Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02354-EWN

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02354-EWN-MJW UNITEDGLOBALCOM,INC.; UIH ASIA/PACIFIC COMMUNICATIONS, INC.; AUSTAR UNITED COMMUNICATIONS, LIMITED; AUSTAR ENTERTAINMENT PTY LTD; CTV PTY LIMITED; AND STV PTY LIMITED, Plaintiffs, v. ROBERT G. McRANN Defendant.

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PREFERENTIAL TRIAL DATE PURSUANT TO C.R.S. §13-1-129

Plaintiffs UnitedGlobalCom, Inc., et al, ("UGC Parties"), submit this Opposition to Defendant McRann's Motion for Preferential Trial Date Pursuant to C.R.S. §13-1-129. Defendant McRann's Motion should be denied for a multitude of reasons. First, it is based on a Colorado state procedural rule that has no application to a federal court in setting its own federal court trial schedule. Second, the Motion ignores the fact that while Plaintiffs have moved to reopen the instant closed case, Plaintiffs' motion to reopen was made for the express purpose of dismissing Plaintiffs' claims, which are the only claims that, to date, have been accepted for filing by the Court. Third, the Motion ignores the principles of equity which weigh strongly against allowing McRann to proceed on his own claims against the UGC Parties unless

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and until he takes the necessary affirmative steps to (1) dismiss an action that he brought in the Industrial Commission of New South Wales and which remains pending in that forum (albeit in a state of suspended animation), and (2) pay the costs incurred by the UGC Parties in Australian appellate courts in successfully showing that the Industrial Commission lacked jurisdiction to hear McRann's claims. C.R.S. §13-1-129 does not apply to this Federal Court. As a state law procedural rule, dealing with the setting of a trial date and timing of trial, C.R.S. §13-1-129 has no application to this federal court. Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), this court must apply substantive state law, and federal procedural law. Where there is a federal rule of procedure directly on point, that rule is, by definition, procedural and must be applied. Hanna v. Plumer, 380 U.S. 460, 471 (1965). Otherwise, the general approach is to use an "outcome determinative" test. Where application of the state rule is outcome determinative, the rule is deemed substantive. Otherwise it is procedural and the federal rule is used. The outcome determinative approach is informed by the dual policies underlying the Erie: discouragement of forum shopping and avoidance of inequitable administration of the laws. Trierweiler v. Croxton and Trench Holding Corp., 90 F.3d 1523, 1539 (10th Cir. 1996). The overarching principal is that the federal courts "are reluctant to graft a state-created procedure onto cases appearing in federal court for fear of encroaching on `the constitutional power of the federal government to determine how its courts are operated'." Id. at 1540 (quoting Wright, Law of Federal Courts, §59, at 410). In this instance, where the Colorado statute at issue seeks to impose an expedited trial date on this court and this court's calendar, the rule is indisputably procedural and not

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substantive. The Rule does not and would not change the outcome of the case, or affect the validity of McRann's claims. It would merely prioritize the resolution of those claims, perhaps to the detriment of the orderly administration of this Court's own calendar. In conflict with the local rules, the statute would limit this Court's ability to grant continuances and would impose accelerated discovery in conflict with the Federal Rules of Civil Procedure. This statute is exclusively procedural in nature and reflects the state of Colorado's priorities regarding the operation and administration of its court system. Applying this state procedural law to the scheduling and docketing of cases in federal court would interfere inappropriately with the strong federal interest in managing and administering its court system. Federal courts have different priorities than state courts in scheduling trials. See, e.g., Zukowski v. Howard, Needles, Tammen, and Bergendoff, 115 F.R.D. 53 (D.Colo. 1987) (noting that federal question cases are generally given preference, and diversity cases are usually afforded lowest priority, in part because there is an alternative forum available to the parties in those cases). Federal trial courts are given great latitude in managing their dockets. See Budde v. Ling-Temco-Vought, Inc, 511 F.2d 1033, 1035 (10th Cir. 1975) ("An appellate court will not interfere with the trial court's exercise of its discretion to control its docket and dispatch its business . . . except upon the clearest showing that the procedures have resulted in actual and substantial prejudice to the complaining litigant."), see also Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 536 (4th Cir. 1970) (explaining that "some adoption of state court procedures by federal courts sitting in diversity may be feasible, but it may also be in conflict with fundamental interests of the federal courts in the conduct of their own business and the maintenance of the integrity of their own procedures, the legitimate interests of a federal forum, qua forum").

