Free Motion for Extension of Time to File Response/Reply - District Court of Colorado - Colorado

Case 1:04-cv-00860-WDM-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00860-WDM-PAC ROBERT ALWARD Plaintiff, v. VAIL RESORTS, INC., a Colorado corporation; VAIL CORPORATION, INC. D/B/A/ VAIL ASSOCIATES INC., a Colorado corporation; VR HOLDINGS, INC., a Colorado corporation; and WILLIAM JENSEN, individually and in his official capacity as Senior Vice President and Chief Operating Officer of Vail Resorts, Inc. Defendants. ______________________________________________________________________________ PLAINTIFF'S SECOND MOTION EXTENSION OF TIME TO RESPOND TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, TO FILE OBJECTIONS TO DEFENDANTS' FEE AFFIDAVIT AND TO RESPOND TO ORDER TO SHOW CAUSE RE: SANCTIONS; AND MOTION TO RESET HEARING ______________________________________________________________________________ The Plaintiff Robert Alward, by and through his attorneys, and pursuant to Fed.R.Civ.P. 6(b) and D.C.COLO.LCivR 7.1(C) hereby moves the court for an extension of time to respond to Defendants' Motions for Summary Judgment, to file objections to Defendants' fee affidavit, and to respond to the Order to Show Cause regarding sanctions; and to reset the hearing on sanctions. 1. On June 10, 2005, the Plaintiff filed a motion for extension of time to respond and

to reset the hearing regarding the sanctions issues (Plaintiff's First Motion") [Docket #203]. 2. On June 15, 2005, the court granted defendants' June 6 motion for extension of

time to file dispositive motions [Docket #205]. According to that order, defendants' deadline to file dispositive motions was extended from June 6 to June 16, 2005. Plaintiff's responses were due July 7, 2005.

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3.

On June 16, 2005, the plaintiff filed a Supplement and Amendment to the First

Motion, [Docket # 206] (Plaintiff's "Amendment") which modified the requested extensions in light of conflicting court ordered deadlines. 4. As set forth in the Amendment, on June 14, 2005, Judge Loretta Preska, District

Court Judge for the Southern District of New York, reset the trial described in paragraph 3 of the June 10 Motion. A copy of that Order was attached as Exhibit A to the Amendment, and is incorporated herein by reference. In fact, plaintiff's counsel flew to New York on June 21. Jury selection in that matter took place on June 22, 2005, and trial proceeded from June 28 through the end of the day on June 30, when the jury returned a verdict in favor of plaintiff's counsel's client on that matter. Due to the holiday weekend, plaintiff's counsel was unable to secure a flight back to Denver until July 2, 2005. 5. Plaintiff's counsel is also scheduled to appear at a settlement conference on

another matter in this court on July 15, 2005. A copy of that order was attached as Exhibit B to the Amendment, and is incorporated herein by reference. 6. In addition, on June 16, after plaintiff filed his Amendment, defendants filed not

one, but three separate motions for summary judgment [Docket # 207, 208, 209, and 210]. Because defendants served their motions by mail, Plaintiff did not receive these until June 20--just as plaintiff's counsel was preparing for trial and to leave the next morning for New York. As set forth in paragraph 4 above, plaintiff's counsel did not have an opportunity to review these motions until the week of July 5, 2005. 7. On June 17, 2005, plaintiff received the court's June 16 Order [Docket # 211],

which apparently was entered before the court had an opportunity to review plaintiff's Amendment. Pursuant to that order, plaintiff's counsel's response to the order to show cause is

