Free Response to Motion - District Court of Colorado - Colorado

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

Document 66

Filed 12/12/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-02506-MSK-CBS CRAIG MAGRAFF, Plaintiff, v. LOWE'S HIW, INC., Defendant. DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO RECONSIDER THE DENIAL OF PLAINTIFF'S MOTION FOR EXTENSION OF TIME, NUNC PRO TUNC

Defendant Lowe's HIW, Inc. ("Lowe's"), by and through its attorneys of record, Keith C. Hult and Joshua B. Kirkpatrick of Littler Mendelson, P.C., respectfully submits the following limited jurisdictional response to Plaintiff's Motion To Reconsider The Denial Of Plaintiff's Motion For Extension Of Time, Nunc Pro Tunc: 1. On November 9, 2005, this Court entered its Order Denying Motion for Extension

of Time to File Notice of Appeal. (Docket #58). 2. On November 23, 2005, Plaintiff filed his Motion To Reconsider The Denial Of

Plaintiff's Motion For Extension Of Time, Nunc Pro Tunc. (Docket #59). 3. On December 2, 2005, Plaintiff filed his Notice of Appeal, appealing the Court's

denial of his Motion for Extension of Time. (Docket #60). 4. Plaintiff's filing of the Notice of Appeal divested this Court of jurisdiction to

reconsider its previous ruling. Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th

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Cir. 1998) ("...filing notice of appeal generally divests the district court of jurisdiction over the issues on appeal"; noting that district court retains jurisdiction over "collateral matters" such as a fee petition) (citing Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 84 L. Ed. 2d 274, 105 S. Ct. 1327 (1985)); Stewart v. Donges, 915 F.2d 572, 575 (10th Cir. 1990) ("We begin with the unassailable general proposition that the filing of a notice of appeal ... is an event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.") (citation omitted); Garcia v. Burlington Northern R.R. Co., 818 F.2d 713, 721 (10th Cir. 1987) ("Filing a timely notice of appeal . . . transfers the matter from the district court to the court of appeals. The district court is thus divested of jurisdiction. Any subsequent action by it is null and void."). 5. In the interest of brevity, and because Defendant believes this Court lacks

jurisdiction to reconsider its previous ruling, Defendant has not provided the Court with a substantive response to Plaintiff's Motion for Reconsideration. In the event this Court elects to consider the merits of Plaintiff's request for reconsideration, or if the Tenth Circuit Court of Appeals returns jurisdiction over this matter to this Court, Defendant requests that it be provided with notice and an opportunity to submit substantive briefing on the merits of Plaintiff's Motion for Reconsideration. WHEREFORE, Defendant respectfully requests that, should this Court assert or regain jurisdiction over Plaintiff's Motion for Reconsideration, Defendant be afforded the opportunity to submit a response on the merits.

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

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Dated this 12th day of December, 2005. s/ Joshua B. Kirkpatrick Joshua B. Kirkpatrick LITTLER MENDELSON A Professional Corporation 1200 17th Street, Suite 1300 Denver, CO 80202.5835 Telephone: 303.629.6200 Keith C. Hult LITTLER MENDELSON A Professional Corporation 200 North La Salle Street, Suite 2900 Chicago, IL 60601-1014 Telephone: 312.372.5520 ATTORNEYS FOR DEFENDANT LOWE'S HIW, INC. CERTIFICATE OF SERVICE I hereby certify that on this 12th day of December, 2005, a true and correct copy of the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO RECONSIDER THE DENIAL OF PLAINTIFF'S MOTION FOR EXTENSION OF TIME, NUNC PRO TUNC was served via CM/ECF electronic filing on the following: Lee T. Judd, Esq. Andrew T. Brake, P.C. 777 E. Girard Avenue Suite 200 Englewood, CO 80110-2767

s/ Gale S. Antczak

Firmwide:80659383.1 028756.1319

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