Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00456-MSK-MEH

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Filed 11/14/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-00456-MSK-OES JOHN C. DAW, O.D. and JOHN C. DAW, O.D., P.C., a Colorado professional corporation, Plaintiffs, vs. SHOPKO STORES, INC. Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE TO REQUEST FOR DISMISSAL OF CLAIMS ______________________________________________________________________________ Defendant, through its attorneys Higgins, Hopkins, McLain & Roswell, LLC, submits this Response to Plaintiffs' Request for Dismissal of Claims Pursuant to FED. R. CIV. P. 41(b): INTRODUCTION AND SUMMARY OF THE ARGUMENT On November 9, 2005, Plaintiffs submitted their Request for dismissal of their claims of bad faith breach of contract and civil conspiracy. The only reason given is that Plaintiffs have made "a business decision" not to pursue these claims. While Defendant agrees that these claims should be dismissed (as there is no evidence to support these claims), Plaintiffs should be responsible for the payment of Defendant's attorney's fees and costs associated with the defense of these frivolous claims. There is no excuse for

Plaintiffs waiting to dismiss these claims at this late date - two months after the entry of the Final Pretrial Order, after Plaintiffs failed to address these claims in responding to Defendant's Motion for Summary Judgment, and after Defendant's submission of jury instructions and verdict forms

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on these claims. The last acceptable date for dismissal of these claims was at the time of submission of the proposed Final Pretrial Order. For these reasons, Defendant respectfully requests this Court order, pursuant to FED. R. CIV. P. 16(f), that Plaintiffs and Plaintiffs' counsel to pay all reasonable attorney's fees and costs related to Defendant's defense of these claims. LEGAL ARGUMENT I. Plaintiffs maintained these two claims in the Final Pretrial Order. On August 30, 2005, the Court approved the parties' proposed Final Pretrial Order. A requirement regarding the submission of the Final Pretrial Order is that each party should "eliminate claims and defenses which are unnecessary, unsupported, or no longer asserted." See D.C.COLO.LCivR Appendix G, "Instructions for Preparation of Final Pretrial Order;" see also FED. R. CIV. P. 16(c)(1). In compliance with this rule, Defendant withdrew three of its five affirmative defenses. Plaintiffs withdrew nothing. As stated in the Final Pretrial Order, that Order controls "the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice." See Final Pretrial Order, § 12. Defendant proceeded on the assumption that Plaintiffs would assert at trial all of the claims set forth in the Final Pretrial Order. Subsequently, on September 6, 2005, Defendant submitted its Motion for Summary Judgment on all claims. Plaintiffs Response, filed on September 29, 2005, made absolutely no reference whatsoever to Defendant's arguments regarding the unsupported claims of bad faith breach of contract and civil conspiracy. As stated in Defendant's Reply in support of its Motion

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for Summary Judgment, Plaintiffs' failure to respond to these arguments "is further support for Shopko's assertion that all of the claims brought against it were frivolous." See Reply, p. 9. At that time, Defendant requested that its attorney's fees and costs related to these claims be awarded to it. Id. Plaintiffs simply ignored these claims, never telling the Court or Defendant they would not be pursuing these claims. On October 28, 2005, counsel for Plaintiffs provided to Defendant's counsel their first draft of proposed jury instructions and verdict forms. The submission of these documents to the Court was required on that very day. Plaintiffs' proposed jury instructions and verdict forms omitted the bad faith breach of contract and civil conspiracy claims. Defendant's counsel informed counsel for Plaintiffs of this omission, and was told that Plaintiffs would not be submitting any more jury instructions or verdict forms. When asked to confirm that these claims would not be asserted at trial, counsel for Plaintiffs avoid directly answering the question and would not unequivocally state their position. Rather, Plaintiffs' counsel simply repeated they would not submit any more jury instructions or verdict forms. Accordingly, Defendant

submitted its own jury instructions and verdict forms regarding these claims. For the next week, Defendant's counsel repeatedly requested a response to the question of whether the claims would be asserted at trial, but counsel for Plaintiffs refused to provide an answer. Finally, on November 4, 2005, counsel for Plaintiffs informed Defendant's counsel that he thought these claims were withdrawn in an amended complaint or conceded in Plaintiffs' Response to Defendant's Motion for Summary Judgment. Defendant's counsel told counsel for Plaintiffs that there was no amended complaint withdrawing these claims, the claims were ignored in Plaintiffs' Response, and the dismissal of these claims was never specifically