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due July 18, 2005, and objections to defendants' application for fees and costs are due by July 19, 2005. The hearing on sanctions was reset to July 28, 2005. 8. On June 21, 2005, the court ordered that defendants had until June 28, 2005 to

respond to Plaintiff's Amendment. [Docket # 212]. This order did not suggest that Plaintiff's Amendment failed to comply with Rule 7.1A. On the contrary, by its terms, the court indicated that the Amendment would be considered. 9. On June 28, 2005, Defendants responded to the Amendment [Docket #218], and

indicated that they did not oppose plaintiff's request to extend the time for plaintiff to respond to defendants' motions for summary judgment (through July 18), and defendants' time to reply (through July 29). Defendants correctly did not assert that plaintiff had failed to comply with Rule 7.1. Based on this response and the court's liberal granting of defendants' motions for extension of time, as well as the fact that plaintiff was in trial in New York, plaintiff concluded that the court would grant the unopposed requested extension of time to respond to defendants' motions for summary judgment. 10. On July 12, 2005, however, the Court summarily denied the extensions plaintiff

requested in the Amendment pursuant to D.C.COLO.LCivR 7.1A.1 [Docket #228]. This order

The court's Order denied plaintiff's Amendment for failure to comply with D.C.Colo.LCivR 7.1.A, and advised counsel for the plaintiff that the rule requires plaintiff's counsel to "speak with defendants' counsel." Plaintiff respectfully submits that the court misapplied Local Rule 7.1A, and should not have denied plaintiff's Amendment on this basis. Local Rule 7.1A states that the court will not consider any motion ... unless counsel for the moving party ... before filing the motion, has conferred or made reasonable, good-faith efforts to confer with opposing counsel ... to resolve the disputed matter. The moving party shall state in the motion ... the specific efforts to comply with this rule." (emphasis added). As set forth in Plaintiff's Amendment--and in every other motion filed by the Plaintiff--counsel for the plaintiff made reasonable good-faith efforts to confer with counsel for defendants. There is no case law that states that counsel for plaintiff must actually speak with counsel for the defendants. In fact, such a requirement contradicts the plain language of the Rule, which requires "good-faith efforts." Moreover, this requirement is impossible for plaintiff's counsel to meet, because--as the court has been advised on numerous occasions--counsel for defendants has, throughout this case, repeatedly and consistently failed and refused to take or return plaintiff's counsel's telephone calls. It is therefore unreasonable and inconsistent with the Rules for the court to require plaintiff's counsel to speak with counsel for defendants. Rather, the court should admonish counsel for defendants for refusing to confer with counsel for the plaintiff.

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was entered five days after the deadline for plaintiff's responses to defendants' motions for summary judgment, and nearly two weeks after defendants had filed their response to the Amendment. 11. As a result of the court's June 15, June 16, June 21, and July 12 Orders, plaintiff's

deadline to file responses to defendants' motions for summary judgment passed on July 7, without affording him an opportunity to respond. The following deadlines remain: (1) Plaintiff's reply to defendants' response to plaintiff's motion for summary judgment is due on Thursday July 14, 2005; (2) plaintiff's counsel's response to the court's first Order to Show Cause on the subject of defendants' request for more than $30,000 in sanctions against plaintiff's counsel is due on Monday, July 18; (3) plaintiff's objections to defendants' fee affidavit is due on Tuesday, July 19; and (4) plaintiff's response to the second Order to Show Cause (dated July 12, 2005) is due on Friday, July 22, 2005. The hearing on sanctions is set for July 28, 2005. 12. Plaintiff and his counsel submit that this schedule is unduly burdensome and

unreasonable, especially in light of the fact that counsel for the plaintiff is only one lawyer, with virtually no support staff. Given the gravity of the issues at stake, this briefing schedule unfairly prejudices both the plaintiff and his counsel. 13. Plaintiff's June 16 request for an extension of time to July 18, 2005 to respond to

defendants' dispositive motions was made with the assumption that defendants would file only one motion for summary judgment. Instead, defendants' three motions consist of 40 pages of briefs and nearly 100 pages of exhibits. Thus, defendants have exceeded the page limitations set by the court for such motions without seeking leave to exceed these page limitations, and the
By contrast, the court recently granted defendants' motion for extension of time [Docket # 220] despite the fact that counsel for defendants made no effort at all to confer, and in fact misrepresented to the court that they did. See Docket # 216 and 219. Defendants' motion, not the plaintiff's, should have been denied for failure to comply with Local Rule 7.1A, and the court erred when it granted that motion in violation of Rule 7.1A. In addition, such misrepresentation by counsel for defendants--an officer of the court--is sanctionable. The court improperly overlooked these issues when it ruled in favor of defendants.

