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

Case 1:04-cv-01876-RPM

Document 136

Filed 08/14/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF COLORADO

04-cv-01876-RPM-CBS

KIRK WARREN, Plaintiff, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, a Florida insurance company, Defendant.

PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION FOR FEES AND COSTS

Plaintiff Kirk Warren, by and through his attorneys of record, The Carey Law Firm, replies to Defendant's Response to Plaintiff's Motion for Extension of Time to Respond to Defendant's Motion for Fees and Costs, as follows: Plaintiff's Counsel Has Satisfied the D.C.Colo.LCivR. 7.1 Meet and Confer Obligation: Defendant argues that Plaintiff's counsel did not satisfy the duty to meet and confer in accordance with D.C.Colo.LCivR. 7.1A. (Def.'s Resp. at 2-3.) It is odd for Defendant's counsel to communicate with Plaintiff's counsel's paralegal through two years of the within action and never indicate that that is a problem for them (and utilize their own paralegal for the same purpose), then use it as a basis for opposition to a motion.

Case 1:04-cv-01876-RPM

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"The use of paralegals is to be encouraged in complex litigation." Oppenlander v. Standard Oil Co. (Indiana), 64 F.R.D. 597, 613 (D.Colo. 1974). The use of paralegals enhances the value of a lawyer's service and reduces the overall cost of litigation to consumers. Both Plaintiff's counsel and Defendant's counsel use their paralegals to relay basic information. If Defendant's counsel felt that progress would be made in reaching an agreement regarding plaintiff's request for extension of time if he were able to speak to Plaintiff's counsel personally, he could have so indicated and Plaintiff's counsel would have been glad to speak with him. As it was, Plaintiff's counsel's paralegal contacted Mr. Hertzke, explaining that Plaintiff needed to request a three-week extension of time, and the reasons therefor. She explained that Defendant's motion was extensive and would take more time to prepare than Plaintiff's counsel was able to address within the time originally allowed. She also explained that Plaintiff's counsel was leaving on vacation on Sunday, July 30, 2006, for two weeks. Mr. Hertzke

telephoned Plaintiff's counsel's paralegal, Karen Maiorana, and stated that three weeks was a long extension and he would have to speak to his client about it. Mr. Hertzke then responded with a simple email stating that the extension would be opposed. Ex. 1, email memorandum from Billy-George Hertzke, dated Friday, July 28, 2006. He made no request to speak with Ms. Cliff and negotiate with regard to the extension, and indeed made no effort to communicate the problems with his tight schedule. He simply stated that Plaintiff's motion would be opposed. Plaintiff's counsel had no choice at that point but to file a motion for extension of time and indicate to the court that it is opposed by defense counsel.

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Plaintiff has shown good cause for an extension of time. On July 28, 2006, Plaintiff filed a Motion for Reconsideration of the court's order dismissing the within action for lack of subject matter jurisdiction. (Doc. No. 128.) The basis of that motion is that the order did not address Plaintiff's claims for UM coverage, and that Plaintiff requested declaratory relief in the within action. (Id.) That motion for reconsideration will have a significant impact upon Defendant's Motion for Fees and Costs. Many of the fees and costs requested by Defendant in its Motion are attributable to Plaintiff's claims for UM coverage and claim for declaratory relief. (Doc. No. 123.) It would make much more sense to resolve Plaintiff's Motion for Reconsideration prior to addressing the issue of attorney's fees and costs. Contrary to Defendant's assertion, an award of attorney's fees and costs is not "mandatory;" Def.'s Resp. at 4, and it is certainly not mandatory when no final judgment has been entered, a motion for reconsideration is pending, no bill of costs has been filed, and the motion for attorney's fees that has been filed requests fees that are unsubstantiated. As Plaintiff stated in his motion for extension of time, Defendant's Motion for Fees and Costs is extensive. Defendant is requesting $164,715.50 in attorneys' fees, and $20,143.24 in costs. Defendant attached 93 pages of heavily redacted billing statements to its motion. (Doc. No. 123). Plaintiff's counsel could not adequately respond to Defendant's motion within the time originally allowed even if she made the response her utmost priority. The reason three weeks was requested was because Ms. Cliff planned to be on vacation for two weeks and she needed at least one additional week after her return to finalize the Response to the Motion for Fees and Costs. This was explained to Defendant's counsel during the meet and confer

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telephone conversation on Friday, July 28, 2006 and in Plaintiff's Motion for Extension of Time filed that same day. Defendant and its counsel will not be prejudiced by the extension. Defendant also argues that Defendant and its counsel will be prejudiced by an extension of time. Def.'s Resp. at 4-5. However, Defendant does not establish any prejudice except to say that it would "cause great inconvenience" to Defendant's counsel to file a Reply in September or October, 2006. (Def.'s Resp. at 3.) Also, Defendant states that it would be inconvenient because Mr. Hertzke will be out of the country from September 13-25, 2006. (Def.'s Resp. at 4.) Defendant does not say why Mr. Hertzke will be out of the country or why it would take priority over the Reply to be filed in the within action. Defendant's counsel also does not provide the case name and court for the trials he states he is obligated to attend, and does not indicate if he is the sole attorney trying the cases. (Id.) Defendant's counsel also implies that Plaintiff's counsel has been imprudent in scheduling her time, yet Defendant's counsel has scheduled a trial for the week of August 28 through September 1, 2006, another trial the very next week, September 5 through 8, 2006, a trip out of the country September 13 through 25, and another trial upon his return October 3 through 13, 2006. It is unreasonable to oppose Plaintiff's counsel's motion for extension of time because Defendant's counsel has scheduled his time so tightly. Further, while Defendant alleges that an extension of time would prejudice Defendant and Defendant's counsel, Defendant states absolutely no reason why an extension would prejudice Defendant. It merely states that it would be an inconvenience to Defendant's counsel. Defendant's opposition to Plaintiff's motion is simply a defense tactic and nothing more.

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Plaintiff has explained the basis for his request for an extension of time within which to respond to Defendant's Motion for Fees and Costs, and the reason behind the request for three weeks. Plaintiff has established good cause for his extension of time, and no prejudice to Defendant or its counsel would result. Plaintiff therefore respectfully requests that his motion for extension of time be granted. s/Julie Cliff Robert B. Carey Julie Cliff The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Telephone: (719) 635-0377 FAX: (719) 635-2920 E-mail: [email protected] Attorney for Plaintiff Kirk Warren

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 14, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address(es): Arthur Joel Kutzer [email protected]

Billy-George Hertzke [email protected]; [email protected] Walter D. Willson [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the matter (mail, hand-delivery, etc) indicated by the non-participant's name: Kirk Warren 3589 S. Nucla Street Aurora, CO 80013 Mary R. Cullen, Esq. Department of Veterans Affairs Office of Regional Counsel 155 Van Gordon Street, Suite 25126 Denver, CO 80225

s/Julie Cliff Robert B. Carey Julie Cliff The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Telephone: (719) 635-0377 Fax: (719) 635-2920 E-mail: [email protected] Attorney for Plaintiff Kirk Warren

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