Free Motion to Compel - District Court of Colorado - Colorado

Case 1:04-cv-01849-MSK-MEH

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Filed 03/27/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 04-cv-01849-MSK-MEH CAVITAT MEDICAL TECHNOLOGIES, INC.

Plaintiffs, v. AETNA, INC., Defendants.

PLAINTIFF CAVITAT'S MOTION TO COMPEL AETNA, INC. TO SERVE ITS DRAFT PROPOSED FINAL PRETRIAL ORDER ___________________________________________________________________________

Plaintiff, CAVITAT MEDICAL TECHNOLOGIES, INC. (hereinafter "Cavitat"), by and through counsel, Carlos F. Negrete (hereinafter "Negrete") hereby respectfully move the Court for an Order compelling Defendant, Aetna, Inc. ("Aetna") to serve Cavitat with it draft Proposed Final Pre-Trial Order forthwith.

Certification of Consultation Carlos F. Negrete, counsel for movant Cavitat, hereby certifies that he advised John Shely, Aetna, Inc.'s ("Aetna") counsel, by email correspondence regarding the relief sought by this motion and Aetna has indicated that it will not serve Cavitat with its draft Proposed Pre-Trial Order until several days from today.

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MOTION

1.

On March 7, 2006 the Court ordered that both parties to this action filed a

Joint Proposed Pre-Trial Order("PTO") with the Court by March 31, 2006. 2. The Court further ordered that Cavitat serve Aetna its Proposed PTO by

March 21, 2006. 3. draft PTO. 4. A day before Cavitat served its PTO upon Aetna, counsel for Cavitat In accordance with the Court's order, Cavitat timely served Aetna with its

requested that an exchange of respective draft PTOs occur and that Aetna provide its draft PTO on March 21, 2006 so that both parties could review each of their respective PTOs so that there would be a timely reconciliation of both PTOs and ultimately timely submit the Proposed Joint Pre-Trial Order for the Court to consider and adopt at the hearing set for May 18, 2006. 5. Despite the request made for an exchange of PTOs, Aetna remained

conspicuously silent and failed to respond. Cavitat renewed its request of Aetna on the day that it served the PTO, but Aetna ignored its requests. 6. Inexplicably, Aetna responded later in the week indicating that it would delay

its service of Aetna's PTO until a week later and just two days prior to its due date in an apparent effort to gain some sort of strategic advantage, while placing Cavitat in a prejudicial position because Aetna's counsel was aware that counsel for Cavitat would be engaged in trial in Washington and attending a deposition that Aetna set for the week of March 27, 2006.

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7.

There was no justifiable basis for Aetna's refusal to submit its PTO other than

to prejudice Cavitat by not having sufficient time to review and comment on Aetna's PTO. Aetna, while on the other hand, would gain a tactical advantage by having Cavitat's PTO for an entire week so that its vast pool of assigned attorney's could dissect, analyze and scrutinize Cavitat's PTO and create its own using Cavitat's as a mold. 8. Ironically, prior to March 7, 2006, Aetna had loudly and vigorously

complained, and even filed motion to dismiss and default against Cavitat, on the basis that Aetna was prepared to go forward with a meet and confer on the PTO and submit a joint PTO but for the delays of Cavitat's prior counsel. In doing so, Aetna clearly led the Court and Cavitat to believe that it was just waiting for Cavitat to submits its draft. 9. Counsel for Cavitat took great efforts in complying with the Court's order

while it had thousands of pages of documents to review and at the same time preparing an opposition to Aetna's Motion for Summary Judgment and respond to a barrage of email request from Aetna and numerous motions. Virtually each day prior to the March 21 deadline, Aetna persistently reminded Cavitat's counsel of its obligation to submit its PTO suggesting that it would move again for default. 10. After Aetna refused to serve its draft of the PTO and counsel for Cavitat

repeatedly complained, Aetna finally responded, two days later (on Friday just before the weekend) by suggesting that Aetna was not satisfied with Cavitat's PTO and Aetna would, instead object. 11. Notwithstanding Aetna's complaints and outcries, it still refused to provide its

draft PTO despite demands from Cavitat.

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12.

Cavitat's draft PTO was based upon the sample provided under the local rules

and complied in every respect. 13. There is no basis or justification for Aetna's refusal to serve Cavitat with its

draft PTO. Aetna is acting in bad faith and delaying the fair exchange of the PTO for no apparent reason other than to gain a strategic and tactical advantage and "hide the ball." 14. If the service of the Aetna PTO is further delayed by Aetna, Cavitat will be

prejudiced by its inability to have reasonable opportunity to review and comment upon Aetna's draft. 15. 16. There is no prejudice to Aetna that it serve its draft PTO. The purpose of having a mutual exchange of draft PTOs in order to have a

meaningful and effective meet and confer is being completely frustrated by Aetna's conduct.

WHEREFORE, Cavitat hereby respectfully asks the Court to order Aetna to immediately serve its draft PTO.

March 27, 2006

Respectfully submitted,

________s/ Carlos F. Negrete___ Carlos F. Negrete LAW OFFICES OF CARLOS F. NEGRETE 27422 Calle Arroyo San Juan Capistrano, CA 92675-2747 Telephone: (949) 493-8115 Fax: (949) 493-8170 e-mail: [email protected] Attorney for Plaintiff, CAVITAT MEDICAL TECHNOLOGIES, INC.

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 27th day of March, 2006, he electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: [email protected] [email protected] [email protected] [email protected]

A copy of the foregoing document was also e-mailed this day to: Robert Jones aka Bob Jones at [email protected] Cavitat Medical Technologies, Inc. at [email protected]

________s/ Carlos F. Negrete_____ Carlos F. Negrete

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