Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02354-EWN

Document 64

Filed 09/11/2006

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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' REPLY TO DEFENDANT'S SUPPLEMENTAL RESPONSE TO PLAINTIFF'S REQUEST TO REOPEN ADMINISTRATIVELY CLOSED CASE FOR PURPOSE OF ACCEPTING VOLUNTARY DISMISSAL BY PLAINTIFF

Plaintiffs UnitedGlobalCom, Inc., et al, ("UGC Parties"), submits this very brief Reply to Defendant's Supplemental Response, filed on September 6, 2006. First, Plaintiffs did respond to the letter referred to on Page 8 of Defendant's Supplement, and attached as Exhibit 2, thereto. A copy of Plaintiff's responsive letter, dated September 1, 2006, is attached as Exhibit 1 to this submission. Second, the only issue presently before the Court is whether to re-open the instant case for the purpose of accepting various filings. Both Parties agree that the instant case should be reopened, albeit for different purposes. Despite the disagreement as to ultimate objectives, the

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case should be re-opened so that the Parties may properly file material with the Court, and so that the case is no longer categorized as "administratively closed." Third, once the case is re-opened, and in the event it is not dismissed (as has been requested by Plaintiffs), it is an altogether different question whether the Defendant should be permitted to file and prosecute counterclaims. There are two different justifications why the stay should remain in place. First, as Defendant McRann does not deny, his claims are still technically pending before the Industrial Commission of New South Wales. Second, Defendant imposed on the Plaintiffs hundreds of thousands of dollars in attorneys fees and litigation costs in a wrongheaded effort to litigate in the wrong court on the wrong continent. While these costs are being assessed against Defendant at the appellate court level in Australia, they remain unpaid by McRann both at the Industrial Commission level and at the appellate court level. Accordingly, after re-opening the case, but before the Court considers lifting the existing stay, Plaintiffs respectfully request the opportunity to fully brief the question whether the stay should be lifted in light of outstanding costs. Giving the Plaintiffs the opportunity to brief more fully the issue of whether the existing stay should be lifted, and whether Defendant McRann should be permitted to file and prosecute his counterclaims while hundreds of thousands in costs remain unpaid from his Australian litigation detour, would be fully consistent with the spirit of the Federal Rules of Civil Procedure. See Rule 41(d) ("court may make such an order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order").

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Accordingly, Plaintiffs ask that once the case is re-opened, they be given the opportunity to brief the issue of whether the stay in this case should be lifted before McRann pays the costs and expenses incurred by the UGC parties in Australia.

DATED: September 11, 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 September ___, 2006, I electronically filed the foregoing PLAINTIFFS' REPLY TO DEFENDANT'S SUPPLEMENTAL RESPONSE TO PLAINTIFF'S REQUEST TO REOPEN ADMINISTRATIVELY CLOSED CASE FOR PURPOSE OF ACCEPTING VOLUNTARY DISMISSAL BY PLAINTIFF 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 SCHEID INGEBRETSEN MILLER & PARISH P.C. 700 Seventeenth Street, Suite 2200 Denver, CO 80202 303.285.5301 (fax)

s/ N. Reid Neureiter N. Reid Neureiter, #29747 Ann B. Frick, #8974
JACOBS CHASE FRICK KLEINKOPF & KELLEY LLC

1050 17th Street, Ste 1500 Denver, CO 80265 Telephone: 303-685-4800 Fax: 303-685-4869 E-mail: [email protected] [email protected]

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