Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00860-WDM-PAC

Document 250-5

Filed 08/08/2005

Page 1 of 2

E XHIBIT D

Case 1:04-cv-00860-WDM-PAC

Document 250-5

Filed 08/08/2005

Page 2 of 2

M C C LAIN D REXLER

LLC W ELLS F ARGO C ENTER S UITE 3850 1700 LINCOLN STREET D ENVER , C OLORADO 80203-4538 T ELEPHONE: (303) 860-8400 F ACSIMILE: (303) 830-2626
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ATTORNEYS AT LAW

N INA H. KAZAZIAN O F C OUNSEL

June 2, 2005 VIA FACSIMILE and U.S. MAIL Sherri Heckel Kuhlmann Holme Roberts & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 Re: Alward v. Vail Resorts

Dear Ms. Kuhlmann: Pursuant to Fed.R.Civ.P. 26(e), enclosed is a copy of the Declaration of Cliff Robertson as supplement to plaintiff's response to Request for Production No. 14 to Defendants' First Set of Interrogatories and Requests for Production, served on August 27, 2004. I believe this document was previously produced to the defendants. In addition, I write pursuant to D.C.COLO.LCivR 7.1 and Fed.R.Civ.P. 11 in an attempt to confer regarding defendants' Counterclaim. As you are no doubt aware, defendants have produced no evidence whatsoever in support of their counterclaim against the plaintiff for breach of contract. Moreover, defendants failed to disclose any such evidence or witnesses pursuant to Rule 26 or in response to plaintiff's discovery requests. Thus, as a matter of law and fact, it appears that this counterclaim is wholly without merit, and was brought in violation of Rule 11(b). Accordingly, we write to ask you to voluntarily dismiss this counterclaim immediately. Please respond by Friday, June 3, 2005 to indicate whether you will voluntarily dismiss the counterclaim. If we do not receive a response, or you do not agree to dismiss this counterclaim, we intend to file a motion for summary judgment, which will include a request for an award of attorneys' fees, and also a motion for sanctions pursuant to Fed.R.Civ.P. 11(c). Very truly yours,

Nina H. Kazazian Enclosure
Exhibit D Resp Mot Strike.doc