Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.

01-cv-2056-JLK

UNITED STATES AVIATION UNDERWRITERS, INC., a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. dba ACCESS AIR, an Idaho corporation, Plaintiffs, vs. PILATUS BUSINESS AIRCRAFT, LTD., a Colorado corporation; PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, a Swiss corporation; PILATUS AIRCRAFT, LTD., a Swiss corporation; PRATT & WHITNEY CANADA, INC., a Canadian corporation; and DOES 1 through 500, Inclusive, Defendants.

PLAINTIFFS' OPPOSITION TO "PILATUS DEFENDANTS' JOINDER IN DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL" (Doc. 215)

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U.S. Aviation v. Pilatus etc. et al.

Plaintiffs' Opposition to Joinder
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INTRODUCTION. In a timely manner, defendant Pratt & Whitney Canada (PWC) filed a post-trial

motion for judgment as a matter of law (FED.R.CIV.P. 50) and for new trial (FED.R.CIV.P. 59.) (Doc. 214.) The Pilatus defendants filed no similar motions within ten days after judgment was entered. (FED.R.CIV.P. 50(b) and 59(b).) However, the Pilatus defendants did file a pleading purporting to be a "joinder" in PWC's motion. (Doc. 215.) As a matter of law, the Pilatus defendants' purported "joinder" in PWC's timely post-trial motion is baseless.

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THE PILATUS DEFENDANTS' JOINDER IS BASELESS, BECAUSE PILATUS' OWN PREVERDICT RULE 50(a) MOTION WAS LEGALLY INSUFFICIENT TO PRESERVE PILATUS' RIGHT TO POSTJUDGMENT REVIEW UNDER RULE 50(b). During the trial, the Pilatus defendants made their own oral Rule 50(a) motion at

the close of plaintiffs' case-in-chief.

(RT 427:3-10.)

The sum total of the Pilatus

defendants' preverdict Rule 50(a) motion consisted of a single sentence and a general attack on plaintiffs' evidence. (Ibid.) At no time during their preverdict Rule 50(a) motion did the Pilatus defendants ever attempt to "specify ... the law and facts that" supported Pilatus' position, as required by Rule 50(a)(2). (FED.R.CIV.P. 50(a)(2); see, e.g., Williams v. Runyon, 130 F.3d 568, 572 (3d Cir. (D.N.J.) 1997) [noting that the "blanket statement that `there is no legally sufficient evidentiary basis for a reasonable jury to find for the Plaintiff or any of the issues that counsel have set forth in this case' is obviously insufficient."])

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Because the Pilatus defendants' preverdict Rule 50(a) motion failed to comply with the specificity requirements of Rule 50(a)(2), as a matter of law the Pilatus defendants have also failed to preserve the right to appellate review following a renewed motion under Rule 50(b). (Miller v. Eby Realty Group LLC, 396 F.3d 1105, 11114 (100th Cir. (D.Kan.) 2005) ["'To preserve a sufficiency of the evidence claim for appellate review, a party must move for judgment as a matter of law ... under Federal Rule of Civil Procedure 50(a) at the close of the evidence.' [Citation omitted.] One of the purposes of these motions is to alert the opposing party (and the court) of any deficiencies in the case, 'thereby giving the party an opportunity to rectify any deficiencies prior to the case being submitted to the jury.' [Citation omitted.] Thus, the moving party must 'specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.'"]) Having failed to preserve their right to appellate review, the Pilatus defendants cannot now reclaim that right by filing a "joinder" in a timely motion (Doc. 214) filed by co-defendant PWC.

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THE PILATUS DEFENDANTS' JOINDER IS BASELESS, BECAUSE PWC'S MOTION DOES NOT CHALLENGE THE JURY'S VERDICT AGAINST PILATUS. On its face, PWC's post-trial motion (Doc. 214) makes no arguments that would

exonerate the Pilatus defendants, and indeed, PWC's motion is very narrowly limited to attacking only the evidence against PWC (not Pilatus). In their "joinder" (Doc. 215) to the PWC motion (Doc. 214), the Pilatus defendants suggest that to cure this problem, the Court should simply read PWC's motion and "insert [Pilatus'] name in the [PWC] brief where appropriate." (Doc. 215, p. 1.) But -3Access Air 0NR/PO/WO Lg24443/20070801

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it cannot be determined where Pilatus' name should be "inserted ... where appropriate," since PWC's motion (Doc. 214) makes no mention of any arguments that favor the Pilatus defendants. It is patently unfair to make the Court and the plaintiffs speculate as to what arguments are being made (or not being made) by the Pilatus defendants. To the extent the Pilatus defendants wished to preserve their right attack the jury's verdict under Rule 50, then the Pilatus defendants were required to make a legally sufficient preverdict Rule 50(a) motion, and then renew that motion under Rule 50(b). The Pilatus defendants chose to do neither of those things, and their present "joinder" (Doc. 215) does not relieve the Pilatus defendants of the consequences of their own inaction.

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CONCLUSION. Based on the foregoing, plaintiffs respectfully submit that the Pilatus defendants'

"joinder" (Doc. 215) should be denied. Respectfully Submitted, Dated: August 1 , 2007 s/ Jeffrey J. Williams Jon A. Kodani, Esq. Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected]

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CERTIFICATE OF SERVICE U.S. Aviation Underwriters et al. v. Pilatus Business Aircraft etc. et al. D.Colorado Case No. 01-K-2056 [XXXXX] I hereby certify that on August 1 , 2007 , 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: For Defendant Pratt & Whitney Thomas J. Byrne, Esq. Byrne, Kiely & White 1120 Lincoln Street, Suite 1300 Denver, CO 80203 Tel. (303) 861-5511 Fax (303) 861-0304 Email: [email protected] [email protected]

For Pilatus Defendants Robert B. Schultz, Esq. Law Offices of Robert B. Schultz 9710 W. 82nd Avenue Arvada, CO 80005 Tel. (303)456-5565 Fax (303)456-5575 Email: [email protected]

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I hereby certify that on , 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: s/ Jeffrey J. Williams Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected]

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