Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01099-JLK-DW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-CV-1099-JLK-DLW WOLF CREEK SKI CORPORATION, INC., Plaintiff, v. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant.

PLAINTIFF WOLF CREEK'S OBJECTION TO DEFENDANT'S MOTION TO AMEND THE SCHEDULING ORDER TO EXTEND THE STIPULATED DISPOSITIVE MOTION DEADLINE AND FILE AN OUT-OF-TIME MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Plaintiff Wolf Creek Ski Corporation ("Wolf Creek" or "Plaintiff"), through its undersigned counsel, respectfully objects to Defendant's Motion for Leave to Amend the Scheduling Order to Extend the Stipulated Dispositive Motion Deadline and File an Out-OfTime Motion for Summary Judgment, and states as follows: I. INTRODUCTION Once again, Leavell-McCombs Joint Venture (the "Joint Venture" or "Defendant") is attempting to file an out-of-time motion. This time, the Joint Venture is complaining about deadlines that it agreed to and jointly moved this Court to adopt. This motion should be denied because it is untimely and lacks good cause (disingenuously claiming that the Joint Venture did

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not have the information or testimony on which they now move), it fails to explain the additional burdens that this Motion would impose on this Court, and it would be ultimately unsuccessful. II. ARGUMENT A. Defendant's Motion to Modify the Scheduling Order Deadlines is Untimely and Not Based on Good Cause First, as the Joint Venture admits, its motion is untimely and filed after the dispositive motions deadlines have expired. Defendant correctly states that the deadline for summary judgment was extended by agreement to March 1, 2006. This was ordered on January 5, 2006 (Dock. #143) upon Joint Motion (Dock. #129). The extension of the deposition deadline was to allow remaining depositions to be taken, many of which were contingent on document productions that the Joint Venture had not yet made notwithstanding nearly two years of litigation. The summary judgment cut-off was discussed and provided the parties (including new counsel for the Joint Venture) adequate time to complete any dispositive motions. Every subsequent extension of the deadlines has been specific to the deadline to complete depositions and entirely necessitated by issues relating to the deliberate delays caused by the Joint Venture: · On January 12, 2006, the Joint Venture sought an extension of the deadline to complete depositions (Dock. #148). This request was based on the schedule of Mr. Honts, the schedule of Joint Venture's counsel, and the need for time for the Joint Venture to produce additional documents. The Joint Venture neither mentioned nor requested an extension regarding dispositive motions.

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·

On March 31, 2006 (after Davey Pitcher's final deposition that purportedly revealed new information forming the basis for this newly-proposed motion), the parties filed a Joint Motion for status conference and seeking an extension of deadlines for remaining depositions. (Dock. #171). The Joint Motion cited problems with the Joint Venture's late document production, privilege log, and scheduling issues as a basis for the extension. The Joint Venture neither mentioned nor requested an extension regarding dispositive motions.

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On April 25, 2006 (once again, after Mr. Pitcher's deposition), the Court held a status conference during which the parties identified the same issues. Again, there was no discussion of the need for dispositive motions or about the revelation of purportedly new information from Mr. Pitcher's third deposition providing grounds for dispositive motions.

At no time in the motions requesting extensions of deposition deadlines, or during status conferences on the subject, did the Joint Venture indicate any intention to file any additional dispositive motions, any need to file additional dispositive motions, or any need for evidence necessary to file dispositive motions. The Joint Venture suggests that this repeated failure was inadvertent and that the deposition extensions and dispositive motion cutoff are incongruent.1 As discussed below, there is no evidence presented in the proposed motion for summary judgment

Notably, even if Defendant's argument is accepted, if the dispositive motions deadline and the discovery deadline were to remain "congruous," the dispositive motions would have been due on April 2, 2006, one day after the revised discovery cut-off. The present motion would be untimely even if the dispositive motions deadline were moved. Further, Davey Pitcher's third deposition was taken on March 29, 2006, before such a "congruous" deadline would have passed.

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that was unknown to the Joint Venture as of March 1, 2006,2 such that it could not timely file its motion. Notably, the Joint Venture does not directly claim that the information was "new" but merely implies that the information was new, knowing that it could not substantiate a direct statement that it was unaware of any of the information on which it bases its motion. As such, there is no reason to permit the out-of-time filing. Amendments to the Scheduling Order such as this proposed amendment to extend the dispositive motions deadline are not freely given. Rather, Fed. R. Civ. P. 16(b) provides that the Scheduling Order "shall not be modified except upon a showing of good cause and by leave of the magistrate judge." "Properly construed, `good cause' means that the scheduling deadlines cannot be met despite a party's diligent efforts." Colorado Visionary Academy v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).3 As set forth above, there is no "good cause" because the Joint Venture had ample time to timely file its present motion, and as shown below its argument for good cause in its delay is unfounded. B. The Joint Venture Was in Possession of the Information On Which it Bases its Motion Prior to the Dispositive Motions Deadline What is happening here is not hard to figure out. New counsel is trying to adopt a different strategy than that employed by their predecessor. Knowing that new counsel's decision to embark on a different strategy is not a basis for amending scheduling deadlines, the Joint Venture is forced to justify its tardy motion solely on one lone reed--"newly discovered evidence." In particular, the justification the Joint Venture provides this Court for the delay in

