Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case 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.

RESPONSE TO DEFENDANTS' MOTION FOR REMITTITUR UNDER RULE 59

Plaintiff Michael E. Clawson through his undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submits his Response To Defendants' Motion For Remittitur Under Rule 59, and in support thereof, state as follows: I. APPLICABLE LEGAL STANDARDS A. Test for The Appropriateness of Remittitur

Applying the appropriate authorities to the facts of this case demonstrates that neither a remittitur nor a new trial is appropriate, and the defendants' motion should be denied. Contrary to the assertion of the defendants, the discretionary nature of a remittitur, as well as the unique nature of every case, means that no prior appellate decision in another case can mandate a remittitur in this case. See Peyton v. DiMarino, 287 F.3d 1121, 1127 (D.C. Cir. 2002) ("Because of the unique circumstances of each case . . . it is awkward to discuss the size of an award

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through comparison with past decisions."). "The authority to grant a new trial . . . is confided almost entirely to the exercise of discretion on the part of the trial court." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). The court's determination as to the appropriateness of a remittitur is likewise an exercise of discretion. Blanke v. Alexander. 152 F.3d 1224, 1236 (10th Cir. 1998). In seeking a remittitur "defendants bear the heavy burden of demonstrating that the verdict was clearly, decidedly, or overwhelmingly against the weight of the evidence." Blanke, 152 F.3d at 1236 (internal quotes omitted). It is not sufficient that the court believes the damages are high or are more than the court would have chosen to award. Rosen v. LTV Recreational Dev., Inc., 569 F.2d 1117, 1123 (10th Cir. 1973); Goico v. The Boeing Co., 358 F.Supp. 2d 1028, 1030 (D. Kan. 2005). "[A]bsent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury's determination of the fact [of the amount of damages] is considered inviolate." Blanke, 152 F.3d at 1236. A remittitur cannot be ordered without the plaintiff's consent, and if the plaintiff refuses to consent the court has no choice but to order a new trial on damages. Sloan v. State Farm Mut. Auto. Ins. Co., 360 F.3d 1220, 1225 (10th Cir. 2004). In determining the amount of a remittitur the court should consider the twin goals of avoiding the time and expense of a new trial, due to the plaintiff's potential refusal to accept the remittitur, and also minimizing the extent of judicial interference with an issue in the jury's province. Earl v. Bouchard Trans. Co., 917 F.2d 1320, 1328 (2nd Cir. 1990). If the court does order a remittitur, it must only reduce the damages to the maximum amount that could be upheld as not excessive. Earl, 917 F.2d at 1328. 2

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B.

Juries Are Entitled to Great Deference in Determining the Amount of Compensatory, or Non-Economic, Damages

Clawson is entitled to compensatory damages pursuant to the ADA. Such damages are similar to the non-economic damages awardable at common law, and which juries have been entrusted to value for centuries. While the non-economic damages must be supported by evidence, "there need be no evidence which assigns an actual dollar value to the injury." Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) accord Blanke, 152 F.3d at 237. The court correctly instructed the jury that it could award compensatory damages for: "physical and mental pain and suffering, inconvenience, emotional stress, fear, anxiety, embarrassment, humiliation, public disgrace, indignity, and impairment of quality of life." Clawson is entitled to damages for his "subjective pain and suffering and humiliation." Rhoads v. Horvat, 270 F.Supp. 307, 310 (D. Colo. 1967). "Placing a value on human suffering is always a subjective enterprise, turning on the jury's sensibilities to the facts and circumstances presented in a particular case." McDonald v. Federal Labs., Inc., 724 F.2d 243, 247 (1st Cir. 1984). "[T]he harm is subjective and evaluation of it depends considerably on the demeanor of witnesses." Hampton v. Dillard Dep't Stores, 18 F.Supp. 2d 1256, 1276 (D. Kan. 1998). Because there is no objective measuring stick for non-economic damages and the measure depends heavily on the particular facts and circumstances of the case and the demeanor of the witnesses great deference is given to the jury. Judge Kane explained well why juries are given such great deference on the issue of damages: It is not for me to say that a jury's assessment of unliquidated damages is wrong because I would have arrived at a different figure. Indeed, the constant exposure to death, injury and outrage which confronts judges necessarily jades our vision and immures our emotions. The genius of the jury system is the deliverance of 3

