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

Case 1:01-cv-02199-MSK-MEH

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Filed 06/22/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC. Defendants.

MOTION FOR EXTENSION OF TIME AND PERMISSION TO USE A REBUTTAL EXPERT WHOSE OPINIONS ARE LIMITED TO SCOPE OF DEFENSE EXPERT'S OPINIONS

The plaintiff, Michael E. Clawson, through his undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit this Motion for and Extension of Time and Permission to Use a Rebuttal Expert Whose Opinions are Limited to Scope of Defense Expert's Opinions, and in support thereof, state as follows: 1. On June 1, 2007, the defendants e-filed Defendants' Response to Plaintiff's Motion

for Attorneys' Fees, Costs, and Interest (Dkt. No. 464), Plaintiff Clawson's Motion to Review Taxation of Costs (Dkt. No. 477), and Plaintiff Clawson's Motion to Supplement Motion for Attorneys' Fees (Dkt. No. 482). In defendants' response, defendant heavily relied upon the expert report and opinions of Sander N. Karp, Esq. 1

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2.

On June 8, 2007, plaintiff filed his motion requesting an extension of time to reply to

defendants' responses to the aforementioned pleadings until July 19, 2007. 3. On June 11, 2007, United States Magistrate Judge Hegarty granted in part and denied

in part plaintiff's motion stating that plaintiff's replies are to be filed on or before July 9, 2007. 4. Plaintiff Clawson requests permission of the court to allow plaintiff an extension of

time in accord with his original request of July 19, 2007, to reply to defendants' responses. Plaintiff seeks this extension to provide an expert opinion report and rely upon those expert opinions in plaintiff's reply regarding the Motion for Attorneys' Fees, Costs and Interest. Plaintiff intends to limit his expert's opinions to the scope of defendants' expert's opinions. Plaintiff's sole intent in this report is to rebut the expert opinions of Mr. Karp, not provide new information or arguments. 5. Plaintiff requests an extension because plaintiff's expert, Diane S. King, Esq. of King

& Greisen, LLP, will be out of town the week of June 25, 2007 through June 29, 2007, at an employment law convention and will not be able to produce her report until after the July 9, 2007, deadline for replies. 6. If this Court is unsure of whether a rebuttal expert report is allowed in a reply brief,

this Court should grant the extension of time for plaintiff to procure this rebuttal report and submit it with his reply. By reserving any ruling on the allowance of a rebuttal report in a reply brief the Court will be able to review the final report and determine whether it is properly in rebuttal. This would allow plaintiff to submit the report without prejudice or harm to defendant because the Court could makes it ruling on the permissibility of the report after being fully informed of the nature of

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the report. To not permit an extension of time for plaintiff to procure and submit the report would be of great harm and prejudice to the plaintiff that could be avoided by reserving ruling. ARGUMENT TO SUPPORT A REBUTTAL EXPERT REPORT 7. Plaintiff understands that defendant will oppose any extension requested in order for

plaintiff to obtain an expert report. Defendants also oppose the use of an expert report in plaintiff's reply for the purpose of rebutting defendants' expert report used in their response. Plaintiff will briefly support this use of a rebuttal expert in his reply. 8. Fed. R. Civ. P. 26(a)(2)(C) defines rebuttal experts as presenting "evidence [that] is

intended solely to contradict or rebut evidence on the same subject matter identified" by an initial expert. Plaintiff intends to submit an expert report and rely upon the opinions in that expert report in his reply regarding the Motion for Attorneys' Fees, Costs, and Interest. Plaintiff will instruct his expert that this report is meant solely to rebut the report of Mr. Karp, and not to provide new information or argument. 9. The Tenth Circuit has previously allowed additional information, or exhibits, in a

reply brief in Pippin v. Burlington Resources, 440 F.3d 1186 (10th Cir. 2006). In Pippin, an employment discrimination case, the moving party attached several new exhibits to their summary judgment reply brief, which was permitted by the court. Id. at 1191. The moving party's reply only responded to the non-moving party's argument and did not attempt to raise any new arguments. Id. at 1192, fn. 5. These new exhibits consisted of a second affidavit of the Human Resource Manager, additional excerpts of several depositions, and a copy of an evaluation of another employee. Id. The Tenth Circuit Court of Appeals found no abuse of discretion by the trial court in permitting this new 3

