Free Response to Motion - District Court of Colorado - Colorado

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

Document 451

Filed 03/14/2007

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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, vs. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC. Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION FOR EXPEDITED BRIEFING

Defendants Mountain Coal Company, L.L.C., Arch Western Resources, L.L.C., and Arch Coal, Inc., by their attorneys, Holland & Hart LLP, hereby submit their Response to Plaintiffs' Motion for Expedited Briefing (Dkt. No. 450), filed March 13, 2007. For the reasons set forth below, Plaintiffs' Motion for Expedited Briefing should be denied. Both Plaintiffs' Motion for Sanctions (Dkt. No. 449), filed March 7, 2007, and Plaintiffs' Motion for Expedited Briefing are untimely. Plaintiffs waited six weeks after the Court's January 24, 2007 Opinion and Order Granting, in Part, Defendants' Motion for Judgment as a Matter of Law (Dkt. No. 447), to file their Motion for Sanctions. Then, Plaintiffs waited almost another week, until March 13, 2007, and only 14 days before the March 27 hearing, to request an expedited briefing schedule.

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

Document 451

Filed 03/14/2007

Page 2 of 4

This is a "crisis" of Plaintiffs' own making, one which could ­ and should ­ have been avoided had Plaintiffs acted in a diligent manner. For this reason, Plaintiffs' Motion for Expedited Briefing should be denied. Furthermore, the underlying motion, Plaintiffs' Motion for Sanctions (Dkt. No. 449) should be summarily denied. As the Court is aware, following trial in this case, Defendants on May 11, 2006 filed their Motion for Application of Statutory Damage Cap to Compensatory Damage Awards and for Reduction of Advisory Back Pay Awards (Dkt. No. 423). In response to such motion, Plaintiffs argued that Defendants' alleged failure to disclose should preclude consideration of any evidence from Sherrie Eastwood or derived from Defendants' Oracle personnel software system. In its January 24, 2007 Order, in footnote 18, at page 28, the Court specifically rejected such argument. Plaintiffs now, by their Motion for Sanctions, seek a second bite at the apple, seeking to reargue the same issue as has already been decided by the Court. This has been Plaintiffs' consistent pattern throughout this case, and has needlessly burdened the Court and greatly increased the cost of litigation. The Court should not condone such behavior, and should deny Plaintiffs' Motion for Sanctions, as well as Plaintiffs' Motion for Expedited Discovery as being moot. THEREFORE, for the foregoing reasons, Defendants respectfully submit that Plaintiffs' Motion for Expedited Briefing (and Motion for Sanctions) should be denied. In the alternative, Defendants request that they be given a reasonable amount of time to respond to Plaintiffs' Motion for Sanctions.

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

Document 451

Filed 03/14/2007

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Dated: March 14, 2007.

Respectfully submitted,

s/ Jeffrey T. Johnson Jeffrey T. Johnson Christina Gomez H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8019 Fax: (303) 713-6202 [email protected] [email protected].

A TTORNEYS F OR D EFENDANTS

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

Document 451

Filed 03/14/2007

Page 4 of 4

C ERTIFICATE O F S ERVICE

I hereby certify that on March 14, 2007, I have caused to be electronically filed the foregoing with the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] I am not aware of any non CM/ECF participants in this matter requiring service by other means.

s/ Jeffrey T. Johnson Jeffrey T. Johnson H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8019 Fax: (303) 713-6202 [email protected]

A TTORNEYS F OR D EFENDANTS

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