Free Order to Show Cause - District Court of Colorado - Colorado

Case 1:02-cv-01841-MSK-MJW

Document 122

Filed 02/06/2007

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 02-cv-01841-MSK-MJW UNITED STATES OF AMERICA, Plaintiff, v. 117.54 ACRES OF LAND, More or Less, Situated in La Plata County, Colorado, STATE OF COLORADO, LA PLATA COUNTY TREASURER, LA PLATA, COLORADO, COLORADO TELEPHONE COMPANY, MESA GRANDE GAS COMPANY, COLORADO-UTE ELECTRIC ASSOCIATION, INC., BOARD OF COUNTY COMMISSIONERS, LA PLATA COUNTY, COLORADO, PEOPLES NATURAL GAS COMPANY, NORTHWEST PIPELINE CORPORATION, ENTERPRISE PRODUCTS PARTNERS L.P., ATMOS ENERGY CORPORATION, LA PLATA ELECTRIC ASSOCIATION, INC., and UNKNOWN OWNERS, Defendants.

ORDER TO SHOW CAUSE, AND VACATING TRIAL SETTING

THIS MATTER comes before the Court on an Order to Show Cause Why Claims Should Not Be Dismissed for Failure to Prosecute (#109) issued December 11, 2006 and the Plaintiff' s response (#115). The Court, having reviewed the record in this case, finds that: This case has been pending for four and one-half years. The Plaintiff, United States of America, commenced this action in September 2002 by filing a Complaint in Condemnation (#1) of easements for the purpose of locating a water pipeline in conjunction with the Animas-LaPlata Project located in southwest Colorado and northwest New Mexico. For more than three years,

Case 1:02-cv-01841-MSK-MJW

Document 122

Filed 02/06/2007

Page 2 of 5

the Plaintiff engaged in negotiations with various entities that have or might have an interest in the real property affected by the proposed easements, but did not engage in discovery or pretrial preparation or set this matter for trial. Instead, at numerous status conferences, the Plaintiff represented to the Magistrate Judge that the parties were near settlement. Finally, in October 2005, the Court directed that pretrial preparation deadlines be established and a trial date be set. A 2-day bench trial was set for February 13, 2007. The Plaintiff filed a Fourth Amended Complaint on November 3, 2006 (#98), less than two weeks before the Final Pretrial Conference. At the Final Pretrial Conference, although not all parties had received the newly filed Amended Complaint, the Plaintiff again represented that settlement would be forthcoming, that no trial would be necessary and that documentation resolving the entire case would be filed by February 1, 2007. At the Final Pretrial Conference, the Court set several deadlines. It set a deadline of December 15, 2006 for Defendants Atmos Energy, Colorado-Ute Electric Association, People' s Natural Gas Company, and Board of County Commissioners to file disclaimers of interest. Only the Board of County Commissioners timely complied (#108) . The disclaimer from the ColoradoUte Electric Association was filed January 3, 2006 (#117). No disclaimer from Defendants Atmos Energy or People' Natural Gas Company has been filed. s The Court also set a deadline of November 27, 2006 for the Plaintiff to file acceptances of service for Defendants who had not been served. As of that date, Defendants La Plata Electric Association, Northwest Pipeline Corporation, Colorado-Ute Electric Association, and La Plata County Board of County Commissioners waived service (#104, #105, #106, #107). After the Court issued the Order to Show Cause on December 11, 2006, the Plaintiff filed additional 2

