Free Reply - District Court of Colorado - Colorado

Case 1:01-cv-00083-REB-CBS

Document 350

Filed 11/30/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:01-cv-00083-REB-CBS STOCKMAN'S WATER COMPANY, LLC, a Colorado limited liability company, Plaintiff, and PETER HORNICK, an individual domiciled in New York, and AMERICAN WATER DEVELOPMENT, INC., a Colorado corporation, Intervening Plaintiffs, vs. VACA PARTNERS, L.P., a Delaware limited partnership; FARALLON CAPITAL MANAGEMENT, LLC, a Delaware limited liability company; and JASON FISH, a California resident, an individual, Defendants.

REPLY TO AWDI'S RESPONSE TO DEFENDANTS' NOTICE OF SAGUACHE COUNTY DISTRICT COURT'S ORDER GRANTING SUMMARY JUDGMENT ON REMAINING CLAIMS

Defendants, Vaca Partners, L.P., Farallon Capital Management, LLC, and Jason Fish (collectively, "Defendants"), submit the following reply to AWDI's Response to Defendants' Notice of Saguache County District Court's Order Granting Summary Judgment on Remaining Claims ("Response"). 1. In its Response, AWDI argues that the Order Granting Summary Judgment on

Remaining Claims (the "Summary Judgment Order"), issued by the Colorado District Court for Saguache County (the "State Court") in Cabeza de Vaca Land & Cattle Co. v. American Water

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Development Inc., No. 02CV15 (the "State Action") "should not be considered in resolving any of the issues raised" in AWDI's Rule 60(b) motion because the Summary Judgment Order is not a "final judgment" for purposes of issue or claim preclusion. 2. AWDI misses the point. Defendants have not argued that the findings in the

Summary Judgment Order have an immediate preclusive effect. The Summary Judgment Order will not have preclusive effect until it is, inevitably, affirmed on appeal. 3. Rather, Defendants' argument is that the Summary Judgment Order shows that

AWDI's Rule 60(b) Motion is fundamentally flawed because it misinterprets the State Court earlier rulings. To give just one example, in its Rule 60(b) Motion, AWDI argues that its claims are not barred by issue preclusion because the State Court's May 9, 2003 54(b) Order was not a final order but was analogous to a preliminary injunction ruling. In the Summary Judgment Order, the State Court emphatically rejects that flawed analogy, and makes it crystal clear that the 54(b) Order is a final judgment as to the issues decided by it. 4. In other words, the Summary Judgment Order is particularly pertinent as to the

issues raised in the pending Rule 60(b) Motion because the Summary Judgment Order delineates the scope, nature, and content of the 54(b) Order. And in so doing, the Summary Judgment Order demonstrates conclusively that AWDI's arguments against according preclusive effect to the issues decided in the 54(b) are wholly without merit.

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Respectfully submitted this 30th day of November, 2005. BROWNSTEIN HYATT & FARBER, P.C. By: s/Stanley L. Garnett_______________ Stanley L. Garnett Richard P. Barkley Annie T. Kao 410 17th Street, 22nd Floor Denver, Colorado 80202 (303) 223-1100 [email protected] [email protected] [email protected] ATTORNEYS FOR APPELLEES, VACA PARTNERS, L.P., FARALLON CAPITAL MANAGEMENT, LLC, AND JASON FISH

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 30th day of November, 2005, a true and correct copy of the foregoing REPLY TO AWDI'S RESPONSE TO DEFENDANTS' NOTICE OF SAGUACHE COUNTY DISTRICT COURT'S ORDER GRANTING SUMMARY JUDGMENT ON REMAINING CLAIMS was served via the CM/ECF system to the following addresses: Allan L. Hale, Esq. John G. Lubitz, Esq. Robert T. Hoban, Esq. Hale Friesen, LLP 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 [email protected] [email protected] [email protected] Richard I. Brown, Esq. Patrick J. Casey, Esq. Laura J. Nelson, Esq. John Alan Call, Esq. Lottner Rubin Fishman Brown & Saul, P.C. 633 Seventeenth Street, Suite 2700 Denver, Colorado 80202 [email protected] [email protected] [email protected] [email protected] Robert J. Bruce, Esq. Lawlis & Bruce, LLC 1875 Lawrence Street, Ste. 750 Denver, CO 80202 [email protected]

s/ Catherine Olguin______________ Catherine Olguin