Free Motion for Extension of Time - District Court of Colorado - Colorado

Case 1:04-cv-00329-WYD-CBS

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Filed 07/07/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-00329-WYD-CBS CACHE LA POUDRE FEEDS, LLC Plaintiff, v. LAND O' LAKES, INC.; LAND O' LAKES FARMLAND FEED, LLC.; AMERICAN PRIDE CO-OP; POUDRE VALLEY COOPERATIVE ASSOCIATION, INC.; FRANK BEZDICEK; ROBERT DeGREGORIO Defendant.

DEFENDANTS' UNOPPOSED MOTION TO ENLARGE DISCOVERY DEADLINE AND REBUTTAL EXPERT DISCLOSURE DEADLINE

Defendants Land O' Lakes, Inc., Land O' Lakes Farmland Feed, LLC, American Pride Co-Op, Poudre Valley Co-Op, Frank Bezdicek and Robert DeGregorio (collectively, the "Defendants") by and through their attorneys, Dorsey & Whitney LLP, hereby file their Unopposed Motion to Enlarge Discovery Deadline and Rebuttal Expert Disclosure Deadline (the "Motion"). In support of this Motion, the Defendants state as follows:

CERTIFICATION
The undersigned certifies that, pursuant to D.C.COLO.LCivR 7.1 and F.R.C.P. 26(c), they conferred with counsel for the Plaintiff regarding the relief sought in this Motion. Counsel for the Plaintiff state that they do not oppose this Motion.

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ARGUMENT
By this Motion, Defendants are requesting that the Court extend the August 1 discovery deadline by thirty days and the July 11 rebuttal expert disclosure deadline by fourteen days. It is well established that Colorado federal courts have the discretion to enlarge discovery deadlines upon good cause shown. Hannah v. Roadway Express, Inc., 200 F.R.D. 651, 653 (D. Colo. 2001). In order to determine whether good cause has been shown, the Court will decide whether the scheduling deadlines cannot be met, despite a party's diligent efforts. Id. (citing Dilmar Oil Co., Inc. v. Federated Mutual Ins. Co. 986 F. Supp. 959, 980 (D.S.C. 1997)). If this showing is made, an enlargement of the dates in the scheduling order is appropriate. Defendants have diligently tried to accommodate the dates set forth in the scheduling order, but despite their best efforts, cannot reasonably complete discovery and disclose their rebuttal experts within the existing deadlines. Since the requested extensions will not affect either the dispositive motion deadline or the pretrial conference date, the relief requested is appropriate. I. There Is Good Cause To Extend The Discovery Deadline. During the past several weeks, Defendants have been deluged with discovery issues perpetuated by Plaintiff. Not only have Defendants received a ten-page request for additional documents and information relating to Plaintiff's First and Second Sets of Requests for Production and Interrogatories, but Defendant was also recently served with more Requests for Production, Requests for Admission and Interrogatories. Not only must these discovery issues be addressed within the few weeks prior to the close of discovery, but the parties also have more than 20 depositions to conduct during this timeframe as well.1 The vast majority of these

1 The anticipated deponents are: Rob Brunelli, Sheri Treiber, Bill Treiber, Andrew Carr Conway, Peter Sawicki, Frank Bezdicek, Mark Chenoweth, Brad Schu, Dave Hoogmoed, Jamie 2

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depositions are at the request of Plaintiff, and many of them involve third parties who no longer work for LOL/LOLFF. Although Plaintiff has provided Defendants with dates when it would like to conduct each of the remaining depositions, many of the proposed dates cannot be accommodated by either the deponent, due to a scheduling conflict, or by defense counsel, due to conflicts arising in connection with other cases. Several of the remaining depositions are also subject to dispute, which will likely need to be resolved by the Court. For instance, the anticipated deposition of Heather Halpape and Peter Webb will be addressed by the Court at the July 11 hearing, while the Court may also need to address issues relating to the potential re-convened deposition of Peter Janzen and the deposition of two high-level executives of Land O' Lakes who have virtually no knowledge of the facts giving rise to this case (Jack Gherty and Dan Knutson). In order to conduct the remaining depositions before the discovery deadline, it would be necessary to conduct approximately one deposition each day for the remainder of the month. While several of the depositions will indeed be conducted by the end of July, a few third parties, including Bob Bean, Marcy Johnson and Ambers Stevens, are unavailable until August. These individuals simply have been unable to set aside time during July to have their deposition taken or re-taken, as the case may be. As such, the remaining depositions cannot be accommodated unless the current discovery deadline is extended by at least thirty days. For these reasons, counsel for the Plaintiff agree that an extension of the discovery cut-off date is appropriate.

LaRue, Brenda Goebel, Amber Stevens, Roger Mullen, Heather Halpape, Peter Webb, Bob Bean, Marcy Johnson, Kate Elsten, William Kostka, Jack Gherty, Dan Knutson and two rebuttal experts. 3

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II.

There Is Good Cause For The Court To Extend The Expert Rebuttal Report Deadline. Although the expert rebuttal report deadline is set for July 11, good cause exists to extend

the deadline until July 25. Upon request of their experts, defense counsel conferred with counsel for the Plaintiff and asked for a two-week extension of the rebuttal expert disclosure deadline, in order to accommodate scheduling conflicts the experts faced, as well as to allow the experts to enjoy the July 4th holiday. Counsel for the Plaintiff agreed to this extension. Due to the fact that much discovery bearing on expert issues remains to be conducted, including the depositions of two of Plaintiffs' experts and two key employees for Plaintiff, Defendants' rebuttal experts would avoid having to supplement much of the report if the reports were provided following some of these depositions. Because of the scheduling issues stated above, the Defendants were first able to schedule these depositions to begin on July 12, after the parties' rebuttal expert disclosures are due. Since much discovery bearing on expert issues remains to be conducted, Defendants' experts cannot reasonably meet the rebuttal expert disclosure deadline. As a result, the Court has good cause to issue the requested extension of time. In accordance with F.R.C.P. 5, a copy of this Motion is being served to all Defendants. WHEREFORE, Defendants hereby request that the Court grant a thirty-day enlargement of time for the discovery deadline, and a fourteen-day enlargement of time for the expert rebuttal disclosure deadline.

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Respectfully submitted this 7th day of July, 2005. DORSEY & WHITNEY LLP By: s/Gregroy S. Tamkin Gregory S. Tamkin Elizabeth L. Morton ATTORNEY FOR DEFENDANTS LAND O' LAKES, INC.; LAND O' LAKES FARMLAND FEED, LLC; AMERICAN PRIDE CO-OP; POUDRE VALLEY CO-OP ASSOCIATION, INC.; FRANK BEZDICEK; ROBERT DEGREGORIO

A printed copy of this document with original signatures is maintained by Dorsey & Whitney LLP, and will be made available for inspection by other parties or the Court upon request. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 7th day of July, 2005, a true and correct copy of the foregoing DEFENDANTS' UNOPPOSED MOTION TO ENLARGE DISCOVERY DEADLINE AND REBUTTAL EXPERT REPORT DEADLINE was electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email and mailing addresses: Luke Santangelo, Esq. Cheryl Anderson-Siler, Esq. SANTANGELO LAW OFFICES, P.C. 125 South Howes, Third Floor Fort Collins, CO 80521 Thomas R. French, Esq. 125 South Howes, Suite 401 Fort Collins, CO 80521 [email protected] [email protected]

[email protected]

s/Karen Hartnett________

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