Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:01-cv-00568-LTB-PAC

Document 437

Filed 05/15/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-00568-LTB-PAC CROSS COUNTRY LAND SERVICES, INC., a Texas corporation, Plaintiff, v. PB NETWORK SERVICES, INC., a Delaware corporation, PB TELECOMMUNICATIONS, INC., a Delaware corporation, LEVEL 3 COMMUNICATIONS, LLC, a Delaware limited liability company, KIEWIT NETWORK SERVICES CO., a Delaware corporation, and KIEWIT CONSTRUCTION CO., a Delaware corporation, Defendants, and PB NETWORK SERVICES, INC., a Delaware corporation, LEVEL 3 COMMUNICATIONS, LLC, a Delaware limited liability company, and KIEWIT NETWORK SERVICES CO., a Delaware corporation, Third-Party Plaintiffs, v. JAMES STEVENSON, WILLIAM STEVENSON, ED CROWSTON, and LARRY ORTH, Third-Party Defendants. _____________________________________________________________________________ KIEWIT NETWORK SERVICES CO.'S RESPONSE BRIEF TO CROSS COUNTRY'S MOTION FOR PREJUDGMENT INTEREST _____________________________________________________________________________ Defendant Kiewit Network Services Co. ("KNS"), through counsel, Grimshaw & Harring, P.C., submits the following response brief to Cross Country Land Services, Inc.'s ("Cross Country's") motion for prejudgment interest.

Case 1:01-cv-00568-LTB-PAC

Document 437

Filed 05/15/2006

Page 2 of 3

ARGUMENT The Court's order to KNS to hold $344,810.60 in constructive trust was based upon the interpleader motion filed by PB Network Services, Inc. ("PBNS") on March 29, 2002. In summary, the Court found that PBNS made a judicial admission that the $344,810.60 was owing and imposed the constructive trust on KNS. Cross Country now argues that it is entitled to prejudgment interest on the $344,810.60 and has argued that this interest should begin accruing on May 6, 2002, the date that PBNS withdrew its interpleader motion and returned the funds to KNS. However, Cross Country is in error when it states that PBNS returned the funds on May 6, 2002. In fact, the funds were returned to KNS on May 2, 2003, nearly a year later than asserted by Cross Country. The earliest that prejudgment interest should begin to accrue against KNS is May 6, 2002, the date that KNS actually obtained the funds from PBNS. Given the equitable nature of a constructive trust, it would be inequitable to commence the assessment of interest against KNS prior to the time that KNS actually obtained possession of the funds.

Dated this 15th day of May, 2006.

Respectfully submitted, GRIMSHAW & HARRING, P.C. s/ Philip M. Quatrochi Richard L. Harring Philip M. Quatrochi 1700 Lincoln Street, Suite 3800 Denver, Colorado 80203 Telephone: (303) 839-3800 Attorneys for Defendants PB Network Services, Inc., Level 3 Communications, LLC, Kiewit Network Services Co. and Kiewit Construction Co. 2

Case 1:01-cv-00568-LTB-PAC

Document 437

Filed 05/15/2006

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on May 15th, 2006, I electronically filed the foregoing KIEWIT NETWORK SERVICES CO.'S RESPONSE BRIEF TO CROSS COUNTRY'S MOTION FOR PREJUDGMENT INTEREST using the CM/ECF system which will send notification of such filing to the following: Gregory C. Smith Fairfield and Woods, P.C. Wells Fargo Center, Suite 2400 1700 Lincoln Street Denver, CO 80203-4524 s/ Philip M. Quatrochi

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