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court should reject the motions on this basis. See, Pretrial and Trial Procedures for matters before Judge Walker D. Miller, Section 6.1 (October 2004). (Plaintiff intends to file a separate motion on this issue). At a minimum, in light of this change in circumstances, plaintiff should be permitted additional time to respond to all three dispositive motions. 14. As shown by the above procedural history, the court has entered conflicting

orders which have required the plaintiff to file additional unanticipated motions during the time allotted to respond and reply to the pending dispositive and sanctions motions. change in circumstances also warrants an additional extension of the subject deadlines. 15. Plaintiff and his counsel submit that the reasons set forth herein constitute good Thus, this

cause for granting plaintiff and his counsel extensions of time as follows: a. The deadline for Plaintiff's responses to defendants' motions for summary judgment be extended nunc pro tunc to July 22, 2005; and b. The deadline for plaintiff's counsel to file a response to the First Order to Show Cause, the Objections to the defendants' fee affidavit, and response to the Second Order to Show Cause should be extended from July 18, 19, and 22 (respectively) to August 1, 2005; and c. The hearing on sanctions scheduled for July 28, 2005, be vacated and reset to August 5 or later. 16. In compliance with D.C.COLO.LCivR 7.1(A), counsel for the plaintiff conferred

by telephone with counsel for defendants before filing this motion. Counsel for defendants indicated that they do not oppose an extension of plaintiff's time to respond to the motions for summary judgment through July 20, 2005. Counsel for defendants opposes any extensions of the sanctions deadlines or hearing. Also, as indicated on the certificate of service, a copy of this motion was served on the plaintiff. 5

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17.

Plaintiff's counsel submits that the above-described events constitute good cause

for the requested extension, because without the requested extensions of time, plaintiff's counsel will effectively be precluded from having sufficient opportunity to be heard on the subject of the onerous and punitive sanctions at issue, and plaintiff will be entirely precluded from responding to defendants' voluminous motions for summary judgment. WHEREFORE, for the foregoing reasons, the plaintiff respectfully requests the court enter an Order which: (1) Grants Plaintiff an extension of time to respond to defendants' three motions for summary judgment through and including July 22, 2005; and (2) Grants plaintiff's counsel an extension of time to file a response to the First Order to Show Cause, the Objections to the defendants' fee affidavit, and response to the Second Order to Show Cause to August 1 (so that the responses to the Orders to Show Cause may be combined, in order to avoid duplicative pleadings in order to avoid duplicate pleadings); and (3) Vacates the hearing on sanctions scheduled for July 28, 2005, and resets that hearing to August 5 or later. Dated this 13th day of July 2005. Respectfully submitted, McCLAIN DREXLER, LLC By: /s/ Nina H. Kazazian Nina H. Kazazian 1700 Lincoln Street, Suite 3850 Denver, Colorado 80203-4538 Telephone: (303) 860-8400 Email: [email protected] ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE I hereby certify that on this 13h day of July 2005, I electronically filed the foregoing PLAINTIFF'S SECOND MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT. TO FILE OBJECTIONS TO DEFENDANTS' FEE AFFIDAVIT AND TO RESPOND TO ORDERS TO SHOW CAUSE RE: SANCTIONS; AND MOTION TO RESET HEARING with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the defendants addressed to the following email address: Sherri Heckel Kuhlmann Christopher Ottele Holme Roberts & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 I also certify that a copy of the foregoing was served to the following CM/ECF non-participants by first-class mail, postage prepaid and addressed to the following: Robert Alward 80 Creamery Trail Edwards, CO 80164 /s/ Nina H. Kazazian

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