Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

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

Document 428

Filed 05/31/2006

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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.

PLAINTIFFS' CORRECTION/AMENDMENT TO THE MOTION FOR BACK PAY AND INTEREST

The plaintiffs, Michael E. Clawson and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Correction/Amendment to the Motion for Back Pay and Interest, and in support thereof, state as follows: On May 11, 2006, plaintiffs filed a motion for back pay and interest. On May 24, 2006, plaintiffs filed a notice of error, indicating that an overstatement in the amount of pre-judgment interest on back pay had been made. Plaintiffs have now corrected the error and submit the correct information to the court. The error was in the use of the formula provided by Reed v. Mineta, 438 F.3d 1063 (10th Cir. 2006) at footnote 4. The error was in part the result of never having used this formula. The formula was first published by the Tenth Circuit this year. Plaintiffs' counsel have always calculated back pay interest using in-house staff. An accountant 1

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

Document 428

Filed 05/31/2006

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who works for the firm also calculated the interest in this case. The error was in the calculation of compounded interest in the compounding periods. Instead of compounding the interest in each compound period, the calculation was inadvertently set up to multiply the interest by the number of compound periods. As can be imagined, this significantly overstated the amount of interest due to the plaintiffs on the back pay award. Plaintiffs still submit that the Reed formula is the appropriate formula, if used correctly. Plaintiffs also continue to assert that the state interest rate of 8% is the correct rate to use for back pay. The corrected spreadsheets showing the appropriate amount of interest pursuant to Reed are included as Attachment 1 for Clawson, and Attachment 2 for Dillon. In the initial motion, plaintiffs calculated Clawson's pre-judgment interest on economic damages at $425,486.30 as of the verdict, and continuing to accrue at $144.98 per day until entry of judgment. The prejudgment interest on back pay actually due to Clawson on the date of the verdict, at 8% per year compounded annually, is $110,576.00. Thus, the total of interest and back pay due to Clawson as of the date of the verdict is $346,576.00. Interest continues to accrue at $75.96 per day until the date of judgment. In the initial motions, plaintiffs calculated Dillon's pre-judgment interest on economic damages at $120,163.49 as of the date of the verdict, and continuing to accrue at $50.01 per day until entry of judgment. The pre-judgment interest on back pay actually due to Dillon on the date of the verdict, at 8% per year compounded annually, is $31,900.37. Thus, the total of interest and back pay due to Dillon as of the date of the verdict is $139,900.37. Interest continues to accrue at the rate of $30.66 per day until the date of judgment.

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

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Due to the prior error, plaintiffs have included a more detailed chart showing the interest calculation. Each pay period is numbered, and pay periods are used in accord with Reed. The pay rate is the amount awarded by the jury in back pay, divided by the number of pay periods. The number of days to the verdict is used in calculating the number of compound periods. For example in period one for Dillon, 2352 (days from period to verdict) divided by 365 (days per year equals 6.444, then minus one because there is no compounding the first year, leaving 5.444 compounding periods. The "accrued interest" column contains the amount of simple interest accrued on the pay period through the date of the verdict. Compound periods are discussed above. The "compound interest" column contains the amount of interest to the date of the verdict with compounding. Each period set forth in the spreadsheet from period "0" to period "5," shows the amount of principle and accrued interest through that period, with compounding beginning only after period zero. This allows the court to see the accumulation of interest and the total amounts involved. Plaintiffs' counsel apologizes for error contained in the initial motion. Plaintiffs have filed this correction in the hope that the court will grant the motion to amend, permit the substitution of this amendment and permit the defendants until June 12, 2006, to respond to the motion for back pay and interest as amended. Plaintiffs request the court accept these revised amounts, which pertain only to interest calculated on back pay, and enter judgment accordingly. RESPECTFULLY SUBMITTED this 30th day of May, 2006.

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s/J. Keith Killian J. Keith Killian Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 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

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 30, 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 Mail

Mail

s/J. Keith Killian J. Keith Killian 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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