiffs -- I just want to put it out and you 11 A. I believe that's correct. 11 don't have to answer now -- whether it's a corporation or 12 Q. And you can,hand that over to the court reporter. 12 limited partnership or other entity; In what states is it 13 She'll mark that whatever number is next. 13 registered to do business with the Secretary of States; In 14 (Defendant's Exhibit Number 3 14 what state or states does it maintain offices; in what 15 was marked for Identification.) 15 states does it maintain an address that Is not necessarily a 16 MR. WINTERICH: I have to take a break and 16 brick and mortar office; in what states does it own real 17 then I'm nearly finished. 17 property; and what are the applicable physical addresses for 18 (Brief recess.) 18 either brick and mortar or P.O. box or other presence In a 19 BY MR. WINTERICH: 19 particular state.) 20 a. Mr. Doran, what form of business is Alliant Tax 20 I'm going to give Mr. Bundy a copy of my questions 21 Credit Fund 31-A, Limited? 21 and he can get back to me with those before the discovery 22 A. It's a tax credit investment fund. 22 period expires and you can look into that for me and we 23 a. I understand your answer. Is it a limited 23 don't have to make you sit here. (Defendant's Exhibit Number 4 ~ 24 partnership or corporation? 24 was marked for identification.) 25 A. I believe this one's a limited partnership. 25 < - Mi n-U-Script® Professional Court Reporters LLC (11) Pages 42 • 45 no.9s2.oso4 Case: 15-14634 Date Filed: (95 of12/22/2017 268) Page: 95 of 211 From: "Shawn M. Winterich" ~ <swinterich@winterichlaw.com> Subject: 30(b)(6) additional questions from 5/1 /13 Date: May 1, 2013 12:28:17 PM EDT To: "whbesq@s3blaw.com" <whbesq@s3blaw.com> Cc: "Shawn M. Winterich" _ _ _ _c:::_~w1· a tA r ·1 c b,,;:;;., _.lww1at~ · r1·c b _l ~w_ccu:n,____ _1_ Attachment, ____ 130_ KB Case: 15-14634 Date Filed: (96 of12/22/2017 268) Page: 96 of 211 Sent from my iPhone The Winterich Law Firm, LLC P.O. Box 29713 Atlanta, GA 30359-0713 404 668-7766 Case: 15-14634 Date Filed: (97 of12/22/2017 268) Page: 97 of 211 From: "Shawn M. Winterich" <swinterich@winterichlaw.com> Subject: 30(b)(6) deposition of 5/1 /13 Date: May 1, 2013 12:29:56 PM EDT To: whbesq@s3blaw.com Cc: "Shawn M. Winterich" • .a.~ • 1...,,.;;:;:.. ----'~~lALID.LI=!rlC.LLl.W_\ALID • · bl.:::l.\ALCOO'l::>·-----~-- t P-.r_!C. 1 Attachment, 102 KB Case: 15-14634 Date Filed: (98 of12/22/2017 268) Page: 98 of 211 Sent from my iPhone The Winterich Law Firm, LLC P.O. Box 29713 Atlanta, GA 30359-0713 404 668-7766 Case: 15-14634 Date Filed: (99 of12/22/2017 268) Page: 99 of 211 From: "Shawn M. Winterich" <swinterich@winterichlaw.com> Subject: Fwd: 30(b)(6) additional questions from 5/1 /13 Date: May 1, 2013 12:32:49 PM EDT To: bundyw@bellsouth.net --L-.--- r·- 111"'1... ·-II.A \Al" • b" . ·-1...r,:;.,. t. bl 1Att!".!f'h ment 130KB ==•.U.alMLLLVl--lL\LIIlttar.1c _ <:::SW.I at~.rJt..:r.J.tw_WIO. Q (IC. .a\M.:COJDS~-'-- Sent from my i Phone The Winterich Law Firm, LLC P.O. Box 29713 Atlanta, GA 30359-0713 404 668-7766 Begin forwarded message: From: "Shawn M. Winterich" <swinterich@winterichlaw.com> Date: May 1, 2013, 12:28:17 PM EDT To: "whbesq@s3blaw.com" <whbesq@s3blaw.com> Cc: "Shawn M. Winterich 11 <swinterich@winterichlaw.com> Subject: 30(b)(6) additional questions from 5/1/13 Case: 15-14634 Date Filed: (100 of 12/22/2017 268) Page: 100 of 211 Sent from my i Phone The Winterich Law Firm, LLC P.O. Box 29713 Atlanta, GA 30359-0713 404 668-7766 Case: 15-14634 Date Filed: (101 of 12/22/2017 268) Page: 101 of 211 From: "Shawn M. Winterich" <f <swinterich@winterichlaw.com> Subject: Additional questions from deposition of Brian (in .pdf format at request of Mr. Bundy-no text, Date: May 10, 2013 11:09:05 AM EDT To: Bill Bundy <whbesq@s3blaw.com>, Brent McDonald <bmcdonald@S3Blaw.com>, "Puja R. Patel" <Puja.Patel@troutmansanders.com> Cc: Stan Kreimer <stan@johnsonward.com> 1 Attachment, 377 KB llEll A 2013 05 10 ... df (377 KB). r----------- II Case: 15-14634 Date Filed: (102 of 12/22/2017 268) Page: 102 of 211 What form of business is Alliant Tax Credit Fund 31-A, LTD? Corporation Limited partnership In what state(s) is it registered to do business with Secretary of State? In what state(s) does_ maintain offices? In what state(s) does it maintain an address that is not necessarily a brick and mortar office? In what state(s) does it own real property? What form of business is Alliant Tax 31, Inc.? Corporation Limited partnership In what state(s) is it registered to do business with Secretary of State? In what state(s) does __ maintain offices? In what state(s) does it maintain an address that is not necessarily a brick and mortar office? In what state(s) does it own real property? What form of business is Alliant Tax Credit Fund XXVII, LTD? Corporation Limited partnership In what state(s) is it registered to do business with Secretary of State? In what state(s) does_ maintain offices? In what state(s) does it maintain an address that is not necessarily a brick and mortar office? In what state(s) does it own real property? What form of business is Alliant Tax 31, Inc.? Corporation Limited partnership In what state(s) is it registered to do business with Secretary of State? In what state(s) does maintain offices? In what state(s) does it maintain an address that is not necessarily a brick and mortar office? In what state(s) does it o~ real property? What form ofbusiness is Alliant Tax Credit XI, LTD.? Corporation Case: 15-14634 Date Filed: (103 of 12/22/2017 268) Page: 103 of 211 Limited partnership In what state(s) is it registered to do business with Secretary of State? In what state(s) does_ maintain offices? In what state(s) does it maintain an address that is not necessarily a brick and mortar office? In what state(s) does it own real property? What form of business is Alliant Tax Credit XI, Inc.? Corporation Limited partnership In what state(s) is it registered to do business with Secretary of State? In what state(s) does __ maintain offices? In what state(s) does it maintain an address that is not necessarily a brick and mortar office? In what state(s) does it own real property? Case: 15-14634 Date Filed: (104 of 12/22/2017 268) Page: 104 of 211 From: "Shawn M. Winterich" <swinterich@winterichlaw.com> Subject: Deposition of Brian Doran follow up Date: May 20, 2013 6:54:01 PM EDT To: Brent McDonald <bmcdonald@S3Blaw.com>, "Puja R. Patel" <Puja.Patel@troutmansanders.com>, Bill _ _ _ _B_u_n_dY- <whbes @s3blaw.com> Brent: This follows up my deposition of Brian Doran as 30(b)(6) representative of the Alliant Plaintiffs. This is a friendly reminder. One of the areas of inquiry was the ownership structure of the plaintiffs. Brian did not have this information with him. I provided a photo copy of my questions about each Alliant plaintiff's location and ownership structure to Bill Bundy there at deposition and then e-mailed him another (.pdf) copy some days later. I have not received the needed reply, or any reply. The questions are identical for every plaintiff. I believe that my deadline to pursue a motion to compel this information is Wednesday. Please complete your clients' response by tomorrow so motion practice will not be necessary. Kind regards. Shawn Case: 15-14634 Date Filed: (105 of 12/22/2017 268) Page: 105 of 211 Tab 243 0 Case: 15-14634 Date Filed: (106 of 12/22/2017 268) Page: 106 of 211 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND: 31-A, LTD., ALLIANT TAX: CREDIT 31, INC., ALLIANT: TAX CREDIT FUND XXVII,: LTD., ALLIANT TAX CREDIT: CIVIL ACTION NO. XXVII, INC., ALLIANT TAX: 1:11-CV-00832-RWS CREDIT XI, INC., and ALLIANT: TAX CREDIT XI, LTD.,:: Plaintiffs,:: v.:: M. VINCENT MURPHY, III,: MARILYN MURPHY, PATRICK: CARROLL, MULTIFAMILY: HOUSING DEVELOPERS, LLC,: COMMUNITY MANAGEMENT: SERVICES, INC., GAZEBO: PARK APARTMENTS OF: ACWORTH, LLC, and: AFFORDABLE REALTY: MANAGEMENT: INCORPORATED,:: Defendants.: ORDER This case comes before the Court on Plaintiffs' Motion for Leave to File First Amended Complaint [184], Defendant M. Vincent Murphy, III's AO 72A (Rev.8/82) 0 Case: 15-14634 Date Filed: (107 of 12/22/2017 268) Page: 107 of 211 ("Vincent Murphy") Motion for Protective Order [198], Defendant Marilyn Murphy's Motion to Compel Discovery [219], Defendants Vincent Murphy, Community Management Services, Inc., and Multifamily Housing Developers, LLC's Motion for Summary Judgment [231], and Defendant Marilyn Murphy's Motion for Partial Summary Judgment [233]. After reviewing the record, the Court enters the following Order. Background This case arises out of alleged fraudulent transfers of assets made by Defendant Vincent Murphy to other Defendants. Vincent Murphy offered personal guarantees on several loans, of which Plaintiffs were the creditors. On August 31, 2010, the United States District Court for the Eastern District of Kentucky entered a judgment against Vincent Murphy for Plaintiffs in the amount of approximately $8.5 million. (Pls.' Mot. for Leave to Amend, Dkt. [184-3] at 3 of 14.) In the instant case, Plaintiffs are asserting claims for fraudulent conveyance against Defendants under the Georgia Uniform Fraudulent Transfers Act ("GUFTA"), O.C.G.A. § 18-2-71 et seq., arising from Plaintiffs' allegations that Vincent Murphy fraudulently transferred the majority 2 AO 72A (Rev.8/82) 0 Case: 15-14634 Date Filed: (108 of 12/22/2017 268) Page: 108 of 211 of his assets to his wife Marilyn Murphy and the other Defendants before, during and after Vincent and Marilyn Murphy's 2008 divorce. Vincent and Marilyn Murphy were divorced in January of 2008. (Marilyn Murphy's Reply Brief to Pls.' Mot. to Amend, Dkt. [187] at 3 of 14.) Plaintiff alleges that the sole purpose of this divorce was to divest Vincent Murphy of valuable assets in anticipation of having a judgment returned against him in the Kentucky case. Plaintiffs further allege that they have discovered extensive asset transfers from Vincent Murphy to Marilyn Murphy, as well as the other named Defendants, that were not revealed by Vincent Murphy during his deposition or by extensive discovery. As a result, Plaintiffs are seeking leave to amend their Complaint in order to integrate both the new factual information discovered recently, as well as the substantive claims arising from said conduct. Defendants argue that Plaintiffs' motion seeking leave to amend is untimely, futile, and in bad faith. (Vincent Murphy's Resp. to Pls.' Mot. to Amend, Dkt. [188] at 4-8 of 30.) Vincent Murphy also requests that the Court enter a protective order preventing Plaintiffs from serving further discovery requests on Defendants and apparently allowing Vincent Murphy to fail to 3 AO 72A (Rev.8/82) 0 Case: 15-14634 Date Filed: (109 of 12/22/2017 268) Page: 109 of 211 respond to the most recent discovery notice served upon him. Marilyn Murphy moves the Court to enter an order compelling Plaintiffs to respond to her discovery requests in an adequate fashion, or re-submit their witness in order to complete an adjourned May 1, 2013, deposition. The Court considers the aforementioned motions on the merits. Discussion I. Legal Standard In the Eleventh Circuit, case law provides that "[u]nless a substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial." Fla. Power & Light Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir. 2006). Federal Rule of Civil Procedure ("Rule") 15(a)(2) states that "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Additionally, Rule 15(c)(1) allows for the amendment of a complaint when the amendment "relates back" to the original claims. Rule 15(c)(1) allows this when "(A) the law that provides the applicable statute of limitations allows relation back; [and] (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading[.]" Fed. 4 AO 72A (Rev.8/82) 0 Case: 15-14634 Date Filed: (110 of 12/22/2017 268) Page: 110 of 211 R. Civ. P. 15(c)(1)(A); Fed. R. Civ. P. 15(c)(1)(B). "Generally, the applicable limitations law will be state law. If federal jurisdiction is based on the citizenship of the parties, the primary reference is the law of the state in which the district court sits." Saxon v. ACF Indus., Inc., 254 F.3d 959, 962 (11th Cir. 2001). Therefore, the applicable statute of limitations for relation back in this case is that set forth by GUFTA, O.C.G.A. § 18-2-71 et seq. II. Analysis A. Plaintiffs' Motion for Leave to Amend [184] Plaintiffs make two arguments for why the Court should grant them leave to amend their Complaint. First, Plaintiffs argue that despite the fact that the financial transactions in question were completed outside of the applicable statute of limitations, they both had not discovered and could not reasonably have discovered said transactions until September 7, 2012, because of Defendants' continued obstruction of the discovery process. Plaintiffs argue that the statute of limitations should run from the time of actual discovery. Second, Plaintiffs argue that the running of the statute of limitations is irrelevant because the proposed amendment to their Complaint relates back to the original Complaint, which was filed within the statute of limitations. 5 AO 72A (Rev.8/82) 0 Case: 15-14634 Date Filed: (111 of 12/22/2017 268) Page: 111 of 211 The relevant statute of limitations, O.C.G.A. § 18-2-79, states: A cause of action with respect to a fraudulent transfer or obligation under this article is extinguished unless action is brought: (1) Under paragraph (1) of subsection (a) of Code Section 18-2-74, within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant; [or] (2) Under paragraph (2) of subsection (a) of Code Section 18-2-74 or subsection (a) of Code Section 18-2-75, within four years after the transfer was made or the obligation was incurred[.] The Court disagrees with Defendants' contention that Plaintiffs reasonably could have discovered the transactions in question within the statute of limitations because, as is apparent from the record, Defendants have not been completely forthcoming with their discovery responses. Plaintiffs' argument that Defendants should have disclosed the transfers in question is completely reasonable, and it seems that if not for Defendants' actions, Plaintiffs would have discovered said transactions much earlier. Additionally, Plaintiffs' Amended Complaint relates back to their original complaint, which was filed within the statute of limitations, and thus the point is moot. The Eleventh Circuit has held that "a pleading would relate back if it 'asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.'" 6 AO 72A (Rev.8/82) 0 Case: 15-14634 Date Filed: (112 of 12/22/2017 268) Page: 112 of 211 Makro Capital of Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008) (quoting Fed. R. Civ. P. 15(c)(1)(B)). It is clear here that additional allegedly fraudulent transfers relate back to the original claims for fraudulent transfer. There is also no evidence that Defendants would be prejudiced if the Court gave Plaintiffs leave to amend their Complaint, as Defendants were the ones who conducted the transfers, failed to disclose the transfers to Plaintiffs, and are involved in litigation regarding fraudulent trasnfers that allegedly occurred during the same time period. Therefore, because the district courts are required to utilize a liberal standard when considering motions for leave to amend, the Court finds that Plaintiffs' Motion for Leave to File First Amended Complaint [184] is GRANTED. B. Vincent Murphy's Motion for Protective Order [198] With regards to Vincent Murphy's Motion for Protective Order, the Court finds this motion due to be DENIED. Vincent Murphy cites nothing in his Brief in Support that would be a basis upon which the Court should grant his motion. Vincent Murphy argues that Plaintiffs' discovery requests are "cumulative, or can be obtained from some other source that is more 7 AO 72A (Rev.8/82) 0 Case: 15-14634 Date Filed: (113 of 12/22/2017 268) Page: 113 of 211 convenient, less burdensome, or less expensive." (Vincent Murphy's Br. in Supp. of Mot. for Protective Order, Dkt. [198-1] at 7 of 50.) The Court disagrees. It is arguable that the reason Plaintiffs' requests have been continuous is because Defendants have not been forthcoming in their responses. Also, Defendants themselves seem a convenient and inexpensive source of their own bank and tax records. Defendants also argue that Plaintiffs' discovery requests exceed the amount of interrogatories allowed them by the Federal Rules of Civil Procedure. However, the limits set forth in Rule 26(b)(2) and Rule 33(a)(1) are both subject to alteration at the discretion of the Court. This Court has previously ordered the parties to cooperate with each other's discovery requests. (Dkt. [185].) Thus, Vincent Murphy's Motion for Protective Order [198] is DENIED. Thus, Vincent Murphy is ORDERED to respond to Plaintiffs' discovery requests, including their Fourth Interrogatories, within fourteen (14) days of the docketing of this Order. C. Marilyn Murphy's Motion to Compel Discovery [219] In its March 22, 2013 Order [185], the Court stated that discovery would not be extended even if Plaintiffs' Motion for Leave to File first Amended 8 AO 72A (Rev.8/82) 0 Case: 15-14634 Date Filed: (114 of 12/22/2017 268) Page: 114 of 211 Complaint were granted. However, the Court was unable to rule on that motion in as timely a manner as anticipated. For this reason, and because parties are being ordered herein to comply with various discovery obligations following the entry of this Order, the discovery period is extended for 45 days following the entry of this Order. Under these circumstances, the Court sees no reason why Plaintiffs should not have to submit their witness to Defendants in order to complete their May 1, 2013 deposition of Mr. Brian Doran. Plaintiffs' argument that they submitted written responses to Marilyn Murphy's questions is unavailing, as the discovering party is "permitted to adjourn the deposition before applying for an order." (Marilyn Murphy's Reply Br. in Supp. of Mot. to Compel Disc., Dkt. [229] at 3 of 6.) Accordingly, Marilyn Murphy's Motion to Compel Discovery [219] is GRANTED. Plaintiffs are ORDERED to make Mr. Brian Doran available to complete his deposition within thirty (30) days of the docketing of this order. Conclusion In accordance with the foregoing, Plaintiffs' Motion for Leave to File First Amended Complaint [184] is GRANTED, Vincent Murphy's Motion for 9 AO 72A (Rev.8/82) 0 Case: 15-14634 Date Filed: (115 of 12/22/2017 268) Page: 115 of 211 Protective Order [198] is DENIED, and Marilyn Murphy's Motion to Compel Discovery [219] is GRANTED. Because the Court has re-opened pleadings by granting Plaintiffs' Motion for Leave to Amend, Community Management Services, Inc., Multifamily Housing Developers, LLC, and Vincent Murphy's Motion for Summary Judgment [231] is DENIED AS MOOT, and Marilyn Murphy's Motion for Partial Summary Judgment [233] is DENIED AS MOOT. The discovery period is EXTENDED for 45 days following the entry of this Order. SO ORDERED, this 7th day of August, 2013. _______________________________ RICHARD W. STORY UNITED STATES DISTRICT JUDGE 10 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (116 of 12/22/2017 268) Page: 116 of 211 Tab 271 4 Case: 15-14634 Date Filed: (117 of 12/22/2017 268) Page: 117 of 211 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DMSION ALLIANT TAX CREDIT FUND ] Case no.: 1:11-CV-0832-RWS 31-A, LTD., et al. ] ] Plaintiffs, ] ] vs. ] ] M. VINCENT MURPHY, Ill, et ] ·a1~ ] ] Defendants. ] ] OPPOSITION BRIEF OF DEFENDANTS MARILYN MURPHY AND GAZEBO PARK APARTMENTS OF ACWORTH, LLC TO PLAINTIFFS' MOTION TO DROP ALLIANT TAX CREDIT FUND 31-A, LTD. COME NOW Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC and file this their Opposition Brief to Plaintiffs' Motion to Drop Alliant Tax Credit Fund 31-A, Ltd. from this action. Statement of Facts On August 31, 2010, the six Plaintiffs in this action, in three groups of two, I obtained a series of final money judgments against Defendant Vince Murphy and o~ers in the Kentucky Litigation, 1 as follows: 1 Alliant Tax Credit Fund 31-A, et al. v. Nicholasville Community Housing, Page 1 of 14 4 Case: 15-14634 Date Filed: (118 of 12/22/2017 268) Page: 118 of 211 I Judgment plaintiffs Judgment defendants Amount Alliant Tax Credit Fund Jessamine Comm. Housing, LLC, $525,745.00 31-A, Ltd. Ironwood Development, LLC, Robert McMaster, and Alliant Tax Credit 31, M. Vincent Murphy, III, jointly and Inc. severally Alliant Tax Credit Fund Princeton Comm. Housing, LLC, $585,758.00 31-A, Ltd. Ironwood Development, LLC, Robert McMaster, and Alliant Tax Credit 31, M. Vincent Murphy, III, jointly and .Inc. I severally I:Alliant Tax Credit Fund Nicholasville Comm. Hous., LLC, $366,986.00 31-A, Ltd. Ironwood Development, LLC, Robert McMaster, and Alliant Tax Credit 31, M. Vincent Murphy, III, jointly and Inc. severally Alliant Tax Credit Fund, Hopkinsville Comm. Hous., LLC, $226,402.00 XI, Ltd. Ironwood Development, LLC, Robert McMaster, and Alliant Tax Credit XI, M. Vincent Murphy, III, jointly and Inc. severally Alliant Tax Credit Fund, Bowling Green Comm. Hous., LLC, $169,622.00 XXVII, Ltd. Ironwood Development, LLC, Robert McMaster, and Alliant Tax Credit M. Vincent Murphy, Ill, jointly and XXVII, Inc. severally ALC, et al., U.S. District Court for the Eastern District of Kentucky, case no. 5:07- CV-388-KSF (the "Kentucky litigation"). Page 2 of 14 4 Case: 15-14634 Date Filed: (119 of 12/22/2017 268) Page: 119 of 211 Alliant Tax Credit Fund, Warren County Comm. Hous., LLC, $7,072,130.00 XXVII, Ltd. Ironwood Development, LLC, Robert McMaster, and Alliant Tax Credit M. Vincent Murphy, Ill, jointly and XXVII, Inc. severally Total: $8,946,643.00 See Exhibit "A" attached. Plaintiffs attempt to collect their judgment against Vince Murphy by proceeding against him, Respondents and others in this action, solely under the Uniform Fraudulent Transfer Act enacted in Georgia. There is no federal question presented. To preserve complete diversity, for Jurisdiction purposes, they argue, they need this Court to drop one Plaintiff, Alliant Tax Credit Fund 31-A, Ltd. ("Fund 31-A"), from this lawsuit. This exiting plaintiff is a plaintiff in the first three rows of the above table, and it co-owns $1,478,489.00 of the $8,946,643.00 in judgments Plaintiffs now attempt to collect. Most of the defendants in this suit are Georgia citizens. In their Motion, Plaintiffs misrepresent the result of the Kentucky litigation. They did obtain judgment of over $8.9MM against Vince Murphy and others, '~ointly and severally." That is, Vince Murphy and other Defendants are jointly and severally liable to the Plaintiffs for over $8.9MM. (Exhibit "A.") In contrast, there is no sign from a broad sampling of court filings in the Kentucky litigation that any Plaintiffs jointly and severally hold their judgment Page 3 of 14 4 Case: 15-14634 Date Filed: (120 of 12/22/2017 268) Page: 120 of 211 against Vince Murphy or other Kentucky defendants. That is, there is no sign that the judgment may be fully prosecuted by individual judgment holders separately. 2 I 2 Respondents admit that they were open to conditionally consenting to Plaintiffs Motion to Drop until discovering the following: Neither the complaint (Doc. 238-3), nor the amended complaint (Doc. 238-5) filed in the Kentucky litigation reflect that the claims of the plaintiffs against Vince Murphy were ever owned jointly and severally. The affidavit of Brian Doran executed in June 2009 showing the nature of liability and the amount of damages does not reflect joint and several 'claim ownership. (Doc. 238-6) The Plaintiffs' Motion for Summary Judgment in the Kentucky litigation does not seek an adjudication or relief in the nature of joint and several judgment ownership. (Kentucky litigation Doc. 98-2, attached as Exhibit "B") Nor does the Bench Memorandum Plaintiffs filed showing their damages sought once the Kentucky court adjudicated liability, reflect joint and several ownership (Kentucky litigation Doc. 186, attached as Exhibit "C"), or that Plaintiffs sought or ever obtained adjudication that they were joint and several judgment holders. Nothing shows Plaintiffs' joint and several jhdgment ownership or claim ownership in a proposed order (apparently unused) tpat Plaintiffs submitted. (Kentucky litigation Doc. 98-17, Exhibit "D.") See Page 4 of 14 4 Case: 15-14634 Date Filed: (121 of 12/22/2017 268) Page: 121 of 211 There is no such indication in this action, either. 3 "Joint and several" judgment ownership cannot be assumed here or in any instance. Plaintiffs have been in I litigation against Vince Murphy since 2007, though Plaintiffs' claim of 'joint and several" ownership of the judgments against Vince appears to be very new, i.e., I I September 3, 2013, and not seen before throughout six years of litigation. In fact, the six Plaintiffs adopted this 'joint and several Plaintiffs" position this month because they ran into problems showing that all six of them belong in this court. Plaintiffs want their partner Alliant Tax Credit 31, Inc. (co-holder of $1,478,489.00 of the $8.9MMjudgment against Vince Murphy) to be permitted to Alliant Tax Credit Fund 31-A, Ltd., et al. v. Nicholasville Community Housing, et al., 663 F. Supp.2d 575 (E.D. Ky., 2009). Though Vince Murphy appealed unsuccessfully from the Kentucky judgment of March 22, 2010, Plaintiffs did not cross-appeal to correct any finding of the trial court. See Murphy v. Alliant Tax Credit Fund 31-A, Ltd., et al., No. 10-5454 (6th Cir., August 15, 2012). 3 In this action, and though they file suit collectively, Plaintiffs make no allegation in their original Complaint (Doc. 1-1, ~~ 6-11) that Plaintiffs were joint and several judgment holders, or in their First Amended Complaint (Doc. 244, ~~ 6-11). Page 5 of 14 4 Case: 15-14634 Date Filed: (122 of 12/22/2017 268) Page: 122 of 211 L n in this action and not also be disqualified because of lack of complete diversity. This may seem easier to do if either of these two plaintiffs, either the I exiting Plaintiff (Alliant Tax Credit Fund 31-A, Ltd.) or the remaining Plaintiff (Alliant Tax Credit 31, Inc.), can take control of and sue the entire $1,478,489.00 judgment component, as if they were true joint and several judgment holders. In their Motion to Drop, Plaintiffs claim to be joint and several judgment holders, three times, claiming a right to be treated as parties entitled to the relief of joint or several parties. See Plaintifrs Motion to Drop at pp. 2, 6. Plaintiffs cite no fact or adjudication showing that Fund 31-A is a joint and several judgment holder with Alliant Tax Credit 31, Inc., or that the judgment they obtained is several or severable. Likewise Plaintiffs cite no legal authority showing that Fund 31-A is a joint and several judgment holder with Alliant Tax Credit 31, Inc., or ! that the judgment they obtained is several or severable, that is, that one may sue upon it or otherwise attempt to collect it through the courts without including the other in the action. Additionally, Plaintiffs rely on equivocal language and fail to provide evidence or other support for their assertion that they need to preserve complete diversity that would otherwise be lost if a particular party remains in this action: Page 6 of 14 4 Case: 15-14634 Date Filed: (123 of 12/22/2017 268) Page: 123 of 211 " ... [I]t has been discovered that one of the members of a limited liability company that is a limited partner in Plaintiff Alliant Tax Credit Fund 31-A, LTD may have as its principal place of business the State of Georgia though it is a corporation organized under the laws of a different state. This may have an impact on this Courts (sic) exercise of diversity jurisdiction pursuant to 28 U.S.C. § 1332." (Emphasis supplied.) Plaintiffs' Motion to Drop Party at 2-3. Plaintiffs do not commit to a single clear fact here and take no firm position on any discemable fact. Neither this company in question, which apparently is within the ownership structure of Alliant Tax Credit Fund 31-A, Ltd., nor its state or states of iµcorporation (or formation), or date of incorporation is identified in Plaintiffs' Motion, much less are copies of its articles of organization attached, or any documentation showing exactly where it principally does business. Plaintiffs' Motion is devoid of evidentiary or other factual support, and there is no way to verify whether what is very loosely asserted as fact is true. Testimony in Plaintiffs' deposition was equivocal as to whether the company is a limited liability company or a corporation. 4 In asserting their request for relief, Plaintiffs 4 Deposition of Plaintiffs, through FRCP 30(b)(6) representative Brian Doran (testimony date September 3, 2013), pp.165-167. Our independent I investigation shows that the company which destroys complete diversity within Page 7 of 14 4 Case: 15-14634 Date Filed: (124 of 12/22/2017 268) Page: 124 of 211 L opaque and oblique, that is, not transparent, and not explicit or direct as to why this is necessary. Additionally Plaintiffs filed this Motion to Drop the very day of the deposition of their 30(b)(6) representative, which was September 3, 2013, which this Court had ordered take place within 30 days of August 7, 2013. (Doc. 243 at p. 9.) The defense received their service copies immediately before the deposition. Respondents reserve the right to apply for relief in accordance with that order. Argument and Citation of Authority In short, Plaintiff Alliant Tax Credit Fund 31-A, Ltd. claims to be ajoint and several judgment holder with co-Plaintiff Alliant Tax Credit 31, Inc. only now iecause Fund 31-A, the exiting limited partnership with a partner having Georgia the ownership structure of Alliant Tax Credit Fund 31-A, Ltd. is a limited liability company--not a corporation--formed outside Georgia. Plaintiffs could not identify the members of the company in question. Deposition of Plaintiffs, through FRCP 30(b)(6) representative Brian Doran (testimony date September 17, 2013), awaiting transcription. Given a recent confidentiality order, once the second deposition is transcribed, both of these depositions will be marked "CONFIDENTIAL" and filed under seal. Page 8 of 14 4 Case: 15-14634 Date Filed: (125 of 12/22/2017 268) Page: 125 of 211 citizenship, acknowledges that it would have to drop out of this action to try to preserve complete diversity. I First, Plaintiffs urge that the facts requiring that Alliant Tax Credit Fund 31- A, Ltd. be dropped from this action are unclear; Plaintiffs take no firm position with respect to any discemable fact. Plaintiffs fail to comply with Local Rules I I which requires that motions be supported by affidavits or other evidence. LR 7.l(A)(l). Plaintiffs failure to comply with LR 7.1, or to present their Motion in full, is fatal to their Motion. 