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judgment by collective response from members of the community who have ordinary experience. *** The members of this jury sat together, consulted with one another and applied their separate experiences in the affairs of life to the facts adduced at trial . . . From this trial these six jurors drew a unanimous conclusion which it is the very function of the law to obtain. As Justice Hunt said so well in Sioux City & P. Ry. Co. v. Stout . . . `It is assumed that twelve men know more of the common affairs of life than does one man: that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.' Rawson v. Sears, Roebuck and Co., 615 F.Supp. 1546, 1553 (D. Colo. 1985). The eleven members of this jury, with diverse backgrounds including a lawyer and a special agent for the Forest Service, consulted each other and arrived at a unanimous finding regarding damages. This finding is entitled to great deference. C. Factors Court's Have Considered in Regard to Motions for Remittitur

Courts have considered a variety of factors in deciding motions for remittitur, depending on the nature and facts of the case. Contrary to defendants' insinuation, Smith v. Northwest Fin. Acceptance, Inc. did not set forth a five-factor test for deciding a motion for remittitur. 129 F.3d 1408 (10th Cir. 1997). The Tenth Circuit in Smith simply looked at factors that might affect the award of damages in that particular case. Further, Wulf v. Wichita, 883 F.2d 842 (10th Cir. 1989) could not have followed a test set forth in Smith because Wulf was decided eight years prior to Smith. Of course, to the extent any of the factors relevant in one case, including Smith, are relevant to another case, they may be considered by the court. The court may consider the plaintiff's own testimony regarding his non-economic injury, as well as the testimony of others. Smith, 129 F.3d at 1416-1417; O'Neal v. Ferguson Const. Co., 4

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237 F.3d 1248, 1257 (10th Cir. 2001). The testimony need not be exceedingly graphic or detailed in order to justify a substantial award of damaged. Smith, 129 F.3d at 1416 (affirming refusal to remit $200,000 in compensatory damages). The testimony of a psychologist or counselor is unnecessary to justify a substantial award of damages. Id. Defendants' brief concentrates on emotional stress and mental anguish, but the court, like the jury, must also consider testimony regarding anxiety, inconvenience, and loss of quality of life. The court should consider whether the testimony of the plaintiff was largely uncontroverted. Specht v. Jensen, 832 F.2d 1516, 1528 (10th Cir. 1987); Thornton v. Kaplan, 958 F. Supp. 502, 505 (D. Colo. 1996). Circumstantial evidence may also prove damages to the plaintiff by inference. Thornton, 958 F.Supp. at 506. In this regard the court may consider the nature of the conduct toward the plaintiff. "[T]o the extent that the egregiousness of [defendant's] conduct was considered, it was merely as a proxy to assess the distress inflicted upon [plaintiff]." Peyton, 287 F.3d at 1128. The court may consider whether the defendant acted in a callous manner toward the plaintiff. Rawson, 615 F.Supp. at 1552; Hampton, 18 F.Supp. 2d at 1276. The court may also consider whether the defendant ever apologized or attempted to fix its conduct when confronted, or whether the defendant simply treated the plaintiff worse. Hampton, 18 F.Supp. 2d at 1276; Goico, 358 F.Supp. 2d at 1030-31. In deciding on remittitur, the court should consider the emotional distress caused by the financial impact of the discrimination. Defendants' argument that back pay damages compensate the plaintiff for such injury is legally wrong and is a further example of defendants' callous treatment of Clawson and disregard for his emotions. Back pay solely compensates for economic loss. A plaintiff is entitled to damages for anxiety regarding "prospects for future 5

