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

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

Document 369

Filed 08/22/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE D ISTRICT O F COLORADO Civil Action No. 01-cv-02199-MSK-OES 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.

REPLY IN SUPPORT OF DEFENDANTS' RENEWED MOTION FOR TRIAL IN GRAND JUNCTION

Defendants hereby submit their reply in support of their Renewed Motion for Trial in Grand Junction, filed July 15, 2005 (Docket No. 351). I. The Overwhelming Majority of Witnesses Still Live and Work Closer to Grand Junction Making a Trial in Grand Junction Far More Convenient and Economical In their Response, as Defendants did in support of the renewed motion, Plaintiffs largely rely on the argume nts and evidence presented at the April 6, 2005 evidentiary hearing and the response filed to Defendants' original motion for trial in Grand Junction. However, in further support of their position that the trial should remain in Denver, Plaintiffs note that one of the

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

Document 369

Filed 08/22/2005

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witnesses, Dr. K. Aline Coonrod, has relocated to Greeley, Colorado, which is closer to Denver. Response at 2, ¶ 3. 1 Even with the move of Dr. Coonrod from Hotchkiss, closer to Grand Junction, to Greeley, closer to Denver, the overwhelming majority of the witnesses on the final joint witness list, submitted to the Court on July 15, 2005, work and reside closer to Grand Junction, meaning that a trial there would be much more convenient, economical, and efficient. Of the 28 witnesses listed by Plaintiffs (excluding the two plaintiffs), only two are known to live and work closer to Denver than Grand Junction (one of which is former plaintiff, John Bartlett, who may not be allowed to testify in any event). See Exhibit A hereto, which is an updated chart of the witnesses listed on the Joint Witness List submitted July 15, 2005 and their locations. Defendants also intend to call a number of the witnesses listed by Plaintiffs, all of whom are closer to Grand Junction, with the exception of Dr. Coonrod. Of the additional 13 witnesses listed by Defendants, only Defendants' two expert witnesses reside closer to Denver than Grand Junction; the four witnesses from Arch Coal, Inc. will have to travel by plane from St. Louis, Missouri regardless of whe ther the trial is held in Denver or Grand Junction. The remaining seven work in Somerset, Colorado, much closer and more convenient to Grand Junction than Denver.

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Plaintiffs do not provide information as to the locations of the three purported "critical" witnesses whom they again seek to add by their Renewed Motion to Add Witnesses, filed July 15, 2005 (Docket No. 353). Exhibit 2 to such Motion shows that one of the witnesses, Andy Twedell, resides in Price, Utah, clearly closer to Grand Junction. Plaintiffs indicate in such Motion that they have spoken with the other two witnesses, Shawn Pfifer and Greg Fender, but have not disclosed contact information for such witnesses. Defendants are not aware of Pfifer's location. Defendants believe that Fender works at the Bowie mine on the Western slope, closer to Grand Junction.

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

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In sum, since the hearing on April 6, 2005, as the parties have finalized their witness lists and learned of new or previously unknown locations of witnesses, it remains the case that the overwhelming majority of the witnesses reside and/or work closer to Grand Junction, notwithstanding the move of Dr. Coonrod from Hotchkiss to Greeley. Therefore, a trial in Grand Junction would be much more convenient, economical, and efficient. II. Conclusion Defendants respectfully request that this Court enter an order that the trial of this matter shall be held in Grand Junction. Dated: August 22, 2005. Respectfully submitted,

s/Monique A. Tuttle Jeffrey T. Johnson Monique A. Tuttle HOLLAND & HART LLP 555 Seventeenth Street, Ste. 3200 Post Office Box 8749 Denver, Colorado 80201 Telephone: (303) 295-8000 Facsimile: (303) 295-8261 E- mail: [email protected] [email protected] ATTORNEYS FOR DEFENDANTS

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

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CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on August 22, 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 email addresses: [email protected] [email protected] I am not aware of any non CM/ECF participants in this matter requiring service by other means.

s/Monique A. Tuttle Monique A. Tuttle Attorneys for Defendants HOLLAND & HART LLP 555 Seventeenth Street, Ste. 3200 Post Office Box 8749 Denver, Colorado 80201 Telephone: (303) 295-8000 Facsimile: (303) 295-8261 E- mail: [email protected]

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