5 Second, Plaintiffs represent in their Motion that the company in Alliant Tax Credit Fund 31-A, Ltd. 's ownership structure that destroys diversity is a corporation. Plaintiffs' 30(b)(6) deposition designee indicates that it is a limited 5 Out of an abundance of caution and concern about the possibility of seeing new legal authority and argument in the reply brief (to which Respondents as non- movants are not permitted a surreply), we point out that this court does not consider arguments raised for the first time in a reply brief. United States v. Oakey, 744 F.2d 1553, 1556 (11lhCir.,1984) and United States v. Georgia Department of I Natural Resources, 891 F.Supp. 1464, 1471 (N.D. Ga., 1995). See also Order at pp. 7-8 of July 26, 2011. (Doc. 53.) Page 9 of 14 4 Case: 15-14634 Date Filed: (126 of 12/22/2017 268) Page: 126 of 211 liability company, and then, sentences later, calls it a "corporation." The citizenship analysis for diversity jurisdiction purposes differs greatly, depending in the nature of the entity. With respect to determining citizenship of a corporation for diversity jurisdiction purposes, the only questions required are principal place of business and state or states of incorporation. Hertz Corp. v. Friend, 130 S.Ct. 1181 (2010). As this Court is aware, for a limited liability company, the inquiry is the citizenship of the members, and its place of doing business is irrelevant. Additionally, when a limited liability company is composed of multiple layers of constituent entities, the citizenship determination requires an exploration of the \itizenship of the constituent entities as far down as necessary to unravel fully the citizenship of the entity before the court. RES-GA Creekside Manor, LLC v. Star Home Builders, Inc., U.S.D.C., N.D. Ga., case no. 2:10-CV-207-RWS (order date 12/2/2011). 3. Third, Plaintiffs have been in litigation against Vince Murphy since 2007, though Plaintiffs' claim of'~oint and several" ownership of the judgments against Vince appears to be very new, i.e., September 3, 2013--the day of their deposition- -and not seen before through nearly six years of litigation. In fact, it appears that Plaintiffs adopted this position weeks ago because they ran into problems proving Page 10 of 14 4 Case: 15-14634 Date Filed: (127 of 12/22/2017 268) Page: 127 of 211 that all six plaintiffs belong in this court. 4. Finally, Respondents are concerned about being forced to defend a related ~ction in state court by the exiting Plaintiff, and to have to continue defending litigation in this forum by the remaining Plaintiff. Plaintiffs initiated and maintained related litigation against Respondents in Fulton County Superior Court for over a year in 2012 and 2013. Alliant Tax Credit Fund 31-A, Ltd., et al. v. M Vincent Murphy, III, et al., Fulton County Superior Court, 2012CV213050. The plaintiff seeking to be dropped co-owns a judgment against Vince Murphy of $1,478,489.00. This potentially creates problems under FRCP 17(a), requiring that actions be brought by the real party in interest; if Alliant Tax Credit Fund 31-A, Ltd. and Alliant Tax Credit 31, Inc. do not remain in this action together or depart together, Defendants potentially face defending the same claim of$1,478,489.00 in two separate suits. It appears unlikely that Plaintiffs Alliant Tax Credit Fund, 31-A, Ltd and Alliant Tax Credit 31, Inc. can meet their burden to establish diversity jurisdiction. These irregularities and unanswered questions compel opposition. Plaintiffs' Motion should be denied. Page 11 of 14 4 Case: 15-14634 Date Filed: (128 of 12/22/2017 268) Page: 128 of 211 PRAYER FOR RELIEF Respondents pray for the following relief: L That Plaintiffs' Motion to Drop be denied without prejudice. 2. Or in the alternative, that this Court's ruling on Plaintiffs' Motion to Drop be stayed until after additional inquiry as provided in this Court's Order of August 7, 2013 (Doc. 243) for the limited purpose of whether complete diversity between all Plaintiffs and all Defendants exists, within the meaning of 28 U.S.C. § 1332. Date: September 18, 2013 Isl Shawn M Winterich Attorney Bar No. 771030 Attorney for Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC The Winterich Law Firm, LLC P.O. Box 71203 Marietta, GA 30007-1203 404 668-7766 swinterich@winterichlaw.com Page 12 of 14 4 I Case: 15-14634 Date Filed: (129 of 12/22/2017 268) Page: 129 of 211 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA. ATLANTA DIVISION IALLIANT TAX CREDIT FUND ] Case no.: 1:11-CV-0832-RWS 31-A, LTD., et al. ] ] Plaintiffs, ] ] !VS. ] ' ]:M. VINCENT MURPHY, III, et ] al~ ] ] Defendants. ] ] CERTIFICATE OF SERVICE COMES NOW DEFENDANT Marilyn Murphy, through counsel, who certifies service of the following OPPOSITION BRIEF OF DEFENDANTS MARILYNMURPHY ANDGAZEBOPARKAPARTMENTSOFACWORTH, LLC TO PLAINTIFFS' MOTION TO DROP ALLIANT TAX CREDIT FUND 31-A, LTD. to Plaintiffs at their address/es of record (or last known address/es) described herein, by the electronic case filing system on the date below. This document was created using Times New Roman style 14 pt. font. Page 13 of 14 4 Case: 15-14634 Date Filed: (130 of 12/22/2017 268) Page: 130 of 211 Service date: September 18, 2013 Isl Shawn M. Winterich Attorney Bar No. 771030 Attorney for Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC The Winterich Law Firm, LLC P.O. Box 71203 Marietta, GA 30007-1203 404 668-7766 swinterich@winterichlaw.com DISTRIBUTION LIST Stanley E. Kreimer, Jr., Esq. Johnson & Ward IOO Peachtree Street, N.W., Suite 2100 Atlanta, GA 30303 Walter Henry Bundy, Jr. M. Brett McDonald, Esq. Smith Bundy Bybee Barnett, P.C. I Building F 1037 Chuck Dawley Blvd. Mount Pleasant, SC 29465 whbesq@s3blaw.com John P. Hutchins, Esq. Puja R. Patel, Esq. Troutman Sanders, LLP-ATL Suite 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308 john.hutchins@troutmansanders.com Page 14 of 14 Case: 15-14634 Date Filed: (131 of 12/22/2017 268) Page: 131 of 211 Exhibit ''A'' I I C~e: 5:07-cv-00388-KKC-REW Doc#: 204 Filed: 08/31/10 Page: 1of4 - Page ID#: 3265 Case: 15-14634 Date Filed: (132 of 12/22/2017 268) Page: 132 of 211 Bastern D1atl'10i ot !an,uek~ FILED. UNITED STATES DISTRICT COURT AUG 3 1 2010 EASTERN DISTRICT OF KENTUCKY CENTRAL DMSION AT LEXINGTON AT LEXINGTON LESLIE G WHITMER CASE NO.: 5:07-CV-00388-KKC CLERK US DISTRICT COURl ELECTRONICALLY FILED ALLIANT TAX CREDIT FUND 31-A, LTD.; ALLIANT TAX CREDIT 31, INC.; ALLIANT TAX CREDIT FUND XXVII, LTD.; ALLIANT TAX CREDIT XXVII, INC.; ALLIANT TAX CREDIT XI, LTD.; and ALUANT TAX CREDIT XI, INC. Plaintiffs, v. NICHOLASVILLE COMMUNITY HOUSING, LLC., JBSSAMINB COMMUNITY HOUSING, LLC; PRINCETON COMMUNl1Y HOUSING, LLC; BOWLING GREEN COMMUNITY HOUSING, LLC; WARREN COUNTY COMMUNITY HOUSING, LLC; HOPKINSVILLE COMMUNITY HOUSING, LLC; IRONWOOD DBVBLOPMBNT, LLC; ROBBRT A. MCMASTER; and M. VINCENT MURPHY, Ill, Defendants. AMENDED JUDGMENT In accordance with the opinions and orders entered in this matter on September 30, 2009 and March 22, 20 J0, the Court hereby ORDERS and ADJUDGES as follows: 1. Judgment is hereby entered in favor of Plaintiffs, AUiant Tax Credit Fund 31-A, Ltd. whose address is 21600 Oxnard St1-eet, Suite 1200, Woodland Hills, CA 91367 and Alliant Tax Credit 31, Inc. whose address is 21600 Oxnard Street, Suite 1200, Woodland Hills, CA 91367, and against Defendants, Jessamine Community Housing, LLC whose address is 4390 Barney Rd., Suite 120, Woodstock, OA 30188; Ironwood Development, LLC whose address is C~se: 5:07-cv-00388-KKC-REW Doc#: 204 Filed: 08/31/10 Page: 2 of 4- Page ID#: 3266 Case: 15-14634 Date Filed: (133 of 12/22/2017 268) Page: 133 of 211 4390 Earney Rd .• Suite 120. Woodstock. OA 30188; Robert A. McMaster whose last known address is 502 East Wesley Ct.. Woodstock. OA 30188. and M. Vincent Murphy, 111 whose last known address is 28115 Mill Creek, Alpharetta, OA 30022, jointly and severally, for compensatory damages in the amount of $525,745.00. which shall hereafter draw the legal rate of interest in effect as of the date of this Amended Judgment, compounded daily and annually, until paid in full, for which let execution issue,forthwlth and Instanter. 2. Judgment is hereby entel'ed in favor of Plaintiffs, Alliant Tax Credit Fund 31-A, Ltd. whose address is 21600 Oxnard Street, Suite 1200, Woodland Hills, CA 91367 and Alliant Tax Credit 31, Inc. whose address is 21600 Oxnard Street, Suite 1200, Woodland HilJs, CA 91367, and against Defendants, Princeton Community Housing, LLC whose address is 4390 Earney Rd., Suite 120, Woodstock, GA 30188; Ironwood Development, LLC whose address is 4390 Earney Rd., Suite 120, Woodstock, GA 30188; Robert A. McMaster whose last known address is 502 East Wesley Ct., Woodstock, OA 30188, and M. Vincent Murphy, III whose last known address is 28115 Mill Creek, Alpharetta, OA 30022, jointly and severally, for compensatory damages in the amount of $585,158.00; which shall hereafter draw the legal rate of interest in effect as of the date of this Amended Judgment, compounded daily and annually, until paid in full, for which Jet execution issue,forthwith and Instanter. 3. Judgment is hereby entered in favor of Plaintiffs, Alliant Tax Ca·edit Fund 31-A, Ltd. whose address is 21600 Oxnard Street, Suite 1200, Woodland Hills, CA 91367 and Alliant Tax Credit 31, Inc. whose address is 21600 Oxnard Street, Suite 1200, Woodland Hills, CA 91367, and against Defendants, Nicholasville Community Housing, LLC whose address is 4390 Barney Rd., Suite 120, Woodstock, OA 30188; Ironwood Development, LLC whose address is 4390 Earney Rd., Suite 120, Woodstock, GA 30188; Robert A. McMaster whose last known address is 502 East Wesley Ct., Woodstock, OA 30188, and M. Vincent Mu1·phy, lll whose last 2 I I C~e: 5:07-cv-00388-KKC-REW Case: 15-14634 Doc#: 204 of Date Filed: (134 Filed: 268)08/31/10 Page: 12/22/2017 Page:134 3 ofof4 211 - Page ID#: 3267 known address is 28115 Mill Creek, Alpharetta, GA 30022, jointly and severally, for compensatory damages in the amount of $366,986.00; which shall hereafter draw the legal rate of interest in effect as of the date of this Amended Judgment, compounded daily and annually, until paid in full, for which let execution issue,forthwlth and Instanter. 4. Judgment is hereby entered in favor of Plaintiffs, AJliant Tax Credit XI, Ltd. whose address is 21600 Oxnard Street, Suite 1200, Woodland Hills, CA 91367 and Alliant Tax Credit XI, Inc. whose address is 21600 Oxnard Street, Suite 1200, Woodland Hills, CA 91367, and against Defendants, Hopkinsville Community Housing, LLC whose address is 4390 Barney Rd., Suite 120, Woodstock, OA 30188; Ironwood Development, LLC whose address is 4390 Earney Rd., Suite 120, Woodstock, OA 30188; Robert A. McMaster whose last known address is 502 East Wesley Ct., Woodstock, GA 30188, and M. Vincent Murphy, III whose last known address is 28115 Mill Creek, Alpharetta, GA 30022, jointly and seve1"Blly, for compensatory damages in the aanount of $226,402.00; which shall hereafter draw the legal rate of interest in effect as of the date of this Amended Judgment, compounded daily and annually, until paid in full, for which let execution lssue,forthwlth and Instanter. 5. Judgment is hereby entered in favor of Plaintiffs, Alliant Tax Credit XXVII, Ltd. whose address is 21600 Oxnard Street, Suite 1200, Woodland Hills, CA 91367 and Alliant Tax Credit XXVII, Inc. whose address is 21600 Oxnard Street, Suite 1200, Woodland Hills, CA 91367, and against Defendants, Bowling OJ'een Community Housing, LLC whose address is 4390 Barney Rd., Suite 120, Woodstock, GA 30188; Ironwood Development, LLC whose address is 4390 Earney Rd., Suite 120, Woodstock, QA 30188; Robert A. McMaster whose last known address is 502 East Wesley Ct., Woodstock, GA 30188, and M. Vincent Murphy, III whose last known address is 28115 Mill Creek, Alpharetta, GA 30022, jointly and severally, for compensatory damages in the amount of $169,622.00; which shall hereafter draw the legal rate 3 cbe: 5:07-cv-00388-KKC-REW Doc#: 204 Filed: 08/31110 Page: 4 of 4- Page ID#: 3268 Case: 15-14634 Date Filed: (135 of 12/22/2017 268) Page: 135 of 211 of interest in effect as of the date of this Amended Judgment, compounded daily and annually, until paid in full, for which let execution issue.fortlnvirh and Instanter. 6. Judgment Is hereby entered in favor of Plaintiffs, Alliant Tax Credit Fund XXVII, Ltd. whose address is 21600 Oxnard Street, Suite 1200, Woodland HUis, CA 91367 and Alliant Tax Credit XXVII, Inc. whose address is 21600 Oxnard Street, Suite 1200, Woodland Hms, CA 91367, and against Defendants, Warren County Community Housing, LLC whose address is 4390 Earney Rd., Suite 120, Woodstock, GA 30188; Ironwood Development, LLC whose address is 4390 Barney Rd., Suite 120, Woodstock, GA 30188; Robert A. McMaster whose last known address is 502 East Wesley Ct., Woodstock, GA 30188, and M. Vincent Murphy, III whose last known address is 2811 S Mill Creek, Alpharetta, GA 30022, jointly and severally, for compensatory damages in the amount ofS7,072,130.00; which shall hereafter draw the legal rate of interest in effect as of the date of this Amended Judgment, compounded daily and annually, until paid in full, for which let execution issue,forthwith and Instanter. 7. This mattea· is STRICKEN from the active docket of this Court; and 8. This Amended Judgment is FINAL and APPBALABLB. Dated <t/Jf /m F I Signed by: ~.£Jntr1tt.,Jl Karen aid we United States District Judge LBXUbnry 0110817 • 0543643 427959\11 4 Case: 15-14634 Date Filed: (136 of 12/22/2017 268) Page: 136 of 211 Exhibit ''B'' base: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98 of Filed: (137 Filed: 12/22/2017 Page: 268)06/10/09Page: 1 of 137 - Page ID#: 878 of 3211 UNITED STA TES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION AT LEXINGTON CASE NO. 5:07-CV-00388-KSF AELIANT TAX CREDIT FUND 31-A. LTD.; ELECTRONICALLY FILED AI!.LIANT TAX CREDIT 31, INC.; ALLIANT TAX CREDIT FUND XXVII, LTD.; ALLIANT TAX CREDIT XXVII, INC.; ALLIANT TAX CREDIT XI, LTD.; and ALLIANT TAX CREDIT XI, INC. PLAINTIFFS v. NI~HOLASVILLE COMMUNITY HOUSING, LLC.; JESSAMINE COMMUNITY HOUSING, LLC.; PRINCETON COMMUNITY HOUSING, LLC.; BOWLING GREEN COMMUNITY HOUSING, LLC.; WARREN COUNTY COlvlMUNITY HOUSING, LLC.; HOPKINSVILLE COMMUNITY HOUSING, LLC.; IRONWOOD DEVELOPMENT, LLC; ROBERT A. MCMASTER; and M. VINCENT MURPHY, III DEFENDANTS MOTION FOR SUMMARY JUDGMENT Plaintiffs, Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, Inc., Alliant Tax Credit XI, Ltd., and Alliant Tax Credit XI, Inc., by and through undersigned counsel, and pursuant to Rule 56, Fed. R. Civ. P., move the Court for an Order entering judgment in their favor, and against Defendant, M. Vincent Murphy, III ("Murphy") and Defendant, Robert A. McMaster ("McMaster" and, together with Murphy, "Defendants" or "the Guarantor Defendants"}, for the liquidated sum of $8,194, 136 on Count II of Plaintiffs' First Amended Complaint and for the dismissal of all counts of Murphy's Counterclaims against Plaintiffs. In further support of this Motion, Plaintiffs rely on the Memorandum of Law filed contemporaneously herewith. base: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98 of Filed: (138 Filed: 12/22/2017 Page: 268)06/10/09Page: 2 of 138 of 3- 211Page ID#: 879 Respectfully submitted, Isl Barry D. Hunter Barry D. Hunter Catherine M. Stevens Frost Brown Todd LLC 250 West Main Street Suite 2700 Lexington, KY 40507 Tel.: (859) 231-0000 Fax: (859) 231-0011 Attorneys for Plaintiffs 2 base: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98 of Filed: (139 Filed: Page:139 268)06/10/09Page: 12/22/2017 - Page ID#: 880 3 ofof3211 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing was served by depositing in thd U.S. mai~ postage prepaid on this 10th day of June, 2009, to: Stan Kreimer, Jr., Esq. Johnson & Ward 2100 The Equitable Building 100 Peachtree Street, N.W. Atlanta, GA 30303 James M. Mooney, Esq. Moynahan, Irvin & Smith, P.S.C. 110 N. Main Street Nicholasville, KY 40356 Mark T. Hayden, Esq. Richard Boydston, Esq. Greenebaum Doll & McDonald PLLC 255 East Fifth Street #2800 Cincinnati, Ohio 45202-4728 /s/Ban:y D. Hunter COUNSEL FOR PLAINTIFFS LEXLibrury 0 l 108 l 7.0S43643 397683vl 3 7 Case: 15-14634 Date Filed: (140 of 12/22/2017 268) Page: 140 of 211 Exhibit ''C'' 7 \ case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (141 of Filed: 06/10/09 12/22/2017 268) Page: Page: of 211 - Page ID#: 141 1of26 881 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DMSION AT LEXINGTON CASE NO. 5:07-CV-00388-KSF ALLIANT TAX CREDIT FUND 31-A, LTD.; ELECTRONICALLY FILED ALLIANT TAX CREDIT 31, INC.; ALLIANT TAX CREDIT FUND XXVII, LTD.; ALLIANT TAX CREDIT XXVII, INC.; ALLIANT TAX CREDIT XI, LTD.; and ALLIANT TAX CREDIT XI, INC. PLAINTIFFS v. NICHOLASVILLE COMMUNITY HOUSING, LLC.; JESSAMINE COMMUNITY HOUSING, LLC.; PRINCETON COMMUNITY HOUSING, LLC.; BOWLING GREEN COMMUNITY HOUSING, LLC.; WARREN COUNTY COMMUNITY HOUSING, LLC.; HOPKINSVILLE COMMUNITY HOUSING, LLC.; IRONWOOD DEVELOPMENT, LLC; ROBERT A. MCMASTER; and M. VINCENT MURPHY, Ill DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Plaintiffs, Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, Inc., Alliant Tax Credit XI, Ltd., and Alliant Tax Credit XI, Inc., by and through undersigned counsel, and pursuant to Rule 56, Fed. R. Civ. P., move the Court for an Order entering judgment in their favor, and against Defendant, M; Vincent Murphy, III ("Murphy") and Defendant, Robert A. McMaster ("McMaster" and, together with Murphy, "Defendants" or "the Guarantor Defendants"), for the liquidated sum of $8, 194, J36 on Count II of Plaintiffs' First Amended Complaint and for the dismissal of all counts of Murphy's Counterclaims against Plaintiffs. 1 In further support of this Motion, Plaintiffs show the Court as follows. 1 DefaullS have previously been entered against the remaining defendants. 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (142 of Filed: 06/10/09 12/22/2017 268) Page: Page: 2 of 142 of 26 - Page ID#: 211 882 STATEMENT OF POINTS AND AUTHORmES FACTUAL AND PROCEDURAL BACKGROUND .............................................................. 1 ARGUMENT ............................................................................................................................. 3 I I. The Summary Judgment Standard .............................................................................. 3 Fed.RCiv.P. 56(c) ........................................................................................................... 3 A11derso11 v. Liberty Lobby, /11c., 477 U.S. 242 (1986) ..................................................... 3 Kee11ela11d Ass'11, Inc. v. Eames, 830 F.Supp. 974 (E.D. Ky. 1993) ................................. 4 Matsushita Elec. lnd11s. Co. v. Zenith Radio Corp., 415 U.S. 574 (1986) ......................... 4 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................ .4 Fed.R.Civ.P. 56(a) ........................................................................................................... 4 Fed.·R.Civ.P. 56(d) ........................................................................................................... 4 Connelly v. Wolf, Block, Schorr & So/is-Cohen, 463 F. Supp. 914 (E.D. Pa. 1978) .......... 4 Fed.R.Civ.P. 56(d)........................................................................................................... 4 IL The Guarantor Defendants Undisputedly Failed to Perform the Obligations in Their Guarantee Agreements ....................................................................................... 5 A. The Guarantor Defendants Did Not Cause "Completion." .................................... 5 B. The Guarantor Defendants Did Not Cause "Rental Achievement." ....................... 5 C. The Guarantor Defendants Did Not Pay The "Development Deficits." ................. 6 D. Plaintiffs Gave the Required Notice ..................................................................... 7 m. None of the Affirmative Defenses or Counterclaims Can Survive Summary Judgment ....................................................................................................................... 7 A. McMaster' s Defenses ........................................................................................... 7 KRS 371.065(1) ................................................................................................... 7 I. Plaintiffs had no duty to modify the LP As ................................................ 7 KRS 362.2-305(1) .................................................................................... 9 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (143 of Filed: 06/10/09 12/22/2017 268) Page: Page: 143 3ofof211 26 - Page ID#: 883 KRS 362.2-110 ........................................................................................ 9 KRS 362.2-305(2) .................................................................................... 9 Farmers Bank and Tn1st Co. ofGeorgetown, KY v. Willmoll Hardwoods, Inc., 171 S.W.3d 4 (Ky. 2005) .................................. 9 2. The Guarantee Agreements Complied with KRS 371.065(1) .................. 10 KRS 371.065 .................................................................................... 10, 11 Wheeler & Clevenger Oil Co., Inc. v. Washburn, 127 S. W.3d 609 (Ky. 2004) ............................................................................ 11, 13 Duckell v. Kubota Tractor Corp., 2002 U.S. Dist. LEXIS 28296 (W.D. Ky. 2002) ................................................................... 11, 13 KRS 371.065(1) ............................................................................... 11, 13 8. Murphy's defenses ............................................................................................. 13 1. Plaintiffs Violated No Duty of Disclosure to Murphy ............................. 14 Rivermont flm v. Bass Hotels & Resorts, 113 S.W.3d 636 (Ky. App. 2003) ............................................................................ 15, 16 O'Bryan v. Maey-Ferguson, Inc., 413 S.W.2d 891 (Ky. 1966) .............. 16 2. No Modifications of the LPAs or the Guarantee Agreements have been made which would relieve Murphy of liability ............................... 16 3. Plaintiffs properly removed the GP Defendants ...................................... 17 4. KRS 2718.15-020 does not bar this action ............................................. 18 KRS 2718.15-020 ............................................................................ 18, 19 KRS 2718.15-020(1) .............................................................................. 18 KRS 2718.15-010 .................................................................................. 18 KRS 2718.15-010(4).............................................................................. 19 5. There is no probative evidence to support Murphy's counterclaims ........ J9 IV. Plaintiffs Are Entitled To Summary Judgment on their Damages Claims ............... 20 CONCLUSION ....................................................................................................................... 22 ii 7 Case: 5:07-cv-00388-KKC-REW Doc#: 98-2 Filed: 06/10/09 Page: 4 of 26 - Page ID#: Case: 15-14634 Date Filed: (144 884 of 12/22/2017 268) Page: 144 of 211 FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs are the limited partners in six Kentucky limited partnerships ("the Limited Partnerships"). each of which was organized to develop a low-income housing project in *entucky. 2 Defendants, Nicholasville Community Housing, LLC, Jessamine Community Housing, LLC, Princeton Community Housing, LLC, Bowling Green Community Housing, LLC, Warren County Community Housing, LLC, and Hopkinsville Community Housing LLC ("the GP Defendants") were, prior to May 2007, the general partners of each of the Limited Partnerships. Under Article 5.9 of the limited partnership agreements governing the Limited Partnerships ("the LPAs"), the GP Defendants agreed, inter alia, to build and to rent up the Limited Partnerships' apartment buildings and to pay off the Limited Partnerships' construction loans. 3 Murphy and McMaster wholly owned, on a 50/50 basis, each of the GP Defendants. 4 .Murphy and McMaster also wholly owned, 50150, Atlin Construction, the general contractor company that was retained to build each of the Limited Partnerships' apartment buildings 5 ("Apartment Buildings"). Murphy and McMaster executed six guarantee agreements ("the Guarantee Agreements") under which they guaranteed performance and payment of the GP Defendants' obligations to Plaintiffs. 6 2 Affidavit of Brian Doran \Doran Affi."). Cf[ 3. TI1e Doran Affi. is attached as Exhibit A. 3 Cited excerpts from the LPA from one of the six Limited Partnerships are attached as Exhibit B. Other than the names of the parties and scheduled dates, the six LPAs were identical in all tenns relevant to this action. 4 TI1e Operating Agreement for one of the sLx GP Defendants is attached as Exhibit C. The relevant tenns of the 9J>erating Agreements for all six GP Defendants were identical. 5 The Operating Agreement for Adin Construction is attached as Exhibit D. Allin Conslruction is identified as the Contractor at page 9 of Article 1 and at page I of the Schedule to the LPAs. 6 The Guarantee Agreement for one of die six Limited Partnerships is attached as Exhibit E. The LPA and Guarantee obligations at issue herein were assigned to the Plaintiffs in this case by six separate Assignment Agreements, one of which is attached as Exhibit F. TI1e relevant tenns of the six Guarantee Agreements and die sLx Assignment Agreements are identical. 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (145 of Filed: 06/10/09 12/22/2017 268) Page:Page: 5 of 145 of 21126 - Page ID#: 885 \ On May 4, 2007, Plaintiffs removed the GP Defendants from their roles as General 7 Partners at each of the Limited Partnerships pursuant to Articles 11. 4 and 11. 7 of the LP As. This occurred after Bank of America had declared the Limited Partnerships' construction loans ih default,8 after Bank of America had sued to foreclose the mortgages on the Limited I Partnerships' properties,9 and after the GP Defendants had repudiated their obligations to the Limited Partnerships. 10 On the date of removal, two and one half years after the deadline in the LPAs for achieving lien free completion of construction and nearly two years after the deadline in the LP As for paying off the Bank of America construction loans, the GP Defendants had failed to construct the Apartment Buildings for the Renaissance Limited Partnership; they had failed to pay off the liens on the Apartment Buildings they constructed for the other five Limited Partnerships; and they had left a balance of over $10 million due and owing on the Limited Partnerships' construction Joans to Bank of America. 11 Like the GP Defendants that they owned and controlled, the Guarantor Defendants also repudiated their obligations to Plaintiffs. As a result, Plaintiffs filed this action on November 20, 7 Doran Afii. [Exhibit A,] 4114. 8 Deposition of Norman Trcpner, the Bank of America loan officer with responsibility for the Limited Pannerships' construction loans during 2006-2007 (..Trepner depo"), pp. 6:1-8:14; 10:7-12:25; 22:25-23:25; 25:10-26:3; 27:17- 28: 13; 29: 10-30:2; 30:24-31: 18; 32: 11-33:2. Cited pages of the Trepner depo. are attached as Exhibil G. Copies of representative samples of 1he Bank of America defaull letters for each of the Limiled Panncrships, to which Mr. Trepner referred in his deposition, are auached as Exhibit H. 9 /ti., pp. 10:7-10:17; 18:19-19:8; 21:14-22:19; 24:1-25:8: 26:4-27:12; 28:14-29:8; 30:3-30:23; 31:19-32:10. See also Deposition of Robert McMaster ("McMaster depo."), p. 95; Deposition of Vince Murphy ("Murphy depo."), pp. 138-143. Cited pages of the McMasler depo. are altached as Exhibit I; cited pages of the Murphy depo. are attached as Exhibit J. 10 McMaster depo., pp. 49-50 (stopped funding construction al the Renaissance Limited Partnership in late 2005), 93-95 (stopped paying amounts due to Bank of America on the Limited Partnerships' construction loans in January 2007). See also Murphy depo., pp. 86, 96-97. 