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employment" as well as "fears of present and future financial difficulties." Thornton, 958 F.Supp. at 505. Compensatory damages account for the context in which the plaintiff's claims arise, including inconvenience and emotional harm caused by economic loss. Smith, 129 F.3d at 1417. A large part of the reason for the remittitur in Hughes v. Regents of the Univ. of Colo. was that the plaintiff suffered no lost income or benefits, and thus had none of the distress that accompanies the loss of a job or loss of earnings. 967 F.Supp. 431, 438 (D. Colo. 1996). In claims involving the discharge of an employee, courts often look at the distress caused to a loyal or skilled employee who was forced from his job. Rawson, 615 F.Supp. at 1552; Dodoo v. Seagate Tech., Inc., 235 F.3d 522, 532 (10th Cir. 2000)(affirming $125,000 in compensatory damages). This is only logical because an employee who works hard for a company and is loyal to it, is going to feel betrayed when the company breaks faith with him. II. APPLICATION OF THE LEGAL STANDARDS TO CLAWSON'S DAMAGES In order to grant a remittitur this court must find that defendants have born the "heavy burden" of demonstrating that the damages awarded are "overwhelmingly against the weight of the evidence" and "raise an irresistible inference that . . . [an] improper cause invaded the trial." Defendants have not met this burden. There is no hint of passion or prejudice in the jury's verdict. Despite finding defendants willfully violated the ADA, the jury awarded no punitive damages. The court found the economic damages supported by the evidence, and largely adopted the award. The jury had the chance to observe the demeanor of the witnesses. The jury engaged in substantial deliberations. There is no hint that their verdict was based on anything but the evidence. Considering what Clawson went through, and his economic damages, the noneconomic damages are not "so outrageous as to strike everyone with the enormity and injustice 6

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of them..." Rawson, 615 F.Supp. at 1551. Clawson's Testimony Clawson testified about the non-economic damages he suffered. He testified that he felt unwelcome and rejected because of defendants' treatment of him. He testified that he felt thrown away despite the good work he had done for the company. Clawson testified about the stress and inconvenience associated with looking for new jobs. Clawson testified about the difficulties he had finding steady employment after being fired by defendants. He testified about the construction industry and how one could not be sure of a steady job because weather or the completion of a contract could result in the end of employment. Clawson testified that the jobs he did find paid less and had fewer benefits than the job he held with defendants. Clawson testified about his concerns with paying the bills and the difficulties associated with a lack of steady work. Clawson's testimony was uncontroverted. Additional Evidence Despite defendants' arguments to the contrary, there is additional evidence supporting Clawson's compensatory damages in addition to his own testimony. Exhibit 708 shows the number of times Clawson changed jobs between 2000 and 2003, demonstrating his difficulty in finding steady employment. (Exhibit A). From this exhibit the jury can easily perceive the anxiety and inconvenience caused by such frequent changing of jobs. The exhibit also shows how much less Clawson was making, demonstrating the financial hardship he faced. Additionally, exhibit 722 shows that Clawson lost over $200,000 between May 1999 and February 2003. (Exhibit B). It demonstrates the fringe benefits Clawson lost. Benefits, particularly insurance benefits, contribute tremendously to an employee's piece of mind. Exhibit 7

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722 is a tangible demonstration of Clawson's reduced quality of life. Clawson had no guarantee of recouping his lost money. Clawson was a Loyal and Diligent Employee Clawson had worked for the defendants for a number of years prior defendants' refusal to accommodate him, and his subsequent discharge. His supervisor, Daugherty, testified that Clawson was one of the top employees. Clawson accepted overtime at the mine. Clawson attempted to return to work and frequently requested information on available jobs. This evidence lends additional strength to Clawson's testimony that he felt rejected and thrown away. See Dodoo, 235 F.3d at 532; Rawson, 615 F.Supp. at 1552. Defendants' Callous Treatment of Clawson The court may also consider the callous treatment of Clawson by defendants as well as their unrepentant attitude toward him in determining the appropriateness of a remittitur. The jury found that defendants' conduct was willful or done with reckless indifference. Clawson returned to work for one day after reaching maximum medical improvement. He was called and told that he should not have been allowed to return to work, and had to come to a meeting regarding his restriction. At the meeting he was told he could not return to work because of his restriction. Even though he disagreed and asserted, correctly, that he could return to work he was forced out of his job and forced onto short-term disability. Clawson continued to ask about jobs at the mine and was eventually told his lawyer would have to contact the mine. Clawson asked Langrend, head of human resources, what would happen when his short-term disability was up, and Langrend said to look it up in the handbook. When Clawson was turned down for the warehouse job he asked for the reason in writing, defendants refused to provide a written reason. Clawson 8

