Free Motion for Leave - District Court of Colorado - Colorado

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

Document 119

Filed 12/23/2005

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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 MOTION FOR LEAVE TO SUBMIT MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendant, through its attorneys Higgins, Hopkins, McLain & Roswell, LLC, submits this Motion for Leave to Submit Motion for Summary Judgment as follows: CERTIFICATION PURSUANT TO D.C.COLO.LCivR 7.1 Pursuant to D.C.COLO.LCivR 7.1, counsel for Defendant certifies that they contacted counsel for Plaintiffs prior to the filing of this Motion in order confer about the filing of this Motion. Counsel for Plaintiffs stated that Plaintiffs opposed the relief requested because "the Court has indicated an unwillingness to hear additional pretrial motions in the final pretrial conference and subsequent order." INTRODUCTION AND SUMMARY OF THE ARGUMENT Pursuant to the briefing schedule set by the Magistrate Judge, Defendant submitted its Motion for Summary Judgment on September 6, 2005. The Motion was fully briefed on October 11, 2005. At the Final Trial Preparation Conference held on November 17, 2005, the Court

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

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denied Defendant's Motion, 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. After the Final Trial Preparation Conference, the Court vacated and reset the trial date to October 10, 2006 because of a conflict with a criminal matter. At the Final Trial Preparation Conference, the Court discussed each of Plaintiffs' claims with the parties. After hearing the comments of the Court regarding the lack of supporting evidence for some of their claims, Plaintiffs have since moved to dismiss two of their five remaining claims. Defendant believes that these remaining claims can and should be dealt with by summary judgment, consistent with the case law discussed below. Accordingly, Defendant respectfully requests that it be granted leave to submit a motion for summary judgment. LEGAL ARGUMENT I. The purpose of the summary judgment rule. "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "The very object of summary judgment is to separate real and genuine issues from those that are formal or pretended, so that only the former may subject the moving party to the burden of trial." Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (9th Cir. 1975). Furthermore, "the function of a motion for summary judgment is to smoke out any case, i.e. any genuine dispute as to any material fact, and, if there is no case, to conserve judicial time and energy by avoiding unnecessary trial and by providing speedy and efficient summary disposition." Bland v. Norfold & S. R. Co., 406 F.2d 863, 866 (4th Cir. 1969). In fact, summary judgment motions

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

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"can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273 (8th Cir. 1988). II. These recognized purposes are met by subjecting Plaintiffs' claims to the scrutiny of

summary judgment. It is Defendant's position there is no evidence to support Plaintiffs' claims and that they should be subjected to the scrutiny of a summary judgment motion. Defendant requests this Court grant leave for Defendant to submit it's motion for summary judgment on the claims maintained by Plaintiffs. Such scrutiny will satisfy the above-noted purposes of the summary judgment rule, which include obviating the need for the burden of trial and, as the Radobenko Court noted, conserve judicial time and energy. Defendant is prepared to submit its motion for summary judgment very soon after the granting this Motion. CONCLUSION Defendant respectfully requests that this Court enter its Order granting Defendant leave to file its motion for summary judgment. Respectfully submitted this 23rd day of December, 2005.

s/Torben M. Welch 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 119

Filed 12/23/2005

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANT'S 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 23rd day of December, 2005: Gerald L. Jorgensen, Esq. Theodore J. Finn, Esq. Jorgensen, Motycka & Lewis, P.C. 709 Third Avenue Longmont, CO 80501

s/Jaime Cuestas

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