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

Case 1:01-cv-01807-MSK-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 01-cv-01807-MSK-MJW BANK ONE, COLORADO, N.A. and, BANK ONE TRUST COMPANY, N.A., As Trustee of the Frank G. Jamison Marital Trust and the Frank G. Jamison Family Trust, Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners; and, JOHNNY ON THE SPOT, INC. Defendants.

BOULDER CLEANERS, INC. and, JOHN'S CLEANER'S, INC., Cross-Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Cross-Defendant. ______________________________________________________________________________ CVY'S AND JOHNNY ON THE SPOT'S REPLY IN SUPPORT OF MOTION FOR RECONSIDERATION OF PRIOR ORDERS (NOS. 381 AND 458) BASED ON RECENT U.S. SUPREME COURT AUTHORITY ______________________________________________________________________________ COME NOW C.V.Y. Corporation, d/b/a Your Valet Cleaners, and Johnny on the Spot, Inc. ("Defendants") by and through their counsel, Montgomery, Kolodny, Amatuzio & Dusbabek, L.L.P., and submit this Reply in Support of Motion for Reconsideration of Prior Orders (Nos. 381 and 458) Based on Recent U.S. Supreme Court Authority.

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1.

As noted previously, Defendants in no way contest the long standing law of the

case that Defendants can only be held liable for their own actions and not the actions of others, and Plaintiffs concede that this Court has so held "on a number of occasions." See Plaintiffs' Response, ¶6. Defendants simply wish to have this matter procedurally postured to give full

credence to the U.S. Supreme Court's recent opinions in U.S. v. Atlantic Research Corp., No. 06562, 2007 WL 1661465 (U.S., June 11, 2007) and Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577 (2004). Given these recent Supreme Court decisions, and in particular the Atlantic Research opinion handed down just last month, Defense counsel would be remiss if they did not file the instant motion. 2. Atlantic Research is relevant to Defendants' counterclaims because it holds that,

post Aviall, a defendant should be permitted to file a CERCLA §113 counterclaim in response to a CERCLA §107 claim so that equitable apportionment is triggered. This procedural alignment of claims maintains the customary practice of courts prior to Aviall and is consistent with this Honorable Court's prior orders. Permitting Defendants' contract counterclaim further supports the procedural alignment of claims discussed by the U.S. Supreme Court and prevents Plaintiffs from being able to argue that they are entitled to full recovery without regard to Plaintiffs' fault.
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3.

Plaintiffs argue in their Response that Bank One Trust Company, N.A. has not

asserted a CERCLA §107 action and that a §113 counterclaim against that entity is therefore not warranted. However, based on the Atlantic Research decision, a §113 contribution counterclaim would be appropriate against any Plaintiff whose conduct may have been a cause of the

Although Plaintiffs contend in the Pre-Trial Order that only Bank One, N.A. has a breach of contract claim, the operative amended complaint has both Plaintiffs asserting that cause of action.

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CERCLA §107 response costs being sought against Defendants. As such, Plaintiffs' current argument that there is no basis to assert a CERCLA §113 counterclaim against Bank One Trust, N.A. is without merit. Defendants should be permitted to assert a §113 counterclaim against both Plaintiffs. 4. Plaintiffs further argue that allowing the counterclaims will require additional

work on the Pre-Trial Order and the submission of additional jury instructions, verdict forms and/or interrogatories. However, in reference to the Pre-Trial Order, this Honorable Court previously noted at the Final Pre-Trial Conference that there did not appear to be many disputed facts surrounding this litigation and that most of the evidence in support of or against the claims and defenses was duplicative. Permitting the requested counterclaims would not require

additional witnesses, additional exhibits or additional discovery. Further, any additional work regarding jury instructions, verdict forms and/or special interrogatories would be minimal 5. Defendants take issue with Plaintiffs' argument that Defendants have attempted to

create undue work and have not paid credence to the Court's prior orders in the submission of jury instructions related to Plaintiffs' CERCLA and RCRA claims. See Plaintiffs' Response, p. 5, f.n. 1. Plaintiffs ignore the following ruling made by the Court at the May 24, 2007 Final PreTrial Conference: THE COURT: All right. We'll deal with the verdict form. I'm inclined to do an advisory verdict. I think a jury can understand this, especially when there is a contiguous trial. I do not believe these issues are so complicated that a jury cannot follow them; however, should we come to the conclusion in the preparation of jury instructions and a verdict form that it becomes too complicated, you can renew your motion. See Transcript of Final Pre-Trial Conference, attached as Exhibit "A," at p. 15, l. 21 ­ p. 16, l. 2 Given that the Court indicated that it believed an advisory jury would be appropriate, Defendants

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prepared and submitted proposed jury instructions, verdict forms and special interrogatories for Plaintiffs' CERCLA and RCRA claims and for Defendants' related affirmative defenses. 6. Defendants' instant Motion is meritorious. Defense counsel were compelled to

file the same based upon Plaintiffs' withdrawal of their §113 claim and the above cited recent U.S. Supreme Court opinions. WHEREFORE, Defendants C.V.Y. Corporation, d/b/a Your Valet Cleaners, and Johnny on the Spot, Inc. request that this Honorable Court reconsider Order Nos. 381 and 458 and permit Defendants to assert a CERCLA §113 counterclaim against Bank One, N.A. (as PRP defacto owner) and Bank One Trust (as PRP owner) and for contractual indemnity against Bank One, N.A.

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Respectfully submitted this 17th day of July, 2007. MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.P.

s/ Max K. Jones, Jr. C. Michael Montgomery Max K. Jones, Jr. Ryan C. Gill 1775 Sherman St., 21st Floor Denver, Colorado 80203 Phone: 303-592-6600 Fax: 303-592-6666 [email protected] [email protected] [email protected] ATTORNEYS FOR THE DEFENDANTS C.V.Y. CORPORATION, d/b/a YOUR VALET CLEANERS, and JOHNNY ON THE SPOT, INC.

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CERTIFICATE OF MAILING I hereby certify that on July 17, 2007 a true and correct copy of the CVY'S AND JOHNNY ON THE SPOT'S MOTION FOR RECONSIDERATION OF PRIOR ORDERS (NOS. 381 AND 458) BASED ON RECENT U.S. SUPREME COURT AUTHORITY was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Scott Jurdem, Esq. Buchanan Jurdem & Cederburg, P.C. 1621 18th Street, Suite 260 Denver, Colorado 80202 [email protected] Laura J. Riese, Esq. Davis Graham & Stubbs LLP 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 [email protected]

s/ Karen Wood Karen Wood Montgomery, Kolodny, Amatuzio & Dusbabek 1775 Sherman Street, 21st Floor Denver, CO 80203 Telephone: 303-592-6600 Fax: 303-592-6666 [email protected]

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