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filed his CCRD/EEOC discrimination complaint prior to his termination. Instead of apologizing to Clawson, or correcting their prior errors, defendants went ahead and fired Clawson. Defendants have never apologized for their conduct or attempted to make it up to Clawson and, despite the jury's findings, continue to assert they have done nothing wrong. Defendants assert two bases for finding that they treated Clawson well. These are the availability of short-term and long-term disability, and the offer of reemployment. There was evidence that Clawson was forced onto short-term disability in order to give defendants the opportunity to fire him. The policy itself stated that termination resulted upon using up the short-term disability benefits. Evidence showed that everyone that used up their short-term disability was fired. There was evidence that Clawson was fired pursuant to the policy. Further, neither short-term nor long-term disability were gratuities, but were part of the consideration for the contract of employment. Defendants had a legal duty to provide the benefits Clawson had earned through his employment. Not providing the benefits would have been retaliatory under the ADA, and would likely be an independent violation of ERISA. The offer of reemployment was clearly done for the benefit of defendants, not for the benefit of Clawson. The offer was clearly made to limit or cut off Clawson's damages in accordance with Ford Motor Co. v. EEOC, 458 U.S. 219, 232 (1982). This is shown by defendants' motion seeking to prevent Clawson from receiving lost pay after the offer of reemployment was rejected. The offer was the minimum defendants were required to do to comply with Ford. The offer was not made to help Clawson or to make up for past wrongs, but to limit defendants' exposure at trial. Defendants' offer was insulting, not accommodating. Summary and Conclusion 9

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The evidence, when viewed as a whole, supports the jury's verdict. There is no evidence that the verdict amount was the result of passion or prejudice. The jury's award was not only for mental suffering, but also anxiety, humiliation, inconvenience, and reduced quality of life. Clawson testified as to these factors, and there was additional evidence in the record supporting, and bolstering, his testimony. Based on the factors courts have looked to in such cases, remittitur is not appropriate. Further, even if a remittitur were appropriate, a $200,000 remittitur would be grossly excessive based on the evidence of harm presented at trial. III. COMPARISON WITH DAMAGES IS OTHER SIMILAR CASES A. Difficulties Associated with Comparing Cases

Although comparison with other cases is a tool that has been employed by courts, it is a difficult tool to employ, and is frequently unhelpful. A particular difficulty is the individual nature of damages. "Pain and suffering is a personal and individual matter . . . and must be so treated." United States v. Hatahley, 257 F.2d 920, 925 (10th Cir. 1958). It difficult to compare a case with past cases, because each case is unique, and because inflationary factors must be accounted for in valuing past awards. Peyton, 287 F.3d at 1127. Each case is unique and past cases are only a reference; they are not dispositive and do not set a barrier for damages in future cases. Farfaras v. Citizens Bank & Trust, 433 F.3d 558, 566-67 (7th Cir. 2006). The lack of an objective measure for non-economic damages make it difficult to determine whether cases are truly analogous. Zurba v. United States, 247 F.Supp. 2d 951, 961-62 (N.D. Ill. 2001). The fact finder's observations and assessment of the plaintiff do not appear in the cold record that the court reviews. Zurba, 247 F.Supp. 2d at 962 see also Hampton, 18 F.Supp. 2d at 1276. A further difficulty is that "[i]nvariably, one could find a case to support 10

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nearly any award of damages in nearly any amount." Thornton, 958 F.Supp. at 505. The Tenth Circuit has held that comparisons with other cases are not dispositive. Wulf, 883 F.2d at 875. Any comparison to prior cases must account for inflation. Peyton, 287 F.3d at 1127; Tullis v. Townley Eng'r & Mfg. Co., 243 F.3d 1058, 1069 (7th Cir. 2001). Comparisons must also account for the shifting societal values placed upon such things as emotional and mental well being, convenience, and quality of life. For these reasons, contemporary cases will be more helpful for comparison than older cases. B. The Cases Cited By Defendants Are Distinguishable And Are Not Dispositive

