Free Motion to Clarify - District Court of Colorado - Colorado

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

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Filed 05/09/2006

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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' MOTION FOR CLARIFICATION AND CONDITIONAL MOTION FOR BRIEFING AND BRIEFING SCHEDULE

The plaintiffs, John R. Bartlett, Michael E. Clawson, Jared L. Dillon, and Thomas E. Richards, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Motion for Clarification and Conditional Motion for Briefing and Briefing Schedule, and in support thereof, state as follows: Conferral On May 9, 2006, Keith Killian sent an e-mail to Jeff Johnson and Monique Tuttle regarding defendants' position on this motion. Jeff Johnson responded by saying this motion is unnecessary. I. Motion for Clarification At the close of plaintiffs' case, defendants moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50. The court heard the motion and arguments thereon. At the

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conclusion of the arguments, the court expressed concern that plaintiffs' may not have proven the "regarded as disabled" element of their claims. The court, however, reserved ruling until returning to Denver. This was apparently to access the greater information and resources at the Denver, Colorado courthouse. Plaintiffs asked if briefing would be allowed on the subject, to which the court responded that such a decision could await the jury verdict. The court did not specify, either at the Rule 50 argument, or at the close of trial, whether it would be considering defendants' Rule 50 motion prior to entry of judgment, or waiting until defendants filed a motion pursuant to Rule 50(b) after the judgment. Plaintiffs seek clarification of this issue. Based on the plain wording of 50(b), if a motion for judgment as a matter of law is not granted for any reason, at the close of the evidence, the motion may be renewed. As such, the court should await a motion by defendants. If the court is not going to await a Rule 50(b) motion, plaintiffs' request permission to brief the Rule 50 issue, as described below. II. In the Event the Court is not Awaiting a Fed. R. Civ. P. 50(b) Motion from Defendants Before Deciding Whether Judgment as a Matter of Law is Appropriate, Plaintiffs Request Permission to Brief the Subject If the court is awaiting a Rule 50(b) motion from defendants before deciding whether a judgment should be entered as a matter of law, then the motion, response, and reply can proceed as normal under the rules of civil procedure. It is plaintiffs' belief that this is the appropriate way to proceed. However, if the court is going to consider defendants' Rule 50 motion prior to entry of judgment, plaintiffs request permission to brief the issue prior to a court ruling, and request the court provide a schedule for the submission of briefs. Briefing on the subject, in addition to the arguments already presented, is appropriate for two reasons. First, and most importantly, there is now more evidence before the court than when 2

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the Rule 50 proceeding was held at trial. The Advisory Committee Comments to the 1991 Amendments to Fed. R. Civ. P. 50 make it clear that a principal purpose of the rule is to allow the non-moving party to correct any deficiency in the evidence. As the Tenth Circuit stated, "[b]y the time a trial has been mounted, the judicial system has an interest in curing defects of proof." Bristol v. Board of County Comm'rs, 281 F.3d 1148, 1163 (10th Cir. 2002) rev'd on other grounds 312 F.3d 1213 (10th Cir. 2002) (en banc). Several paragraphs from the committee comments make it clear that the non-moving party is to be given an opportunity to correct any deficiencies in the proof. In no event, however, should the court enter judgment against a party who has not been apprised of the materiality of the dispositive fact and been afforded an opportunity to present any available evidence bearing on the fact. Paragraph (a)(2) retains the requirement that a motion for judgment be made prior to the close of the trial, subject to renewal after a jury verdict has been rendered. The purpose of this requirement is to assure the responding party an opportunity to cure any deficiency in that party's proof that may have been overlooked until called to the party's attention by a late motion for judgment. Paragraph (a)(2) does impose a requirement that the moving party articulate the basis on which judgment as a matter of law might be rendered. The articulation is necessary to achieve the purpose of the requirement that the motion be made before the case is submitted to the jury so that the responding party may seek to correct any overlooked deficiency in the proof." Advisory Committee Comments to the 1991 Amendments of Fed. R. Civ. P. 50. In effect, the solicitation of testimony, and presentation of evidence during defendants' case, and on rebuttal, served as plaintiffs' opportunity to correct any deficiencies in the evidence. The Tenth Circuit likewise takes this view: Technically a party waives his right to a directed verdict, if motion is made at the close of his opponent's case, and thereafter he introduces evidence in his own behalf. However he may renew the motion at the close of all the evidence . . . The 3

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renewed motion will be judged in the light of the case as it stands at that time. Even though the court may have erred in denying the initial motion, this error is cured if subsequent testimony on behalf of the moving party repairs the defects of his opponent's case. Peterson v. Hager, 724 F.2d 851, 854 (10th Cir. 1984) (emphasis in original) followed by Robinson v. Food Serv. of Belton, Inc., 415 F.Supp. 2d 1232, 1236 (D. Kan. 2005). Thus in Peterson although the plaintiff submitted insufficient evidence of damages in his case in chief, this error was corrected by the subsequent submission of evidence during defendants' case. Peterson, 724 F.2d at 854. This is, of course, consistent with the desire to decide the case on the facts, rather than on procedural rules. It is also consistent with judicial economy, as it makes no sense to submit the case to the jury on all of the evidence, and then decide the issue of judgment as a matter of law on less than all of the evidence. The Rule 50 proceeding took place at the close of plaintiffs' evidence. While defendants renewed their motion at the close of the evidence, there was only abbreviated argument thereon. Plaintiffs maintain that there was no deficiency in the evidence presented in the plaintiffs' case in chief, and that the evidence was sufficient at that time to go to the jury on the issue of "regarded as disabled." However, at this point, plaintiffs are entitled to have the court consider evidence presented during defendants' case, and on rebuttal. Plaintiffs should have an opportunity to argue this evidence to the court before it makes any Rule 50 determinations. Secondly, plaintiffs' counsel would like the chance to argue the three cases cited by the court at the Rule 50 proceeding. To the knowledge of plaintiffs' counsel, none of the case were cited by defendants prior to, or at, the Rule 50 proceeding. It is the moving party's burden to

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prove its entitlement to a directed verdict. In addition to addressing evidence submitted during defendants' case, plaintiffs' counsel would like to brief the three cases cited by the court. CONCLUSION Plaintiffs request that the court clarify its rulings and specify whether it will be ruling on defendants' previously submitted Rule 50 motion before judgment is entered or whether it is awaiting a Fed. R. Civ. P. 50(b) motion from defendants. If the court is awaiting a Rule 50(b) motion, plaintiffs request that the motion, response, and reply, proceed in the normal fashion as provided for in the rules of civil procedure. In the event the court is going to determine the Rule 50 motion without awaiting a Rule 50(b) motion from defendants, the plaintiffs request an opportunity to submit written briefs on the subject. Plaintiffs request that the court provide a schedule for the submission of such briefs. RESPECTFULLY SUBMITTED this 9th 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] Attorney for Plaintiffs Michael E. Clawson and Jared L. Dillon

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

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 9, 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 email 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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