11 Doran Affi. [Exhibit A,] 411 4. The Limited Partnerships' loan obligations with Bank of America consisted of a "Bridge Loan" and a "Multifamily Loan" on each project - each of which was covered by the Limited Pannerships' Construction Phase Financing and Reimbursement Agreement ("tbe Construction Loan Agreement") with Bank of America. Relevant provisions of the Construction Loan Agreement for one of the Limited Partnerships, which arc identical in all relevant tenns to the Construction Loan Agreements for the other Limited Partnerships. are attached as Exhibit K. The LPAs require the GP Defendants to pay off these construction loans [Exhibit B. Art. I, p.11 and Art. 5.9B,] and U1cy refer to and specify the amounts of these loans. See Exhibit B. pp. 5 and 8-9 of Article 1, Article 6.5(C) and p. I of the Schedule to the LPA. 2 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (146 of Filed: 06/10/09 12/22/2017 268) Page:Page: 6 of 146 of 21126 - Page ID#: 886 Z007. The original complaint asserts two contract claims - Count I, for breach of the GP I Defendants' LPA obligations, and Count II, for breach of the Guarantor Defendants' guaranty of performance and payment of those obligations to Plaintiffs. On April 8, 2009, this Court granted Plaintiffs' Motion to Amend their Complaint to add two counts, which claim that Plaintiffs are entitled in equity to recover from the Guarantor Defendants for the sums that they paid to Bank of America (since these payments relieved Guarantor Defendants of their independent payment obligations to Bank of America under the guaranty agreements that they separately entered with Bank of America). Thus, the sums that Plaintiffs are seeking under their equitable claims are the very same sums that they are seeking under their Count II claims on the Guarantor Defendants' Guarantee Agreements. The only reason for this alternative theory for recovery of the amounts owed to Bank of America is that the Guarantor Defendants are alleging that their Guarantee Agreements are unenforceable under KRS 371.065. Thus, if Plaintiffs prevail on this Motion for Summary Judgment on their Count 0 claims, the equitable counts in the Amended Complaint become moot. ARGUMENT I. The Summary Judgment Standard. Summary Judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Facts are material only if their existence "might affect the outcome of the suit under the governing law." A11derso11 v. Liberty Lobby, /11c., 477 U.S. 242, 248 (1986). An issue of material fact is not "genuine" unless a reasonable jury could return a verdict for the nonmoving party. Id at 251-52. "Once a moving party has met its burden, 'its opponent must do more than simply show that 3 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (147 of Filed: 06/10/09 12/22/2017 268) Page:Page: 7 of 147 of 21126 - Page ID#: 887 there is some metaphysical doubt as to the material facts."' Keene/and Ass 'n, Inc. v. Eames, 830 J.Supp. 974, 984 (E.D. Ky. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The nonmoving party must "go beyond the pleadings" and come fbrward with probative evidence to support its claims. Celotex Corp. v. Catrett, 471 U.S. 317, I 324 (1986). Summary judgment is designed to "isolate and dispose of factually unsupported claims or defenses." Id at 323-24. Thus, summary judgment may be appropriate "on all or part of the claim." Fed.R.Civ.P. 56(a). Here, there is no dispute that obligations of the GP Defendants under the LPAs were not met and that Murphy and McMaster are liable to Plaintiffs under the Guarantee Agreements whereby they guaranteed those obligations to Plaintiffs. Additionally, the Defendants have failed to raise any material issue of fact to support any of their affirmative defenses or counterclaims. Finally, there is no genuine issue to dispute the amount of the damages sought by Plaintiffs. If, however, this Court should find that some issue remains, in the interest of judicial economy, those issues can and should be narrowed for trial. Under Fed.R.Civ.P. 56(d): If summary judgment is not rendered on the whole action, the court should, to the extent practicable, determine what material facts are not genuinely at issue.... It should then issue an order specifying what facts-including items of damages or other relief-are not genuinely at issue. This rule "imposes a duty on a court that does not fully adjudicate a case on a motion for summary judgment to make an order formulating the issues for trial, to the extent practicable." Co1111e/ly v. Wolf, Block, Schorr & Solis-Cohen, 463 F. Supp. 914, 920 (E.D. Pa. 1978). As part of its ability to limit the issues for trial, this Court may additionally grant summary judgment "on liability alone, even ifthere is a genuine issue on the amount of damages." Fed.R.Civ.P. 56(d). 4 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date (14898-2 Filed: of Filed: 06/10/09 12/22/2017 268) Page:Page: 148 of8 211 of 26 - Page ID#: 888 n The Guarantor Defendants Undisputedly Failed to Perform the Obligations in Their Guarantee Agreements. Under the Guarantee Agreements, McMaster and Murphy "irrevocably and u,iconditionally fully guarantees the due, prompt and complete performance" of specifically riferenced obligations of the GP Defendants under the LPAs. Specifically, the Guarantor Defendants guaranteed, inter alia: 1) "Completion" of the construction of the Limited Partnerships' properties ("the Properties"), Exhibit E, §l(a)(i); 2) "the obligation to cause Rental Achievement," Exhibit E, §l(a)(vii); and 3) "the obligation to pay all Development Deficits," Exhibit E, §l(a)(iii), as these terms were defined in the LP As. None of these obligations have been performed by the Defendants. A. The Guarantor Defendants Did Not Cause "Completion." Pursuant to the LPA Definition of "Completion" at pages 7-8 of Article I and pursuant to Article 5.9A and page 1 of the Schedule to the LPA (Exhibit B,] lien free completion of the Apartment Buildings was to occur by December 31, 2004. As noted above, however, the Renaissance Apartment Buildings have never been constructed, and there were substantial unpaid liens at all of the Properties on December 31, 2004 and at all times thereafter through to the GP Defendants' removal in May 2007. Accordingly, the Guarantor Defendants undisputedly breached their guarantee obligations with regard to Completion. B. The Guarantor Defendants Did Not Cause "Rental Achievement." Pursuant to the LPA Definition of "Rental Achievement" at page 19 of Article I and Article 5.9E of the LPA, two things had to occur by mid 2005. 12 One, there needed to be at least 900/o rental occupancy at the Apartment Buildings for three consecutive months with net 12 For Parle Row. the contractually stipulated deadline was March 31. 2005; for NichoJas\';Ue Greens, Pennyrile. Creekside and Franklin Place, the contractually stipulated deadline was August 31. 2005; for Renaissance, the contractually stipulated deadline was September 30, 2005. 5 r. - - ~ ' I 7 I Case: 5:07-cv-00388-KKC-REW Doc Case: 15-14634 Date #: 98-2 Filed: (149 of Filed: 06/10/09 12/22/2017 268) Page:Page: 149 of9 211 of 26 - Page ID#: 889 operating income (rents minus expenses) exceeding the monthly payments under the required plrmanent loan by at least 1.15 to 1. 13 Second, the construction loan at the Properties needed to convert from "an interest only construction loan to an amortizing term ("permanent"] loan." 14 In 1•t, neither of these things occurred. None of the Properties reached 90'.4 occupancy and a debt service coverage ratio of 1.15 to 1 for three consecutive months - either by mid 2005 or at any time thereafter through to the date of the GP Defendants' removal. For these and for other r~asons, none of the Properties met the conditions required under the Bank of America loan dpcuments for converting the construction loan to permanent status~ thus, none of the construction loans converted - either by mid 2005 or at any time thereafter through to the date of the GP Defendants' removal. 15 Accordingly, Defendants undisputedly breached their guarantee obligations with regard to Rental Achievement. C. The Guarantor Defendants Did Not Pay The "Development Deficits." Pursuant to the LPA Definition of "Development Deficits" at page 11 of Article I and pursuant to Article 5.9B of the LPAs, the GP Defendants were obligated to pay the excess costs necessary to "complete the Construction" of the Properties, "achieve the Conversion Date," and "pay ... (oft] the Bridge Loan," among other obligations. As explained above, however, the GP Defendants and the Guarantor Defendants refused to fund completion of construction at Renaissance, they refused to pay off the liens at any of the Properties, they failed to convert the Limited Partnerships' construction loans, and they failed to pay off the Limited Partnerships' Bridge Loans - thereby leaving an unpaid balance of over $10 million on the Limited Partnerships' loans with Bank of America and causing the Properties to go into foreclosure. 1 fSee LPA Definition of "Debt Service Coverage Ratio," at Article I, page 10. 14 See LPA Definition of"Conversion Date," at Article I, page 9. The conditions for conversion were set forth at Sections 9.27 and Schedule E to tile Bank of America Construction Loan Agreements [Exhibit K.) 1 ~ See Trepner depo. [Exhibit G,] pp. I0-12, 20-21; McMaster depo. [Exhibit I,] pp. 63-64, 67-69, 82-83, I07. 6 I I 7 I Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (150 of Filed: 06/10/09 12/22/2017 268) Page:Page: 10211 150 of of 26 - Page ID#: 890 I llainly, the Defendants have breached their guarantee obligations to pay the Development Deficits. D. Plaintiffs Gave the Required Notice. By letters dated April 10, 2007, Plaintiffs informed the GP Defendants at each Limited Partnership that they were in default of their obligations under the LPAs. [Sample letter attached as Exhibit L.) By letters dated April I 0, 2007, Plaintiffs also informed Murphy and McMaster that the GP Defendants were in default of their obligations under the LP As and demanded performance of the Defendants' obligations under their Guarantee Agreements. [Sample letter attached as Exhibit M.] Neither the GP Defendants nor McMaster and Murphy has ever responded; thus it is undisputed that the Guarantor Defendants are in breach of the obligations under the Guarantee Agreements. ID. None of the Affirmative Defenses or Counterclaims Can Survive Summary Judgment. A. McMaster's Defenses. McMaster has asserted essentially two defenses to liability on his Guarantee Agreements. First, McMaster alleges that Plaintiffs should have modified the LP As in such a way as to make iti easier for the GP Defendants to satisfy their Development Deficit Obligations. Second, McMaster asserts that the Guarantee Agreements are unenforceable under KRS 371.065(1). ~either defense enables McMaster to avoid summary judgment. 1. Plaintiffs had no duty to modify the LPAs. McMaster complains that the Plaintiffs should have funded their capital contributions to the GP Defendants on a more "accelerated" basis. He also complains that Plaintiffs should have calculated the total amount of capital due without any reduction for the delays in delivery of the tax credits. Each point is addressed below. 7 i I7 5:07-cv-00388-KKC-REW DocFiled: Case: 15-14634 Date #: 98-2 (151 of Filed: 06/10/09 12/22/2017 891 268) Page:Page: 11211 151 of of 26 - Page ID#: First, as to timing, it is undisputed that Plaintiffs funded their capital contributions I precisely as the LP As required. At Renaissance, Plaintiffs funded all of the capital contributions except the contribution due upon the completion of construction of all of the Apartment duildings and the contribution due upon Rental Achievement and, at the other Properties, Plaintiffs funded all of the capital contributions except those due upon Rental Achievement. 16,ecause it is undisputed that Renaissance is not fully built and that Rental Achievement has not I oecurred at any of the Properties, the timing of Plaintiffs' capital contributions was proper. Indeed, McMaster concedes that Plaintiffs timely made all of the capital contributions they were required to make under the terms of the LP As. 17 As to the propriety of reducing the amount of the capital contributions on the basis of delays in the delivery of tax credits, that is solely an issue of damages. The capital contributions that were funded by Plaintiffs at the six Limited Partnerships totaled $8,593,242.00 These were I the exact amounts provided for under Article 3.4 of the LPAs (except for de minimus amounts at Creekside and Park Row), 18 without any reductions for the delays in delivering the tax credits. The tax credit reductions have merely been factored into Plaintiffs' calculation of the 1 Development Deficit in this case. See, infra, pp. 20-21. Moreover, in any event, McMaster concedes, as he must, that the LPAs give Plaintiffs the right to reduce the amount of capital based upon delays in the delivery of tax credits. 19 Here again, McMaster simply claims that Plaintiffs should have been willing to modify the LPA terms on this point. 111 Doran Affi. [Exhibit A.J 'fl 5. Tite timhtg and amount of the capital contributions for each Limited Partnership is p,mvided ht Article 3.4 oftbe LPA [Exhibit B.J 7 McMasterdepo. [Exhibit I,] pp. 70-71, 171-72. 18 Doran Affi., 'fl 6. 19 McMastcr dcpo. [Exhibit I,] pp. 59. 61-62. 100. Article 3.8 of the LPA governs the upward and downward adjustments of the capital contributions and plainly provides for a downward adjuster in the event that the tax credits are delayed. Because of the GP Defendants' delays in building and renting up the Apartment Buildings, the delivery of the tax credits was delayed on each Limited Partnership. Id., pp. 59-62; Doran Affi. [Exhibit A,) 'f(7A; Murphy depo. [Exhibit J,J pp. 93-94. Notably, while Plaintiffs' C'dlculation of the credits to which Defendants are entitled 8 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (152 of Filed: 06/10/09 12/22/2017 268) Page:Page: 12211 152 of of 26 - Page ID#: 892 .l McMaster's admissions that Plaintiffs' capital contributions were made in compliance ith the terms of the LP As defeats his argument here. Plaintiffs owed no fiduciary duty to McMaster or to any other defendant. The Plaintiffs were limited partners; under KRS 362.2- ~rS(I): "A limited partner does not have any fiduciary duty to the limited partnership or to any other partner solely be reason of being a limited partner." Although parties may enter into a cpntract that establishes other terms, 20 including establishing fiduciary relationships, no portion i o~ the LPAs or the Guarantees purports to subject Plaintiffs to a fiduciary standard. Indeed, to I the contrary, the LPAs state that "[t]he Investor Limited Partner shall be liable only to make its Capital Contribution as and when due under this agreement and otherwise to comply with its obligations hereunder." Exhibit B, Art. 3.7 (emphasis added); see also Exhibit B, Art. 7.2. As the Plaintiffs owed no fiduciary duty to the GP Defendants or their owners, Plaintiffs had no duty to waive their rights under or amend the LP As for the benefit of those parties. At most, the Plaintiffs were required to discharge their duties under the LP As and, under KRS 362.2-305(2), "exercise any rights consistently with the obligation of good faith and fair dealing." The enforcement of rights and obligations as they are set forth in a contract, however, does not violate the duty of good faith and fair dealing. Farmers Bank and Trust Co. of Georgetow11, KYv. Willmott Hardwoods, Inc., 171S.W.3d4, 11 (Ky. 2005). In Farmers, the plaintiff had an outstanding loan from Fifth Third Bank on which his b~siness's real property was mortgaged. Id at 6. Seeking to finance his business with a loan from a different bank, the plaintiff applied for a real estate loan from the defendant, Farmers Bank and Trust Co. ("Farmers"), and negotiated a line of credit from National City Bank, which provides for a downward adjuster based on the delays in the tax credits, Plaintiffs have given Defendants the benefit oC an upward capital adjuster, pursuant to the LPAs tenns, based upon the delivery of more credits than originally projected. Doran Affi .. 'j(7A. Apparently. Defendants want to get the contractually stipulated benefit oftbe upward capital adjuster but not tbe contractually stipulated disbcncfit of the downward capital adjuster. 20 See KRS 362.2-110 9 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (153 of Filed: 06/10/09 12/22/2017 268) Page: Page: 153 13 of 26 - Page ID#: of 211 893 tas also to serve as his operating bank. Id If the plaintiff were able to secure these new loans, t~e Fifth Third Bank mortgage would be released. Id The terms of the plaintiff's agreement with Farmers provided that the loan was to close o~ August IO, 1996. Id On that date, however, because National City Bank had opted not to serve as the plaintiff's operating bank, the loan with Farmers did not close. Id at 7. Although t~e plaintiff sought to subsequently close the loan, Farmers refused. Id As part of his action, the plaintiff alleged that Farmers had breached its duty of good faith and fair dealing by "failing to inform ... [the plaintiff] that National City Bank's participation as operating bank was a precondition to the loan, and failing to make all reasonable preparations to ensure that a closing date of August 10, 1996, was possible." Id at 11. The court refused to find th'at Farmer's had breached this duty merely by exercising its contractual rights: [T]he loan did not close on August 10, 1996, because ... [the plaintiff] was not in a position to close, and on that date, the contract expired. An implied covenant of good faith and fair dealing does not prevent a party from exercising its contractual rights. When the expiration date passed, Farmers had a contractual right to terminate the loan agreement. Id at 11 (Internal citations omitted). Likewise, in this case, Plaintiffs are entitled to enforce the LPAs as they are written. 2. The Guarantee Agreements Complied with KRS 371.065(1). I KRS 371.065 states, in pertinent part: (1) No guaranty of an indebtedness which either is not written on, or does not expressly refer to, the instrument or instruments being guaranteed shall be valid or enforceable unless it is in writing signed by the guarantor and contains provisions specifying the amount of the maximum aggregate liability of the guarantor thereunder, and the date on which the guaranty terminates.... "KRS 371.065 plainly provides that a guaranty agreement 'which either is ... written on orl ... expressly refer[s] to, the instrument or instruments being guaranteed' is not required to 10 I 7 ICase: 5:07-cv-00388-KKC-REW DocFiled: Case: 15-14634 Date #: 98-2 (154 of Filed: 06/10/09 12/22/2017 268) Page:Page: 14211 154 of of 26 - Page ID#: 894 I srecify the guarantor's maximum liability or the guaranty's termination date." Wheeler & Cleve11ger Oil Co., /11c. v. Washburn, 127 S.W.3d 609, 614-15 (Ky. 2004). Here, the Guarantee Agreements expressly refer to the LPA provisions that they guarantee; thus, they are exempted rrpm the requirements of the statute. The Guarantee Agreements specifically refer, at §§l(A)(i) - (vii), to the LPA provisions guaranteed by the Guarantor Defendants. Moreover, in each Guarantee Agreement, before stating the purpose of requiring "the Guarantors to guarantee. . . certain obligations of the General Partner under the Agreement" the Guaranty defines the term "Agreement" as the "Amended and Restated Agreement of Limited Partnership dated as of ...." In each Guarantee Agreement, the corresponding LP A is referred to throughout. Because the Guarantee Agreements expressly refer to their underlying LPAs, the requirements of KRS 371.065 do not apply, and the Guarantee Agreements are enforceable under Kentucky law. The Guarantor Defendants are apparently relying on an unpublished federal district court opinion, Duckett v. Kubota Tractor Corp., 2002 U.S. Dist. LEXIS 28296 (W.D. Ky. 2002), to support the contention that the LP As (to which their guarantees undisputedly refer) are not the "instrument ... being guaranteed" within the meaning of K.RS 371.065(1). However, the tr~nsaction at issue in Duckett was materially distinguishable from that at issue here; moreover, thb Guarantor Defendants' reading of Duckett can not survive the subsequent holding to the contrary by Kentucky's highest court in Wheeler. In Duckett, the owners of a Kubota Tractor Company ("KTC") dealership, the Wilson Dealership, were sued on their guarantee of the Wilson Dealership's purchases from KTC. The guaranty was written on the Wilson Dealership's KTC Dealer Sales and Service Agreement, which "set up a business relationship between the Wilson Dealership and KTC whereby KTC 11 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date (15598-2 Filed: of Filed: 06/10/09 12/22/2017 268) Page: Page: 155 of15 of 26 - Page ID#: 211 895 tld sell Kubota equipment to the Wilson Dealership on credit." Id. at •2. The issue in DucAell Was whether the KTC Dealer Sales and Service Agreement was the instrument being guaranteed. Id at •4. (The parties seeking to invalidate the guarantee "contend that the Guarantees did not ~aranty the [Dealer Sales and Service] Agreement; rather, the Guaranties provided open-ended coverage for the various purchase orders and other commercial paper executed between KTC and the Wilson dealership. Thus, they were not 'written on' the instruments being guaranteed.") Concluding that ''the [Dealer Sales and Service Agreement] creates no independent obligations t9 be guaranteed," the Duckett court held that, to comply with the statute, the guarantee needed to be written on or to refer to the subsequent purchase orders and other commercial paper executed between KTC and the Wilson dealership. Id at *9. Here, to the contrary, there were no subsequent agreements between the Plaintiffs and the GP Defendants which created the obligations being guaranteed by the Guarantor Defendants; instead, those obligations, i.e., to construct and rent up the Limited Partnerships' Properties and to• pay off the Limited Partnerships' construction loans, were indisputably created by the LP A provisions that were referenced in the Guarantee Agreements. Indeed, Plaintiffs were not even party to the agreements that the Guarantor Defendants must of necessity contend to constitute the instruments being guaranteed, i.e., the construction agreements between the GP Defendants and the general contractor and the construction loan agreements between the GP Defendants and Bank of America. 21 21 The Limited Partnerships' Construction Loan Agreements are specifically referenced in the LPAs. [Exhibit B. pp. sand 8-9 of Article I. Article 6.S(C). and p. I of the Schedule 10 the LPA.J As for the agreements to construct the Limited Partnerships' Properties, these agreements were between the GP Defendants (wholly owned by the Griarantor Defendants), on tbe one hand, and Atlin Construction (also wholly owned by tlte Guarantor Defendants), on! the otber. and tbey arc specifically referenced at page 8 of Article 1, at Article 6.5(E) and at page I of the Schedule to the LPAs. 12 7 I Case: 5:07-cv-00388-KKC-REW Doc#: 98-2 Filed: 06/10/09 Page: 16 of 26- Page JD#: Case: 15-14634 Date Filed: (156 of 12/22/2017 268) Page: 156 of 211 896 I Moreover, to the extent that Plaintiffs read dictum in D11cket1 to stand fur the proposition that the obligation must be quantified in the instrument being guaranteed, such a construction of KRS 371.065(1) is precluded by the Kentucky Supreme Court's subsequent holding in Wheeler. T~e credit application to which the guaranty in Wheeler referred did not quantify any of the obligations being guaranteed - it simply referenced obligations to be undertaken by the parties in the future. Nonetheless, the Kentucky Supreme Court still found the credit application to be a I J9lS 371.065(1) instrument, and it accordingly held that the guarantee's reference to the credit I application complied with the statute and made the guarantors liable for all obligations that i I ultimately arose as a result of that application. 127 S. W.3d at 615. Similarly here, where the GP Defendants' obligations to build and to rent up the Limited Partnerships' Properties and to pay off the Limited Partnerships' construction loans not only ultimately arose as a result of - but further were independently created by - the LPA provisions referenced in the Guarantee Agreements, there can be no question but that the Guarantee Agreements are enforceable under KRS 371.065(1). B. Murphy's defenses. Although Murphy has, in addition to the defenses asserted by McMaster, asserted several additional affirmative defenses and counterclaims against Plaintiffs, there is no probative evidence to support these claims. Plaintiffs have undertaken discovery in this action to understand the facts of Murphy's claims. In early Interrogatory discovery, Murphy was asked to "(e]xplain in detail the factual basis of the defenses affirmatively raised in your Answer." Murphy's explanation consists of a one and a half page assortment of conclusions - unsupported by any facts. See Murphy's Responses to Interrogatories, attached as Exhibit N. When asked to "[eJxplain in detail the factual basis" of his counterclaims against Alliant, Murphy referred and 13 I 7 I Case: 5:07-cv-00388-KKC-REW Doc#: 98-2 Filed: 06/10/09 Page: 17 of 26 - Page ID#: Case: 15-14634 Date Filed: (157 897 of 12/22/2017 268) Page: 157 of 211 rJstated the facts alleged as the basis of his affirmative defenses. Id. at 4-5. Moreover, Murphy J. produced no documents to support either his defenses or counterclaims. 22 As demonstrated below, there is no probative evidence to support the defenses and counterclaims that Murphy alleges. Thus, summary judgme~t i~ app~priate. . · I. Plaintiffs Violated No Duty of Disclosure to Murphy. Notwithstanding his role as: (1) co-owner of the entities that served as general i pahners/developers of the Limited Partnerships, (2) co-owner of the entity that served as the general contractor at each of the Properties, and (3) sole owner of the entity that served as the property manager in charge, inter a/ia, of renting out the Properties, 23 Murphy asserts that his guarantee liability should be excused because he was "shut out of the loop" with respect to the problems at the Properties. [Exhibit N, p. 2.) When asked at deposition to state the particular matters about which he should have been alerted, the only specifics Murphy provided was that he was "unable to obtain any financial statements on any of the partnerships or of the limited partners." [Murphy depo., p. 26) Murphy admits, however, that he never requested any financial information from Plaintiffs, despite the opportunity to do so, and that he never complained to Plaintiffs that they were not keeping him informed about the status of the Limited Partnerships and their Properties. [Id, pp. 27, 34-35.) When pressed on why he feels Plaintiffs are responsible for his alleged lack of knowledge concerning the Limited Partnerships, Murphy admitted that the party he truly faults for withholding information is McMaster: ... You should know that I consider Robert McMaster responsible for everything that went wrong on these properties, and he has never provided me with financial statements of what he did with all the money that I loaned to him, which should have fixed everything here. 22 Murphy depo. [Exhibit J,] pp. 79-83. 23 Id.. pp. 14, 124. See also Exbibits C and D. 14 i I 7 I Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (158 of Filed: 06/10/09 12/22/2017 268) Page:Page: 18211 158 of of 26 - Page ID#: 898 I'd., p. 243. Similarly, Murphy admitted that Plaintiffs were not responsible for his alleged lack I of knowledge: Q. . .. I understand you're upset with Robert [McMaster] for not telling you what was going on at the projects. . . . But you also seem to be saying that Alliant bears some responsibility on that. ... Q. So you're not contending that Alliant bears responsibility for not advising you of problems at the building? A. No, I don't think I am contending that. Id, pp. 94-95. The undisputed record reflects that there is no basis for any such contention. Plaintiffs were aware that Murphy either co-owned or solely owned the entities in charge of developing, constructing and renting up the Properties. Given this knowledge, there is no way that Plaintiffs could possibly have known, without notice from Murphy (which was never given), that Murphy was unaware of the problems at the Properties. Moreover, given that the long-standing course of dealings between the parties was - with Murphy's consent - for Plaintiffs to communicate with McMaster on development issues [Id., pp. 33-34,] and given that Murphy never discussed any such issues with Plaintiffs, there is no basis to conclude that Plaintiffs owed any disclosure duties to Murphy. See Rivermont bm v. Bass Hotels & Resorts, 113 S.W.3d 636, 641 (Ky. App. 2003)(defendant had no duty of disclosure in the absence of fiduciary duty or prior disclosures on the same subject by the defendant). 24 Nor, finally, can Murphy rely on the promotional statements in Plaintiffs' affiliate's website (which Murphy never saw) - or the alleged statements by Plaintiffs' affiliate's salespeople (that Murphy claims he overheard at a marketing seminar before executing the 1 2 Murphy also admilted that he was aware, by late 2004 and/or early 2005, of the status of the construction of the Apartment Buildings and the status of the rent up of those Buildings. Murphy depo.. pp. 90-91, 124, 212-214, 217. Given this admission, it is hard to understand what infonnation he needed to be told by anyone-let alone by Plaintiffs. 