Free Motion to Reset - District Court of Colorado - Colorado

Case 1:01-cv-00693-LTB-BNB

Document 212

Filed 09/26/2005

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No: 01-B-693 (BNB) TY REX, LLC. Plaintiff, v. MARK NEWMAN JAPHETH B. BOYCE, individually and dba RJB ROCK SHOP TRANS UNION GEM & MINERAL, INC. KAREN NEWMAN JOHN C. BOLAN ROBERT L. STODDARD GAIL L. STODDARD, Defendants MARK NEWMAN JAPHETH B. BOYCE Defendants and Third Party Plaintiffs v. JEFFREY S. MILLER, Third-Party Defendant. ______________________________________________________________________________ PLAINTIFF'S and THIRD-PARTY DEFENDANT'S MOTION TO POSTPONE SUPPLEMENTAL SCHEDULING CONFERENCE AND SUBMISSION OF PROPOSED SCHEDULING ORDER ______________________________________________________________________________ COMES NOW the Plaintiff Ty Rex LLC, and the Third-Party Defendant, Jeff Miller, through their attorneys Reece & Baker, LLC and hereby move this Court for a brief postponement of the Supplemental Scheduling Conference and submission of proposed Scheduling Order and as grounds therefore state as follows: 1. On August 23, 2005, the U.S. Magistrate Judge has issued a Recommendation and

Order (Doc 205 - filed September 16, 2005) that this matter be returned to active status. 2. Movants, who for technical reasons, did not receive the electronic filing of the

Recommendation and Order, did not file a response within the ten day period. 1

Case 1:01-cv-00693-LTB-BNB

Document 212

Filed 09/26/2005

Page 2 of 4

3.

Subsequently, the U.S.Magistrate Judge held a Supplemental Scheduling

Conference on September 16, 2005. 4. For the same reason that Movants did not respond to the Recommendation and

Order, counsel for Movants, who was unaware of the Scheduling Conference, did not appear. 5. As a result, the Supplemental Scheduling Conference was rescheduled for

September 30, 2005 and the deadline for filing a proposed supplemental scheduling order was set for September 27, 2005. 6. In the meantime, Movants made a request for an enlargement of time to respond to

the Recommendation and Order, and an extension was granted to October 1st. 7. It is in the best interests of the parties and the efficient administration of the Court to

allow the time for determination of the Movants' objection to the Recommendation and Order to run before setting a Supplemental Scheduling Conference that may not need to be held or to expend the time and fees necessary to re-visit the issues inherent in drafting a supplemental scheduling order. 8. Additionally, it is quite evident that some of the issues and claims that would exist in

this matter, if it were returned to active status, are substantially different than they were prior to the settlement. For instance, Defendant John Bolan was dismissed from the action. Additionally, there are new issues that have arisen from events occurring after the settlement agreement was reached that parties on each side may desire to raise, requiring the amendment of the pleadings. 9. There are also outstanding dispositive motions that were pending at the point the

settlement agreement was reached that will need to be re-visited if this case is made active again. Consideration of those motions will impact the timing and nature of the proposed scheduling order. 10. This case has been dormant for several months, with the last action requested by any

of the parties being made in December of 2004. To Movants' best information and belief, there is no urgency involved in returning this matter to active status on the part of any of the parties involved

2

Case 1:01-cv-00693-LTB-BNB

Document 212

Filed 09/26/2005

Page 3 of 4

that justify holding a scheduling conference before the objections to the U.S. Magistrate Judge's Recommendation and Order have been fully resolved. 11. As shown by the accompanying Certificate of Compliance, counsel for Defendants

still in this action have no objection to the request for postponement being made herein. WHEREFORE, Plaintiff and Third-Party Defendant pray that this Court enter an Order postponing the Supplemental Scheduling Conference set for Friday, September 30, 2005 and the submission of any supplemental scheduling order, now due on September 27, 2005, until after determination of the Movants' objections to the U.S. Magistrate Judge's Recommendation and Order (Doc 205 - filed September 16, 2005). DATED: September 26, 2005. Respectfully submitted, REECE & BAKER, LLC __ _____s/ Joe Reece_________________ Joe Reece Reece & Baker LLC P.O. Box 6670 Denver, CO 80206 Telephone: 303-321-2222 FAX: 303-321-1456 E-mail: [email protected] Attorney for Plaintiff Ty Rex LLC and Third Party Defendant Jeffery S. Miller

3

Case 1:01-cv-00693-LTB-BNB

Document 212

Filed 09/26/2005

Page 4 of 4

CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 26th day of September, 2005, true and correct copies of the foregoing PLAINTIFF'S and THIRD-PARTY DEFENDANT'S MOTION TO POSTPONE SUPPLEMENTAL SCHEDULING CONFERENCE AND SUBMISSION OF PROPOSED SCHEDULING ORDER were electronically served and/or placed in the United States mails, postage prepaid and addressed as follows: Edward T. Ramey, Esq. Isaacson, Rosenbaum, Woods & Levy, P.C. 633 17th Street, Suite 2200 Denver, CO 80202 Luis A. Toro, Esq. Frank W. Visciano, Esq. Senn Lewis & Visciano, P.C. 1801 California Street, Suite 4300 Denver, CO 80202 Justin D. Cumming, Esq. Rothgerber Johnson & Lyons LLP 1200 17th Street, Suite 3000 Denver, CO 80202 Jeff Miller Ty Rex, LLC 895 South Clarkson Street Denver, CO 80209 ______________/s________

4