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conceded. Plaintiffs' counsel then stated "that's how we concede ­ to passive for you?" See attached Exhibit A, email correspondence between Torben M. Welch and Gerald Jorgensen. This was the first hint of a confirmation from Plaintiff's counsel that the claims would not be pursued at trial. Thereafter, additional communication occurred between counsel requesting written confirmation that these claims would be dismissed, which led to the filing of Plaintiffs' Request. II. Plaintiffs' refusal to be forthright regarding the withdrawal of these claims has

forced Defendant to unnecessarily incur attorney's fees and costs. Plaintiffs' untimely notice concerning the withdrawal of these claims required Defendant to submit its Motion for Summary Judgment and its proposed jury instructions and verdict forms on these claims, all of which necessitated the expenditure of attorney's fees and costs. None of these expenses ever should have been incurred and Plaintiffs and Plaintiffs' counsel should be required to pay for Defendant's attorney's fees and costs. Pursuant to FED. R. CIV. P. 16(f), sanctions can be ordered against a party or a party's attorney who fails to obey a pretrial order or if a party or a party's attorney fails to participate in the pretrial conference in good faith. In addition, the Court "shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees." Id. Plaintiffs should have withdrawn these claims no later than at the time of the submission of the Final Pretrial Order. They did not, forcing Defendant's unnecessary expenditure of attorney's fees and costs, as outlined above. Plaintiffs claim they now seek dismissal of these claims because they have made "a business decision" to not pursue them. See Request, ¶ 2. The

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issue here is not about business decisions. As set forth in Defendant's Motion for Summary Judgment, there is no basis, either in law or fact, for these claims. These claims never should have been brought. If Plaintiffs' counsel wished to "streamline trial and maximize efficiency," as they purport their dismissal will do, they should have dismissed these claims before the filing of Defendant's Motion and before forcing Defendant to submit jury instructions and verdict forms. Plaintiffs course of conduct certainly has not streamlined this litigation, since Plaintiffs waited until one month before trial to dismiss these claims. To the contrary, Plaintiffs' actions have needlessly expanded this litigation. There is absolutely no excuse for the behavior of Plaintiffs and Plaintiffs' counsel. This conduct goes beyond sloppy lawyering and lack of professional courtesies. It is a direct violation of the procedural rules, for which sanctions are appropriate. These actions have caused

Defendant to unnecessarily incur attorney's fees and costs that should not have been expended. CONCLUSION Plaintiffs' refusal to dismiss these two claims against Defendant until one month before trial is a violation of FED. R. CIV. P. 16(c)(1) and caused Defendant to unnecessarily incur attorney's fees and costs. Defendant should be awarded its attorney's fees and costs by Plaintiff and Plaintiffs' counsel.

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Respectfully submitted this 14th day of November, 2005.

s/ Torben M. Welch Stephen Hopkins Torben M. Welch of HIGGINS, HOPKINS, McLAIN & ROSWELL, LLC Attorneys for Defendant Shopko Stores, Inc. 300 Union Boulevard, Suite 101 Lakewood, CO 80228 (303) 987-9870

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANT'S RESPONSE TO REQUEST FOR DISMISSAL OF CLAIMS PURSUANT TO FED. R. CIV. P. 41(b) was filed electronically with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses, this 14th day of November, 2005: Gerald L. Jorgensen, Esq. Theodore J. Finn, Esq. Jorgensen, Motycka & Lewis, P.C. 709 Third Avenue Longmont, CO 80501

s/ Pamela A. Freitik

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