15 i 7 \Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (159 of Filed: 06/10/09 12/22/2017 268) Page: 159 19 Page: of 26 - Page ID#: of 211 899 UPAs) - to impose any duties upon Plaintiffs that are not contained in the LPAs. 25 This is so, I inter alia, because the LP As clearly state that their terms contain the entire understanding of the parties and supersede all prior understandings [Exhibit B, Article 15.8.] See Rivermont, 113 I ~.W.3d at 641 (relying on integration clause to preclude plaintiff's reliance on alleged prior disclosures by defendant); see also O'Bryan v. Massy-Ferguson, Inc., 413 S.W.2d 891, 893 (Ky. 1966)(same). I I 2. No Modifications of the LP As or the Guarantee Agreements have been made which would relieve Murphy of liability. Murphy has also alleged in his Answer that "[t]he parties have mutually deviated from the specific terms of the agreements upon which the Plaintiffs' claims are based, such that a quasi new agreement or novation has occurred, and Plaintiffs have not given legal notice of an intention to return to the strict terms thereof." When asked to provide the factual basis for this defense, Murphy stated that he had nothing specific in mind, but felt "comfortable discovery will bring out places where that has happened." [Murphy depo. Exhibit J, pp. 63-64.] What discovery reveals is that the LPAs were never modified; 26 indeed Plaintiffs' failure to modify the LPAs is the basis for another of Murphy's defenses. See pp. 7-10, supra. And given that the Guarantee Agreements specifically provide that the Plaintiffs can, without discharging the Guarantor Defendants, agree to "renew, compromise, extend, accelerate, or otherwise change the time or place of payment of or otherwise change the terms of the indebtedness" and to "grant any indulgence, forbearance, or waiver with respect to the indebtedness or any of the other obligations guaranteed thereby," Murphy's defense based on a supposed modification of the LP As cannot survive summary judgment. " Murphy appears to advance such assertion at page 8 of his Counterclaim and at pages 68-74 of his deposition. 26 McMaster depo., [Exhibit I], pp. 52-53, 70-71, 171-72; Murphy depo., [Exhibit J], pp. 42-43. 16 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (160 of Filed: 06/10/09 12/22/2017 268) Page: Page: 160 20 of 26 - Page ID#: of 211 900 3. Plaintiffs properly removed the GP Defendants. Murphy alleges that Plaintiffs improperly removed the GP Defendants and that these actions relieve him of his obligations under the Guarantee Agreements. Similarly, Murphy ~serts that Plaintiffs failed "to satisfy conditions precedent [by] ... improper removal of the General Partner," Answer, p. 2. Because Plaintiffs properly exercised their right to remove the General Partners under the terms of the LPAs, and because the damages alleged in Count II of i the Complaint accrued before this removal, Murphy's argument must fail. Under Art. l 1.4A of the LPAs, Plaintiffs were granted "the right, but not the obligation, in [their] sole discretion .. upon ten (10) days' prior notice to such General Partner, to remove such General Partner. . . and to appoint itself or any of its Affiliates or any other Person to succeed such General Partner(s)" upon a "Major Default." Among other instances, the Limited Partnerships' failure to covert the construction loans by the deadline in the Bank of America loan documents constitutes a Major Default under the Agreements. Exhibit B, Art. l 1.4A(ii)(2). 27 In light of the Limited Partnerships' failure to convert their construction loans at any of the Properties; in light of the $10 million dollar past due balance on the Limited Partnerships' construction loans; and in light of the foreclosure of the Limited Partnerships' Properties, Defendants cannot seriously contend that they were not properly removed. Indeed, it is notable here that neither McMaster nor Murphy ever so contended - either in response to their removal or at any time over the next 9 months until they filed their Answers in this lawsuit. [Murphy depo., Exhibit J, pp. 236-37; McMaster depo., Exhibit I, pp. 112-13.) ! Further, the removal of the General Partners from the Properties does not relieve Defendants of their responsibilities under the Guarantee Agreements. Under the terms of the 27 I Article 11.4.A(ii)(a) references a breach of any "Project Document" Project Documents are defined at page 18 of Article I of the LPAs as "the Mortgage Notes, and any other agreement ... related to the financing ... of the Apartment Complex .... " 17 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (161 of Filed: 06/10/09 12/22/2017 268) Page: Page: 161 21of26 of 211 - Page ID#: 901 11PAs, the removal of the General Partner is treated as a "Voluntary Withdrawal." Exhibit B, Art. l l.4C. And, pursuant to Article 11. 7: It is expressly understood that no Withdrawal, even if it results in the substitution of the Assignee as a Partner, shall release the Withdrawing General Partner from any liability to the Partnership or the Limited Partners allributab/e to the period prior to the Withdrawal, all of which shall survive such Withdrawal .... [Emphasis added.] Here, the Completion, the Rental Achievement and the Development Deficit liabilities which are the basis of this lawsuit are all "attributable to the period prior to the Withdrawal." Prior to their removal, the GP Defendants had failed to meet their obligations to complete construction of the Apartment Buildings, to fully rent up the Properties, and to pay off the Limited Partnerships' construction loans. Prior to their removal, the GP Defendants had not only failed to pay their Development Deficits; they further repudiated their payment obligations. Indeed, it was the failure to meet these foregoing obligations that caused their removal. Under the express terms of the LPAs, the GP Defendants remain liable for the damages that have occurred because of the failure to meet these obligations; thus under the express terms of the Guarantee Agreements, the Guarantor Defendants remain liable for those obligations. 4. KRS 2718.15-020 does not bar this action. Murphy asserts that Plaintiffs' action is barred by the failure to comply with KRS 271B.15-020. Answer, p. 1. This statute states that a "foreign corporation transacting business in this state without a certificate of authority shall not maintain a proceeding in any court in this state until it obtains a certificate of authority." KRS 271B.15-020(1). Although three of the Plaintiffs are corporations, they are not "transacting business in this state," and thus are not required to be certified under the statute. The term "transact business" is defined in the negative by KRS 271B.15-010, which is substantially similar to Model Business Corporation Act § 15.01. Under this statute, a 18 I 7 ICase: 5:07-cv-00388-KKC-REW DocFiled: Case: 15-14634 Date #: 98-2 (162 of Filed: 06/10/09 12/22/2017 268) Page:Page: 22211 162 of of 26 - Page ID#: 902 corporation must do more than what is necessary to permit service of process or taxation in order I to be considered to be "transacting business." KRS 271B.15-010(4). See also 17 Kentucky Practice § 4.2 ("It is clear, however, that transacting business for service of process or taxation p~rposes may fall short of transacting business for qualification purposes [under KRS 271B.15- 010].") "The concept of transacting business usually involves regular, repeated and continuing business contacts of a local nature." 17 Kentucky Practice §4.2, n.3. Among the large number of other transactions which do not give rise to the requirement that a certificate of authority be obtained are the ownership of all the shares of stock in a corporation that is engaged in local business within the state or as a limited partner i11 a limited partnership engaged in local business, or taking ministerial actions such as filing financing statements or registering trademarks. MBCA § 15.01, Official Comment (8) (emphasis added). Here, the Plaintiff corporations were merely limited partners in a limited partnership that was engaged in the construction of an apartment building, a purely local business. This is not a regular, repeated and continuing business so as to require them to comply with KRS 271 B.15-020. As such, Murphy's defense must be stricken. 5. There is no probative evidence to support Murphy's counterclaims. In addition to his defenses, Murphy asserts five Counterclaims against Plaintiffs: 1) "Breach of Limited Partnership Agreements," 2) "Breach of Fiduciary Duties," 3) "Breach of Duty of Good Faith and Fair Dealing," 4) "Negligence," and 5) "Punitive Damages." As factual basis for these claims, Murphy alleges the same facts he claims support his defenses. He states he "had little knowledge and was not adequately or properly informed of any problems or defaults" in the Properties, Counterclaim, 110, as well as that Plaintiffs "took over the day-to- day management of the" Properties. Id, en 13. When asked to "[e]xplain in detail the factual basis" of his counterclaims against Alliant, Murphy referred to and restated the facts alleged as 19 7 Case: 5:07-cv-00388-KKC-REW Doc#: 98-2 Filed: 06/10/09 Page: 23 of 26 - Page ID#: Case: 15-14634 Date Filed: (163 of 12/22/2017 268) 903 Page: 163 of 211 t~e basis of his affirmative defenses. [Exhibit N, pp. 4-5.] As the same alleged facts form the I basis of both his counterclaims and defenses, there is no probative evidence to support his counterclaims, as discussed above. Thus, summary judgment is appropriate against Murphy's cbunterclaims. i IV. Plaintiffs Are Entitled To Summary Judgment on their Damages Claims. The calculation of the amounts owing by the Guarantor Defendants is governed by the terms of the Development Deficit provision set forth at Article l, page 11 of the LP As. The calculation is straightforward for the five Limited Partnerships where construction is complete. After crediting Defendants for the proceeds of the capital contributions and the permanent loans to which they would ultimately become entitled, the Guarantor Defendants are required, inter a/ia, to pay all excess costs necessary to finish construction at the Apartment Buildings, to pay off all liens at the Properties, to pay off the Limited Partnerships' Bridge Loans, and to convert the Multifamily Loans to permanent status. The calculation provided for under the Development Deficit provision of the LP As is set forth in Plaintiffs' supporting affidavit [Exhibit A, <JI 7.] The only item which is not subject to precise computation is the amount of the permanent loan for which the Defendants should be credited. This is so, again, because the GP Defendants never met the conditions for obtaining a permanent loan for any of the Properties. However, after the GP Defendants' removal by Plaintiffs, the successor general partner was able to achieve the conditions for permanent loan financing and to obtain quotes for permanent loans. For purposes of summary judgment only, Plaintiffs have credited the Guarantor Defendants with the highest permanent loan quote on each of the five completed Properties. Notably, this amount is approximately $400,000 greater than the amount that was supported, under the GP Defendants' I 20 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (164 of Filed: 06/10/09 12/22/2017 268) Page:Page: 24 211 164 of of 26 - Page ID#: 904 permanent loan commitments, by the net operating income at the Properties when the GP I Defendants were removed. 28 At Renaissance, where the GP Defendants walked away from a construction site in I D~cember 2005 because Plaintiffs would not renegotiate the LPAs, the incomplete status of the Apartment Buildings makes it more difficult to quantify the amount of the Development Deficit. This is so, inter alia, because the amount of the capital contribution and the permanent loan to which the GP Defendants would ultimately become entitled cannot be computed, at least for summary judgment purposes, before the Apartment Buildings are substantially complete. [Doran Affi., Cf[ 9.] As a result, for purposes of summary judgment only, Plaintiffs have calculated their damages under the alternative Rescission measure to which they are entitled under Article 7.4 of the LPAs and §t{A)(ii) of the Guarantee Agreements. Id, en_ 10. This measure simply requires the Guarantor Defendants to pay Plaintiffs back for the amounts that Plaintiffs invested into the Renaissance Properties. Id, Cff'II 10-11. As such it gives the Guarantor Defendants the ability to complete construction - thereby eliminating the dispute over how to properly calculate that amount. Similarly, the Rescission measure gives the Guarantor Defendants the ability to negotiate for themselves a restructuring of the tax credits at Renaissance - thereby eliminating any dispute over the "after-tax" costs of construction. 29 28 Doran Affi., [Exhibit A,) CjJ 8. Again,. because the GP Defendants failed to satisfy the occupancy conditions for conversion, the pennanent lender would not agree to convert. See McMaster depo., E."<hibit I, pp. 63-64, 67-69, 82- 83; Trepner depo., [Exhibit G,] pp. 10-12, 20-21. 73-74. If the pcnnanent lender had been willing to waive the conversion conditions, the amount of the loans to which the GP Defendants would have been entitled is derived by a mathematical fonnula based upon the net operating income at the Properties. See Exhibit K. Schedule E to the Construction Loan Agreement. 29 In pre-trial proceedings, the Guarantor Defendants have asserted that the additional tax credits tl'l8t will be ge~emted by lite cost overruns at Renaissance should substantially defray any damage to Plaintiffs at Renaissance. In fact, tlte LPAs address the impact of greater than projected tax credits on the computation of the Development Dcificit - providing that the amount of the capital contnoution to which the Defendants arc ultimately entitled is increased in proportion to the increase in tl1e tax credits. See Exhibit B, Article 3.8A(ii). Plaintiffs' computation of 21 ' 7 ICase: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2 Filed: (165 of Filed: 06/10/09 12/22/2017 268) Page: Page: 165 25 of 26 - Page ID#: of 211 905 CONCLUSION In sum, it is clear that the LP A obligations that the Guarantor Defendants guaranteed under the Guarantee Agreements were not met and that the liquidated damages p~rsuant to the provisions of the LPAs are no less than $8,194,136.30 Moreover, none of the Guarantor Defendants' defenses or counterclaims is sufficient to survive summary judgment. Accordingly, and for the foregoing reasons, Plaintiffs' Motion for Summary Judgment should be granted. Alternatively, should Plaintiffs' summary judgment motion not be granted in full, Plaintiffs respectfully request that this Court narrow the issues for trial, find for Plaintiffs on any and all claims, and/or grant summary judgment on the issue of liability alone, with the issue of damages to be set for later trial. Respectfully submitted, ls/Barry D. Hunter Barry D. Hunter Catherine M. Stevens Frost Brown Todd LLC 250 West Main Street Suite 2800 Lexington, KY 40507 Tel.: (859) 231-0000 Fax: (859) 231-0011 COUNSEL FOR PLAINTIFFS the Development Deficits al all of the Limited Partnerships has applied this contractually stipulated upward adjuster to t,be amount of capital credited to Defendants. [Doran Affi., 4Il 7A] 30 this amount is based on all amounts contnouted by Plaintiffs to the Renaissance Limited Partnership to the date of this filing, with interest calculated through June 30, 2009. [Doran Affi., 'II 10. J Accordingly, this amount is subject to adjustment tbrouglt the date of enby of final summary judgment. 22 7 Case: 5:07-cv-00388-KKC-REW Doc#: Case: 15-14634 Date 98-2of Filed: (166 Filed: 06/10/09 12/22/2017 268) Page: Page: 166 26 of 26 - Page ID#: of 211 906 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing was served via e-mail and by depositing in the U.S. mail, postage prepaid on this IO'h day of June, 2009, to: • Richard Boydston rb2@gdm.com • Mark T. Hayden mth@gdm.com,mat@gdm.com,bmq@gdm.com • Barry D. Hunter bhunter@fbtlaw.com, whockensmith@fbtlaw.com,ahorger@fbtlaw.com,plobel@fbtlaw.c om • Stan Kreimer, Jr stan@johnsonward.com • James M. Mooney jmooney@mislaw.com • Catherine M. Stevens cstevens@fbtlaw.com,psheets@fbtlaw.com Jeffrey D. Horst Krevolin & Horst 1175 Peachtree Street Suite 2150 Atlanta, GA 30361 /s/Ban:y D. Hunter COUNSEL FOR PLAINTIFFS C:\NrPortbl\LEXLibrary\ I0792\396040_ l .DOC 23 Case: 15-14634 Date Filed: (167 of 12/22/2017 268) Page: 167 of 211 Exhibit ''D'' cL: 5:07-cv-00388-KKC-REW Doc#:Filed: Case: 15-14634 Date 186 of (168 Filed: 268)01/21/10Page: 12/22/2017 Page: 1of7 168 - Page ID#: 3174 of 211 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION AT LEXINGTON CASE NO.: 5:07-CV-00388-KKC ELECTRONICALLY FILED i. ALLIANT TAX CREDIT FUND 31-A, LTD., et al. PLAINTIFFS v. NICHOLASVILLE COMMUNITY HOUSING, LLC., et al. DEFENDANTS PLAINTIFFS' BENCH MEMORANDUM ON THE ISSUE OF DAMAGES Pursuant to this CourCs December 15, 2009 Order, Plaintiffs submit this Bench Memorandum on the issue of damages addressed in Plaintiffs' Motion for Summary Judgment. INTRODUCTION On September 30, 2009, this Court granted Plaintiffs' Motion for Summary Judgment on the issue of liability against, and dismissed all counterclaims brought by, defendants M. Vincent Murphy ("Murphy'') and Robert A. McMaster ("McMaster") (collectively, the "Guarantor Defendants"). Thus, the sole issue remaining before the Court is the amount of damages to which Plaintiffs' are entitled as a result of the Guarantor Defendants' breach of their Guarantee Agreements. As more fully explained in Plaintiffs' Memorandum in Support of their Motion for Summary Judgment ("Pltfs' Memo") [DE 98], for the purposes of summary judgment, Plaintiffs calculated their damages to be no less than $8, 194, 136. 1 Because of additional contributions to the Renaissance Limited Partnership since the filing of Pltfs' Memo, Plaintiffs' damages are now no less than $8,946,643. 2 After extensive discovery, and a full opportunity to brief this issue, 1 This amount consists of $1,874,513 plus interest as the Development Deficit damages for the five completed Projects and $6,319,623 plus interest as the Rescission damages for Renaissance. The calculations for this amount are explained in Plaintiffs' Affidavit (the "Doran Affidavit"), Exhibit A to Pltfs' Memo,~ 6-12 and Exhibits Al and A2 to that Affidavit. 2 As explained in the Doran Affidavit, the original amount included in Pltfs' Memo is based on all amounts contributed by Plaintiffs to the Renaissance Limited Partnership through the date of filing of Pltfs' Memo, with interest calculated through June 30, 2009. [Doran Aff., ii 10.] The updated amount provided here includes additional contributions to the Renaissance Limited Partnership for total contributions, calculated with interest through January 28, 2010, of $7,072,130. Affidavit of Brian Doran, ~ 2 and Exhibit A thereto, attached to this Bench Memorandum as Exhibit I. I I C~e: 5:07-cv-00388-KKC-REW Case: 15-14634 Doc#: 186 of Date Filed: (169 Filed: 268)01/21/10Page: 12/22/2017 Page:169 2 ofof7211 - Page ID#: 3175 neither Guarantor Defendant has presented sufficient evidence to escape the specific contract • terms setting forth the amount of damages Plaintiffs are owed. I. Damages on the Five Completed Projects Plaintiffs' damages on the five completed projects are calculated by a straightforward application of the terms of the Development Deficit provision set forth in Article 1, page 11 of the LPAs. [Exhibit B to Pltfs' Memo, p. 11 (''the Development Deficit provision")]. This type of provision, which liquidates the damages owed to Plaintiffs, is favored by the courts as it allows the parties to agree to the amount of damages in the case of a breach. See, e.g., Uncle George Orphans Home, Inc. v. Landrum, 551 S.W.2d 582, 584 (Ky. App. 1977). Applying this provision, the GP Defendants (and ultimately the Guarantor Defendants on their Guarantee Agreements) are entitled to two specific credits: 1) the total amount of the capital contributions required under the LPAs and 2) the proceeds of the permanent loan. After crediting these amounts, the Defendants are required, inter a/ia, to pay all excess costs necessary to finish construction at the Apartment Buildings, to pay off all liens at the Properties, to pay off the I Limited Partnerships' Bridge Loans, and to convert the Multifamily Loans to permanent status. Pltfs' Memo at pp. 20-21, and Exhibit A thereto, fully sets forth the methodology and results of the Development Deficit calculation. 3 Neither Guarantor Defendant has refuted these calculations nor offered alternative calculations of his own. McMaster' s sole challenge, which is adopted by Murphy, is that these calculations do not include numerous additional credits which 3 Of the items in the calculation, only the amount of the pennanent loan to be credited to the defendants is not subject to precise calculation. This is so because the GP Defendants never met the conditions for obtaining a 1 pennanent loan for any of the Properties. For summary judgment purposes, however, Plaintiffs credited the Guarantor Defendants with the highest permanent loan quote received by the successor general partners to the Properties. This is despite the fact that this amount is approximately $400,000 greater than the amount that was supported, under the GP Defendants' permanent loan commitments, by the net operating income at the Properties when the GP Defendants were removed. Doran Affi., ~ 8. 2 I C~se: 5:07-cv-00388-KKC-REW Case: 15-14634 Doc#: 186 of Date Filed: (170 Filed: 268)01121/10Page: 12/22/2017 Page: 3 of 170 of7211 - Page ID#: 3176 he believes should be included. 4 However, as more fully explained in Plaintiff's Reply in Support of their Motion for Summary Judgment Against Defendant, Robert A. McMaster ("Reply to McMaster") [DE 123) at pp. 9-12, the Development Deficit provision provides the I specific credits that the Guarantor Defendants are to receive and does not include those that they now seek.5 Similarly, there is nothing in the Development Deficit provision, nor in any part of the contracts, to support McMaster's position that Plaintiffs' damages are limited by the IRR at the properties. And Plaintiffs' calculation of the Development Deficit does not cap the upward capital adjuster as McMaster suggests. II. Damages at Renaissance The LPAs for each property provide Plaintiffs with alternative remedies - the Development Deficit or Rescission - in the event that the GP Defendants failed to complete construction of the Apartment Buildings. As more fully explained in Pltfs' Memo at p. 21, because the Defendants walked away from construction of Renaissance before completion, it is more difficult to quantify the Development Deficit for Renaissance for the purposes of summary judgment. Thus, Plaintiffs seek their alternative remedy- Rescission. Article 7.4 of the LPAs and §l(a)(ii) of the Guarantee Agreements, the Rescission measure, simply requires the Guarantor Defendants to pay Plaintiffs back for the amounts that Plaintiffs invested in the Renaissance Property. As the Guarantor Defendants cannot challenge the calculation of this amount, they instead provide two arguments, neither of which prevents summary judgment. 4 Murphy seeks an additional credit over McMaster, claiming that the residual value of the Properties should be deducted from Plaintiffs' damages. As explained herein, this argument ignores the fact that the Development Deficit provision provides the specific credits allotted to the Guarantor Defendants and does not include the residual value of the Properties. s Nor is there any support for McMaster's contention that the Plaintiffs "saved" the payments he enumerates when they removed the GP Defendants. As explained in Plaintiffs' Reply to McMaster at p. l 0, it was necessary to replace the GP Defendants with other entities once the GP Defendants were removed. Plaintiffs could not have "saved" any amounts because those entities likewise became entitled to payments in exchange for their services, a fact recognized in Section 11.lB of the LPAs. 3 I ! C~se: 5:07-cv-00388-KKC-REW Doc#:Filed: Case: 15-14634 Date 186 of (171 Filed: 268)01121/10Page: 12/22/2017 Page: 4 of 171 of7211 - Page ID#: 3177 First, each Defendant argues that Plaintiffs elected the Development Deficit over Rescission. However, as this Court noted in its October 15, 2009 Order [DE 172], p. 2, "[t]he right of rescission is expressly included" in the agreements and the Guarantee Agreement waives I "'any defense based upon an election of remedies by a Limited Partner.'" Thus, the Guarantor Defendants should be "bound by the agreements [they] signed." Id Even if this defense had not been waived, and, taking as true the claim that Plaintiffs elected the Development Deficit, neither Guarantor Defendant provides sufficient reasoning to disallow Plaintiffs from pursuing an alternative remedy clearly provided under the contracts. Despite his failure to do so within the time period established by the agreements, McMaster's attorneys put forth the unverified assertion that he would have completed Renaissance in 2007 or 2008 if only he had known that Plaintiffs would seek Rescission damages. As the LPAs clearly provide this remedy, McMaster could not reasonably have relied upon the notion that Plaintiffs would not seek rescission at Renaissance. And, given that the first time that Plaintiffs are claimed to have "elected" rescission was at the March 2009 deposition of Plaintiffs' Rule 30(b)(6) designees, neither Guarantor Defendant could have relied upon any claimed "election" to their detriment. Second, although both Guarantor Defendants argue that Plaintiffs failed to mitigate their damages, neither provide sufficient evidence to raise a genuine issue on each element of this affirmative defense, as they must to avoid summary judgment. See Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993)("The plain language of rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient 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.") (Emphasis added). This defense requires a showing that Plaintiffs could have reduced the Guarantor Defendants' damages by taking reasonable I actions. See Meade Const. Co., Inc. v. Mansfield Commercial Elec., Inc., 519 S.W.2d 105, 107 4 I I dise: 5:07-cv-00388-KKC-REW Case: 15-14634 Doc#: 186 of Date Filed: (172 Filed: 268)01/21/10 Page: 12/22/2017 Page:172 5 ofof7211 - Page ID#: 3178 (Ky. 1979); Louisville & N.R. Co. v. Sandlin, 272 S.W. 912, 915 (Ky. 1925)(The "obligation to • minimize the damages when it arises never requires the party to do more than exercise ordinary care to that end.'1 McMaster argues that by failing to complete Renaissance after his May 2007 removal, Plaintiffs somehow increased the damages by $1.66 million. But, as explained in Plaintiffs' Reply to McMaster at p. 14, this argument could only be made if McMaster can show that Plaintiffs had the available funds to complete the Project and acted unreasonably in not doing so. McMaster has not and cannot make this showing, and both he and Murphy's attempts to fault · Plaintiffs for failing to complete Renaissance ring exceptionally hollow when it was their obligation to ensure completion and their breach of this agreement which resulted in this action. Murphy's mitigation defense, which seemingly is intended to apply to all of Plaintiffs' · damages claims, is even less supported. As more fully explained in Plaintiffs' Reply In Support of their Motion for Summary Judgment Against Defendant, M. Vincent Murphy, III [DE 124] at 'pp. 13-15, Murphy's citation to various emails does nothing to support his claim. These emails, at best, are wholly unrelated to his argument, or, at worst, misleading as to what he claims they support. None create an issue as to whether Plaintiffs could have reduced Murphy's damages by taking reasonable actions. To avoid summary judgment on this affirmative defense, Murphy must do more than create a bulky record, he must come forward with sufficient facts and present a coherent argument as to their materiality. Having failed to do so, and the Guarantor Defendants together having failed to present any issue regarding Plaintiffs' damages claims, Plaintiffs respectfully request that this Court enter judgment on the remaining issue of damages. 5 C~e: 5:07-cv-00388-KKC-REW Case: 15-14634 Doc#: 186 of Date Filed: (173 Filed: 268)01121/10Page: 12/22/2017 Page:173 6 ofof7211 - Page ID#: 3179 Respectfully submitted, Isl Barry D. Hunter Barry D. Hunter Catherine M. Stevens Frost Brown Todd LLC 250 West Main Street, Suite 2800 Lexington, KY 40507 Tel.: (859) 231-0000 Fax: (859) 231-0011 COUNSEL FOR PLAINTIFFS 6 I I Chse: 5:07-cv-00388-KKC-REW Case: 15-14634 Doc#: 186 of Date Filed: (174 Filed: 268)01121/10Page: 12/22/2017 Page:174 7 ofof7211 - Page ID#: 3180 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing has been electronically filed on January 21, 20 I 0, with the Clerk of the Court by using the CM/ECF system, which will send I a notice of electronic filing to the following: Richard Boydston rb2@gdm.com Mark T. Hayden mth@gdm.com,mat@gdm.com,bmq@gdm.com Jeffrey D. Horst horst@khlawfirm.com Stan Kreimer, Jr. stan@johnsonward.com Jamesl\il.Mooney jmooney@mislaw.com Isl Baey D. Hunter COUNSEL FOR PLAINTIFFS LEXLaorary 0110817.0543643 413605vl 7 Case: 15-14634 Date Filed: (175 of 12/22/2017 268) Page: 175 of 211 Tab 291 Case: 15-14634 Date Filed: (176 of 12/22/2017 268) Page: 176 of 211 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND: 31-A, LTD., et al.,:: Plaintiff,:: CIVIL ACTION NO. v.: 1:11-CV-0832-RWS: M. VINCENT MURPHY, III,: et al.,:: Defendants.: ORDER This case is before the Court for consideration of Plaintiffs' Motion to Drop Plaintiff Alliant Tax Credit Fund 31-A, Ltd. from this action [262]. After reviewing the record, the Court enters the following Order. Plaintiffs move to drop Plaintiff Alliant Tax Credit Fund 31-A, Ltd. ("Fund 31-A") because Plaintiffs have discovered that one of the members of Fund 31-A may have its principal place of business in the state of Georgia. Thus, the presence of Fund 31-A in the case would defeat diversity jurisdiction. Federal Rule of Civil Procedure 21 authorizes the Court to drop a party at any time. This includes the "authority to allow a dispensable nondiverse party to be AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (177 of 12/22/2017 268) Page: 177 of 211 dropped at any time." