Free Notice (Other) - District Court of Colorado - Colorado

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

Document 425

Filed 05/24/2006

Page 1 of 4

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.

NOTICE OF ERROR AND UNDISPUTED MOTION TO AMEND PLAINTIFFS' 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 Notice of Error and Motion to Amend Plaintiffs' Motion for Back Pay and Interest, and in support thereof, state as follows: Conferral On May 23, 2006, at around 4:15 p.m., plaintiffs' counsel Damon Davis called defense counsel Jeff Johnson and left a voice mail message regarding the substance of this motion. Mr. Johnson returned the phone call on May 24, 2006. Mr. Johnson indicated that defendants do not object to the filing of an amendment or correction to the interest calculation by plaintiffs. However, defendants do not necessarily agree that the new calculation of interest will be correct, or even that plaintiffs are entitled to interest, and reserve the right to address the issue. Due to the amendment, defendants requested an extension to June 12, 2006, to respond to Plaintiffs'

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

Document 425

Filed 05/24/2006

Page 2 of 4

Motion for Back Pay and Interest. Plaintiffs agree that this is an appropriate extension, and request the court grant such an extension to the defendants. Motion On May 11, 2006, plaintiffs filed a motion for back pay and interest. Plaintiffs therein determined and attempted to calculate the appropriate amount interest on back pay in accordance with Reed v. Mineta, 438 F.3d 1063, FN 4 (10th Cir. 2006). After reviewing the pleading again, undersigned counsel determined that the calculation of interest on back pay was erroneous. The error is contained in attachments 8 and 9 of the motion. It appears that the amount of interest was overstated for both Clawson and Dillon. Plaintiffs' counsel believes that there is an obligation to inform the court and opposing counsel when such a mistake has been discovered. Plaintiff's counsel are in the process of recalculating the interest and correcting the exhibits. Plaintiffs are requesting that the court allow them to amend the motion for back pay and interest. The amendment would only be in regard to the calculation of pre-judgment interest on back pay. An amendment is requested to correct the problem, because addressing it in the Reply will not give the defendants a chance to respond to the figures, and will leave all participants with a misunderstanding of the interest calculation. Plaintiffs request that defendants be given an extension to June 12, 2006, to respond to plaintiffs' initial motion. This is not a lengthy extension, and no one will be prejudiced by it. Such an extension will allow defendants to address the interest calculations and two new exhibits. Plaintiffs' counsel apologizes to the court and opposing counsel for the error and any inconvenience it causes.

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

Document 425

Filed 05/24/2006

Page 3 of 4

RESPECTFULLY SUBMITTED this 24th day of May, 2006.

/s/ Damon Davis 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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Case 1:01-cv-02199-MSK-MEH

Document 425

Filed 05/24/2006

Page 4 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 24, 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/ Damon Davis Damon Davis 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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