Free Reply to Response to Motion - District Court of Colorado - Colorado

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

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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.

REPLY RE: PLAINTIFFS' MOTION FOR CLARIFICATION AND CONDITIONAL MOTION FOR BRIEFING AND BRIEFING SCHEDULE

The plaintiffs, Michael E. Clawson and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Reply Re: Plaintiffs' Motion for Clarification and Conditional Motion for Briefing and Briefing Schedule, and in support thereof, state as follows: I. ADEQUATE CONFERRAL OCCURRED ON THE MOTION AS IT WAS CLEAR THAT THE PARTIES HAD DIFFERENCES OF OPINION AND THAT PLAINTIFFS WOULD BE SEEKING RELIEF FROM THE COURT It is clear from defendants' Exhibit A that adequate conferral occurred on the subject of this motion. It also appears to be a particularly fruitless endeavor to argue there has been inadequate conferral when defendants, by e-mail, expressed disagreement with plaintiffs' proposed motion and continue to disagree with it in their response.

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Plaintiffs' initial e-mail requested information from defendants on whether they would be filing a written motion for judgment as a matter of law. Plaintiffs were seeking information on the timing issue, and whether it would be helpful to spell out for the court which motions the parties believed had to be filed within twenty days of the verdict, and which could be filed after entry of judgment. Defendants responded that they believed that post-trial/pre-judgment motions had to be filed within twenty days of the verdict, but that post-judgment motions such as 50(b) could await official entry of judgment. Plaintiffs are in substantial agreement with this interpretation, but that does not resolve the subject of this motion. Fed. R. Civ. P. 50(a) makes no provision for seeking judgment as a matter of law after the verdict. In fact, rule 50(a)(2) specifically states that "Motions for judgment as a matter of law may be made at any time before submission of the case to the jury" (emphasis added). Rule 50(b) states that a motion for judgment as a matter of law may be renewed after entry of judgment, and defendants referenced this provision. Defendants' e-mail helped clarify some timing issues, but did nothing to clarify the issue in regard to briefing the rule 50(a) motion. So plaintiffs wrote back. Contrary to defendants' argument in the response, plaintiffs clearly articulated the relief sought by the motion. The e-mail from plaintiffs stated, "In regard to the rule 50 motion do you have a problem with a request for a briefing schedule, if the judge intends to rule on it without requiring you to renew it post judgment?" This spells out the exact relief plaintiffs are requesting. Plaintiffs want to know if the court is going to rule on the rule 50 motion without requiring a rule 50(b) motion. If the court is, plaintiffs want a chance to brief the issue. Defendants are also incorrect in stating that plaintiffs did not indicate an intent to file a motion seeking relief. The second sentence of the 2

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e-mail states, "This is our attempt to confer before filing the motion." This language needs no clarification. Finally, it is certain from defendants' responsive e-mail that the parties had differing opinions on the relief requested, as well as the underlying facts and law. Once it is obvious that the parties have differing opinions and that relief will have to be sought from the court, the purposes of conferral have been satisfied. It is apparent that the parties disagree on whether the court gave permission to brief the rule 50 issue absent a motion for relief under rule 50(b). The parties also disagree on whether rule 50(a) or 50(b) applies. The parties clearly differ on whether defendants are "renewing" their motion, or simply briefing a motion that has already been made. There also appears to be a difference of opinion on whether briefing should proceed sequentially, as usual, or should be done simultaneously. It is clear that the parties did disagree on these issues and continue to disagree on these issues; therefore the purposes of conferral were satisfied. II. CLARIFICATION IS REQUESTED BECAUSE THE DEFENDANTS' INTERPRETATION OF THE COURT'S STATEMENT IS IN CONFLICT WITH THE PLAIN WORDING OF FED. R. CIV. P. 50 As defendants' position on this subject shows, the defendants have interpreted the court's statement as being contrary to the plain wording of rule 50. Plaintiffs therefore seek clarification. Plaintiffs do not understand the court to have ever granted permission to brief the subject of a rule 50(a) motion. When plaintiffs requested such briefing, the court stated that such a decision could wait until after the verdict. When the verdict came in, the parties did not request a ruling or briefing on the rule 50(a) motion, and the court did not address the subject of the rule 50(a) motion.