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989). Fund 31-A is not a necessary party under Federal Rule of Civil Procedure 19 and thus, is dispensable. The only prejudice that will accrue to Defendants is that they may be required to respond to a separate state court action filed by Fund 31-A. However, Defendants are not at risk for any increased damages. If Defendants are required to pay the judgment to Plaintiffs in this action, the joint debt to Fund 31-A would be extinguished. Long v. Cash, 54 Ga. App. 764 (1936). Therefore, the Court finds that it is proper to allow Plaintiffs to drop Fund 31-A as a plaintiff. Plaintiffs' Motion [262] is therefore GRANTED, and Plaintiff Alliant Tax Credit Fund 31-A, Ltd. is DROPPED as a party to this action. SO ORDERED, this 17th day of October, 2013. _______________________________ RICHARD W. STORY UNITED STATES DISTRICT JUDGE 2 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (178 of 12/22/2017 268) Page: 178 of 211 Tab 333 Case: 15-14634 Date Filed: (179 of 12/22/2017 268) Page: 179 of 211 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND: 31-A, LTD., et al.,:: Plaintiffs,:: CIVIL ACTION NO. v.: 1:11-CV-0832-RWS: M. VINCENT MURPHY, III, et: al.,:: Defendants.: ORDER This case is before the Court on Plaintiffs' Motion to Deem Responses to Defendants' Second Request for Admissions as Timely Served, or in the alternative, for Withdrawal of Admissions and Substitution of Previously Served Responses under Rule 36(b) [274], Plaintiffs' Motion for Extension of Discovery Deadline [277], and Defendant Marilyn Murphy's Motion to Compel Jurisdiction-Related Discovery Responses ([278], [279]). After reviewing the record and the Parties' submissions, the Court enters the following Order. I. Plaintiffs' Rule 36(b) Motion to Withdraw Admissions and Substitute Previously Served Responses AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (180 of 12/22/2017 268) Page: 180 of 211 Plaintiffs do not dispute that they failed to file timely responses to Defendants Vince Murphy, Community Management Services, Inc., and Multi- Family Community Housing, LLC's Second Request for Admissions ("Request"). (See Generally, Pl.s' 36(b) Motion, [274].) However, Plaintiffs contend that their tardiness should be excused because the hard copy of Defendants' Request was misplaced due to clerical error and Plaintiffs did not become aware of the Request until August 14, 2013. (Id. at 2-4 of 12.) Plaintiffs move the Court, under Rule 36(b), to permit them to rely on their responses served on August 16, 2013. Defendants argue, however, that Plaintiffs' failure to timely respond is inexcusable and they should not be permitted to rely on their late responses because it would prejudice Defendants. (See generally, Def.s' Resp., [286].) Defendants note that along with personal service of their Request on April 19, 2013, they filed an electronic notice of discovery on the PACER system that same day. (Id. at 4 of 32; Certificate of Service of Discovery by Defendants, [192].) Therefore, they argue, even if the hard copy of Defendants' Request was misplaced, Plaintiffs' attorneys of record had electronic notice of the 2 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (181 of 12/22/2017 268) Page: 181 of 211 Request on April 19,1 four months before Plaintiffs filed their response. Under Rule 36(b), the Court "may permit withdrawal or amendment [of an admission] if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits." FED. R. CIV. P. 36(b). Defendants take particular issue with Plaintiffs' late denial of Request for Admission No. 41, which reads: "You have no facts with which to dispute the 'Current Market Values' as stated in Schedules G, H and J of the 2005 Financial Statement." Defendants contend that withdrawal of Plaintiffs' admission of this fact (and others contained in the Request) will not promote the presentation of the merits of this action and withdrawal would unfairly prejudice Defendants. (Def.s' Resp., [286] at 8-18 of 32.) Plaintiffs have not replied to Defendants' contentions and therefore they are deemed unopposed.2 See L.R. N.D.Ga. 7.1B. 1 Stan Kreimer, counsel for Defendants, states in his affidavit that he did receive an email regarding the filing through the PACER system and he has no reason to believe that Plaintiffs' counsel did not also receive electronic notice. (Kreimer Aff., [286] at 22 of 32, ¶ 2.) 2 Notably, Plaintiffs also do not dispute that their counsel of record received electronic notice of Defendants' Request on April 19, 2013. 3 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (182 of 12/22/2017 268) Page: 182 of 211 Finding that Plaintiffs had no reasonable excuse for their late response (given the apparent electronic notice) and that Plaintiffs have made no attempt to respond to Defendants' arguments as to why Rule 36(b) withdrawal and amendment should not be permitted here, the Court will not allow Plaintiffs to rely on their late response to Defendants' Request. Thus, Plaintiffs' Rule 36(b) Motion is DENIED. II. Plaintiffs' Motion for Extension of Discovery Deadline Plaintiffs move to extend discovery for the sole purpose of deposing Kay Talalia, Defendant Vince Murphy's current wife. (See generally, Pl.s' Motion to Extend Discovery, [277].) In support of their motion, Plaintiffs claim they have discovered financial transactions between Defendants Vince Murphy and Marilyn Murphy, and Ms. Talalia, including cash from Coca-Cola stock dividends from Marilyn Murphy to Ms. Talalia and cash from apartment complexes owned by Marilyn Murphy to a limited liability company owned by Ms. Talalia. (Id. at 2 of 7.) Thus, Plaintiffs argue, deposing Ms. Talalia is necessary because she may be involved in the continued transfer of assets between Vince and Marilyn Murphy, and she may have facts relevant to the present action. (Id. at 3 of 7.) 4 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (183 of 12/22/2017 268) Page: 183 of 211 The Court is not persuaded that discovery should be extended for this purpose. Evidence regarding these alleged transactions may be elicited through means other than Ms. Talalia's deposition testimony (e.g., through testimony of Marilyn Murphy). Furthermore, the Court has already made clear that no further discovery will be permitted in this case. (Order, [185] at 3 of 4, n.1.) Therefore, Plaintiffs' Motion to Extend the Discovery Deadline is DENIED. III. Defendant Marilyn Murphy's Motion to Compel Jurisdiction- Related Discovery Responses Marilyn Murphy moves the Court to compel discovery responses from Plaintiffs regarding the ownership structure and domicile of each of the six Plaintiffs for purposes of determining whether there is complete diversity between all Plaintiffs and all Defendants. (See Generally, Def.'s Motion to Compel, [278] as amended by [279].) According to Ms. Murphy, "it has not been possible to obtain documents from Plaintiffs (or their owners) showing the names and the domiciles of all corporations and all of the members of one or more limited liability companies, limited partnerships, and unincorporated associations appearing in Plaintiffs' ownership structure as of when this suit was filed on March 17, 2011." (Id. at 5 of 5.) She requests: (1) leave to file 5 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (184 of 12/22/2017 268) Page: 184 of 211 "confidential" discovery materials under seal; (2) an Order granting her leave to amend the present motion; and (3) an Order providing for production of needed documents "reflecting all component natural persons, partners, members, corporations and unincorporated associations, trustees and beneficiaries of all six Plaintiffs with particularity." (Id. at 2-3 of 5.) Plaintiffs respond that they made their 30(b)(6) witness (Brian Doran) available to Defendants for two depositions, and concurrent with those depositions, provided documents depicting the organizational structure of the Plaintiffs. (See generally, Pl.s' Resp., [288].) The documents provided include tax returns and organizational charts identifying downstream owners, shareholders, partners, and members of each of the Plaintiffs. (Id. at 3 of 12.) Plaintiffs also provided affidavits from each individual and trust appearing on the organizational charts detailing their domicile information. (Id. at 3-4 of 12.) Plaintiffs maintain that Defendant Marilyn Murphy has all of the available, relevant documents regarding Plaintiffs' ownership structure and citizenship. (Id. at 5-6 of 12.) Based on Plaintiffs' representation that they have already produced all of the information that Marilyn Murphy seeks to compel with this motion, the Motion to Compel ([278], [279]) is DENIED. 6 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (185 of 12/22/2017 268) Page: 185 of 211 Conclusion Based on the foregoing, Plaintiffs' Rule 36(b) Motion to Withdraw Admissions and Substitute Previously Served Responses [274] is DENIED, Plaintiffs' Motion for Extension of Discovery Deadline [277] is DENIED, Defendant Marilyn Murphy's Motion to Compel Jurisdiction-Related Discovery ([278] as amended by [279]) is DENIED. SO ORDERED, this 31st day of March, 2014. ________________________________ RICHARD W. STORY United States District Judge 7 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (186 of 12/22/2017 268) Page: 186 of 211 Tab 569 Case 1:11-cv-00832-RWS Document 569 Filed 04/17/17 Page 1of2 Case: 15-14634 Date Filed: (187 of 12/22/2017 268) Page: 187 of 211 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT 31, INC., et al., Plaintiffs, CIVIL ACTION NO. v. 1: 11-CV-0832-RWS M. VINCENT MURPHY, III, et al., Defendants. ORDER This case is currently before the Court on remand from the United States Court of Appeals for the Eleventh Circuit for the limited purpose of determining whether diversity of citizenship exists in this case. Accordingly, the parties are ORDERED to file statements as to their citizenship at the time the Complaint was filed, including identity and citizenship of every partner of the partnership entities and of every member of the limited liability companies. The parties must file evidentiary support for each of their statements and a brief providing legal support for the statements of citizenship. The filings shall be made simultaneously within fourteen days of this order. The parties may file responses, if necessary, within fourteen days. The parties should be prepared to discuss their filings at the AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (188 of 12/22/2017 268) Page: 188 of 211 scheduling hearing currently set for 1:30 PM on Tuesday, May 30, 2017. SO ORDERED, this L.21!y of April, 2017 2 AO 72A (Rev.8/82) Case: 15-14634 Date Filed: (189 of 12/22/2017 268) Page: 189 of 211 Tab 574 Case 1:11-cv-00832-RWS Document 574 Filed 05/01/17 Page 1of16 Case: 15-14634 Date Filed: (190 of 12/22/2017 268) Page: 190 of 211 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT 31, INC., et al., Civil Action No. 1:11-CV-0832- RWS Plaintiffs, v. M. VINCENT MURPHY, III, et al., Date: May 30, 2017 Time: 1:30 PM Defendants. Judge: Richard W. Story ALLIANT'S BRIEF PROVIDING LEGAL SUPPORT FOR STATEMENTS OF CITIZENSHIP Pursuant to the Order of this Court entered April 17, 2017, Plaintiffs Alliant Tax Credit 31, Inc., et al. ("Alliant') respectfully submit this brief providing the legal support for Alliant's Statement as to the Parties' Citizenship, which is being filed contemporaneously. The U.S. Court of Appeals for the Eleventh Circuit has remanded the case to this Court "for the limited purpose of adjudicating Alliant's motion to voluntarily dismiss the claims against Gazebo Park pursuant to Federal Rule of Civil Procedure 21 and motion to amend and to seal the pleadings, and to fully resolve the question of the court's subject-matter jurisdiction over this action." ECF No. 565, at 2. As explained herein, this Court should (1) grant 6 Case: 15-14634 Date Filed: (191 of 12/22/2017 268) Page: 191 of 211 Alliant's unopposed motion to dismiss the claims against Gazebo Park Apartments of Acworth, LLC; (2) grant Alliant's motion to amend the pleadings; (3) grant Alliant's motion to seal the amendment to the pleadings; and (4) reaffirm this Court's earlier determination that its exercise of subject- matter jurisdiction was warranted and enter specific findings in support of that determination. BACKGROUND Alliant filed this action for civil conspiracy and fraudulent transfer on March 17, 2011. In the original complaint, the plaintiffs were Alliant Tax Credit Fund 31-A, Ltd., Alliant Tax Credit 31, Inc., Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit XXVII, Inc., Alliant Tax Credit XI, Inc., and Alliant Tax Credit XI, Ltd; and the defendants were M. Vincent Murphy, III; Marilyn Murphy; Patrick Carroll; Multifamily Housing Developers, L.L.C.; Community Management Services, Inc.; Gazebo Park Apartments of Acworth, LLC; and Affordable Realty Management, Inc. ECF No. 1. Plaintiffs alleged that this Court ''ha[d] diversity jurisdiction pursuant to 28 U.S.C. § 1332 on the grounds that the civil action constitutes a controversy between citizens of different states and the amount in controversy exceeds $75,000.00, excluding interest, attorneys' fees and costs." Id., 2. Plaintiffs alleged that the defendants were citizens of Georgia. 2 6 Case: 15-14634 Date Filed: (192 of 12/22/2017 268) Page: 192 of 211 The parties subsequently engaged in discovery, including discovery to confirm the citizenship of the parties to the case. As a result of that discovery, the parties determined that two dispensable parties were potentially non-diverse. First, on September 3, 2013, plaintiffs moved to dismiss Alliant Tax Credit Fund 31-A, Ltd., as a plaintiff, upon learning that one of the partners of Fund 31-A may have had its principal place of business in the State of Georgia. ECF Nos. 262, 291. This Court found that Fund 31-A was "not a necessary party under Federal Rule of Civil Procedure 19 and thus, [was] dispensable," and ordered Fund 31-A to be "dropped as a party to this action." ECF No. 291, at 2. Second, on December 23, 2013, defendant Gazebo Park Apartments of Acworth, LLC ("Gazebo Park") moved to be dismissed from the action on the ground that one of its members was a U.S. citizen living abroad, thereby making her (and Gazebo Park) ineligible for diversity jurisdiction. ECF No. 322. This Court agreed that Gazebo Park was stateless but held that it could still exercise ancillary enforcement jurisdiction over Gazebo Park. ECF No. 331. On the merits, after a jury trial, the Court entered judgment for Alliant, and the parties filed cross-appeals. 3 6 Case: 15-14634 Date Filed: (193 of 12/22/2017 268) Page: 193 of 211 On appeal, all of the defendants represented to the Court that there was complete diversity between Alliant and defendants Vincent Murphy and Marilyn Murphy and that the jurisdictional minimum was satisfied. See Brief of Appellants Marilyn Murphy and Gazebo Park ("Brief of Marilyn Murphy') 1, Alliant Tax Credit 31, Inc. v. Murphy, No. 15-14634 (11th Cir. filed Feb. 8, 2016); Brief of Appellants-Cross Appellees M. Vincent Murphy III, Multifamily Housing Developers L.L.C., and Community Management Services, Inc. ("Brief of Vincent Murphy') 1, Alliant Tax Credit 31, Inc. v. Murphy, No. 15-14634 (11th Cir. filed Apr. 22, 2016). Gazebo Park again sought to be dismissed from the case. Brief of Marilyn Murphy 51. Rather than contest the availability of ancillary enforcement jurisdiction, Alliant acquiesced to Gazebo Park's request, filing a motion to dismiss the claims against Gazebo Park on appeal. Gazebo Park filed a response to inform the Eleventh Circuit that it "consents to the relief sought by the Motion of Alliant as the movant ... now seek[s] the exact same relief." Response Brief to Motion to Dismiss Gazebo Park 5, Alliant Tax Credit 31, Inc. v. Murphy, No. 15-14634 (11th Cir. filed June 22, 2016). After briefing on the merits was complete, the Eleventh Circuit issued a jurisdictional question, noting that "the relevant pleadings did not sufficiently allege the citizenships of any of the parties." Jurisdictional 4 Case 1:11-cv-00832-RWS Document 574 Filed 05/01117 Page 5of16 Case: 15-14634 Date Filed: (194 of 12/22/2017 268) Page: 194 of 211 Question 5, Alliant Tax Credit 31, Inc. v. Murphy, No. 15-14634 (11th Cir. filed Dec. 9, 2016). In response, Alliant moved to amend its complaint to specify the state of citizenship of each remaining party. Alliant moved to seal that motion to the extent it revealed the financial information of Alliant's indirect partners. The Eleventh Circuit issued the limited remand order without resolving any of the motions pending before it. ARGUMENT I. The Motion To Dismiss Gazebo Park Should Be Granted. This Court should grant the pending motion to dismiss Gazebo Park. Alliant incorporates by reference the arguments in the motion it presented to the Eleventh Circuit (Ex. 1), as well as Gazebo Park's response thereto (Ex. 2). In short, a dispensable nondiverse party can be dismissed even when a case is pending on appeal. Newman-Green v. Alfonzo-Larrain, 490 U.S. 826 (1989). There is no dispute that, as a stateless entity, Gazebo Park is nondiverse. And the parties agree that it is dispensable; indeed, Gazebo Park represented to the Eleventh Circuit that there was no need for Alliant to refund the $31,788.43 that Gazebo Park had paid toward the judgment-and 5 6 Case: 15-14634 Date Filed: (195 of 12/22/2017 268) Page: 195 of 211 that Gazebo Park and Marilyn Murphy would "reconcile this sum internally and without requiring a refund from Alliant." Ex. 2, at 6. Accordingly, Gazebo Park should be dismissed. The remainder of this filing will treat Gazebo Park as a former party, which simplifies the jurisdictional analysis. II. The Motion To Amend The Complaint Should Be Granted. This Court should likewise grant Alliant's motion to amend the complaint to provide specific allegations of the parties' citizenship. Again, Alliant incorporates by reference the motion it presented to the Eleventh Circuit (Ex. 3). Just as it is permissible to dismiss nondiverse parties on appeal, it is long settled that courts should permit parties to amend "incorrect [or incomplete] statements about jurisdiction" in cases where jurisdiction "actually exists." Newman-Green, 490 U.S. at 831; see 28 U.S.C. § 1653 ("Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."). In such cases, '~urisdictional defects may often be cured by amendment," and ''leave to amend pleadings shall be freely given when justice so requires." Capital Asset Research Corp. v. Finnegan, 216 F.3d 1268, 1270 (11th Cir. 2000). 6 6 Case: 15-14634 Date Filed: (196 of 12/22/2017 268) Page: 196 of 211 As described below, jurisdiction actually exists. Although the Court could simply make the jurisdictional findings without amending the pleadings (see, e.g., Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269-70 (11th Cir. 2013) (discussing when record evidence may be used to cure jurisdictional pleading defects)), allowing an amendment to the complaint would facilitate the Eleventh Circuit's review. The Court should therefore permit the complaint to be amended to incorporate the citizenship of the parties. 1 III. The Motion To Seal Should Be Granted. The Eleventh Circuit also left unresolved Alliant's motion to seal its motion to amend the pleadings to add additional jurisdictional details. Alliant's motion is incorporated herein by reference. Ex. 4. Alliant sought to seal the identities of its indirect owners. Alliant's corporate structure is such that family trusts revealing personal financial details are within the membership hierarchy. In entering a protective order for confidentiality, this Court has already acknowledged that the unrestricted disclosure of personal financial data and customer lists could cause 1 The Statement differs from the Alliant's Eleventh Circuit motion in three aspects, none of which is material to the conclusion that the parties are completely diverse. See Statement ~ 1(e), (f), (g). The pleadings should be amended to comport with the Statement, which is supported by evidence. 7 6 Case: 15-14634 Date Filed: (197 of 12/22/2017 268) Page: 197 of 211 "unnecessary damage and injury'' to Alliant. ECF No. 264, at 2. Indeed, this Court has already safeguarded sensitive personal financial information from Marilyn Murphy and Vincent Murphy. See ECF No. 242. Alliant's request to seal is consistent with this Court's orders and practices. That motion should be granted. IV. This Court Should Make Additional Factual Findings Confirming The Availability Of Diversity Jurisdiction. With respect to the core question pending before this Court, there has never been any doubt that the remaining plaintiffs and remaining defendants are diverse. This Court specifically found as much. ECF No. 483, at 3. In view of the Eleventh Circuit's request for additional specificity, however, this Court should make the necessary additional findings requested below. To begin with the legal framework, 28 U.S.C. § 1332(a) provides that "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States." Section 1332(a) requires complete diversity-which means that no plaintiff can be a citizen of the same state as any defendant. Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998) So a court evaluating whether section 8 6 Case: 15-14634 Date Filed: (198 of 12/22/2017 268) Page: 198 of 211 1332(a) is satisfied must convince itself that there is no overlap between the citizenship of the plaintiffs and the citizenship of the defendants. The citizenship inquiry takes place as of the date on which the complaint was filed, disregarding any parties that subsequently are dismissed. Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 571-73 (2004). A. The parties are completely diverse. Various standards apply for assessing a party's citizenship, depending on whether the party is a natural person or some form of corporation or other business organization. Given the nature of the parties here, a number of different rules apply: 1. Natural Persons. A natural person is a "citizen" of the state in which he is "domiciled." Molinas Valle Del Cibao v. Lama, 633 F.3d 1330, 1341 (11th Cir. 2011). "Domicile is not synonymous with residence" because "one may temporarily reside in one location, yet retain domicile in a previous residence." Id. at 1341-42. Rather, "[fJor adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). 9 6 Case: 15-14634 Date Filed: (199 of 12/22/2017 268) Page: 199 of 211 2. Corporations. A corporation "shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business." 28 U.S.C. § 1332(c)(l). A corporation's "principal place of business" is "the place where [the] corporation's officers direct, control, and coordinate the corporation's activities" and is "normally ... the place where the corporation maintains its headquarters-provided that the headquarters is the actual center of direction, control, and coordination." Hertz Corp. v. Friend, 559 U.S. 77, 92- 93 (2010). 3. Limited Partnerships. A limited partnership (like any partnership) is a citizen of any state in which a partner is a citizen. Rolling Greens MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). 4. Limited Liability Companies. Similar to a partnership, a limited liability company-typically known as an LLC-"is a citizen of any state of which a member of the company is a citizen." Id. 5. Banks. A bank can be chartered either by a state or by the federal government. If a bank is chartered by a state, then the general rules for corporations apply. See Wachovia Bank v. Schmidt, 546 U.S. 303, 306 (2006). Banks that are federally chartered, however, "shall ... be deemed 10 Case 1:11-cv-00832-RWS Document 574 Filed 05/01/17 Page 11of16 Case: 15-14634 Date Filed: (200 of 12/22/2017 268) Page: 200 of 211 citizens of the States in which they are respectively located" for purposes of diversity jurisdiction. 28 U.S.C. § 1348. A national bank is ''located" in "the State in which its main office, as set forth in its articles of association, is located." Wachovia Bank, 546 U.S. at 303. 6. Trusts. The term "trust" can refer either to a distinct legal entity or to an abstract fiduciary relationship between multiple people. Americold Realty Trust v. Conagra Foods, Inc., 136 S. Ct. 1012, 1016 (2016). As relevant here, when a trust is a member of an LLC, it is necessarily a distinct legal entity. And when a trust is a distinct legal entity, the trust is a citizen of any state in which one of its beneficiaries is a citizen. Id. Despite the apparent complexity of the standards synopsized above, the Supreme Court has admonished that judicial administration of jurisdictional statutes should be "as simple as possible." Hertz Corp., 559 U.S. at 80. Accordingly, jurisdictional facts are infrequently disputed-and the parties are free to stipulate to the facts that are necessary for a finding of jurisdiction. Ry. Co. v. Ramsey, 89 U.S. 322, 327 (1874) ("the parties may admit the existence of facts which show jurisdiction, and the courts may act judicially upon such an admission"); In re CP Ships Ltd. Sec. Litig., 578 F.3d 1306, 1311 & n.1 (11th Cir. 2009), abrogated on other grounds, Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247, 254 (2010). And when jurisdiction is 11 6 Case: 15-14634 Date Filed: (201 of 12/22/2017 268) Page: 201 of 211 disputed, the plaintiffs' burden is only to make jurisdictional showings by a preponderance of the evidence. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 765 (11th Cir. 2010). The Statement tracks the legal standards specified above, supporting each criterion with competent evidence. That evidence establishes that all remaining defendants are citizens of Georgia, while plaintiffs are citizens of California, Delaware, the District of Columbia, Florida, Illinois, Nevada, New York, Ohio, and Texas. There being no overlap between these states, the parties satisfy the requirement of complete diversity. B. The jurisdictional minimum is satisfied. The only other requirement for an exercise of diversity jurisdiction is the satisfaction of the jurisdictional minimum. For diversity jurisdiction, the amount in controversy must be at least $75,000. 28 U.S.C. § 1332(a). Here, the original complaint alleged that more than $75,000 was at issue (ECF No. 1, if 2). In particular, each plaintiff stated a claim for more than $200,000 (id.,-r,-r 6-11), the Court ultimately entered judgment for each plaintiff for an amount exceeding $75,000, (ECF No. 483, at 10; Am. J., Alliant Tax Credit Fund 31-A, Ltd., LLC v. Nicholasville Cmty. Hous., LLC, No. 5:07-cv-00388, at 1-4 (E.D. Ky. Aug. 31, 2010), ECF No. 204), and each of 12 6 Case: 15-14634 Date Filed: (202 of 12/22/2017 268) Page: 202 of 211 the defendants conceded on appeal that more than $75,000 was at issue (Brief of Marilyn Murphy 1; Brief of Vincent Murphy 1). The jurisdictional minimum is therefore satisfied beyond reasonable dispute. CONCLUSION The Court should (1) grant Alliant's unopposed motion to dismiss the claims against Gazebo Park Apartments of Acworth, LLC; (2) grant Alliant's motion to amend the pleadings; (3) grant Alliant's motion to seal the amendment to the pleadings; and (4) enter findings that all remaining defendants are citizens of Georgia, while plaintiffs are citizens of California, Delaware, the District of Columbia, Florida, Illinois, Nevada, New York, Ohio, and Texas. 13 6 Case: 15-14634 Date Filed: (203 of 12/22/2017 268) Page: 203 of 211 Dated: May 1, 2017 Respectfully submitted, Keith J. Barnett (#142340) Isl Brian D. Netter TROUTMANSANDERSLLP Evan M. Tager* 600 Peachtree Street, N.E. etager@mayerbrown.com Suite 5200 Brian D. Netter* Atlanta, GA 30308 bnetter@mayerbrown.com (404) 885-3000 Mayer Brown LLP 1999 K Street, NW W.H. Bundy, Jr.* Washington, DC 20006 Michael Brent McDonald* (202) 263-3000 BUNDY MCDONALD LLP 1516 Old Trolley Road Edward D. Johnson* 2nd Floor wjohnson@mayerbrown.com Summerville, SC 29485 Mayer Brown LLP Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, CA 94306 (650) 331-2000 Attorneys for Alliant * Admittedpro hac vice. 14 6 Case: 15-14634 Date Filed: (204 of 12/22/2017 268) Page: 204 of 211 CERTIFICATE OF COMPLIANCE Pursuant to LR 7.lD, the undersigned counsel hereby certifies that the foregoing complies with the font and point selections approved by the Court in LR 5. lB. The foregoing was prepared on a computer using Century Schoolbook font (13 point). Isl Brian D. Netter Brian D. Netter (admitted pro hac vice) 15 6 Case: 15-14634 Date Filed: (205 of 12/22/2017 268) Page: 205 of 211 CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that, on today's date, the foregoing was filed with the Clerk of Court using the Court's CM/ECF system, which will automatically send email notification of such filing to Defendants' counsel of record. Isl Brian D. Netter Brian D. Netter (admitted pro hac vice) 16 Case: 15-14634 Date Filed: (206 of 12/22/2017 268) Page: 206 of 211 Tab 585 Case 1:11-cv-00832-RWS Document 585 Filed 06/06/17 Page 1of4 Case: 15-14634 Date Filed: (207 of 12/22/2017 268) Page: 207 of 211 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ALLIANT TAX CREDIT FUND 31-A,) LTD., et al.,)) Plaintiffs,) Civil Action File v.) No. 1:11-CV-0832) Hon. Richard W. Story M. VINCENT MURPHY, III,) et. al.,)) Defendants.) PROPOSED DISCOVERY REQUESTS OF DEFENDANTS M. VINCENT MURPHY, III, COMMUNITY MANAGEMENT SERVICES, INC., AND MULTIFAMILY HOUSING DEVELOPERS, LLC The above-named Defendants herewith submit their proposed discovery requests in accordance with the Court's Order dated May 30, 2017 [Doc. 584]. In an effort to streamline this process, Defendants have coordinated with Defendant Marilyn Murphy and incorporate by reference the specific requests that she has submitted, or will be submitting this date. Defendants further note that they would normally request "any and all" documents that relate in any way to the identity and citizenship of the named Plaintiffs and their various members and shareholders. With deference to the Court's concern for overbreadth, Defendants have made a good faith attempt to 1 Case: 15-14634 Date Filed: (208 of 12/22/2017 268) Page: 208 of 211 narrow this request in a reasonable fashion. Defendants therefore suggest the following language: {l)All documents that reflect the ownership/membership structure of the named Plaintiffs, and all members and sub-members of the Plaintiffs, during the period 2010-2012 inclusive. This would include, for example, operating agreements, partnership documents, shareholder lists, trust documents, audited financial statements and tax returns. Defendants would agree to redaction of specific financial details, so long as all recipients or distributees are shown. (2) All documents that reflect the citizenship of the entities and individuals named in the Declarations, during the time frame 2010-2012 inclusive. Following production of these documents, Defendants would request the right to submit additional interrogatories or requests for production of additional documents, and possibly requests for admissions. These requests can be seived within twenty days of the initial production, and the Court can schedule a telephone conference if Plaintiffs object to any of them. Lastly, Defendants request the right to take depositions if deemed appropriate. If the parties cannot agree to do so, this issue can also be discussed with the Court. 