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Further, the Joint Venture had ample opportunity to set Davey Pitcher's third deposition and made the conscious decision to schedule the deposition after the March 1, 2006 deadline. See also Pool v. Odell, 2005 WL 2454192, No. 04-1265-JTM (D. Kan. Oct. 4, 2005) (citing Deghand v. WalMart Store, Inc. 904 F. Supp. 1218, 1220 (D. Kan. 1995)).

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filing its motion for summary judgment is that it allegedly received the information it needed to file the motion during the 30(b)(6) deposition of Davey Pitcher taken March 29, 2006. That this "newly discovered" evidence argument is only a pretext is exposed by its own proposed motion for summary judgment. In fact, even accepting the Joint Venture's excuse on its face, only one of the arguments the Joint Venture makes in its proposed motion (section V.A of the proposed motion) relates to Davey Pitcher's March 29th testimony. In other words, the Joint Venture could have previously moved for summary judgment on the covered road (see sections V.B-C of the proposed motion), but it made the strategic decision not to do so and this Court should not save the Joint Venture from its own deliberate litigation choices. Indeed, this Court is familiar enough with the facts to recognize that this new evidence from Davey Pitcher's testimony is nothing of the sort. The purportedly new evidence is that: (1) Plaintiff "for the first time, produced a document purporting to place the cost of building [the covered road] at $33,000,000"; and (2) "Plaintiff admitted that its former CEO, Kingsbury Pitcher, signed a document modifying the agreement which is the very basis for Plaintiff's claims against the Joint Venture herein." (See Motion for Leave to Extend the Stipulated Motions Deadline, Dock. #182, at 3). As to the first issue, the Joint Venture was provided with a $31 million cost estimate for the covered road on February 28, 2005, in Mr. Beeler's expert report. See, e.g., excerpt of Beeler Report, attached hereto as Ex. A. Under the circumstances, any suggestion that the Joint Venture was not aware that the Ski Area believed that such a road could cost $30 million is frivolous. Equally silly is any suggestion that Kingsbury Pitcher's authority to sign the 2000 preliminary PUD is somehow new information. The graveman of that argument is, of course,

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that the 2000 Preliminary PUD altered the 1999 Agreement. Yet the 2000 Preliminary PUD signed by Kingsbury Pitcher on behalf of Wolf Creek has been in the possession of the Joint Venture for the entirety of this litigation. Indeed, the Joint Venture raised this very argument previously during conferences before this very Court. Davey Pitcher's testimony that Kingsbury Pitcher, the CEO of the ski corporation, had the authority to sign the preliminary PUD on behalf of Wolf Creek does not provide new or different information. The document on which the Joint Venture relies was executed on behalf of Wolf Creek Ski Corporation, and nobody has contested that Kingsbury Pitcher had the authority to sign on behalf of Wolf Creek. In fact, that document was produced at the very inception of this litigation, and both Kingsbury Pitcher and Davey Pitcher were deposed about that document in early 2005. Moreover, the document was a focus of the Rule 106 hearing, and Wolf Creek acknowledged in that process that it signed the Preliminary PUD (but that it was not allowed to comment on the Final PUD). Further, the Joint Venture deposed Davey Pitcher on covered road issues at length in his February 2005 deposition. See e.g., February 24, 2005 Deposition, pp.277-350, Ex. B. Given these facts, the claim of newly discovered evidence or the inability to previously discover such information with the exercise of reasonable diligence is without merit. C. Permitting the Proposed Motion Would Necessitate Permitting Wolf Creek to File Dispositive Motions Based on Information Discovered After the Dispositive Motion Deadline If the Joint Venture is permitted to extend the dispositive motions deadline in this matter, Wolf Creek would move for a similar extension to file various dispositive motions related to damages and new evidence relating to the statute of limitations, based on the deposition testimony of the Joint Venture's experts and the third deposition of Robert Honts. Wolf Creek

