Free Motion for Extension of Time - District Court of Colorado - Colorado

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

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Filed 12/09/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MKS-OES 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.

UNOPPOSED MOTION TO EXTEND TIME FOR CONDUCTING DEPOSITION

The plaintiffs, Michael E. Clawson and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit this Unopposed Motion to Extend Time for Conducting Depositions, and in support thereof, state as follows: 1. The last Final Trial Preparation Conference was held on October 31, 2005. The

reporter's transcript of the conference reflects that the Court granted until December 15, 2005, to complete the depositions of Shawn Pfifer, Greg Fender, and Andy Tweddell. 2. 3. On request, the Court authorized plaintiffs to depose Andy Tweddell. At this writing, plaintiffs wish to depose Andy Tweddell. Final arrangements for

this deposition were begun on or about November 18, 2005. Defendants have not indicated a desire to depose either Shawn Pfifer or Greg Fender.

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4.

On Monday, November 21, 2005, plaintiffs' counsel sent a package by Federal

Express to Bauer Investigations, a company that performs service of process in the Utah area and surrounding states. The package contained a cover letter to Mr. Tweddell (Exhibit 1), a check for the witness fee and mileage, directions to the location of the deposition, and a subpoena (Exhibit 2). The subpoena ordered Mr. Tweddell to appear at a law firm in Salt Lake City on Monday, December 5, 2005, at 1:00 p.m. The package was sent by overnight delivery. 5. A paralegal from Killian, Guthro & Jensen, P.C., Kathi Stahl, telephoned Bauer

Investigations on Tuesday, November 22, 2005, and was informed by "Linda" that they had received the package. 6. On Monday morning of November 28, 2005, Linda from Bauer Investigations

contacted Ms. Stahl at Killian, Guthro & Jensen, P.C. and apologized, stating she was mistaken, and that they did not receive the Federal Express package. 7. Ms. Stahl retrieved the tracking information from the Federal Express website.

The tracking information stated the item was delivered on November 22, 2005, at 9:33 a.m. by leaving the package at the front door. The same document declared, "Package delivered to recipient address ­ release authorized." (Exhibit 3). A separate tracking document states that a signature release was on file. (Exhibit 4). However, when efforts were made to retrieve the signature release, no signature was available. (Exhibit 5). A signature release means that the shipping party, Killian, Guthro & Jensen, P.C., in this case, has released Federal Express from obtaining a signature upon delivery.

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8.

No signature of release was available because no one from Killian, Guthro &

Jensen, P.C. authorized the package to be delivered without obtaining a signature from the receiving party. (Exhibit 6, line 8). 9. On November 28, 2005, Ms. Stahl informed Linda of the tracking results. Bauer

Investigations immediately began searching for the package. 10. On November 29, 2005, Bauer Investigations informed plaintiffs' counsel the

Federal Express package was found. They proceeded to attempt to serve the subpoena on Mr. Tweddell. 11. As a result of Federal Express' failure to properly deliver the package, the

subpoena was not served on Mr. Tweddell until Thursday, December 1, 2005, at 4:57 p.m. (Exhibit 7). If Federal Express had hand-delivered the package on November 22, 2005, as requested, Bauer Investigations would have likely served the subpoena by November 25, 2005. This would have allowed Mr. Tweddell several days to coordinate his work schedule. 12. Mr. Tweddell informed plaintiffs' counsel on Friday, December 2, 2005, that his

work schedule would not allow him to be deposed in Salt Lake City, Utah on Monday, December 5, 2005. Plaintiffs' counsel advised Mr. Tweddell that the deposition for December 5, 2005, was cancelled and would be rescheduled at a location to be determined in Price, Utah. 13. On Wednesday, December 7, 2005, a suite at the Holiday Inn in Price, Utah was

reserved for the holding of Mr. Tweddell's deposition on December 19, 2005. An earlier date could not be arranged due to the work schedule and prior commitments of parties' counsel. 14. Ms. Stahl spoke briefly with Mr. Tweddell on December 8, 2005, and at more

length with Mrs. Tweddell due to Mr. Tweddell's unavailability, to discuss the date, time, and

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location of the deposition. Neither Mr. Tweddell nor Mrs. Tweddell expressed opposition to the date, time and location of the deposition. 15. A copy of the current Subpoena Duces Tecum to Appear for Deposition with a

Waiver and Acceptance of Service and the Amended Notice of Deposition is enclosed for the Court's review. (Exhibits 8 and 9). 16. Pursuant to Fed.R.Civ.P. 29, the parties cannot simply stipulate to conducting the

deposition after the time imposed by the Court. 17. The parties' counsel are fully prepared to conduct the deposition of Mr. Tweddell

on December 19, 2005, at 1:00 p.m. in Price, Utah. Plaintiffs made all reasonable efforts to ensure the deposition occurred before the Court's deadline of December 15, 2005. Plaintiffs' counsel regrets the unfortunate events surrounding the delivery of the Federal Express package, which significantly prevented the deposition from occurring on its originally scheduled date of December 5, 2005. WHEREFORE, plaintiffs respectfully request the Court grant an extension up to and including December 20, 2005, in which to conduct the deposition of Mr. Tweddell. Certification Pursuant to D.C.COLO.LCivR 7.1 Plaintiffs' counsel conferred with defendants' counsel on this issue on December 8, 2005. Defense counsel indicated that defendants do not oppose to the relief requested in this motion. RESPECTFULLY SUBMITTED this 9th day of December, 2005.

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

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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 December 9, 2005, 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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