2 Case: 15-14634 Date Filed: (209 of 12/22/2017 268) Page: 209 of 211 Respectfully submitted, this 6th day of June, 2017. /s/ Stan Kreimer, Jr. STAN KREIMER, JR. Georgia Bar No. 429550 Attorney for Defendants JOHNSON & WARD 100 Peachtree Street, NW Atlanta, Georgia 30303 (404) 524-5626 stan@johnsonward.com ATTORNEY CERTIFICATION AS TO FONT AND POINT In accordance with LR 7.1 D, I hereby certify that the foregoing Brief has been prepared with one of the font and point selections approved by the court in LR5.1B. Isl Stan Kreimer, Jr. STAN KREIMER, JR. Georgia Bar No. 429550 3 Case: 15-14634 Date Filed: (210 of 12/22/2017 268) Page: 210 of 211 CERTIFICATE OF SERVICE I hereby certify that a correct copy of the Defendants' Proposed Discovery Requests was electronically filed with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to all counsel of record. This 6th day of June, 2017. /s/ Stan Kreimer, Jr. STAN KREIMER, JR. Georgia Bar No. 429550 JOHNSON & WARD 2100 The Equitable Building 100 Peachtree Street, NW Atlanta, Georgia 30303 (404) 524-5626p (404) 524-1769f stan@johnsonward.com 4 Case: 15-14634 Date Filed: (211 of 12/22/2017 268) Page: 211 of 211 CERTIFICATE OF SERVICE I hereby certify that on December 22, 2017, I electronically filed Volumes I and II of Alliant's Second Supplemental Appendix with the Clerk of the Court for the United States Court of Appeals for the Eleventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I further certify that all volumes of Alliant's Second Supplemental Appendix will be submitted to the Clerk of the Court for the United States Court of Appeals by overnight mail. I further certify that the same will be served on counsel of record for appellants by overnight mail. s/ Brian D. Netter Case: 15-14634 Date(212 Filed: of 12/22/2017 268) Page: 1 of 57 No. 15-14634 __________________________________________________________________ UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________________________________________ ALLIANT TAX CREDIT 31, INC., ALLIANT TAX CREDIT FUND XXVII, LTD.; ALLIANT TAX CREDIT FUND XXVII, INC.; ALLIANT TAX CREDIT XI, INC.; and ALLIANT TAX CREDIT XI, LTD., Plaintiffs/Appellees/Cross-Appellants, v. M. VINCENT MURPHY, III; MULTIFAMILY HOUSING DEVELOPERS, LLC; COMMUNITY MANAGEMENT SERVICES, INC.; MARILYN MURPHY, Defendants/Appellants/Cross-Appellees. __________________________________________________________________ On Appeals from the U.S. District Court for the Northern District of Georgia, No. 1:11-cv-00832-RWS __________________________________________________________________ ALLIANT'S SECOND SUPPLEMENTAL APPENDIX Volume II _________________________________________________________________ Edward D. Johnson Evan M. Tager wjohnson@mayerbrown.com etager@mayerbrown.com MAYER BROWN LLP Brian D. Netter Two Palo Alto Square, bnetter@mayerbrown.com Suite 300 MAYER BROWN LLP 3000 El Camino Real 1999 K Street, NW Palo Alto, CA 94306 Washington, DC 20006 (650) 331-2000 (202) 263-3000 Attorneys for Plaintiffs/Appellees/Cross-Appellants Alliant Tax Credit 31, Inc., et al. Case: 15-14634 Date(213 Filed: of 12/22/2017 268) Page: 2 of 57 Volume I Case Docket .................................................................................. A Motion of Defendant Marilyn Murphy to Compel Discovery From Plaintiffs ........................................................................... 219 August 7, 2013 Order ................................................................ 243 Opposition Brief of Defendants Marilyn Murphy and Gazebo Park Apartments of Acworth, LLC to Plaintiffs' Motion to Drop Alliant Tax Credit Fund 31-A, Ltd. ............................................. 271 October 17, 2013 Order ............................................................. 291 March 31, 2014 Order ............................................................... 333 April 17, 2017 Order .................................................................. 569 Alliant's Brief Providing Legal Support for Statements of Citizenship ................................................................................ 574 Proposed Discovery Requests of Defendants M. Vincent Murphy, III, Community Management Services, Inc., and Multi Family Housing Developers, LLC ................................................ 585 Volume II Transcript of May 30, 2017 Scheduling Conference Proceedings ............................................................................... 592 Case: 15-14634 Date(214 Filed: of 12/22/2017 268) Page: 3 of 57 INDEX TO SECOND SUPPLEMENTAL APPENDIX Docket/ Tab # Volume III (UNDER SEAL) Alliant's Statement as to the Parties' Citizenship ........................ 576 Supplemental Statement of Citizenship for Alliant Tax Credit 31, LLC (pages 1 – 95) ................................................................ 602 Volume IV (UNDER SEAL) Supplemental Statement of Citizenship for Alliant Tax Credit 31, LLC (pages 96 – 334) ............................................................ 602 Volume V (UNDER SEAL) Supplemental Statement of Citizenship for Alliant Tax Credit 31, LLC (pages 335 – 395) .......................................................... 602 Supplemental Statement of Citizenship for Alliant Tax Credit Fund XI, Ltd .............................................................................. 603 Supplemental Statement of Citizenship for Alliant Tax Credit Fund XXVII, Ltd. ........................................................................ 604 Supplemental Statement of Citizenship for Alliant Tax Credit XI, LLC ..................................................................... 605 Supplemental Statement of Citizenship for Alliant Tax Credit XXVII, LLC ................................................................ 606 Case: 15-14634 Date(215 Filed: of 12/22/2017 268) Page: 4 of 57 Tab 592 2 Case: 15-14634 Date(216 Filed: of 12/22/2017 268) Page: 5 of 57 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA 2 ATLANTA DIVISION 3 ALLIANT TAX CREDIT 31,) INC., et al.,) 4 Plaintiffs,)) Civil Action 5 -vs-) No. 1:11-CV-832-RWS) 6) M. VINCENT MURPHY, III, et al.,) 7 Defendants.) 8 Transcript of the Scheduling Conference Proceedings 9 Before the Honorable Richard W. Story United States District Court Judge 10 May 30, 2017 Atlanta, Georgia 11 12 APPEARANCES OF COUNSEL: 13 On behalf of 14 the Plaintiffs: Brian David Netter, Esq. 15 On behalf of Defendants 16 M. Vincent Murphy, Multifamily Housing 17 Developers, LLC, and Community Management 18 Services, Inc.: Stanley Earle Kreimer, Esq. 19 On behalf of Defendants Marilyn Murphy and 20 Gazebo Park Apartments Of Acworth, LLC: Shawn Michael Winterich, Esq. 21 22 Reported stenographically by: 23 Amanda Lohnaas, RMR, CRR Official Court Reporter 24 United States District Court Atlanta, Georgia 25 (404) 215-1546 2 Case: 15-14634 Date(217 Filed: of 12/22/2017 268) Page: 6 of 57 2 1 (Tuesday, May 30, 2017, 1:35 p.m.; Atlanta, Georgia.) 2 THE COURTROOM DEPUTY: The Court now calls for a 3 scheduling hearing in Civil Action 1:11-CV-832, Alliant Tax 4 Credit 31, Inc. versus Murphy, et al. 5 Will counsel please stand and state your name for the 6 record? 7 MR. NETTER: Good afternoon, Your Honor. Brian Netter 8 for plaintiffs. 9 MR. KREIMER: Your Honor, Stan Kreimer for Vince Murphy 10 and Community Management and Multifamily. 11 THE COURT: Thank you. 12 MR. WINTERICH: Good afternoon, Your Honor. Shawn 13 Winterich for Marilyn Murphy and Gazebo Park Apartments of 14 Acworth, LLC. 15 THE COURT: Thank you. 16 We're going to proceed somewhat informally. This was 17 set up as a scheduling conference or scheduling hearing to 18 try to figure out what to do now that we've gotten this back 19 from the Court of Appeals on the subject matter jurisdiction 20 issue. 21 As an initial matter, based on the submissions of the 22 parties it appears that there's no objection to the Court 23 granting the consent motion to dismiss Gazebo Park Apartments 24 of Acworth, LLC, and also the Motion to Amend Complaint to 25 Provide Specific Allegations of the Parties' Citizenship. So 2 Case: 15-14634 Date(218 Filed: of 12/22/2017 268) Page: 7 of 57 3 1 based on those motions being unimposed, I will grant those 2 two motions. 3 I had previously granted a motion to seal that had been 4 filed by the plaintiff, and I think the first time we sealed 5 some of these matters in the case it was a consent motion. 6 Then the motion was filed when the case was returned from the 7 Court of Appeals and I kind of just automatically entered it 8 again. But some objections have been raised by the defense 9 to that and, in fairness, I feel an obligation to inquire 10 further about that because it is certainly the preference of 11 the Court that all proceedings be open to the public and that 12 there be some strong reason why matters should be placed 13 under seal. 14 I don't mean to spring this on you and if you're not 15 prepared to address it today I'll give you an opportunity to, 16 be it through brief or whatever if you wish, but if you're 17 prepared and want to address it at this time we'll do that. 18 It's your call. 19 MR. NETTER: I'm happy to address it now, Your Honor. 20 THE COURT: Yes, sir. Come on up to the podium and let 21 me hear from you. 22 MR. NETTER: We moved to seal the identities of the 23 third- and fourth- and fifth-tiered entities, individuals who 24 are deep down in the ownership hierarchy of the Alliant 25 entities. And the reasoning for doing so, we stated in the 2 Case: 15-14634 Date(219 Filed: of 12/22/2017 268) Page: 8 of 57 4 1 motion that we filed with the Eleventh Circuit, and I think 2 we rehearsed that again in the filing to Your Honor, was 3 simply because proprietary details about who are the 4 customers of an entity and what the estate plans are for 5 individuals are the sorts of information where the public's 6 general interests in having proceedings occur in the open is 7 outweighed by the business interests of having to disclose a 8 client list just because a member of a member of a member is 9 structured in a way such that those clients are members of an 10 LLC. It doesn't seem to move the ball forward. 11 It seemed to us that some of the responses that we've 12 seen from the defendants suggested that the reason why it was 13 necessary to unseal this information was so that they would 14 have access to the information. Obviously, they do have 15 access to evidence filed under seal in this court, so it's 16 not our intent to shield the information from them, just to 17 protect those competitive and personal financial interests. 18 THE COURT: Thank you. Anything further? 19 MR. WINTERICH: Thank you, Your Honor. I didn't come 20 prepared to argue particularly. I'm a little bit familiar 21 with the issue. I have a brief in progress and I'd ask for 22 leave to file a brief on what can be sealed and what isn't. 23 Back in 2013, we had a discovery issue on at the time 24 subject matter jurisdiction and that went only so far. I 25 think now we have dramatically changed circumstances. 2 Case: 15-14634 Date(220 Filed: of 12/22/2017 268) Page: 9 of 57 5 1 We, by consent, recognized proprietary interests that in 2 retrospect I don't think necessarily met the criteria that 3 the law provides. On the way here, based on filings that 4 were done in the Eleventh Circuit and before this Court, 5 there's been no showing that the ownership structures of the 6 plaintiffs -- I'm sorry -- yeah, the plaintiffs, again, 7 implicate privacy interests that the law recognizes. 8 I've gotten such things as driver's licenses from the 9 plaintiffs' attorneys; I don't have any interest in 10 introducing those. 11 There's also the protection provided by, if I have the 12 rule number right, Civil Rule of Procedure 5.2, which keeps 13 individual financial information out. I don't want that 14 coming in, I don't need that. I don't mind if I have to ask 15 to seal that, it's not going to affect me. 16 I find, Your Honor, if we have to seal -- the current 17 order that's in place from 2013, which I still recognize and 18 we've tried to follow, you're forced to -- we're forced to 19 hide behind synonyms, key words, ABC Company, XYZ Company. I 20 find it very confusing and I can only imagine how confusing 21 the Court is going to find it. So I'd ask the Court give me 22 five days, business days to get a brief in. 23 THE COURT: I'll do that. 24 MR. WINTERICH: Thank you. 25 THE COURT: And if you want to file a reply, I'll 2 Case: 15-14634 Date (221 Filed:of12/22/2017 268) Page: 10 of 57 6 1 certainly let you, Mr. Netter, do that, okay? 2 MR. NETTER: Thank you, Your Honor. 3 THE COURT: Mr. Kreimer, I didn't mean to cut you out of 4 there, did you have anything you want to add? 5 MR. KREIMER: No, Your Honor. These counsel handled it 6 beautifully. I'll keep quiet. 7 THE COURT: All right. This part, as I said, we'll 8 proceed somewhat informally. I'm interested in your thoughts 9 about how best to proceed with getting a record before the 10 Court that you think is adequate for me to make the 11 determination about citizenship. I mean, I think it's the 12 parties plaintiff that are at issue here, I haven't seen much 13 dispute about the defendants, it's going to come to bear in 14 terms of the plaintiffs. 15 You've submitted, as the Court requested, your 16 statements of citizenship and the support for those 17 statements. The defendants have challenged a number of the 18 bases that are offered for support, which calls into 19 question, you know, how do we proceed with the Court 20 resolving those matters. 21 And my questions include things like is there a 22 necessity for some level of discovery? If we have some level 23 of discovery, how far does that go? How long does that take? 24 With or without discovery, in what form does this get 25 submitted to the Court? Is it briefing of the parties 2 Case: 15-14634 Date (222 Filed:of12/22/2017 268) Page: 11 of 57 7 1 submitted with affidavits and so forth, and the Court then 2 decides it on that record with or without an oral argument 3 from counsel? Does it involve an evidentiary hearing at 4 which the Court would have to -- which it seems to me the 5 only way that would come into play is if there became 6 credibility issues where live testimony might become helpful. 7 So those are the questions that ran through my mind as I 8 was looking at the submissions of the parties and trying to 9 decide how do we get this in a posture to get it resolved. 10 I looked at the Thomasville case; it was cited in the 11 papers of the parties. I have not talked to Judge Baverman. 12 It appears that was done on a written record. I don't think 13 there was an evidentiary hearing of -- was there? 14 MR. KREIMER: Your Honor, what's critically important -- 15 I can speak to this later -- we didn't get that far in the 16 road. I'll be happy to share with you if you would like 17 because I represented the defendants in the Thomasville case, 18 I'm very familiar with how that. I went into it in a little 19 bit in the briefing. 20 But to your point you were just making, Your Honor, we 21 never got that far with evidence because we had moved to 22 strike the affidavits. We had objected to them four times, I 23 might add, and that's a whole nother story we'll get to. 24 But Judge Baverman, interesting, had all the exact 25 questions you did: How do we go from here? 2 Case: 15-14634 Date (223 Filed:of12/22/2017 268) Page: 12 of 57 8 1 We never got that far because after the fourth bite of 2 the apple Judge Baverman -- and, by the way, as you're well 3 aware, Judge Baverman even went to the Herculean length to 4 have a mediation of both cases, which was not successful. 5 So then he finally went and wrote a 34-page opinion in 6 which he said these affidavits are not admissible, the 7 objections are sustained, and the case was vacated. So we 8 never got that far. But he had the exact same questions you 9 did and I'll be happy to speak to even share his thoughts and 10 mine, too, when you're ready. 11 THE COURT: I'm ready. 12 MR. KREIMER: Well, he said exactly what you said, 13 Judge, and that was he said to me -- I'll never forget, and 14 I've told Shawn quite a bit about this -- he said, oh, 15 Mr. Kreimer, how far do we go with discovery and is it just 16 because you want it or you need to show some probable cause 17 or how far do we go? And that was a tough question then and 18 now. 19 But I'm going to have to say I think that it is needed 20 and just go ahead and request it, and I'll tell you why. 21 Because Alliant has a bit of an unfortunate track record of 22 playing fast and loose with jurisdictional allegations. It's 23 all in the briefings and pretty well backed up by the record. 24 But beginning all the way in the Kentucky case, where 25 the headwaters of this case began, they alleged diversity 2 Case: 15-14634 Date (224 Filed:of12/22/2017 268) Page: 13 of 57 9 1 there. I never challenged it. By the way, I'm the old man 2 here, even though I don't have gray hair, I've been in it the 3 longest, from 2009, when that was filed, through today, seven 4 years. 5 We didn't challenge it there for lots of reasons. But 6 it later turns out that that wasn't accurate there. That's 7 kind of a moot point but it's the starting point. 8 Then we came to your court. We did have a problem 9 there. They dismissed one of the plaintiffs. And we've had 10 it elsewhere. We had it in the Thomasville case, you know 11 the result there. 12 Shawn and I have talked at great length about that, 13 whether that has res judicata effect and he may touch on that 14 a little bit, that ruling. But to be crystal clear, the 15 ruling there was that the plaintiffs had failed to carry 16 their burden to establish jurisdiction, which isn't exactly 17 on the merits but it can have a jurisdictional merit, which 18 Shawn knows more about than I do, and he may speak to that. 19 So, again, getting to where we go from here, I'll speak, 20 get right straight to the gut of it, what Judge Baverman 21 ordered in one of our hearings -- he was troubled by the 22 sealing issue too because it was such a monumental headache 23 to understand what was what. And he went ahead and produced 24 the whole thing to me one day in court. I expressed my 25 frustration. He said, great, I'll print it out, the whole 2 Case: 15-14634 Date (225 Filed:of12/22/2017 268) Page: 14 of 57 10 1 thing right here, here it is, which was a big help to me. 2 And that's when I began to unravel these inconsistencies, 3 which Judge Baverman did a remarkable job of pointing them 4 out. 5 There's a history of inaccuracy in this and that's where 6 I'm going with this whole litany, Judge. 7 Alliant has shown a certain cavalier attitude toward 8 alleging this. The reason you should know, if you haven't 9 already surmised, they go to extraordinary lengths to conceal 10 or to keep confidential the names of their folks. And I 11 suppose there's nothing wrong as far as that goes, no law 12 against it. 13 But when you get into federal court and you're trying to 14 invoke jurisdiction, well, you know, different rules apply. 15 And I guess, if I can use a cliché, live by the sword, die by 16 the sword. If they want to keep secret, well, if you're 17 going to have this shroud of secrecy, we now need to have the 18 ability to lift that shroud and see what's behind it. 19 What's extremely interesting -- and a problem you didn't 20 even mention but I did in my papers -- is they've now 21 produced -- let me back up a step. 22 With Judge Baverman they filed a declaration from a 23 gentleman named Melvin Gevisser, who was the CFO. You 24 probably know all this. The key objection was how does he 25 have knowledge of all these other business records. And so 2 Case: 15-14634 Date (226 Filed:of12/22/2017 268) Page: 15 of 57 11 1 this is part of what you need to hear about today. We need 2 to delve into that. 3 And that's what I objected to repeatedly. He cannot 4 avail himself of a business records rule. There's no showing 5 that he's the custodian, that he has any knowledge of it. 6 To my great astonishment, notwithstanding the incredibly 7 detailed primer on evidence 101 in Judge Baverman, we have 8 the same thing here, except it's even worse, in my view. 9 Now, instead of the CFO of an affiliated company, they 10 have Ms. Balderrama, who's a lovely lady, I've worked with 11 her, I have the highest regard for her, but no showing at all 12 how she, the general counsel of an affiliated company, could 13 even remotely invoke the provisions of 903, or whatever it is 14 for business records, not the custodian, no showing of what 15 she does. She's a compliance officer, is what she told us. 16 Do we have to depose Katie? Which I'd really rather not 17 do, but I guess that's where we are. How does she know that? 18 No showing that she's a custodian, no showing how she would 19 have knowledge of all these business records and so forth. 20 That's just kind of the high level here. 21 Getting back again, to keep on focus, Judge Baverman 22 said, just for starters, Alliant, you need to produce all 23 documents that Ms. Balderrama relied on for her affidavit. 24 That's what he did for us in that case. 25 And not just -- and this is a crucial, crucial 2 Case: 15-14634 Date (227 Filed:of12/22/2017 268) Page: 16 of 57 12 1 distinction -- not just what they relied on to prove their 2 case, because obviously that's just going to be helpful to 3 them, but also, Judge, everything that relates to their 4 corporate structure. And that would include operating 5 agreements, organizational charts, anything that relates. 6 So in vernacular discovery rules, it would be any and 7 all documents that relate in any way to the corporate 8 structure of the plaintiffs, partnership structures, trust, 9 or whatever the entities are. 10 And again I repeat, their structures are so complex and, 11 as Mr. Netter pointed out, they're third and fourth and fifth 12 tier. And as you know, or you're going to learn, 13 reluctantly, like Judge Baverman, you have to dribble all the 14 way down to get there. 15 Judge Thrash just had an amazing case where he -- 16 MR. WINTERICH: I believe it was Judge Duffey. 17 MR. KREIMER: Duffey, I beg your pardon. He awarded 18 half a million in attorneys' fees for playing lose with 19 jurisdiction. It got reversed, I think, on appeal but it was 20 interesting. He let the attorneys off the hook on appeal. 21 But it's serious business. And something I candidly 22 didn't know is that you can't just admit the jurisdiction or 23 agree to it, you've got to prove it. 24 Just off the record, I never worry too much because, oh, 25 well, we'll just go over to state court, anyway, and I like 2 Case: 15-14634 Date (228 Filed:of12/22/2017 268) Page: 17 of 57 13 1 you, I was fine with that, what the heck, who cares. But, 2 well, you can't do that just because you like the judge of 3 the court; you've got to show jurisdiction. So it's pretty 4 doggone serious. 5 So, anyway, back to your question. We'd like to see all 6 books and records, as a starter, within whatever time period 7 you see fit, give Alliant whatever they need, 10 days, 30 8 days, 20, to get up any books and records that would relate 9 in any way to their corporate entities that they have 10 described in Ms. Balderrama's declaration, that relates in 11 any way. 12 What we would like to do -- I've traveled this road -- I 13 then need -- we then need, Judge, the opportunity to look at 14 those records and craft whatever we think is appropriate 15 discovery. 16 Shawn has done a nice job, and he'll speak to that in a 17 minute, of crafting some proposed interrogatories, and he can 18 talk about that, but they are the standard things. You are a 19 judge and a trial lawyer for years, you know what you've got 20 to see. 21 Then you get to a great question that Judge Baverman and 22 I talked about, do we need to have an evidentiary hearing. 23 And he said, basically, we'll cross that bridge when we get 24 to it. 25 And the answer that I, as you were writing this, I said, 2 Case: 15-14634 Date (229 Filed:of12/22/2017 268) Page: 18 of 57 14 1 well, it just depends on what we get and what we see. To 2 give you some food for thought, I mean, any or all of these 3 documents could be fabricated. And no offense to Mr. Netter 4 or to Alliant or anybody, but what proof do we have? This is 5 a $10 million case. I mean, I've seen a lot of things happen 6 in my years as a lawyer, documents go missing at the Court of 7 Appeals, you name it, I've seen things happen. 8 So there's a lot at stake. So we just need to see those 9 documents, for starters, and probably satisfy ourselves as to 10 their accuracy and maybe follow-up discovery, and I would 11 propose that we get back to you then. But just for a 12 framework, probably 90 days for some follow-up discovery. 13 I'm nearly a hundred percent certain we'll need follow-up 14 discovery. 15 I would be shocked at myself and Shawn if we both say, 16 okay, that's fine, we agree with everything we see. I don't 17 know that that's likely to be the case. And I reiterate, 18 because we've had this history of inconsistencies and 19 problems. 20 So I think that in itself -- and several of those 21 entities, Judge, I think Shawn pointed out, are -- that were 22 in Thomasville -- are also in this case. So I think some of 23 those -- that history does transfer over to this case. 24 I think, Judge, that covers what you were saying. If I 25 could just sum up, then. Let's get the documents first, give 2 Case: 15-14634 Date (230 Filed:of12/22/2017 268) Page: 19 of 57 15 1 us a 90-day period, unless my brethren have a different view 2 of that, for follow-up written and/or deposition discovery. 3 You're aware, I'm sure, of the logistics. Alliant is out in 4 California, so that could be a bit of a headache. And then 5 go from there. 6 And I would request the right, respectfully, that we get 7 back to you on do we need to have an evidentiary hearing. 8 Shawn mentioned driver's licenses, I'll take the 9 opportunity to touch on that. I mean, a driver's license 10 still doesn't necessarily prove citizenship. I mean, people 11 can change their residence. One of the things -- and I'll go 12 ahead and up front this -- will be tax returns. Those are 13 pretty doggone good evidence of where people live. 14 I would suggest while here, and to expedite this thing, 15 let's get front pages of tax returns. I don't want to see 16 their whole pages. And Mr. Netter's a terrific lawyer. I'm 17 sensitive to the legitimate privacy interests, certainly 18 don't want to see anything that wouldn't bear on their 19 financial situation, that's not our business and we don't 20 need to know that. 21 But quickly, while we're on discovery, I don't think 22 that estate planning, I don't even think these names -- 23 anybody reading these pleadings wouldn't have the foggiest 24 idea of what their estate plans were. It would just show 25 that these folks are members of trusts. So what? I'm in a 2 Case: 15-14634 Date (231 Filed:of12/22/2017 268) Page: 20 of 57 16 1 trust, you may be. I don't think that proves anything. 2 Proprietary investors, I think it's important that we 3 clarify that while we're here. Again, I've lived with this 4 case for a decade. The proprietary investors -- can I say 5 this here in court? -- they're big Fortune companies, like, 6 well, Fannie Mae is a big one, for example, and Verizon, GE, 7 and I can't think of who they all are right -- Home Depot is 8 one, as I recall. 9 Again, I don't think this is horribly top secret, but be 10 that as it may, I don't know that what Mr. Netter's filed 11 really does reveal all that to that extent. I guess it 12 could, I mean, you would see those names and I guess a person 13 reading that could think, ah, I bet they're an investor. So 14 maybe that's a little closer call. 15 But then you have to get into the balancing of public 16 interest and sealing and all that. So I will tell you that 17 Shawn was right, it was a huge headache trying to write the 18 briefs and I was trying to use initials and asterisks and all 19 that. I got so turned around one day I just pulled my hair 20 out with Judge Baverman, said, Judge, I can't do this, can't 21 keep up with it. There's some flowcharts that Shawn may have 22 with him but they're pretty complicated. It's hard to follow 23 them all. 24 Well, thanks, Judge, you've been very -- 25 THE COURT: Let me ask you this. You mentioned all 2 Case: 15-14634 Date (232 Filed:of12/22/2017 268) Page: 21 of 57 17 1 books and records related in any way to the entities 2 described in the affidavit. 