Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:00-cv-02325-MSK-MEH

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Filed 05/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-02325-MSK-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORP. ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants. and Civil Action No. 01-cv-02307-MSK-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, et al., ANGLOGOLD ASHANTI (COLORADO) CORP. ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants.

UNOPPOSED MOTION REQUESTING COURT ACTION UNDER FED. R. CIV. P. 58 (c)(2)

Plaintiffs hereby submit this Unopposed Motion Requesting Court Action Under Fed. R. Civ. P. 58(c)(2).

Case 1:00-cv-02325-MSK-MEH

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I.

INTRODUCTION AND SUMMARY

This Court issued a Memorandum Opinion and Order, along with a Judgment in favor of Defendants on all claims, on April 13, 2006 [Doc. ## 309, 310]. As a result, any appeal in the case to the Tenth Circuit Court of Appeals is due within 30 days of that date, May 13, 2006. See Fed. R. App. P. 4(a)(1)(A). In the Memorandum Opinion and Order, the Court Ordered that "[i]n accordance with Fed. R. Civ. P. 54(d) and 33 U.S.C. § 1365(d), the Defendants may apply for an award of attorney fees and costs within 14 days after entry of judgment." Order at 42. Motions for Attorney Fees were filed electronically by both the Anglo Defendants and Defendant Golden Cycle Gold Corporation on April 27, 2006. Plaintiffs request that this Court exercise its discretion pursuant to Fed. R. Civ. P. 58(c)(2) to order these Motions for Attorney Fees to have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Fed. R. Civ. P. 59, so that the parties can consolidate any potential future appeals. Further, due to the short time frame for the filing of the Notice of Appeal (May 13, 2005), Plaintiffs request that the Court expedite its consideration of this Unopposed Motion. II. BASIS FOR MOTION

Fed. R. Civ. P. 58(c)(2) provides: When a timely motion for attorney fees is made under Rule 54(d)(2), the court may act before the notice of appeal has been filed and has become effective to order that the motion have the same effect under Federal Rule of Appellate Procedure as a timely motion under Rule 59. Plaintiffs request that this Court exercise the discretion afforded under Rule 58(c)(2) in order to preserve judicial and party resources. The current deadline for filing the Notice of

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Appeal is May 13, 2006. As a result, should Plaintiffs file a Notice of Appeal with respect to the merits of the case by this deadline, and should any party subsequently appeal the Court's determination on attorney fees, two separate appeals on separate tracks would ensue. In order to eliminate this potential prospect of two separate appeals, and the concomitant consumption of judicial and party resources in prosecuting separate appeals, this Court should act to order that the motions for attorney fees have the same effect as a motion under Fed. R. Civ. P. 59. III. CONSULTATION UNDER LOCAL RULE 7.1(A)

Prior to filing this Motion, counsel for Plaintiffs contacted counsel for the Anglo Defendants and counsel for Golden Cycle Gold Corporation. Counsel for Plaintiff alerted Defendants' counsel to Plaintiffs' intent to file this Motion and discussed the reasons for the Motion, as discussed herein. Counsel for the Anglo Defendants and counsel for Defendant Golden Cycle Gold Corporation both stated that they do not oppose the Motion.

DATED this 8th day of May 2006.

Respectfully Submitted, s/ Jeffrey C. Parsons Jeffrey C. Parsons Roger Flynn Western Mining Action Project 2260 Baseline Road, Suite 101A Boulder, CO 80302 (303) 473-9618 [email protected] John M. Barth Attorney at Law 3

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P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 [email protected] Randall M. Weiner, Atty. No. 23871 1942 Broadway, Suite 408 Boulder, Colorado 80302 Tel: 303-938-3773 Fax: 303-442-6622 [email protected]

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CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a copy of the foregoing Unopposed Motion was filed electronically with the Clerk of the Court on May 8, 2006 and was then forwarded electronically to the following persons via the ECF system: Eugene J. Riordan Vranesh and Raisch P.O. Box 871 Boulder, CO 80306-871 [email protected] Don Sherwood 10861 West 28th Place Denver, CO 80215 [email protected] Robert C. Troyer Hogan and Hartson One Tabor Center 1200 17th Street, Suite 1500 Denver, CO 80202 [email protected] s/ Jeffrey C. Parsons ____________________ Jeff Parsons Craig Carver Carver, Kirchhoff, Schwartz, McNab & Bailey, P.C. Hudson's Bay Centre 1600 Stout Street, Suite 1700 Denver, CO 80215

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