Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00456-MSK-MEH

Document 122

Filed 01/06/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-00456-MSK-OES JOHN C. DAW, O.D. and JOHN C. DAW, O.D., P.C., a Colorado professional corporation, Plaintiffs, vs. SHOPKO STORES, INC. Defendant. ______________________________________________________________________________ DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR LEAVE TO SUBMIT MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendant, through its attorneys, Higgins, Hopkins, McLain & Roswell, LLC, submits its Reply in Support of Motion for Leave to Submit Motion for Summary Judgment as follows: 1. Contrary to Plaintiffs' statements in their Response, Plaintiffs' claims were not

"subjected to summary judgment scrutiny." While Defendant's summary judgment motion was fully briefed, the Court did not address the merits of that motion. Instead, the Court denied Defendant's motion at the Final Trial Preparation Conference on November 17, 2005, stating "it was filed so close to today's hearing and so close to the trial date that the Court has not had an opportunity to fully review it." See Reporter's Transcript of November 17, 2005 Final Trial Preparation Conference, p. 5, ll. 19-21. 2. Plaintiffs also argue that the Court denied Defendants' motion without prejudice,

"allowing Defendant to re-file at the close of Plaintiffs' case." While it is correct that the Court made those statements at the time of the Final Trial Preparation Conference, the scheduled

Case 1:04-cv-00456-MSK-MEH

Document 122

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commencement of trial was only three weeks away, and the case had not yet been continued. The Court also stated that the reason for the deadlines it sets "is to ensure for the parties that there is adequate time for the Court to give your good motions the consideration they deserve." See Reporter's Transcript of November 17, 2005 Final Trial Preparation Conference, p. 9, ll. 4-6. Since then, the trial was continued until October 10, 2006. Plaintiffs' position that Defendants should wait to re-submit their legal arguments until the close of Plaintiff's case ignores that fact. 3. While Plaintiffs have since requested dismissal of two of their remaining five

claims, their statement that the three remaining claims are "those which the evidence more strongly supported," is merely the argument of counsel, does not demonstrate a genuine issue of material fact, and provides no basis for trying to avoid having the claims subjected to the scrutiny of summary judgment. Plaintiffs' claims should be tested to determine whether they are, as Defendant submits, based upon speculation and conjecture, rather than specific facts or evidence. It has long been held that if the evidence presented by Plaintiffs is merely colorable or is not significantly probative, then summary judgment should be granted in the movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Plaintiffs' should not be permitted to avoid having their claims undergo the scrutiny of summary judgment. Respectfully submitted this 6th day of January, 2006.

s/Stephen Hopkins Stephen Hopkins Torben M. Welch of HIGGINS, HOPKINS, McLAIN & ROSWELL, LLC Attorneys for Defendant Shopko Stores, Inc. 300 Union Boulevard, Suite 101 Lakewood, CO 80228 (303) 987-9870

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Case 1:04-cv-00456-MSK-MEH

Document 122

Filed 01/06/2006

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR LEAVE TO SUBMIT MOTION FOR SUMMARY JUDGMENT was filed electronically with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses, this 6th day of January, 2006: Gerald L. Jorgensen, Esq. Theodore J. Finn, Esq. Jorgensen, Motycka & Lewis, P.C. 709 Third Avenue Longmont, CO 80501

s/Pamela A. Freitik

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