3 That seems very broad, all books and records related to 4 the entities. I can't imagine much broader than that. Is 5 there some way that we rein that in? 6 MR. KREIMER: It is broad but you just stunned me and I 7 can't resist a response. 8 THE COURT: Okay. 9 MR. KREIMER: When Alliant filed this case four years 10 ago they had that exact same request to us. We objected. 11 You squashed that like a duck on a bug and you said answer it 12 and you sanctioned us. I think the only time I've been 13 sanctioned in 40 years of practicing law for that exact same 14 "any and all." I said, my gosh, that could be anything. So 15 I ended up producing probably 80 boxes of stuff after your 16 order. So yes, it is broad, but we sort of got hit by that. 17 That being said, if there is a way, I'm certainly a 18 reasonable person, if there's a way. I agree "any and all" 19 is broad, Judge, and I'm sorry, I still feel a little stung 20 about being sanctioned on that. 21 THE COURT: I think you're being overly sensitive 22 because I don't think it was quite as broad as this, but 23 perhaps it was, I stand to be corrected. I've been wrong a 24 time or two in my life. 25 But all books and records related in any way to the 2 Case: 15-14634 Date (233 Filed:of12/22/2017 268) Page: 22 of 57 18 1 entities, related in any way to the entities, it's whether 2 they sent a complaint to their cleaning company. You're not 3 even getting into the ownership entities, the members of the 4 entities. There's got to be a more narrow focus than that. 5 Maybe I did require your client to give me everything in 6 their mailbox but I don't think I went that far, but maybe I 7 did and, if I did, maybe I shouldn't have. But if I was 8 wrong once I'm not going to correct it by being wrong twice. 9 How about that? 10 MR. KREIMER: I'll live with it because we got a lot of 11 other nice rulings over the years from you. But I totally 12 agree with you, I thought it was broad before and I think it 13 is today. And maybe my fellow colleagues here, our combined 14 IQs can come up with some way to tailor that. 15 But you certainly understand our need for what we're 16 getting at. And lawyers who are as smart as Mr. Netter is 17 can find ways to come up with a way to tailor that, and Shawn 18 too, so we'll work on that. 19 THE COURT: Let me hear from Mr. Winterich and then, 20 Mr. Netter, I'll come back and hear your response to these 21 fellows. 22 MR. WINTERICH: Thank you, Your Honor. 23 I was going to ask for four things and then just throw 24 in some footnotes. 25 The first thing, I was going to echo Mr. Kreimer's 2 Case: 15-14634 Date (234 Filed:of12/22/2017 268) Page: 23 of 57 19 1 request for discovery. I'm embarrassed to say I had prepared 2 a spec set of requests for production and some requests for 3 admissions, I brilliantly left them in my car in the parking 4 lot in an expander file. 5 But I think there's ways to get what Mr. Kreimer is 6 referring to and you can phrase the questions in a way 7 that -- you can ask the question several different ways that 8 each one is enough that it's manageable. I think the 9 production will result in some volume and it's not exactly -- 10 it's sort of like the dog that chases the mail truck and 11 catches it. Well, what do you do when you get the key to the 12 full warehouse and it's 70,000 boxes? I don't want that 13 either. So it's going to be quite a bit of volume to go 14 through. 15 THE COURT: Let me ask you this. What is it you're 16 really trying to get at? Is it names and identities of these 17 members so that you've got that certainty about it? I'm not 18 sure what in the LLC book of records gives you that next step 19 in terms of citizenship, domicile. And I see where 20 Mr. Kreimer's headed with tax returns and that type thing to 21 sort of circle around and get what ends up being the real nut 22 of the issue, where is their citizenship. 23 MR. WINTERICH: Sure. Thank you for asking because 24 you're saving me a minute. 25 This is a -- you don't have to be able to read it from 2 Case: 15-14634 Date (235 Filed:of12/22/2017 268) Page: 24 of 57 20 1 there, but you can see it's a moderately complex molecule of 2 an ownership tree from one of the plaintiffs. Your Honor is 3 about 30 feet away from me and you can't read the fine print 4 from that distance, but there's about 30-some boxes on here 5 and it's spread out like an upside-down tree. 6 What I want to be able to know is that it's not a bigger 7 tree than this, for one thing. So if there's a member that 8 -- if everything is going to devolve and eventually be a 9 corporation, is it an Inc. or corp. or an individual? And 10 that's where you stop. You drill down to that point. 11 So if you have something like a limited liability 12 company, a trust, an unincorporated association, you have to 13 figure out is there a limited number of members of that LLC, 14 is there a limited number of members of that trust. And then 15 what I had to think about when I drafted these are what 16 documents will get me to who the objective members are as of 17 that time. 18 So all I'm looking for basically is contemporaneous 19 documents from 2011 which shows the citizens, the members of 20 ABC, LLC were one, two, three, four, and five. And whatever 21 gets me there is fine. If it's reliable, I've got no 22 problem. I don't need the same thing five times, I just want 23 to be able to know objectively that there's a finite number 24 of members that you can get to. 25 In the submissions that were made earlier by the 2 Case: 15-14634 Date (236 Filed:of12/22/2017 268) Page: 25 of 57 21 1 plaintiffs there's, for example, an affidavit that a trust -- 2 a trust beneficiary was the only beneficiary. Well, that's 3 not enough. You need the trust documents to show that 4 beneficiaries are A, B, C, and D, or whatever the number is. 5 And you cannot just -- I don't think that just to do an 6 affidavit to say this is the only beneficiary is sufficient. 7 That's the opposite of what I need; I'm looking for something 8 that documents it objectively and reliably. 9 And there's a way that -- and I've tried when I drafted 10 it with respect to discovery, I tried to phrase it in such a 11 way that I'd cover everything I needed to cover without 12 asking for any more than I need because I really don't want 13 to look at 10,000 pages if I can help it, if that answers the 14 Court's question. 15 THE COURT: It does, yes. 16 MR. WINTERICH: Thank you. I don't think it's 17 complicated discovery. I don't think the issues are 18 complicated. There's not an issue of intent. We had an 19 issue of intent on the issue that went to trial and that was 20 huge. Here you have an objective truth. It's not -- there's 21 no moral judgment in whether an LLC has four members or five. 22 One thing I was going to ask for and I just want to 23 bring it out, I think that Mr. Kreimer alluded to collateral 24 estoppel, or indirectly. Some of the things from 25 Thomasville, some of the information, there may be, for 2 Case: 15-14634 Date (237 Filed:of12/22/2017 268) Page: 26 of 57 22 1 example, like I mentioned, you have this ownership structure, 2 there might be -- I refer to it as such a complex molecule, 3 there may be recurring entities in Thomasville that also 4 reoccur here. So there may be a collateral estoppel issue, 5 for one. 6 And, secondly, I don't want to reinvent the wheel 7 because there may be prior testimony in Thomasville that 8 resolves certain things here and I don't have to go over the 9 same thing over and over if it's already been testified 10 about. 11 THE COURT: Let me ask you, in Thomasville did you get 12 to the point of taking depositions? I can't recall. 13 MR. WINTERICH: I wasn't in the Thomasville. That 14 was -- did you all take depositions in it? 15 MR. KREIMER: Yes, sir, we did. But we never asked the 16 question about jurisdictional issues at all. We talked about 17 this, I don't know what would be in there. Everybody is 18 welcome to see it but, from memory, we never touched on it. 19 THE COURT: Those were in the original proceedings, 20 there were depositions taken before you originally tried the 21 case, this wasn't on a remand from -- 22 MR. KREIMER: That's exactly right. 23 THE COURT: Okay, okay. 24 MR. WINTERICH: I guess what I was going to say about 25 Thomasville was all I would ask for is what's the prior 2 Case: 15-14634 Date (238 Filed:of12/22/2017 268) Page: 27 of 57 23 1 testimony about citizenship, what's the prior testimony about 2 whatever jurisdictional issue existed. I just don't want to 3 have to reinvent the wheel. And I'd like those affidavits. 4 Those are now under seal, I don't have access to that. 5 What else was I going to ask for? That was the -- those 6 are the main things that I think would -- the only things, 7 maybe tax returns, I expect it's going to be included with 8 requests for tax returns. 9 THE COURT: The scheme Mr. Kreimer talked about, is that 10 to you a workable scheme in terms of an initial phase of 11 production of documents from which you would be able to 12 discern, hopefully, what active discovery, for lack of a 13 better term, you would need to then engage in through either 14 interrogatories, requests to admit, or depositions, is that 15 the format you would see this taking? 16 MR. WINTERICH: I would ask for permission from Your 17 Honor, if I'm answering -- I want to answer you the right way 18 or answer your question properly. I have discovery requests 19 almost ready, so I would ask for permission to send those out 20 and if the Court -- they be answered or Alliant would say we 21 object and we could get them out. We need a limited amount 22 of time, because I had a feeling this might be coming up. 23 And I hope that answers the question the Court had. 24 THE COURT: It does. 25 MR. WINTERICH: So the only thing is I'd ask for enough 2 Case: 15-14634 Date (239 Filed:of12/22/2017 268) Page: 28 of 57 24 1 time. 2 The second thing out of the four things I was asking 3 for, the second thing I was going to ask was enough time to 4 analyze whatever we come up with. And I don't have an answer 5 to how long it's going to take because I don't know if it's 6 10,000 or 1,000 pages. 7 I'd also ask, the local rules, if I recall correctly -- 8 and I think some people get stung on this sometimes -- is you 9 have to file a motion to compel before the discovery period 10 ends. I would ask for latitude in that regard. So if we 11 have a short discovery period of 90 days and I need to file 12 motions -- well, I know where to call the Court first. But 13 if I have to file dispositive motion -- not dispositive 14 motion. If I have to file discovery motion, I'd ask for some 15 latitude to do that outside of the short time limit. 16 Obviously, I'd ask for a chance to present to the Court 17 what we -- the third thing is a chance to present to the 18 Court whatever we -- what we find. I don't know, unless 19 there's a question of fact, that the Court has to resolve 20 credibility issues, that we'd have to have an evidentiary 21 hearing, and I guess that's something we could leave open. 22 And I think, as I mentioned before, I plan to move for 23 -- the fourth thing is I plan to move for a modification of 24 the sealing requirements. 25 As a footnote, the Eleventh Circuit -- the Court ordered 2 Case: 15-14634 Date (240 Filed:of12/22/2017 268) Page: 29 of 57 25 1 these proceedings to take place. The Court's orders refer to 2 citizenship. But the Eleventh Circuit's order referred to 3 subject matter jurisdiction, which also encompassed amount in 4 controversy. 5 I'll tell you why that's important, or may be important. 6 That was part of the relief I asked for when we were in the 7 Eleventh Circuit. You have, I believe, based on depositions 8 I took in 2013, you have -- the Alliant plaintiffs are pairs 9 of partnerships, they're paired by number. And from what I 10 can tell you would have one called ABC, LLC and ABC Limited 11 Partnership. And one, the investment would be made by the 12 limited partnership and they would invest 99.9 percent. And 13 I'm hypothesizing that's the percentage, but kind of kept 14 seeing that over and over. They'd invest 99.9 percent of the 15 investment that they say they lost to Mr. Murphy. And then 16 the LLC or Inc. at the time would invest at .01 percent. 17 So if we find a limited partnership to be nondiverse, 18 then we have to slip it back and see what's the arrangement 19 between them about who gets to sue on it because you can't 20 sue somebody else's injury. If you're out 7 million because 21 of Mr. Murphy, allegedly, then you only have one-tenth of 22 1 percent of that, that's $7,000. 23 So that's another -- that's one thing my discovery may 24 ask for. I don't know if -- the Court, when Your Honor came 25 in, said subject matter jurisdiction, and I think the Court 2 Case: 15-14634 Date (241 Filed:of12/22/2017 268) Page: 30 of 57 26 1 meant to say that. The written order, the broadest here says 2 citizenship. I think the -- the Eleventh Circuit said 3 citizenship. I think it was just a scrivener's error. 4 I don't think I had anything else I wanted -- I think 5 that was all I had for that unless the Court has a question. 6 THE COURT: On the motions to compel, as you noted, my 7 standing order requires that if you've got a discovery 8 dispute that would ripen into a motion to compel you've 9 obviously got to confer and then notify the Court that you 10 have the problem. 11 So through that structure you would be given time within 12 which to file your motion to compel once the Court determined 13 that we could not resolve it through less formal means, I 14 would give you so many days to then file a motion to compel. 15 MR. WINTERICH: Thank you. 16 THE COURT: Mr. Netter, that's a lot to respond to. 17 MR. NETTER: It is, Your Honor, and I apologize if my 18 response is a bit disjointed -- 19 THE COURT: That's okay. 20 MR. NETTER: -- different issues here. 21 The fundamental point here, Your Honor, is, as the 22 Supreme Court, the U.S. Supreme Court held as recently as 23 2010, in the Hertz versus Friend case, the administration of 24 jurisdictional statutes has to be, quote, as simple as 25 possible, otherwise the entire foundation of the federal 2 Case: 15-14634 Date (242 Filed:of12/22/2017 268) Page: 31 of 57 27 1 judiciary will effectively collapse. 2 And as I listen to my adversaries here explain what they 3 think ought to take place in this case, I think not just of 4 this case but of the tens or hundreds of thousands of 5 diversity cases that take place in federal court over the 6 course of a year, and it's no surprise that the level of 7 inquiry and discovery that they would like to undertake here 8 is not the norm and it is not supported by any case law 9 because that would really bring the federal judiciary to a 10 crashing halt. 11 Instead, the standard that has been supplied by the 12 Supreme Court and by the Eleventh Circuit is in order to 13 establish diversity jurisdiction, the party invoking 14 jurisdiction, which here is us, must establish that diversity 15 to a preponderance of the evidence. Not to an absolute 16 certainty, you don't have to interview each individual's 17 fifth grade teacher to figure out which seat they sat in to 18 determine their citizenship. 19 And in most cases, I would say virtually every case, in 20 which citizenship is disputed, that issue is resolved by the 21 submission of affidavits sworn under oath or declarations 22 submitted under penalty of perjury under federal law. 23 The requests here for what's truly a breathtaking amount 24 of discovery, truly extraordinary, I can understand why 25 they're being made. The defendants here are subject to a 2 Case: 15-14634 Date (243 Filed:of12/22/2017 268) Page: 32 of 57 28 1 sizable judgment and if I were in their shoes I may also go 2 for the Hail Mary effort. 3 But there are legal standards that apply that govern the 4 scope of requests for discovery and when they can be made. A 5 couple of those standards I think are applicable here. 6 One that comes to mind is Rule 56(d) of the Federal 7 Rules of Civil Procedure. What effectively the Court asked 8 the parties to do is to come forward and present their 9 evidence and figure out is there anything to dispute. 10 Rule 56(d) says if an early motion for summary judgment is 11 filed in a case and one of the parties thinks it needs more 12 evidence, it has to come forward with an affidavit or 13 declaration that identifies with specificity what the 14 evidence is that they want, and also what it is that that 15 evidence is designed to obtain. 16 And then once that request has been submitted, the party 17 can weigh the cost of undertaking the additional discovery 18 against the potential benefit. 19 Here even as it's described by the defendants, it sounds 20 like a fishing expedition. There's not even a whiff of a 21 hint of evidence that any of the plaintiffs in this case is a 22 citizen of Georgia. And it is agreed by all the parties that 23 the defendants are all citizens exclusively of Georgia. 24 So the proposal that they have come forward with would 25 require months of work and hundreds of hours of attorney 2 Case: 15-14634 Date (244 Filed:of12/22/2017 268) Page: 33 of 57 29 1 time, but to what end? Not because there's any entity, even 2 in this complex ownership hierarchy, as to which there is a 3 dispute of evidence. There are sworn affidavits or 4 declarations signed under penalty of perjury that attest to 5 each level of the structure, and in virtually any other 6 circumstance that I'm familiar with and that the precedence 7 suggests that would suffice. 8 Now, the defendants invoke the Thomasville decision, so 9 I think it is important to discuss what Judge Baverman did 10 there. 11 We have already filed our brief on appeal to the 12 Eleventh Circuit. I would ask the Court to take judicial 13 notice of that brief because it explains from Alliant's 14 perspective where Judge Baverman went wrong there. And we 15 have great respect for Judge Baverman but his errors there, 16 in our view, begin at the very beginning. 17 The Eleventh Circuit now has a screening system where in 18 each diversity case somebody in the clerk's office looks to 19 identify whether the states have been specified and whenever 20 that omission has occurred they issue a jurisdictional 21 question. 22 In response to the jurisdictional question in the 23 Thomasville matter, Alliant submitted the affidavit, the 24 first affidavit that we've been discussing from Mr. Gevisser. 25 There was, however, no affidavit that was submitted with 2 Case: 15-14634 Date (245 Filed:of12/22/2017 268) Page: 34 of 57 30 1 respect to the defendants in that case. 2 And the Eleventh Circuit said in an order that the 3 affidavit, the first Gevisser affidavit was sufficient to 4 establish citizenship of the Alliant parties. But there 5 wasn't sufficient evidence in that case as to the citizenship 6 of the defendants, and based on our interpretation of the 7 Eleventh Circuit's orders that's why that case was ultimately 8 remanded back down to Judge Baverman. 9 Judge Baverman reopened the case and made a series of 10 decisions that don't comport, in our view, with the standards 11 of evidentiary admission, that weren't designed to look at 12 whether there was preponderance of evidence, but instead were 13 to subject these affidavits to an unfamiliar foreign 14 standard. 15 For example, he took issue with the fact that the 16 Gevisser affidavit didn't identify who his superior was. I 17 can't point to any source of evidentiary law that requires an 18 affiant or a deponent to anticipate that such questions will 19 be asked. The question said is there evidence and is there a 20 dispute about evidence. Here, as in that case, there is 21 evidence and there is no dispute of evidence. 22 And also with respect to the specific concerns that were 23 ultimately raised that Mr. Gevisser's affidavit referred to 24 the wrong date, not to the date of the filing of the 25 complaint, I would say in that case that's still some 2 Case: 15-14634 Date (246 Filed:of12/22/2017 268) Page: 35 of 57 31 1 evidence. If I tell you that I lived in Illinois on Tuesday, 2 well, that's some evidence, absent any conflict, that I also 3 lived in Illinois on Wednesday. 4 Nevertheless, in this case -- and we have cleaned up all 5 those issues, and as I read through the specific objections 6 that are stated in the responses from the defendants, they 7 strike me, at least, as rather insubstantial. I'd be happy 8 to go through and explain why they are insubstantial. But we 9 submitted affidavits and declarations for the Alliant 10 entities and we supplied copies of the documents that show, 11 contrary to the suggestion these could be fabrications, which 12 is really an alarming allegation in the context of sworn 13 affidavits and signed declarations, that this was a real 14 effort to put together a structure that the Court can follow 15 and that is supported in every circumstance by appropriate 16 evidence. 17 The other important thing to recognize about discovery 18 is if discovery had been so essential in this case, the 19 defendants would have requested that discovery during the 20 discovery period and would have obtained that discovery 21 during the discovery period. 22 Here the case is over. The case is up on appeal. The 23 defendants did not challenge jurisdiction on appeal. They 24 did not challenge jurisdictional discovery on appeal. So the 25 suggestion that we need to spend three months intently 2 Case: 15-14634 Date (247 Filed:of12/22/2017 268) Page: 36 of 57 32 1 focusing on all the books and records of each Alliant entity 2 that's in the ownership structure here seems, to me at least, 3 to be a way to effect pain on Alliant rather than to actually 4 divine the truth, which can be ascertained by the filings 5 that are already in front of this Court. 6 With respect to the discovery that pertained to the 7 plaintiffs and to their books and records, I just wanted to 8 state for the record that, although I'm not familiar with the 9 precise scope of that, the parties here are quite differently 10 situated. 11 This was a case about fraudulent transfer and the 12 secreting of assets. In those circumstances it makes a lot 13 more sense to have discovery of the financial transactions of 14 an entity that has been accused, with supporting allegations, 15 of hiding its money. 16 Here the question is what is the citizenship of each of 17 these entities, something that can be far more readily 18 determined and is typically resolved through affidavits or 19 through declarations. 20 With respect -- on a related point, one of the 21 defendants said that you can't admit to jurisdiction. That 22 is true but only partially so. 23 The case law is quite clear that although parties cannot 24 collude to create jurisdiction where it does not exist, 25 parties can admit to jurisdictional facts. For example, they 2 Case: 15-14634 Date (248 Filed:of12/22/2017 268) Page: 37 of 57 33 1 can admit that they are themselves citizens of Georgia. 2 Given the trajectory of this case and the representations to 3 the Eleventh Circuit in their briefs in the appeal, the 4 diversity jurisdiction was proper. We do think that they 5 have waived any right to contest those facts and certainly to 6 conduct after-the-fact discovery. 7 Some of the specific requests here, the suggestion that 8 driver's licenses are inadequate and that tax returns should 9 be required, I would not expect for the Eleventh Circuit to 10 adopt such a standard. That is entirely inconsistent with my 11 experience and with the case law. 12 Also, with respect to the amounts in controversy, we 13 briefed that issue up before the Eleventh Circuit in response 14 to the jurisdictional question. And as we stated in those 15 filings, the Court has already resolved that issue. The 16 Court has already decided that joint creditors have an equal 17 right to pursue an amount and there is as a result no need to 18 undertake some financial analysis to determine whether 19 $75,000 is owed specifically individually to one of those 20 joint creditors because, as a matter of applicable state law, 21 joint creditors have an equal right to pursue the full amount 22 of the judgment. 23 As I scan through my notes here, I think this covers 24 everything. But just to underscore the point, the Eleventh 25 Circuit has held in the context of discovery, the discovery 2 Case: 15-14634 Date (249 Filed:of12/22/2017 268) Page: 38 of 57 34 1 requests should be denied when issues could have been 2 addressed much earlier in the litigation, and that's Artistic 3 Entertainment, Inc. versus The City of Warner Robins, 4 331 F.3d 1196. And there are, of course, ample cases that 5 suggest that you don't get a blank check when you want to 6 reopen discovery after it's closed or when you want to extend 7 proceedings after the parties have made summary submissions. 8 Here, given that there is not any suggestion that 9 there's any actual dispute as to the citizenship of any 10 party, the defendants' adversarial skepticism that Alliant is 11 telling the truth is simply not an appropriate justification 12 to engage in this course of discovery. 13 THE COURT: Let me ask you a question only as to the 14 last point, and this is not a question but it just occurs to 15 me that I recognize there's authority about limiting 16 discovery when someone has waited so far into the litigation 17 and not addressed it earlier. That is not as strong a 18 proposition for me in light of this having been remanded by 19 the Court of Appeals for us to bore down into this a little 20 deeper and get this issue resolved, but I still recognize the 21 principle that you assert. 22 I'm not sure that we are -- we're pretty far apart, I 23 recognize that, but in terms of the steps that we take, I'm 24 not sure we're as far apart as it would seem at first blush. 25 You suggested that while the parties may be entitled to 2 Case: 15-14634 Date (250 Filed:of12/22/2017 268) Page: 39 of 57 35 1 discovery, there should be some specificity about what that 2 discovery is and some management of it and review of it and 3 approval of it, which suggests to me that what would be 4 consistent with what you are arguing would be the requirement 5 that the defendants advise the Court specifically of what 6 discovery they would like in this first round in terms of 7 whether it's a production of documents, whether it's some 8 further support of the matters that are stated in your 9 statement of citizenship, so that you have an opportunity to 10 see what they're asking for, if you object to it, or I have 11 the opportunity to review it to determine if it's 12 appropriate, then we know what we're talking about. 13 A few moments ago Mr. Kreimer and I were exchanging how 14 do we define this set of material. I can see that there may 15 be a set of material to which they're entitled to help them 16 understand the support for some of these issues, but until we 17 know exactly what that is it's hard to decide if it's proper 18 or not. 19 Thinking out loud, I'm inclined to allow, and 20 Mr. Winterich has perhaps already taken a huge step in this 21 direction of preparing some proposed discovery that he would 22 want to submit, but allowing them the opportunity to submit 23 their requested discovery, give you a short time to object to 24 it, if you object, and then I say, all right, this is the 25 discovery that we go with. 2 Case: 15-14634 Date (251 Filed:of12/22/2017 268) Page: 40 of 57 36 1 I would anticipate that there would be an initial phase 2 of some type of discovery, either through requests for 3 production or interrogatory, that would occur, after which we 4 would then confer to determine if any additional discovery 5 were appropriate. Let me let you respond to that. 6 MR. NETTER: Just to clarify what I said earlier, I 7 don't want my comments to be interpreted as saying that we 8 think discovery is at all necessary here, given the parties 9 did litigate the citizenship of parties and did conduct 10 discovery to some extent during the original phase of the 11 case, that's why one of the original parties was dismissed as 12 nondiverse. This is not a circumstance in which the parties 13 couldn't have anticipated that they might want to engage in 14 this discovery. 15 If the question at the end of the day is should the 16 defendants be allowed to suggest what they want and why they 17 want it, well, sure. I articulated the standards here and we 18 think it will be awfully hard at this juncture for them to 19 satisfy those standards, particularly as to some of the more 20 outlandish requests, like everybody's tax records of people 21 who are involved here. 22 But from our perspective, they're free to ask if they 23 can satisfy those standards. It's just I haven't heard 24 anything that suggests, to me at least, that they are looking 25 for something in particular and that they have a sound basis 2 Case: 15-14634 Date (252 Filed:of12/22/2017 268) Page: 41 of 57 37 1 for making that request, which isn't to say -- I haven't seen 2 a list of questions, perhaps I'm mistaken as to that; it 3 seems unlikely from our standpoint. So we would want the 4 opportunity certainly to object to the scope. 