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

Case 1:03-cv-02506-MSK-CBS

Document 67

Filed 12/22/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02506-MSK-CBS CRAIG MAGRAFF, Plaintiff, v. LOWES HIW, INC, Defendant.

PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO RECONSIDER THE DENIAL OF PLAINTIFF'S MOTION FOR EXTENSION OF TIME, NUNC PRO TUNC

COMES NOW the Plaintiff, Craig Magraff (hereinafter referred to as "Mr. Magraff" or Plaintiff), by and through his attorneys of record, Andrew T. Brake, P.C. and for his Reply to Defendant's Response to Plaintiff's Motion to Reconsider the Denial of Plaintiff's Motion for Extension of Time, Nunc Pro Tunc states: 1. The Defendant, in its response, only made one argument, which was not substantive, but

rather procedural. As such, from a substantive standpoint the Defendant has conceded that point. While the Defendant requests that it be afforded an opportunity to respond to the substantive allegations if the procedural argument fails. However, Defendant had a full opportunity and established no reason why it could not raise any response to the substantive argument contained in the referenced Motion. Accordingly, in light of the posture of the case, the Motion should be determined.

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Case 1:03-cv-02506-MSK-CBS

Document 67

Filed 12/22/2005

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2.

As to the procedural argument itself, the very nature of the Motion and the case law

surrounding this issue makes clear that this Court has jurisdiction to determine this issue, irrespective of any appeal. 3. Particularly, in the case cited by this Court in its Order denying Plaintiff's initial Motion

for Extension of Time, Nunc Pro Tunc, within which to file an appeal, City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041 (10th Cir. 1994), a late appeal was filed, and a motion for time was filed in the District Court. Clearly, the District Court had not been divested of jurisdiction, and neither has this Court. 4. Further, the case law cited by the Defendant does not change that result. Lancaster v.

Indep. Sch. Dist. No. 5, 149 F.3d 1228 (10th Cir. 1998) specifically found that the Court retains jurisdiction over "collateral matters". Based upon the case which has developed in this area, the time in which to appeal constitutes a "collateral matter", as it does not relate to the heart of the appeal, but rather the time in which to file. 5. In the instant case, the deadline to appeal the denial was at hand, and while a motion for

time could be granted, if denied, Mr. Magraff would be in the same position relative to the denial of the motion for time, as he is in with the appeal of the grant of summary judgment. As such, the only alternative to Mr. Magraff was to file an appeal. Furthermore, the Motion to Reconsider, in essence, amounts to a motion for time, which is clearly not subject to any ban, and amounts to a collateral matter which this Court can determine. To hold otherwise would preclude the Plaintiff from raising this issue relative to a one (1) day extension of time and having an opportunity to address this issue, which is clearly not the law as established by the Chanute decision. 2

Case 1:03-cv-02506-MSK-CBS

Document 67

Filed 12/22/2005

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WHEREFORE, Plaintiff respectfully requests that this Court enter an Order granting him to and including October 20, 2005 for the filing and acceptance of his Notice of Appeal. Additionally, Plaintiff requests such other and further relief as is deemed just and proper. DATED this 22nd day of December, 2005. Respectfully submitted, ANDREW T. BRAKE, P.C. By: s/Lee T. Judd Lee T. Judd Attorneys for Plaintiff 777 East Girard Ave., #200 Englewood, Colorado 80113 (303) 806-9000 Email: [email protected] CERTIFICATE OF SERVICE (CM/ECF) The undersigned hereby certifies that on the 22nd day of December, 2005, true and correct copies of the above and foregoing PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO RECONSIDER THE DENIAL OF PLAINTIFF'S MOTION FOR EXTENSION OF TIME, NUNC PRO TUNC were filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] In addition, the undersigned hereby certifies that a copy of the above listed document was mailed to the following non-CM/ECF participants by mail, postage prepaid to the following individuals: Craig Magraff 4735 Scenic Circle, #1 Colorado Springs, Colorado 80917

/s/ Lee Judd

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