Free Motion for Leave to Appear - District Court of Colorado - Colorado

Case 1:03-cv-00236-LTB-KLM

Document 168

Filed 06/10/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action 03-cv-00236-LTB-KLM YU KIKUMURA, Plaintiff, v. ANTHONY OSAGIE, MICHAEL VAIL, KEITH SANDERS, and UNITED STATES OF AMERICA, Defendants.

UNOPPOSED MOTION BY INDIVIDUAL DEFENDANTS FOR LEAVE TO APPEAR AT SETTLEMENT CONFERENCE BY TELEPHONE

Defendants, through their undersigned counsel, submit this unopposed motion for leave for the individual defendants (Anthony Osagie, Michael Vail and Keith Sanders) to appear by telephone at the Settlement Conference set for June 17, 2008, and state as grounds therefor: 1. A Settlement Conference is set before the Court at 8:00 a.m. on June 17,

2008. The reason the Settlement Conference was set at 8:00 a.m. is that Plaintiff resides in Japan and is unable to come to the conference in person. It is undersigned counsel's understanding that Plaintiff will be appearing by telephone.

Case 1:03-cv-00236-LTB-KLM

Document 168

Filed 06/10/2008

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2.

Defendants respectfully request that the individual defendants similarly be

permitted to attend the Settlement Conference by telephone. The Settlement Conference will be attended in person on behalf of the individual defendants by undersigned counsel and also by a representative of the Bureau of Prisons. The individual defendants, however, do not live or work in Denver. Michael Vail is currently on a work detail in Massachusetts. The other two individual defendants (Keith Sanders and Anthony Osagie) are employed at the United States Penitentiary in Florence, Colorado. It would be highly disruptive of their work schedules for two days for these individuals to attend a Settlement Conference in Denver starting at 8:00 a.m., as it would require traveling to Denver the day before. 3. More importantly, Defendants' counsel has discussed this issue with

Plaintiff's counsel, and the parties agree that in the context of this case, the ability of the parties to discuss settlement will not be adversely affected if the individual defendants are permitted to attend the conference by telephone. The primary claims in this action are tort claims, which are directed at the United States, not at the individual defendants. Indeed, if Plaintiff recovers on his tort claims, the Bivens claims against the individual defendants must be dismissed. See 28 U.S.C. § 2679(b)(1). Accordingly, the parties are in agreement that the Settlement Conference can be fully productive with the individual defendants appearing by telephone.

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Case 1:03-cv-00236-LTB-KLM

Document 168

Filed 06/10/2008

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4.

Pursuant to D.C.COLO.LCivR 7.1(A), undersigned counsel for Defendants

certifies that he discussed this motion with counsel for Plaintiff (Amy Bauer, Esq.), and counsel for Plaintiff had no objection to it. WHEREFORE, for the reasons stated, Defendants respectfully request that the Court issue an order granting the individual defendants leave to attend the Settlement Conference by telephone. A proposed order is attached. Dated this 10th day of June, 2008. Respectfully submitted, TROY A. EID United States Attorney s/ Kevin T. Traskos KEVIN T. TRASKOS Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Phone: 303-454-0100 Fax: 303-454-0407 Email: [email protected] Attorney for Defendants

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Case 1:03-cv-00236-LTB-KLM

Document 168

Filed 06/10/2008

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 10, 2008, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail address: Amy Bauer [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Theresa Montoya, Senior Litigation Counsel Federal Correctional Complex, Legal Division 5880 Highway 67 South Florence, CO 81226

s/ Kevin T. Traskos KEVIN T. TRASKOS

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