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Control of this Court's docket and trial schedule is a matter of procedure, not substance. For these reasons, C.R.S. §13-1-129, has no applicability to this Court. Equity Militates against Granting an Expedited Trial Date. Even if C.R.S. §13-1-129 were to apply to this case, there are compelling reasons to deny McRann's request for an expedited trial date. First, the provision on which McRann relies, relating to being older than seventy years of age, is discretionary, not mandatory. The cited provision directs that a court "may" grant a motion for a preferential trial date. This is in comparison to the prior paragraph of the same statute, relating to a person with a terminal illness, where the Colorado statute uses the command, "shall."1 McRann gives no particular justification, other than his age, for getting special treatment. Second, there are a number of pending issues that the Court will have to address before it sets any trial date. The UGC Parties have moved to dismiss the claims in the case. This motion has not yet been ruled on. If the Court decides not to dismiss the case, there is a stay in place, and there are compelling reasons to maintain that stay. The existing stay of proceedings should remain in place until McRann takes steps to dismiss the Industrial Relations Commission action against the UGC Parties that, as McRann's counsel admits, remains "on foot" in New South Wales, Australia. The Industrial Proceeding cannot move forward because of the Australian High Court's order that the Industrial Commission lacks jurisdiction to proceed. Yet, the matter has not been dismissed because Mr. McRann has not taken steps to dismiss it. So, while it may be claimed to be a technical point, it
See C.R.S. §13-1-129(1) ("In any civil action filed in any court of record in this state, the court shall grant a motion for a preferential trial date which is accompanied by clear and convincing medical evidence concluding that a party suffers from an illness or condition raising substantial medical doubt of survival of that party beyond one year and which satisfies the court that the interests of justice will be served by granting such motion for a preferential trial date.") (emphasis added).
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is a reality that Mr. McRann has a case presently pending in the Industrial Commission, and yet he seeks to advance the identical claims in this Court. He should not be permitted to have two cases addressing the same claims pending simultaneously in two courts. McRann should be required to dismiss the Industrial Commission proceeding before being allowed to proceed with his claims in this Court. Compelling McRann to dismiss in the Industrial Commission before he proceeds here in Colorado is eminently fair. Because of McRann's filing in the Industrial Commission, the UGC Parties have had to incur hundreds of thousands of dollars in costs. Allowing the Industrial Commission case to sit in suspended animation without dismissal prevents a cost award in favor of the UGC parties. Requiring McRann to dismiss the Industrial Commission proceeding would bring into play the provisions of Rule 41(d), which provides that the Court may require that McRann should pay the costs of a previously dismissed action before he is allowed to proceed with a new case based on the same facts. Beyond the festering pendency of the Industrial Commission matter, McRann has not paid extensive costs that the UGC Parties incurred in the Australian appellate courts for the purpose of demonstrating that McRann was wrong to have pursued the UGC Parties in the Industrial Commission forum in the first place. McRann imposed significant appellate costs on the UGC Parties with his Australian frolic. This Court has the ability and authority to keep the instant stay in place until Mr. McRann dismisses the pending action before the Industrial Commission, pays the costs incurred in the Industrial Commission, and also pays costs incurred by the UGC Parties in the Australian appellate courts. McRann should not be allowed to move from court to court, shopping for the best forum for the resolution of his claims, without regard to the significant costs he imposed on the UGC Parties during his shopping spree.

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The UGC Parties have asked for the opportunity, once the case is reopened, and in the event the Court decides not to grant the UGC Parties' Motion to Dismiss, to brief more fully the issue of whether the existing stay should remain in place. See Plaintiffs' Reply to Defendant's Supplemental Response to Plaintiff's Request to Reopen Administratively Closed Case for Purpose of Accepting Voluntary Dismissal by Plaintiff, filed Sept, 11, 2006, at 2 (asking for opportunity to brief question whether the stay should be lifted in light of outstanding costs, and continued pendency of Industrial Commission proceeding). The UGC Parties request again the right to more fully brief the issue of the stay in the event this case is not dismissed. Conclusion For the foregoing reasons, Plaintiffs respectfully urge the Court to deny Defendant McRann's Motion for a Preferential Trial Date. DATED: December 4 , 2006. Respectfully submitted,

s/ N. Reid Neureiter Ann B. Frick N. Reid Neureiter JACOBS CHASE FRICK KLEINKOPF & KELLEY LLC 1050 17th Street, Suite 1500 Denver, CO 80265 (303) 685-4800 (303) 685-4869 (fax) ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE I hereby certify that on December 5 , 2006, I electronically filed the foregoing PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PREFERENTIAL TRIAL DATE PURSUANT TO C.R.S. § 13-1-129 with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Richard G. (Chip) Sander SANDER INGEBRETSEN & PARISH, P.C. 633 17th Street, Suite 1900 Denver, CO 80202 E-mail: [email protected]

s/Kelly H. Fuller

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