As an initial matter, defendants cited Powell v. Cobe Labs., Inc., an unpublished opinion, without attaching a copy. This is in violation of D.C.COLO.LCivR 7.1(D).1 Defense counsel is well aware of this rule because it has arisen repeatedly in this case. Powell is analyzed in the motion, and thus the court should deny the motion as non-compliant. Alternatively, the court should refuse to consider Powell. Powell is unpublished and is non-binding. 10th Cir. R. 32.1(A). The court will not be ignoring any binding authority by disregarding the case. The Praseuth v. Rubbermaid, Inc. case is easily disregarded as distinguishable. 406 F.3d 1245, 1253 (10th Cir. 2005). The jury in that case made the $50,000 award, and the Tenth Circuit refused to reduce it at the defendant's request. Praseuth, 406 F.3d at 1253. Thus, it does not stand for the proposition that a greater award is inappropriate. Wulf is distinguishable on various grounds. Aside from the emotional uniqueness that each case embodies, the most obvious difference is that the case was decided in 1989. Even if

FRAP 32.1 does not alter the need to attach an unpublished decision, it merely overturns the local rules of some circuits that prohibited any citation to unpublished decision.

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this court were to decide that an equivalent award to Wulf should be made, it would have to increase the actual dollars awarded to account for inflation. Peyton, 287 F.3d at 1127; Tullis, 243 F.3d at 1069. U.S. Census data shows that from 1989 to 2005, median income increased from $28,906 to $46,326 and mean income increased from$36,520 to $63,344. (Exhibit C). The value of $28,906 in 1989 is $43,946 in terms of 2005 dollars. (Exhibit C). It is clear that the court would have to increase the 1989 award of $50,000 by sixty to seventy percent to give an equivalent award in 2006. Additionally, the cases reasonably contemporaneous to Wulf were awarding less than the $250,000 given by the jury in that case. Wulf, 883 F.2d at 875 (citing cases from mid-1980s). As shown below, cases similar to Clawson's since 2000 frequently award between $200,000 and $300,000. Finally, a subtle but real distinction is that Wulf was tried to the court, not to a jury. Id. at 846, 855. While the expressed standard of review is the same, history and tradition put much greater trust into juries on the issue of non-economic damages, and this is likely to have an effect on a reviewing court. The Hughes case is also distinguishable. The case was decided in 1996, and was relying in part on prior decisions in ordering a remittitur. Hughes, 967 F.Supp. at 438. However, it is no longer the case that damages are typically less than $50,000. The biggest distinction is that in Hughes the plaintiff, although discriminated against, was transferred to a lateral position with identical pay and benefits, and comparable opportunity for promotion. Id. at 437-438. The plaintiff suffered none of the distress that accompanies a loss of a job or a decrease in earning. Id. This is certainly different from, and less stressful and egregious than, Clawson's experience. C. Cases Similar to Clawson's Support the Jury Verdict Amount

Cases similar to Clawson's have affirmed damages in amounts similar to, or greater than, 12

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the damages here. Many of these cases are more recent than the two principal cases relief on by defendants, which are each over ten years old. However, even some of the older cases affirmed verdicts well in excess of $50,000. In 1985 Judge Kane refused to remit an award of $5 million in non-economic damages in a case premised on an alleged violation of a state law prohibiting age discrimination. Rawson, 615 F.Supp. at 1547-48, 1552. In 1992, this court awarded $250,000 in a retaliation case. Berry v. Stevinson Chevrolet, 804 F.Supp. 121, 130-131, 137 (D. Colo. 1992) rev'd in part on other grounds 74 F.3d 980, 98889 (10th Cir. 1996). The damages were awarded for the emotional distress, embarrassment, humiliation, and loss of reputation associated with false and retaliatory claims of forgery. Id. There was no discussion in the case of other witnesses testifying to the plaintiff's injuries, of testimony by expert witnesses, or of the plaintiff receiving psychological treatment. In a 1996 Title VII case, Judge Johnson refused to remit a $250,000 non-economic damages award to $50,000. Thornton, 958 F.Supp. at 504, 507. The plaintiff expressed concerns similar to those expressed by Clawson. Id. at 505. The court noted that even in 1996 there were cases supporting a wide variety of damages, and cited Hughes and Wulf as being among conflicting authorities. Id. at 505-506. In Smith the Tenth Circuit refused to order a remittitur of the jury's assessment of $200,000 in compensatory damages. Smith, 129 F.3d at 1416-17. The Tenth Circuit noted that like Wulf there had been no expert testimony and the plaintiffs' testimony had not been exceedingly detailed or graphic. Id. However, the Tenth Circuit stated that the jury could consider the context in which the claim arose as well as convenience and economic factors affecting the compensatory damages. Id. at 1417. 13

