Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:03-cv-01291-MSK-CBS

Document 367

Filed 02/10/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-1291-MSK-CBS FRIEDA E. ENSSLE, BURKE E. ENSSLE and HEIDI ENSSLE WILSON Plaintiff(s), v. ILLINOIS TOOL WORKS, INC.; SAMES CORPORATION; BINKS RESEARCH & DEVELOPMENT CORPORATION; and JOHN DOE/JANE DOE (any person receiving value for transfer of Binks R&D assets). Defendant(s). _____________________________________________________________________________ PLAINTIFFS' UNOPPOSED MOTION FOR RECONSIDERATION OF ENTRY OF DISMISSAL _____________________________________________________________________________ Plaintiffs Frieda E. Enssle, Burke E. Enssle and Heidi E. Wilson (the "Enssles"), through their undersigned counsel, submit the following Motion to Reconsider the Dismissal of the case. Certificate of Conferral. Pursuant to D.C.COLO.LCivR 7.1, the undersigned counsel for Plaintiffs conferred with Robin Lunn, counsel for Defendant Illinois Tool Works, Inc., (ITW) and Angela D. DeVine, counsel for Sames Corporation (Sames) and Binks Research and Development Corporation (Binks R&D). Ms. DeVine and Mr. Lunn have no objection to the motion. Certificate of Compliance. Pursuant to D.C.COLO.LCivR 6.1(D), a copy of this motion is being served on the moving attorneys' clients and all counsel of record as indicated by the Certificate of Service attached hereto.

1. On January 6, 2006, the court held a telephone conference concerning a scheduled Rule 702 hearing. In that telephone conference, counsel for all parties informed the court that

Case 1:03-cv-01291-MSK-CBS

Document 367

Filed 02/10/2006

Page 2 of 4

the case had been settled and fully resolved, and that some period of time would be needed for the parties to prepare and sign a full settlement agreement. 2. At the conclusion of that telephone conference, the court dismissed the case with prejudice, but delayed the entry of the order of dismissal for 30 days to allow the parties time to prepare and sign the settlement agreement. (Pacer 363) 3. On February 3, 2006, the parties filed a Joint Status Report (Pacer 364) with the court, informing the court that the parties needed more time, and requesting an extra 30 days to finalize their agreement. 4. The extra time is necessary for the Bankruptcy trustee, Norman Newman, to file a motion to comprise controversy with the Illinois Bankruptcy Court that is handling the Sames Corporation bankruptcy. Fed.R.B.P. 9019(a) requires notice and a hearing before the

Bankruptcy Court's approval may be obtained. Furthermore, Fed.R.B.P. 2002(a)(3) requires twenty days notice for the hearing on approval of a settlement or compromise of a controversy. 5. In their joint status report the parties requested a 30 day extension of the delay in filing the order for dismissal to allow the Bankruptcy Court's approval of the settlement and authorization for the trustee, Norman Newman, to sign the settlement agreement in the Colorado case on behalf of Sames Corporation and Binks Research and Development Corporation. 6. On February 6, 2006, the dismissal of the case was entered (Pacer 365) and the case closed. 7. The entry of dismissal appears to have been a clerical entry, based upon the Court's order of January 6, 2006.

Page 2

Case 1:03-cv-01291-MSK-CBS

Document 367

Filed 02/10/2006

Page 3 of 4

8. Therefore the Court may not have seen the Joint Status Report before the entry of t he dismissal. 9. Because the parties designated their pleading on February 3, 2006, as a Joint Status Report rather than a motion for enlargement of time and the clerical entry of the order of dismissal, the court may not have been advised of the parties' request for a 30 day extension of time. 10. All parties desire for the case to remain open until all parties have the opportunity to sign the settlement agreement. WHEREFORE, Petitioner requests the court to reopen the case, and enlarge the time for filing the settlement agreement and the entry of dismissal up to and including March 6, 2006.

Respectfully submitted February 10, 2006. s/Peter Rogers Peter Rogers 885 Arapahoe Avenue Boulder, CO 80302 Telephone: 303-544-0997 Fax: 303-544-0998 [email protected] Attorney for Frieda E. Enssle, Burke E. Enssle, and Heidi E. Wilson

CERTIFICATE OF SERVICE I hereby certify that on February 10, 2006, a true and correct copy of the foregoing PLAINTIFFS' UNOPPOSED MOTION FOR RECONSIDERATION OF ENTRY OF
Page 3

Case 1:03-cv-01291-MSK-CBS

Document 367

Filed 02/10/2006

Page 4 of 4

DISMISSAL was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Susan E. Brice [email protected], [email protected] [email protected], [email protected] [email protected] [email protected], [email protected]

Angela Deborah DeVine Geraldine Elizabeth Flynn Asimakis Pascal Iatridis Robin R. Lunn

[email protected] [email protected], [email protected]

Kim Arquette Tomey

And I hereby certify that I have mailed or served the document or paper by United States mail, first class, postage prepaid, addressed as follows: Asimakis P. Iatridis Berg, Hill, Greenleaf & Ruscitti LLP 1712 Pearl Street Boulder, CO 80302 Attorneys for Plaintiffs Burke E. Enssle 444 Millionaire Drive Boulder, CO 80302

s/ Peter Rogers Peter Rogers Attorney for Plaintiffs

Page 4