5 And more significantly, the Eleventh Circuit didn't seem 6 to be inviting an unlimited chase. I referred to this 7 earlier as a fishing expedition. Well, it's even worse to 8 undertake a fishing expedition when you know that you're 9 fishing in a swimming pool. The documents, the affidavits, 10 the declarations, those are out there. This is not a 11 circumstance in which we have a narrow dispute and it's a 12 close call as to whether or not one of the parties is a 13 citizenship of Georgia. There's nothing there. It's just a 14 hope, a hope that maybe there's something that can undermine 15 jurisdiction and send the case over to state court. 16 THE COURT: And I think the thing that distinguishes 17 this to some extent, besides the fact that it's come back to 18 us from the Eleventh Circuit and did not originate here, but 19 is the contention that I sense from defendants, and I'm 20 stating this as my understanding of their contention, not a 21 finding because I've not gone back -- I did go back and look 22 at Judge Baverman's case and read part of his decision there 23 and I've read the briefs that all of you have submitted to 24 me, but I sense from that the view of the defendants that 25 they're entitled to, and there's a basis for their going 2 Case: 15-14634 Date (253 Filed:of12/22/2017 268) Page: 42 of 57 38 1 behind the support offered as to citizenship of certain of 2 the plaintiffs or members of the plaintiff entities because 3 there has been a failure to be totally forthcoming in some 4 past presentation. 5 That's the sense I get, is that they believe they have 6 the right here, there's a track record that justifies their 7 going behind some of this information to at least verify it 8 and not be required to simply accept it on its face. 9 MR. NETTER: I think that point of clarification is 10 required on that too. This is not a circumstance in which 11 the declarations and affidavits that were submitted to Judge 12 Baverman were somehow fabricated. Instead, there are 13 objections that go -- that sound like this: You say you're 14 familiar with the records of Alliant but you didn't say what 15 date you started working there. That's very different from: 16 We have an actual reason to doubt the veracity of what you're 17 saying. 18 I would think that somebody who works for Alliant right 19 now who has access to their books and records, for example in 20 this case, the general counsel who is responsible for 21 compliance matters for each of the Alliant entities, 22 obviously has the historical records and indeed has attached 23 the most meaningful documents that indicates citizenship. 24 So this is not a circumstance in which Alliant can in 25 any respect be considered a bad actor or a bad faith actor 2 Case: 15-14634 Date (254 Filed:of12/22/2017 268) Page: 43 of 57 39 1 where that ought to carry over to this case. That seems to 2 me as just false. 3 And as a result I think that underscores why, despite 4 Judge Baverman's willingness to effectively move the goalpost 5 and to impose these additional standards of greater and 6 greater and greater specificity, that's just not what the law 7 requires. 8 The Eleventh Circuit's expectations, as the Eleventh 9 Circuit demonstrated in the order in Judge Baverman's case, 10 is for there to be declarations and affidavits, make sure the 11 parties are diverse, and then move on with the merits of the 12 case. 13 THE COURT: Thank you. 14 MR. KREIMER: Thank you, Your Honor. 15 I agree with Mr. Netter on one point, that we do need to 16 show some sort of a sound basis for going sort of behind 17 these declarations and moving a little step further down the 18 road. 19 I want to say that you hit the nail right squarely on 20 the head. You exactly described what the defense position 21 is. We feel there's been a history of inaccuracies and 22 inconsistencies. I think Mr. Netter doesn't have the 23 perspective I do, having been with the case from start to 24 finish. 25 He made a couple statements that, with all due respect, 2 Case: 15-14634 Date (255 Filed:of12/22/2017 268) Page: 44 of 57 40 1 I don't think are correct. I think -- I want to be careful 2 here because there was a lot of documentation, but I'm pretty 3 sure Judge Baverman pointed out, for example -- let me back 4 up. I'm 100 percent certain that he found that the documents 5 lacked trustworthiness, and that was his word. He then went 6 on to explain the facts that supported that conclusion. 7 Two of them that popped into my head while Mr. Netter 8 was talking, one had to do with a reference in a declaration 9 to a document that didn't even exist as of the time, it was a 10 post facto element to it. I can't, sorry -- 11 THE COURT: I recall what you're talking about. 12 MR. KREIMER: So that is fabrication. That's just a 13 fabrication. 14 Another note that I made here, Judge Baverman took some 15 pains to point out, said there were references in briefs to 16 facts or issues that were not supported in the declarations. 17 Well, that's a problem. I mean, that's not a 18 fabrication, if we want to split semantic hairs, but it's 19 certainly disingenuous at best. It's something that, given 20 the magnitude of what's at stake here, that you raise your 21 eyebrows and say, well, gosh, I'm not comfortable. So I 22 think we have a sound basis. 23 Let me be a little bit literary for a moment. What I 24 heard Mr. Netter say was the floodgate argument, that this 25 would just wreak havoc on the whole foundation of the federal 2 Case: 15-14634 Date (256 Filed:of12/22/2017 268) Page: 45 of 57 41 1 court system. Well, that's a bit of hyperbole. 2 Most cases are Plaintiff v. Defendant. You don't have 3 this tremendously complicated list of trusts and things that 4 Alliant has chosen to set up. As I said in my opening 5 remarks, they're the ones who wanted that so they need to 6 open the file cabinets and let us see what's there. 7 So that leads me to my initial suggestion to you, Your 8 Honor, at the outset. Judge Baverman rather quickly found 9 produce all the documents that support -- he did say support, 10 I'd like to see them all -- produce all the documents that 11 support your declaration. 12 I'm going to tell you from memory that was about 200 13 pages, maybe, and it took about ten days. Not hundreds of 14 thousands and Mayflower vans and all this other business. 15 Ten days to get that, that's not hard. That's why I 16 suggested 20 minutes ago, let's see what they have that 17 supports their stuff. I'll give some thought after we leave 18 here to a little more narrowly tailored. 19 Judge, I know you're a great trial lawyer and all that. 20 If they just give us the stuff that supports their position, 21 well, that doesn't give us -- I'd like if they give us things 22 that go against your position. Well, that's not a very well 23 tailored request is it, Judge? So that's why you have to use 24 "any and all," and it is hard but I will work on that. But 25 that's why I said ten days you ought to be -- back up. I 2 Case: 15-14634 Date (257 Filed:of12/22/2017 268) Page: 46 of 57 42 1 know I'm covering a lot of ground quickly. 2 Ms. Balderrama gave an affidavit where she says I 3 reviewed some books and records. Well, she ought to have 4 those sitting on her desk. That ought to be pretty easy to 5 get. And, interestingly, she doesn't even say what they are. 6 Given the history of this case and the painstaking 7 briefings in the Baverman case, you would have thought she 8 said I looked at the operating agreement, this, that, and the 9 other. 10 Let me move quickly because everybody gets this, it's 11 been a long day. 12 The tax returns, Mr. Netter keeps hammering on that. 13 Not exactly fair. I specifically said I don't want the whole 14 shooting match, just give me the front page. That's all I 15 want, just to show where they lived. 16 So we do the history -- and I'm going to close I think 17 on this quickly. We have one other sound basis that 18 Mr. Netter either doesn't know or has perhaps forgotten. 19 Brian Doran, paid witness, all of the jurisdictional 20 testimony that we got -- Shawn's going to talk about that -- 21 it wasn't litigated. We sort of got cut short, and he knows 22 more about that than I do. But it was provided by Brian 23 Doran. Do you remember him, Your Honor? 24 We found out months or weeks before trial that he was 25 being paid 5 percent of the recovery in this case to 2 Case: 15-14634 Date (258 Filed:of12/22/2017 268) Page: 47 of 57 43 1 cooperate. We know what that means: to testify, give 2 depositions. 3 Brian Doran, refresh your memory, he was kind of their 4 point man on all these foreclosure suits or forfeiture cases, 5 if you will, has been to court 30 times, has given a hundred 6 depositions. I've deposed him ten times. He's great, tough 7 witness. 5 percent, 5 percent of 10 million is half a 8 million dollars. 9 Well, Shawn and I looked at this, and we even kicked 10 around a motion to have him -- I forget what we did exactly, 11 we ended up withdrawing it. It was pretty serious. As you 12 will recall, Mr. Doran didn't appear. 13 Well, anyway, that's serious business. In all my years 14 of practicing law -- only one good thing I know about getting 15 older, I now get to say 40 years of practicing law -- I never 16 heard of a witness getting paid to get a piece of the action. 17 And I think in federal cases, I know there are certain types, 18 and Mr. Netter will know them, but in certain types it's a 19 felony to do that. If it is a civil case I'm not exactly 20 clear, I've getting out on thin ice here, but it isn't done. 21 Anyway, Mr. Doran didn't come to court but he's the one 22 who talked about jurisdiction a little bit in this case, we 23 just had a small brief run at it, didn't get into it at all 24 in the Thomasville case. 25 It's very interesting, after I found out in the 2 Case: 15-14634 Date (259 Filed:of12/22/2017 268) Page: 48 of 57 44 1 Thomasville case after the judgment, I learned after the 2 judgment that he was being paid and he also got a piece of 3 the action in Thomasville that hadn't been vacated and that 4 case was probably worth 5 million, so he stood to get 250,000 5 there. 6 I asked him what his position was and his relationship 7 and he gave the most remarkable answer. It walked the 8 tightrope of truth versus not truth, I'll just put it that 9 way, and I didn't pursue it. But I think we have a sound 10 basis, is my point. There is a lot of stuff here. This is 11 not one state plaintiff versus one state defendant; this is 12 all the complexity that we talked about. 13 Your Honor, give me one last second. We do think Judge 14 Baverman got it right and we would certainly hope this Court 15 would follow the same rules. We have objected to what they 16 already have, and I guess Your Honor will let us do discovery 17 instead. We think even as we sit here today they haven't 18 made a sufficient showing of jurisdiction, I just want to 19 state that. 20 And the last thing I want to repeat, and let Shawn talk 21 about it, is we didn't litigate jurisdiction at all. That's 22 all I have, Judge, if you have any questions. 23 MR. WINTERICH: I hate to correct Mr. Kreimer, the only 24 citizenship, Your Honor, that we contested was -- make sure I 25 can be heard -- two companies, Gazebo Park Apartments of 2 Case: 15-14634 Date (260 Filed:of12/22/2017 268) Page: 49 of 57 45 1 Acworth, LLC, which the Court's about to let out, and the 2 citizenship of Alliant Tax Credit Fund 31-A, Limited, which 3 the Court allowed out by an order of around October 2013. 4 And those are the only two citizenships that were even 5 discussed. 6 In the case of 31-A, it was not litigated, it was -- we 7 didn't have enough information one way or the other and 8 defendants -- the plaintiffs admitted that they didn't think 9 there was enough -- there wasn't diversity because they had a 10 Georgia citizen in the woodpile so they've dropped out. 11 Other than that, there's been no litigation of citizenships 12 of the other Alliant plaintiffs. 13 And I did not want to bring this up, we had a -- I took 14 a couple depositions of Mr. Doran, without belaboring it, in 15 September 2013, and I had Post-It notes and anytime he would 16 remember something differently I would move my Post-It note 17 and take a picture. I still have those pictures. So I 18 remember how -- what he testified to and there was some 19 prosecution of that. 20 I reached a point with Alliant, in all frankness, I 21 reached a point with Alliant where they gave me a diskette 22 but it didn't have everything I needed to show that there was 23 a finite number of members. Mr. Netter said something along 24 the lines of, well, there's no citizens of Georgia in our 25 companies, and there may not be. It's possible, very 2 Case: 15-14634 Date (261 Filed:of12/22/2017 268) Page: 50 of 57 46 1 possible there are no citizens of Georgia in the remaining 2 plaintiffs, but there could also be stateless citizens. 3 FDIC, that's a stateless citizen, or at least it was in the 4 case the Court had, RES Georgia. 5 There used to be a comedian named Jeff Foxworthy and he 6 used to say you might be a blank if you do so-and-so and the 7 blank -- 8 THE COURT: I don't think he's a used-to-be, I think 9 he's still alive. Maybe he's not as funny as he used to be 10 but he's still around, I think. 11 MR. WINTERICH: Well, to paraphrase Mr. Foxworthy, if 12 you have to file an affidavit instead of a document which 13 shows a limited number of members, you may have a proof 14 problem. And it's not just an issue of whether or not you 15 can prove you don't have a Georgia citizen or you do have a 16 Georgia citizen, but whether you can prove limited number of 17 members in your LLC. 18 And not to pick on the individual members, which are 19 members of three families which stay they're all from 20 California and Florida, not to pick on them -- and I don't 21 know how deeply I'm going to delve into this, but if you 22 file -- I don't personally care what their tax returns say. 23 But if they say they're California citizens, there should be 24 a California tax return, not a Georgia tax return or Utah tax 25 return. I don't know what my interest is in that, I'm just 2 Case: 15-14634 Date (262 Filed:of12/22/2017 268) Page: 51 of 57 47 1 bringing that up. I'm not sure if I've even asked for it in 2 my spec discovery. 3 The Eleventh -- we did not appeal jurisdiction or 4 citizenship in the Eleventh Circuit. We didn't have the 5 proof. There just wasn't -- we reached a certain point where 6 the Court said, no, no, you've had enough and that was it and 7 we didn't have enough proof to say there was not diversity of 8 citizenship or there is. 9 Well, two things happened. One is the Eleventh Circuit 10 decided that on their own. That's sort of a, I hate to say 11 this colloquialism, sort of a free issue, because it's 12 something that even if you don't brief it they'll bring it up 13 themselves, apparently. You only have so much time and space 14 to brief and so you have to make the most of that and if 15 there's something they may look at on their own, there's no 16 sense in us bringing that up additionally. 17 I brought up the prospect, I was mentioning there was 18 three sets of Alliant plaintiffs: The Alliant Plaintiffs XI, 19 the Alliant Plaintiffs XXVII, the Alliant Plaintiffs 31, and 20 they're aligned to each other. All there is is three 21 partnership agreements which I would assume -- and amendments 22 possibly -- which would show what the relationships are 23 between them and that's all I would ask for that I would 24 think of that I would need. So I don't think it's onerous. 25 I don't think I have anything else unless the Court has 2 Case: 15-14634 Date (263 Filed:of12/22/2017 268) Page: 52 of 57 48 1 a question. 2 THE COURT: Thank you. 3 MR. NETTER: Just briefly, Your Honor, I think even Jeff 4 Foxworthy would agree there's jurisdiction here, because we 5 have submitted documents. This is not a case -- even though 6 it would be sufficient to have a declaration that says this 7 entity has these members, with respect to the Alliant 8 entities, you have documents that are signed by the sole 9 member and that corroborate all this stuff so that -- I 10 just -- it's not there, what universe we're operating in. 11 And it is true that when you go up on appeal you have a 12 limit to what arguments you can select and what arguments you 13 can't. And the way it works, as the Court is well aware, is 14 the arguments you decide to forgo you waive. And the fact of 15 jurisdiction can't be waived but if they really thought that 16 they were cheated with respect to the amount of 17 jurisdictional discovery or this gentleman who shares my 18 first name, those are issues they would have raised to the 19 Eleventh Circuit. 20 Now that we are back here on remand, the question is 21 whether the submissions adequately demonstrated citizenship 22 of the parties. The relevant documents that demonstrate the 23 citizenship for each of these Alliant entities is already now 24 in the Court's record and that's why we think it's official. 25 THE COURT: Thank you. It's my intention to review 2 Case: 15-14634 Date (264 Filed:of12/22/2017 268) Page: 53 of 57 49 1 again the statement as to the parties' citizenship that 2 you've already submitted along with the supporting 3 documentation you submitted with it, comparing the objections 4 that the defendants have already raised to those matters, and 5 decide from there -- and, Mr. Kreimer, you're absolutely 6 right, I think one approach would be to rule on your 7 objections and it may be resolved right then. I think you 8 mentioned Judge Baverman gave one or two chances, and so when 9 I first was writing out my questions to you one of the 10 questions I thought of asking was, well, do we allow an 11 opportunity, if the plaintiff wished -- plaintiffs wished to 12 amend to respond to objections to allow the amendments and 13 then go to the next step. I'm inclined to just skip that 14 step and let's just let me look at the objection, see what's 15 there. 16 I am going to probably allow some level of discovery and 17 what I would invite from the defendants, and it's fine, 18 Mr. Winterich, if you want to go ahead and submit what you 19 have, but if you want to step back from it and take a look at 20 it through the lens of what's happened here today, at least 21 at that initial phase I would be interested in what type of 22 production you would want. And I would compare that to what 23 you've already submitted in terms of deciding what's 24 appropriate or not appropriate. 25 I'd like to get that from you within, because I want to 2 Case: 15-14634 Date (265 Filed:of12/22/2017 268) Page: 54 of 57 50 1 move this thing along, like within seven days. Can you live 2 with seven days to get that to me? 3 MR. WINTERICH: I can, Your Honor. 4 THE COURT: Okay, if you guys will get me that from the 5 defense side, and I'll give you seven days to respond to it 6 and quickly after that, and we'll put it at the top of the 7 stack, to decide, okay, what's going to happen next. 8 If I allow some discovery it would probably go in this 9 fashion. It would be to allow those requests for documents, 10 or however you've couched it, to go forward. Give you time 11 to respond to those. And then after that response had 12 occurred, have a conference with counsel to decide what, if 13 any, additional discovery was necessary. 14 First I'd ask the defendants do they need additional, if 15 you think you do, tell me what it is, we'll talk about it. I 16 won't make you come back to the courthouse to do that, we can 17 do it on a phone conference. We'll get on the phone and just 18 talk through that. But I would like to keep us moving 19 forward. 20 I think once we've reached that stage and we see if 21 there's even going to be a second level of discovery, we can 22 do that, and then is when we decide how do I have you tee it 23 up for me to decide it. Do I let you just submit briefs 24 along with your affidavits, do we need to have an evidentiary 25 hearing. I lean, tend to lean away from an evidentiary 2 Case: 15-14634 Date (266 Filed:of12/22/2017 268) Page: 55 of 57 51 1 hearing but if we get to that point and decide it's 2 necessary, then we'll do that. 3 But at this point seven days to hear from the 4 defendants, seven days for any objections from the 5 plaintiffs. We'll get a decision fairly quickly and it will 6 either be, okay, we really don't need discovery, or it will 7 be discovery moves forward and these are the matters you 8 should respond to. 9 It's not an all or nothing. I may decide they've asked 10 for too much or, you know, whatever, but I'll give you 11 direction in terms of what you should actually respond to 12 from what's in there. And then upon completion of that we'll 13 confer further. 14 Any questions? Okay, thanks. We'll probably enter just 15 a little summary order that just outlines that very briefly 16 and then I'll wait to hear from you and we'll proceed from 17 there. Thank you. Have a good day. 18 (Proceedings concluded at 2:45 p.m.) 19 20 21 22 23 24 25 2 Case: 15-14634 Date (267 Filed:of12/22/2017 268) Page: 56 of 57 52 1 C E R T I F I C A T E 2 3 4 UNITED STATES DISTRICT COURT: 5 NORTHERN DISTRICT OF GEORGIA: 6 7 I hereby certify that the foregoing pages, 1 8 through 51, are a true and correct copy of the proceedings in 9 the case aforesaid. 10 This the 20th day of June, 2017. 11 12 /s/ Amanda Lohnaas 13 14 Amanda Lohnaas, CCR-B-580, RMR, CRR Official Court Reporter 15 United States District Court 16 17 18 19 20 21 22 23 24 25 Case: 15-14634 Date (268 Filed:of12/22/2017 268) Page: 57 of 57 CERTIFICATE OF SERVICE I hereby certify that on December 22, 2017, I electronically filed Volumes I and II of Alliant's Second Supplemental Appendix with the Clerk of the Court for the United States Court of Appeals for the Eleventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I further certify that all volumes of Alliant's Second Supplemental Appendix will be submitted to the Clerk of the Court for the United States Court of Appeals by overnight mail. I further certify that the same will be served on counsel of record for appellants by overnight mail. s/ Brian D. Netter

ORDER: Appellant's "Motion for Leave to Lodge Supplemental Brief and Supplemental Appendix Under Seal" is GRANTED. Appellee's "Motion to File Under Seal Supplemental Filings Regarding Subject Matter Jurisdiction" is GRANTED. The Clerk of this Court is DIRECTED to place unredacted supplemental briefs filed by Appellant Marilyn Murphy and Appellees, and an unredacted supplemental appendix filed by Appellant Marilyn Murphy, under seal. [8332919-2] [8322217-2]

Case: 15-14634 Date Filed: (1 of 3) 02/06/2018 Page: 1 of 2 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-14634-GG ________________________ ALLIANT TAX CREDIT FUND 31-A, LTD, Plaintiff, ALLIANT TAX CREDIT 31, INC, a Florida corporation, ALLIANT TAX CREDIT FUND XXVII, LTD., a Florida limited partnership, ALLIANT TAX CREDIT TAX CREDIT XXVII, INC, a Florida corporation, ALLIANT TAX CREDIT XI, INC., a Florida corporation, ALLIANT TAX CREDIT XI, LTD., a Florida limited partnership, Plaintiffs-Counter Defendants-Appellees- Cross Appellants, versus M. VINCENT MURPHY, III, MULTIFAMILY HOUSING DEVELOPERS, L.L.C., a Georgia limited liability company, COMMUNITY MANAGEMENT SERVICES, INC., a Georgia corporation, GAZEBO PARK APARTMENTS OF ACWORTH, LLC, a Georgia limited liability company, Defendants-Appellants-Cross Appellees, MARILYN MURPHY, Defendant-Counter Claimant-Appellant- Cross Appellee, PATRICK CARROLL, et al., Defendants. Case: 15-14634 Date Filed: (2 of 3) 02/06/2018 Page: 2 of 2 ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ ORDER: Appellant's "Motion for Leave to Lodge Supplemental Brief and Supplemental Appendix Under Seal" is GRANTED. Appellees' "Motion to File Under Seal Supplemental Filings Regarding Subject Matter Jurisdiction" is GRANTED. The Clerk of this Court is DIRECTED to place unredacted supplemental briefs filed by Appellant Marilyn Murphy and Appellees, and an unredacted supplemental appendix filed by Appellant Marilyn Murphy, under seal. /s/ Charles R. Wilson_____________ UNITED STATES CIRCUIT JUDGE Case: 15-14634 Date Filed: (3 of 3) 02/06/2018 Page: 1 of 1 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303 David J. Smith For rules and forms visit Clerk of Court www.ca11.uscourts.gov February 06, 2018 MEMORANDUM TO COUNSEL OR PARTIES Appeal Number: 15-14634-GG Case Style: Alliant Tax Credit 31, Inc, et al v. M. Vincent Murphy, III, et al District Court Docket No: 1:11-cv-00832-RWS This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. The enclosed order has been ENTERED. Sincerely, DAVID J. SMITH, Clerk of Court Reply to: Joe Caruso, GG Phone #: (404) 335-6177 MOT-2 Notice of Court Action

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Description
doc
10/16/2017
MOTION to file a supplement brief filed by Community Management Services, Inc., Multifamily Housing Developers, L.L.C. and M. Vincent Murphy, III. Opposition to Motion is Unknown. [8271965-1] (ECF: Stan Kreimer)
doc
10/23/2017
MOTION to file a supplement brief filed by Marilyn Murphy. Opposition to Motion is Unknown. [8278266-1] (ECF: Mark Nash)
doc
10/30/2017
RESPONSE to Motion to file supplemental brief filed by Appellant-Cross Appellee Marilyn Murphy in 15-14634 [8278266-2] filed by Attorney Brian David Netter for Appellees-Cross Appellants Alliant Tax Credit 31, Inc, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc, Alliant Tax Credit XI, Inc. and Alliant Tax Credit XI, Ltd. (ECF: Brian Netter)
doc
11/09/2017
ORDER: Appellees' "Motion to File Under Seal Its Motion to Amend the Pleadings Pursuant to 28 U.S. C. 1653" is GRANTED. Appellants' motions to file supplemental briefs are GRANTED. Appellants are directed to file their supplemental briefs within 30 days of this order. The appellees are directed to file a response brief within 14 days after the final appellant's brief is filed. [8278266-2] [8271965-2] [7997477-2]
doc
12/11/2017
Appellant's Supplemental Brief filed by Appellant-Cross Appellee Marilyn Murphy. (ECF: Mark Nash)
doc
12/11/2017
Appellant's Supplemental Brief filed by Appellants-Cross Appellees Community Management Services, Inc., Multifamily Housing Developers, L.L.C. and M. Vincent Murphy, III. (ECF: Stan Kreimer)
12/11/2017
Received paper copies of EBrief filed by Appellants-Cross Appellees Community Management Services, Inc., Multifamily Housing Developers, L.L.C. and M. Vincent Murphy, III. (Text entry; no document attached.)
doc
12/12/2017
MOTION to seal filed by Marilyn Murphy. Opposition to Motion is Unknown. [8322217-1] (ECF: Mark Nash)
doc
12/18/2017
SUPPLEMENTAL Appendix filed [1 VOLUMES] by Appellant-Cross Appellee Marilyn Murphy. (ECF: Mark Nash)
doc
12/22/2017
Supplemental Appendix [2 VOLUMES] filed by Appellees-Cross Appellants Alliant Tax Credit 31, Inc, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc, Alliant Tax Credit XI, Inc. and Alliant Tax Credit XI, Ltd. (ECF: Brian Netter)
doc
02/06/2018
ORDER: Appellant's "Motion for Leave to Lodge Supplemental Brief and Supplemental Appendix Under Seal" is GRANTED. Appellee's "Motion to File Under Seal Supplemental Filings Regarding Subject Matter Jurisdiction" is GRANTED. The Clerk of this Court is DIRECTED to place unredacted supplemental briefs filed by Appellant Marilyn Murphy and Appellees, and an unredacted supplemental appendix filed by Appellant Marilyn Murphy, under seal. [8332919-2] [8322217-2]
02/14/2018
CORRECTION: The Court has determined that oral argument will be necessary in this case. Please forward 3 additional copies of the 1 volumes of Supplemental Appendix filed 6/14/16 and 5 volumes (including sealed volumes) of Supplemental Appendix filed 12/22/17, which conform to all formatting requirements, filed by Attorney Brian David Netter for Appellees-Cross Appellants Alliant Tax Credit 31, Inc, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc, Alliant Tax Credit XI, Inc. and Alliant Tax Credit XI, Ltd. to the Clerk's Office, Attention: Jenifer Tubbs. Your prompt attention to this matter is appreciated. (Text entry; no document attached.)
doc
05/02/2018
Assigned to tentative calendar number 26 in Atlanta during the week of August 13, 2018. Counsel must be logged into CM/ECF in order to view the attached calendar.
doc
06/14/2018
Calendar issued as to cases to be orally argued the week of 08/13/2018 in Atlanta, Georgia. Counsel are directed to electronically acknowledge receipt of this calendar by docketing the Calendar Receipt Acknowledged event in ECF. Counsel must be logged into CM/ECF in order to view the attached calendar.
06/18/2018
Attorney Brian David Netter for Appellees-Cross Appellants Alliant Tax Credit 31, Inc, Alliant Tax Credit Fund XXVII, Ltd., Alliant Tax Credit Tax Credit XXVII, Inc, Alliant Tax Credit XI, Inc. and Alliant Tax Credit XI, Ltd. hereby acknowledges receipt of a copy of the printed calendar for 08/16/2018. Brian Netter 202-263-3339 will present argument. (ECF: Brian Netter) (Text entry; no document attached.)
doc
07/26/2018
MOTION to continue Oral Argument. filed by Marilyn Murphy. Opposition to Motion is Unknown. [8521063-1] (ECF: Mark Nash)
doc
08/01/2018
ORDER: Appellant's Motion to reschedule oral argument set for Thursday, August 16, 2018, until The next available calendar on or after September 4, 2018 is GRANTED. [8521063-2]
doc
08/03/2018
Assigned to tentative calendar number 3 in Atlanta during the week of November 5, 2018. Counsel must be logged into CM/ECF in order to view the attached calendar.
doc
09/05/2018
Calendar issued as to cases to be orally argued the week of 11/05/2018 in Atlanta, Georgia. Counsel are directed to electronically acknowledge receipt of this calendar by docketing the Calendar Receipt Acknowledged event in ECF. Counsel must be logged into CM/ECF in order to view the attached calendar.
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