Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

Document 260

Filed 06/25/2007

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-CV-02163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. El PASO PROPERTIES, INC. (formally known as EL PASO GOLD MINES, INC.) Defendant.

UNOPPOSED MOTION REQUESTING COURT ACTION UNDER FED. R. CIV. P. 58 (c)(2)

Plaintiffs hereby submit this Unopposed Motion Requesting Court Action Under Fed. R. Civ. P. 58(c)(2). I. INTRODUCTION AND SUMMARY

This Court issued a Memorandum and Order, along with a Judgment in favor of Defendant on all claims, on June 4 and 5, 2007, respectively [Doc. ## 253, 254]. As a result, any appeal in the case to the Tenth Circuit Court of Appeals is due within 30 days of the date of judgment, July 5, 2007. See Fed. R. App. P. 4(a)(1)(A). Defendant El Paso Properties, Inc. ("El Paso") filed a Motion for Attorney Fees and Litigation Expenses ("Motion for Attorney Fees") on June 19, 2007 [Doc. # 255]. Plaintiffs request that this Court exercise its discretion pursuant to Fed. R. Civ. P. 58(c)(2) to order that the Motion for Attorney Fees have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Fed. R. Civ. P. 59. Due to the relatively short time frame for the filing of the Notice of Appeal (July 5, 2007), Plaintiffs

Case 1:01-cv-02163-BNB-MEH

Document 260

Filed 06/25/2007

Page 2 of 3

respectfully request that the Court expedite its consideration of this Unopposed Motion. II. BASIS FOR MOTION

Fed. R. Civ. P. 58(c)(2) provides: When a timely motion for attorney fees is made under Rule 54(d)(2), the court may act before the notice of appeal has been filed and has become effective to order that the motion have the same effect under Federal Rule of Appellate Procedure as a timely motion under Rule 59. Plaintiffs request that this Court exercise the discretion afforded under Rule 58(c)(2) in order to preserve judicial and party resources. The current deadline for filing the Notice of Appeal is July 5, 2007. As a result, should Plaintiffs file a Notice of Appeal with respect to the merits of the case by this deadline, and should any party subsequently appeal the Court's determination on attorney fees, two separate appeals on separate litigation tracks could ensue. In order to eliminate this potential prospect of two separate appeals on different briefing schedules, and the concomitant consumption of judicial and party resources in prosecuting separate appeals on separate schedules, this Court should act to order that the motions for attorney fees have the same effect as a motion under Fed. R. Civ. P. 59. III. CONSULTATION UNDER LOCAL RULE 7.1(A)

Prior to filing this Motion, counsel for Plaintiffs contacted counsel for El Paso. Counsel for Plaintiff alerted Defendant's counsel to Plaintiffs' intent to file this Motion and discussed the reasons for the Motion, as discussed herein. Counsel for El Paso Properties, Inc. stated that Defendant does not oppose the Motion.

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Case 1:01-cv-02163-BNB-MEH

Document 260

Filed 06/25/2007

Page 3 of 3

Dated: June 25, 2007

Respectfully submitted by, s/ Jeffrey C. Parsons _________________________ Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT P.O. Box 349 Lyons, CO 80540 (303) 823-5738 John Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 COUNSEL FOR PLAINTIFFS

CERTIFICATE OF SERVICE I do hereby certify that on this 25th day of June, 2007 a true and accurate copy of UNOPPOSED MOTION REQUESTING COURT ACTION UNDER FED. R. CIV. P. 58 (c)(2) was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: Steve Harris James L. Merrill Merrill Anderson & Harris 20 Boulder Crescent Colorado Springs, CO 80903-3300 [email protected] Connie King Law Firm of Connie King, LLC 4711 Constitution Ave. Colorado Springs, CO 80915 [email protected] s/ Jeffrey Parsons __________________________ Jeffrey Parsons

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