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Plaintiffs agree with defendants that the court did order post-trial/pre-judgment motions within twenty days. However, a rule 50(a) motion is explicitly a pre-verdict motion. Rule 50(a)(1) states, "If during a trial by jury . . ." (emphasis added), indicating that the motion should be made during trial, not after. This is confirmed by rule 50(a)(2) which states, "Motions for judgment as a matter of law may be made at any time before submission of the case to the jury." Once the case has been submitted to the jury, judgment as a matter of law under rule 50(a) is inappropriate. Plaintiffs' interpretation of rule 50(a) is confirmed by a careful reading of rule 50(b). Rule 50(b) reads in relevant part: If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filling a motion no later than 10 days after entry of judgment . . . (emphasis added). Rule 50(b) does not require a denial of a motion for judgment as a matter of law, only that the motion not be granted. The court did not grant defendants' motion. The court did not grant the motion because it was reserving its ruling, but that also is irrelevant. Rule 50(b) states "any reason," this would include reserving a ruling on the issue. By the plain language of rule 50(b) the court in this case submitted the case to the jury subject to a later ruling. The defendants may now "renew" their motion for a judgment as a matter of law under rule 50(b). Rule 50(a) became irrelevant, other than as a prerequisite to a 50(b) motion, once the case was submitted to

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the jury.1 Just as defendants' rule 50(a) motion at the close of the evidence is now inapplicable, so too has become the rule 50(a) motion made at the close of plaintiffs' case. Once defendants presented their own evidence they waived their rule 50 motion, subject to renewal under the rules. Peterson v. Hager, 724 F.2d 851, 854 (10th Cir. 1984). Thus, there should be no briefing on the issue of rule 50(a), as that issue is moot. As plaintiffs will argue in a separate filing, any brief on rule 50(a) should be stricken as moot, or treated as a motion under rule 50(b). The above analysis explains why plaintiffs are of the opinion that there should be no briefing or order under rule 50(a), and that defendants should be required to renew their motion for judgment as a matter of law under rule 50(b). However, defendants understand the court's instructions to be different. Defendants' position is that because the court reserved ruling, the rule 50(a) motion is still outstanding, despite the plain language of rule 50(b). The defendants have interpreted the court's comments in isolation from rule 50. Plaintiffs, obviously, do not believe that the court meant for its comments to be taken in isolation from the very rules being discussed. However, the court's statements could be interpreted differently, and clarification on this issue is necessary to resolve the dispute between the parties. Due to the importance of this issue, clarification is appropriate.

Defendants are incorrect in stating that a motion under rule 50(b) would be untimely, meaning that it would be premature prior to entry of judgment. The rule specifically provides that a rule 50(b) motion may be timely filed until "no later than 10 days after entry of judgment." Therefore, a rule 50(b) motion may be filed at any time after the verdict and until ten days after entry of judgment. Advisory Committee Notes to the 1995 Amendments to Fed. R. Civ. P. 50.

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III.

IF THE COURT DOES NOT STRIKE OR DISREGARD "DEFENDANTS' BRIEF IN SUPPORT OF JUDGMENT AS A MATTER OF LAW UNDER RULE 50(a)," PLAINTIFFS SHOULD BE ALLOWED TO RESPOND TO IT Defendants have filed a brief in support of motion for judgment as a matter of law under

