Free Response to Motion - District Court of Colorado - Colorado

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

Document 417

Filed 05/10/2006

Page 1 of 4

I N T HE U NITED S TATES D ISTRICT C OURT F OR T HE D ISTRICT O F C OLORADO Civil Action No. 01-cv-2199-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.

D EFENDANTS ' R ESPONSE T O P LAINTIFFS ' M OTION F OR C LARIFICATION A ND CONDITIONAL M OTION F OR B RIEFING AND B RIEFING S CHEDULE

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 this Response to Plaintiffs' Motion for Clarification and Conditional Motion for Briefing and Briefing Schedule (Dkt. No. 416). I. A. ARGUMENT

Plaintiffs' Motion Should Be Denied For Failure to Comply With D.C.COLO.LCivR 7.1(A) Plaintiffs failed to comply with D.C.COLO.LCivR 7.1(A) before filing their

motion. As can be seen from the e-mail exchange between counsel, a copy of which is attached as Exhibit A hereto, Plaintiffs twice sought Defendants' position regarding

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

Document 417

Filed 05/10/2006

Page 2 of 4

post-trial filings. Both times, Defendants promptly responded to Plaintiffs' inquiries. However, Plaintiffs did not clearly articulate their position, nor did they indicate disagreement with Defendants' position, make any attempt to resolve areas of disagreement, or indicate their intent to file a motion with the Court seeking the relief now requested by their motion. In short, Plaintiffs have failed to comply with both the letter and the spirit of D.C.COLO.LCivR 7.1(A), and therefore, their motion should be denied on such basis. B. Plaintiffs' Motion Should Be Denied As Untimely and Otherwise Without Merit As the Court is aware, Defendants moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a) at the close of Plaintiffs' case. With respect to the "regarded as" disabled issue, the Court reserved ruling pending the jury's verdict in the case. Post-verdict, after discussing the issue with counsel, the Court directed that any post-verdict, pre-judgment motions or briefs be filed within 20 days, or by May 11, 2006. Defendants' Rule 50(a) motion remains pending before the Court. Further, as the Court has not yet entered judgment on the jury's verdict, a renewed motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) or a motion for new trial under Fed.R.Civ.P. 59 is not yet timely or required. The Court set a May 11, 2006 deadline for post-trial filings. Defendants have been diligently working on such filings and are prepared to file, by the May 11, 2006 deadline, a brief regarding the "regarded as" issue and a motion regarding application of the ADA compensatory damage cap and various other damages issues. There is no

-2-

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

Document 417

Filed 05/10/2006

Page 3 of 4

reason why Plaintiffs should not be required to comply with the same deadline. If Plaintiffs were unclear as to what was required to be filed, or when, they should have sought "clarification" shortly after the trial, and not waited until May 9, 2006, two days before the filings were due, to file their motion. The Court's direction on April 21, 2006, after the verdict was received, was clear ­ the parties were to make their post-trial, pre-judgment filings by May 11, 2006. Defendants are prepared to meet this deadline; Plaintiffs should have been prepared to do so, as well. Plaintiffs have not shown any good cause for an extension of such deadline. Therefore, Plaintiffs' motion should be denied as untimely and otherwise without merit. II. CONCLUSION

For the foregoing reasons, Defendants respectfully submit that Plaintiffs' motion should be denied. Dated: May 10, 2006. Respectfully submitted,

s/Jeffrey T. Johnson Jeffrey T. Johnson Monique A. Tuttle HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201 (303) 295-8000 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS

-3-

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

Document 417

Filed 05/10/2006

Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that on May 10, 2006, I 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: Damon Davis J. Keith Killian [email protected] [email protected]

s/Jeffrey T. Johnson Jeffrey T. Johnson Monique A. Tuttle 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

3553569_1.DOC

-4-