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information in the reply. Id. at 1192. The rebuttal report Clawson is seeking to submit is analogous to the information submitted in Pippin and permitted by the Tenth Circuit. 10. The Fourth Circuit has allowed and addressed new arguments in the reply brief where

the argument is closely tied to the issues raised in the opening or original motion. Trinity Indus., Inc. v. Herman, 173 F.3d 527, 531 (4th Cir. 1999). Here, defendants' expert challenged the evidence presented in Clawson's original motion and reached opinions in opposition to those supported in Clawson's motion. By contradicting defendants' expert, the opinion of Clawson's expert will be tied to the original motion, falling within the persuasive authority of Trinity Indus. 11. Plaintiff is not attempting to go as far as submitting new argument in his reply brief,

but is only submitting an expert report to rebut the issues addressed by defendants' expert in the response. However, if the Court relies on new materials or new arguments in a reply brief, it may not forbid the nonmovant from responding to these new materials. Beard v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998). If any harm would come to defendants by this Court permitting an expert rebuttal report in plaintiff's reply, it would be corrected by defendants seeking leave of the court to file a surreply. 12. No authority requires that plaintiff utilize an expert to support his request for

attorneys' fees. Plaintiff chose not to use an expert to support such an award. However, defendants decided to utilize an expert to attack the award, which was unanticipated by plaintiff at the time his request was filed. If the defendants' expert is incorrect or his opinions are disputable, plaintiff ought to in fairness be allowed to present a rebuttal expert to contradict defendants' expert.

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13.

Defendant may attempt to cite the decisions that state "no new argument is allowed in

a reply brief." See Sigmon v. Parker Chappin Flattau & Klimpl, 901 F.Supp. 667, 677 fn. 5 (S.D.N.Y. 1995); see also United States v. Murray, 82 F.3d 361, 363 (10th Cir. 1996); see also Garcia v. Int'l Elevator Co., 358 F. 3d 777, 781 (10th Cir. 2004); see also Codner v. United States, 7 F.3d 1331, 1333 n. 2 (10th Cir. 1994). These cases relate to new arguments in a reply brief that were not first argued in the opening brief, and mostly in regard to appellate briefs on legal issues. Plaintiff is not bringing forth a new argument or legal theory to support his motion for attorneys' fees, but is requesting to provide rebuttal evidence or opinion to points brought up by defendants in their response. REQUEST EXTENSION OF TIME FOR REPLY TO RECEIVE EXPERT REPORT 14. Pursuant to Fed.R.Civ.P. 6(b) and D.C.COLO.LCivR 6.1, this Court has the

discretion to grant an extension of time to reply to defendants' response. 15. Plaintiff has requested and obtained one extension of time to file his reply. The Court

granted plaintiff an extension up to and including July 9, 2007, to file his reply. 16. Plaintiff is requesting an additional extension of ten days beyond the July 9, 2007,

extension deadline for plaintiff's reply already granted by this Court. This extension of an additional ten days would be up to and including July 19, 2007. 17. Defendant requested and was granted a similar extension of time to respond to work

with Mr. Karp and obtain Mr. Karp's report where Mr. Karp had previous obligations which prevented him from timely submitting his report. See Defendants' Unopposed Motion for Extension

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of Time to Respond to Plaintiff's Motion for Attorneys' Fees and to Plaintiff Clawson's Motion to Supplement Motion for Attorneys' Fees filed on May 21, 2007. CONFERRAL 18. Pursuant to D.C.COLO.LCivR 7.1(A) counsel for plaintiff has conferred with counsel Defendants object to the relief sought in this motion,

for defendants regarding this motion.

including any request for additional time to file plaintiff's reply beyond the July 9, 2007, due date set by the court. 19. Pursuant to D.C.COLO.LCivR 6.1, counsel for plaintiff states one previous extension

of time to reply to defendants' response has been sought and obtained, and that a copy of this motion has been served upon defendants. WHEREFORE, the plaintiff respectfully requests he be allowed to submit a rebuttal expert report in his reply brief. This expert report will be limited to the scope of defendants' expert report produced in defendants' response. Furthermore plaintiff respectfully requests a ten day extension beyond the extension already granted by this court, up to and including July 19, 2007, in which to reply to the defendants' response to plaintiff's motion for attorneys' fees.

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RESPECTFULLY SUBMITTED this 22nd day of June, 2007. KILLIAN, GUTHRO & JENSEN, P.C.

s/J. Keith Killian J. Keith Killian Damon J. Davis Post Office Box 4859 Grand Junction, Colorado 81502 Telephone: (970) 241-0707 ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 22nd day of June, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and, I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mail

s/J. Keith Killian ___ J. Keith Killian, Esq. No. 9042 Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 North 5th Street Grand Junction, Colorado 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]