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has not yet moved on these issues, acknowledging that the dispositive motions deadline has passed. Wolf Creek is preparing this case for trial. However, if the Joint Venture is permitted to file its motion for summary judgment, Wolf Creek should be allowed to file dispositive motions based on newly-discovered evidence. D. Defendant's Motion for Summary Judgment Will Fail on the Merits Finally, permitting the motion would be fruitless as there are genuine issues of material fact that preclude summary judgment on the issues raised in the proposed motion. For instance, while the Joint Venture claims that Wolf Creek modified the terms of the 1999 Agreement through Kingsbury Pitcher's signature on the preliminary PUD in 2000, the Joint Venture ignores the repeated testimony of Davey Pitcher (along with documentary evidence) that Bob Honts continued to promise that the Preliminary PUD was preliminary and that the Joint Venture had the intention to and would build the covered road notwithstanding the cost. See e.g., March 29, 2006 Deposition, pp.207-212, Ex. C. Mr. Honts claims that the signature on the 2000 Preliminary PUD gave away the covered road, and the Ski Area says that the Joint Venture told them otherwise at the time -- that is a question of fact. Additional issues include whether the 2000 Preliminary PUD could alter the 1999 Agreement and the related easement documents. Further, contrary to the Joint Venture's easement argument (section V.B of its proposed motion), section 2.01 of the 1999 Agreement by its very terms requires that the Village Road Easement be used to build a covered road on the Village Road Easement as the "primary access route for vehicular traffic" on that aspect of the Village property, precluding the argument that the Joint Venture need not use the easement. Section 3.01 of the Agreement states that "L-M, at L-M's sole cost and expense, shall design and construct the covered access road, parking area,

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transit or rail transit, utilities and water collection facilities extending through the Village Road Easement area with the Wolf Creek Land in the manner prescribed by the Village Road Easement." Thus, the Joint Venture's claim that the easement need not be used must fail. At a minimum there is a genuine issue of material fact regarding whether the Joint Venture must use the easement as primary access and construct the road under the terms of the contract, especially taken in conjunction with the Joint Venture's continued promises to build the covered road. Finally, the Joint Venture's contention that the covered road claim is not ripe is belied by its own proposed motion for summary judgment. The Joint Venture argues that it is not required to build the road, use the entire easement area, or construct a $33,000,000 Tunneled Road, which it claims "flies in the face of reason, economics, and the fundamental principles of the law on easements." Proposed Motion at 18. This argument makes clear that the Joint Venture has no intention of complying with the terms of the contract or building the covered road on the entirety of the easement. The Joint Venture has taken this position throughout this litigation. When Wolf Creek asked the Joint Venture why the covered road was not in the final plat, the Joint Venture replied that it had no obligation to include it in the final plat. Now that the plat has been overturned, the Ski Area has again asked the Joint Venture to include the covered road. As the Joint Venture made clear in communications to the Court and Wolf Creek regarding a replat to phase 1, it simply has no intention of building a covered road. This anticipatory repudiation of the contract makes Wolf Creek's claim ripe for adjudication in this matter. See Johnson v. Benson, 725 P.2d 21 (Colo.App.1986) (an anticipatory repudiation of contract may occur upon a party's definite and unequivocal manifestation of its intention that it will not perform as required by the contract); Villa Sierra

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Condominium Ass'n v. Field Corp., 878 P.2d 161 (Colo.App. 1994) (claim ripe for review based on anticipatory repudiation of the contract, even though time for performance had not yet occurred). III. CONCLUSION For the foregoing reasons, the Joint Venture's untimely motion to extend the summary judgment deadline to permit filing of its unfounded motion for summary judgment on the covered road claims should be denied. WHEFORE, Wolf Creek respectfully request that Defendant's Motion for Leave to Extend the Stipulated Dispositive Motions Deadline to Permit Filing the Attached Motion for Summary Judgment be Denied. Dated this 25th day of May, 2006. HOGAN & HARTSON L.L.P.

By: s/Andrew R. Shoemaker Andrew R. Shoemaker Denise D. Riley Jacqueline S. Cooper 1470 Walnut Street, Suite 200 Boulder, Colorado 80302 [email protected] [email protected] [email protected] (720) 406-5300 telephone (720) 406-5301 facsimile Attorneys for Plaintiff Wolf Creek Ski Corporation, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 25th day of May, 2006, I electronically filed the foregoing PLAINTIFF WOLF CREEK'S OBJECTION TO DEFENDANT'S MOTION TO AMEND THE SCHEDULING ORDER TO EXTEND THE STIPULATED DISPOSITIVE MOTION DEADLINE AND FILE AN OUT-OF-TIME MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: George V. Berg: [email protected] Kimberly A. Tomey: [email protected] Sally P. Berg: [email protected]

s/Andrew R. Shoemaker

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