rule 50(a). Defendants did this without permission of the court, as the court never authorized such briefing. Furthermore, as explained above, such a brief is moot, as rule 50(b) is the applicable rule once the case is submitted to the jury.2 If the court is going to strike the brief, or disregard it as untimely, plaintiffs would like to know so that they do not waste their time and the court's time and resources responding to it. If the court is going to treat it as a rule 50(b) motion, plaintiffs would like to know so that they can respond to it in an appropriate fashion. If the court is going to treat the brief as what it is purported to be, a brief in support of defendants' rule 50(a) motion, plaintiff should still be given an opportunity to respond to it. It would be inappropriate to require plaintiffs to brief the issue without seeing defendants' arguments first. This is especially true as neither party had the opportunity to address the evidence submitted during defendants' case in chief during oral arguments to the court, even though that evidence must now be considered. Peterson v. Hager, 724 F.2d 851, 854 (10th Cir. 1984); Robinson v. Food Serv. of Belton, Inc., 415 F.Supp. 2d 1232, 1236 (D. Kan. 2005). The standard for granting a motion under rule 50 mirrors that for granting a motion under rule 56 for a summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[A] party seeking summary judgment always bears the initial responsibility of informing the

Defendants also purport to reserve the right to submit a second motion, this one under rule 50(b) if their current motion for judgment as a matter of law is denied. Such a reservation is meaningless if it is contrary to the law. Further, it is not clear what such a motion would accomplish as it would pertain to the exact same facts and law. It would pertain to the same facts because, as shown below, rule 50(a) motions must consider evidence offered in the defendants' case in chief if not ruled upon by that stage of the trial.

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district court of the basis for its motion . . . `which it believes demonstrates an absence of a genuine issue of material fact.'" Celotex Corp., 477 U.S. at 323. By analogy, this same requirement applies to rule 50 motions. The requirement is arguably explicit in the rule 50(a)(2) requirement that "Such a motion shall specify the judgment sought and the law and facts on which the moving party is entitled to the judgment." Even though at trial it was plaintiffs who had the burden of proof, it is defendants' as movants who have the obligation of proving entitlement to judgment as a matter of law. Until defendants provide the facts and law on which they rely in seeking such a judgment, plaintiffs have no obligation or ability to respond. Like defendants, plaintiffs have worked hard to meet the court's deadline for posttrial/pre-judgment motions, and filed three such motions. Just as defendants will be responding to plaintiffs' motions, plaintiffs will be responding to defendants. However, a rule 50(a) motion is neither a post-trial nor a post-judgment motion. If the court is intending to rule on a 50(a) motion, despite the jury having already entered a verdict, plaintiffs merely want a chance to brief the subject. Plaintiffs are not seeking an extension, as defendants allege, but a chance to respond to defendants' brief. Such sequential briefing is the usual course in trial courts and appellate courts. It would be appropriate here where defendants have the burden of demonstrating entitlement to judgment as a matter of law, and are required to specify the law and facts on which they are relying.3

By making this argument, plaintiffs are not waiving the limitation in rule 50 restricting defendants to the specific issues and points raised in their initial rule 50 motion. Plaintiffs need sequential briefing because they need to know before briefing the issues if defendants continue to contend that there was no question of fact after their case and rebuttal, and if so why. Plaintiffs do not waive any objection to defendants raising new arguments or issues.

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CONCLUSION Defendants' own Exhibit A demonstrates that there was adequate conferral on plaintiffs' motion. The exhibit refutes defendants' claims that plaintiffs did not explain the relief sought or state that a motion was being considered. Plaintiffs request clarification from the court on the rule 50(a) versus rule 50(b) issue, and whether briefing on rule 50(a) is appropriate. Plaintiffs' position is that the plain wording of rule 50(b) makes any determination under rule 50(a) inappropriate once the case has been submitted to the jury. Plaintiffs request the court adopt this position. Plaintiffs also request that the court clarify how it will treat Defendants' "Brief in Support of Judgment as a Matter of Law Under Rule 50(a)." Plaintiffs request this clarification so that they do not waste their time or the courts' time and resources if a response is unnecessary. If the court treats it as a rule 50(b) motion, plaintiffs need to be advised to be able to respond appropriately. Even if the court treats it as an appropriate and timely brief on rule 50(a), plaintiffs should be allowed to respond, as the burden is on defendants to prove their entitlement to relief. For all of the above stated reasons, plaintiffs request the court grant their motion. RESPECTFULLY SUBMITTED this 19th day of May, 2006.

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] 8

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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 19, 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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