Case 1:02-cv-01841-MSK-MJW

Document 122

Filed 02/06/2007

Page 3 of 5

returns of service. These show that Defendants Peoples Natural Gas Company and Mesa Grande Gas Company were served on December 8, 2006, and Defendant Enterprise Products Partners was served on December 13, 2006 (#110, #111, #116). At this juncture, all named Defendants have been served with the Fourth Amended Complaint. Enterprise Products Partners is the only Defendant to answer the Fourth Amended Complaint. The La Plata County Treasurer, the Colorado-Ute Electric Association, and the Board of County Commissioners have filed disclaimers (#102, #108, #117). The Colorado Telephone Company (Qwest) and the United States have entered into a stipulation (#112) that Qwest' interests in the property are not impacted by the United States'construction project on s the subject property. This leaves the State of Colorado, the Mesa Grande Gas Company, the Peoples Natural Gas Company, the Northwest Pipeline Corporation, Atmos Energy Corporation, and the La Plata Electric Association who have made no response to the Fourth Amended Complaint. In its Response to the Order to Show Cause (#115), the Plaintiff states that negotiations with the State of Colorado have resolved all issues, except two " minor"unidentified ones, and that it anticipates that the remaining parties will file timely disclaimers or stipulations of dismissal. From the appearance of the record, no further settlements, disclaimers or dismissals have been filed and the Plaintiff has not sought a default. The Court also set a deadline of November 27, 2006 for the filing of a revised final pretrial order to reflect the parties' updated positions and issues. No proposed final pretrial order was timely filed. No extension was requested - instead, only in response to the Order to Show Cause did the Plaintiff disclose that the final pretrial order was not filed " because all Defendants had not been served on or before November 27, 2006". A revised proposed pretrial order was filed on 3

Case 1:02-cv-01841-MSK-MJW

Document 122

Filed 02/06/2007

Page 4 of 5

December 15, 2006. It is not signed by all parties; it does not identify the issues in contention as to each Defendant; it does not contain stipulated facts consistent with the representations as to the positions of the parties; it refers to future final pretrial conferences which have not been scheduled; and it, again, represents that " final resolution of all outstanding issues will be a completed within 45 days" . Forty-five days from the date of the filing of the proposed final pretrial order was January 29, 2007. Since the filing of the proposed final pretrial order, no settlement documents or further disclaimers have been filed. Furthermore, on February 5, 2007, the Plaintiff filed a certificate of publication on unknown owners (#121) evidencing the publication of the Notice of Condemnation with regard to the Third Amended Complaint in May 2006. Assuming that such service is required, apparently no notice has been published with regard to the Fourth Amended Complaint. Pursuant to Fed. R. Civ. P. 41(b), the Court may dismiss a plaintiff' claims for failure to s prosecute or for failure to comply with any order. Dismissal is a remedy of last resort, especially onerous in a condemnation action because it denies Defendants a determination of the appropriate amount of compensation for their property interest. Since its commencement, there has been a persistent lack of diligence on the part of the Plaintiff in prosecuting this action - failure to diligently engage in pretrial preparation, unexplained delay in filing a Fourth Amended Complaint, unexplained delay in service on Defendants and in obtaining waivers of service or disclaimers of interest, failure to comply with Court ordered deadlines and absence of any request to extend them, and failure to file settlement documents as represented. The Plaintiff has been advised many times of the need to proceed in an expeditious manner either toward settlement or trial, most recently by the December 11, 2006 Order to Show 4

Case 1:02-cv-01841-MSK-MJW

Document 122

Filed 02/06/2007

Page 5 of 5

Cause. The Plaintiff has repeatedly stated that it will file a settlement agreement with some parties and expects disclaimers as to others, and that the issues before the Court " be resolved will before trial" Neither the purported settlements nor the anticipated disclaimers have materialized. . Due to the Plaintiff' dilatory conduct, time and public resources have been unnecessarily s consumed, and this matter is neither resolved nor is ready to go to trial as scheduled. IT IS THEREFORE ORDERED that: 1) The trial scheduled for February 13, 2007 is VACATED. 2) If sufficient settlement documentation and appropriate disclaimers to resolve this matter are not filed by February 9, 2007, all parties who have entered an appearance in this action shall appear at 8:00 am on February 13, 2007 in Courtroom A901 of the United States Courthouse located at 901 19th Street, Denver, Colorado, to show cause why this action should not be dismissed for lack of diligent prosecution or other sanctions imposed. Dated this 6th day of February, 2007 BY THE COURT:

Marcia S. Krieger United States District Judge

5