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The Tenth Circuit affirmed a $307,721.25 award of non-economic damages for claims of Title VII retaliation and violation of §1981. O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1257 (10th Cir. 2001). The evidence consisted of the plaintiff's testimony that after being fired he could no longer afford his psychiatrist, he had a loss of sleep, and a loss of appetite. Id. The plaintiff's wife testified that he was more worried and unhappy than he had been in the past. Id. The United States District Court for the District of Kansas refused to remit an award of $300,000 in non-economic damages in a discrimination case. Goico, 358 F.Supp. at 1029-1031. The plaintiff was not terminated or demoted as a result of the discrimination. Id. at 1030. The direct testimony consisted of the plaintiff and his wife's testimony of his loss of sleep. Id. However, the jury was also allowed to consider the humiliation of continuing to work for those who discriminated against him, his inability to obtain his lifelong dream job, and the company's retaliation upon his complaining of discrimination. Id. at 1031. The court cited a number of contemporary cases awarding between $200,000 and $500,000 in various civil rights cases. Id. The D.C. Circuit affirmed an award of $300,000 in compensatory damages under Title VII to a woman who "became depressed, angry, and suffered a loss of self-esteem." Peyton, 287 F.3d at 1126-28. For purpose of comparing verdicts in discrimination cases, the Tenth Circuit reviewed a case in which the jury awarded $5 million in compensatory damages on an ADEA retaliation claim. Abuan v. Level 3 Comms, Inc., 353 F.3d 1158, 1167-68 (10th Cir. 2003). It is clear that there is a wide range of damages it would be appropriate for the jury to choose from. There are a number of cases similar to Clawson where damages in excess of $200,000 were affirmed, including O'Neal, Goico, and Peyton. "Our responsibility . . . is not to fit this case into a perfect continuum of past harms and past awards. Rather, our role . . . is to 14

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determine if the award in this case was roughly comparable to similar cases, such that the instant award was not . . . beyond the pale . . ." Farfaras, 433 F.3d at 567. The award of $250,000 to Clawson is sufficiently similar to cases that are roughly analogous such that the amount does not "shock the judicial conscience." CONCLUSION The evidence supports Clawson's compensatory damages. If the court were to order a remittitur, a reduction of $200,000 would not be appropriate, especially in light of contemporary Tenth Circuit and persuasive authority. Further, it is unlikely under the circumstances that Clawson would accept a significant reduction, which would necessitate another trial. Considering the deference given to the jury, the verdict does not shock the judicial conscience. The testimony, exhibits, and circumstances of the case justify the award. The most analogous cases to Clawson's case are O'Neal and Goico, each allowing $300,000 or more in compensatory damages. Therefore, a remittitur is inappropriate when comparable cases are considered. For all of these reasons, the court should DENY defendants' motion. RESPECTFULLY SUBMITTED this 3rd day of May, 2007. s/J. Keith Killian J. Keith Killian, Esq. Damon Davis, Esq. Killian, Guthro & Jensen, P.C. 225 North 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiffs Michael E. Clawson and Jared L. Dillon 15

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 11, 2006, 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 non CM/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 Mr. Jared Dillon 35404 Back River Road Hotchkiss, CO 81419 United States Mail

United States Mail

s/J. Keith Killian J. Keith Killian, Esq. Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

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