Free Motion for Reconsideration - District Court of Colorado - Colorado

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

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Filed 09/15/2006

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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 MOTION FOR RECONSIDERATION OF THE COURT'S AUGUST 21, 2006 ORDER GRANTING EXTENSION, ORDER # 447, AND REQUEST FOR A 5-WEEK TRIAL. ______________________________________________________________________________ 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 their Motion for Reconsideration of the Court's August 21, 2006 Order Granting Extension, Order # 447, and Request for 5-Week Trial, as follows: 1. Pursuant to D.C.COLO.LCivR 7.1(A), counsel for CVY and JOS have conferred

with counsel for Plaintiffs. Plaintiffs oppose the request for a 5-week trial.

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2.

In the Court's August 21, 2006 Order Granting Extension, the Court ordered that

"the parties shall jointly contact the Court on October 10, 2006 to obtain a trial date for a 3-week trial." Defendants ask the Court to reconsider its Order that the parties set this matter for a 3-week trial on October 10, 2006 for the reasons set forth below. Defendants do not request reconsideration of any other aspect of the Order. 3. On June 30, 2006 there was a hearing on the Court's Law and Motion Calendar.

At the hearing, the Court indicated it no longer had seven (7) weeks available for the trial that was set to commence on September 11, 2006. Unfortunately, the Court only had three (3) weeks available for that trial setting, and asked the parties whether they thought the matter could be tried in that time frame. The parties were unable to agree at the hearing, and the Court ordered the parties to file an agreement regarding the time needed for trial by July 7, 2006. See June 30, 2006 Courtroom Minutes, filing # 435. 4. Despite dedicated efforts on the part of all counsel to limit exhibits and witnesses,

the parties were unable to agree on the amount of time needed for trial. Plaintiffs submitted that the matter could be tried in three (3) weeks. Defendants' counsel's analysis indicated the trial would take five (5) weeks. Nevertheless, in effort of good will and cooperation, Defendants agreed to a four (4) week setting if one was available. On July 7, 2006, the parties filed "Plaintiffs' and Defendants' Joint Notice Re: Trial Setting." See filing # 436. The parties' positions were outlined in the Joint Notice. 5. After receiving the Joint Notice, this Honorable Court issued an "Order Vacating

Trial Setting" in which it vacated the seven week trial set for September 11, 2006, and opined that "the matter cannot be tried in the time allotted." See Order # 439. The Court further

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ordered that the parties attend either a private mediation or a settlement conference and to jointly notify the Court of the date. Furthermore, the Court ordered: "Within 10 days after completion of mediation or a settlement conference, the Plaintiffs and Defendants shall jointly advise the Court, in writing, as to whether any issues remain to be tried and the amount of time required for trial." See Order 6. # 439.

On July 21, 2006, Plaintiffs filed "Notice of Scheduled Mediation Between

Plaintiffs and Defendants," and advised the Court that the parties would attend mediation at JAMS on August 9, 2006. See filing # 441. 7. On August 17, 2006, Plaintiffs filed "Second Unopposed Motion for Extension of

Time to Respond to Pending Motions." See filing # 446. Therein, Plaintiffs informed the Court that the parties had attended mediation on August 9, 2006, that the mediation was productive "and at the end of the day the parties agreed to reconvene to continue the mediation session after the mediator returns from a trip to Alaska." See filing # 446, ¶4. Moreover, Plaintiffs

represented that "in the event the parties are unable to reach a settlement in this case, the parties will promptly advise the Court of the time required for trial in accordance with the Court's Order dated July 7, 2006." See filing # 446, ¶5. 8. On August 21, 2006, the Court granted Plaintiffs an extension of time until

September 29, 2006 to respond to the Defendants' pending motions. The Court also ordered the parties to "contact the Court on October 10, 2006 to obtain a trial date for a 3-week trial." See Order # 447 (emphasis added). 9. At this time, the parties have agreed to reconvene for mediation on October 17,

2006 at JAMS.

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10.

The parties are not in agreement, however, that this matter can be tried in three

weeks. Defendants' counsel's analysis indicates that the trial will take five (5) weeks. Setting the case for only three (3) weeks will result in undue prejudice to Defendants, as more fully set forth in the Joint Notice. See filing # 436. Accordingly, Defendants request that the Court reconsider its August 21, 2006 Order and permit the parties to contact the Court within seven (7) days following the October 17, 2006 mediation to set the matter for trial and that, if trial is still necessary, that it be set as a 5-week trial. WHEREFORE, for the reasons set forth above, Defendants C.V.Y. Corporation, d/b/a Your Valet Cleaners, and Johnny on the Spot, Inc. request that this Honorable Court reconsider and amend Order # 447 is the above respects. A proposed Order is attached.

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DATED: September 15, 2006. Respectfully submitted,

MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.P.

By:

_______________________ C. Michael Montgomery Max K. Jones, Jr. 475 Seventeenth Street, 16th Floor Denver, Colorado 80202 Phone: (303) 592-6600 [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 a true and correct copy of the CVY'S AND JOHNNY ON THE SPOT'S MOTION FOR RECONSIDERATION OF THE COURT'S AUGUST 21, 2006 ORDER GRANTING EXTENSION, ORDER # 447, AND REQUEST FOR 5-WEEK TRIAL, was placed in the US Mail, first class postage prepaid, on September 7, 2006, addressed to the following:

Scott Jurdem, Esq. Buchanan Jurdem & Cederburg, P.C. 1621 18th Street, Suite 260 Denver, Colorado 80202 [email protected]

Laura J. Riese, Esq. Jonathon Rauchway, Esq. Davis Graham & Stubbs LLP 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 [email protected]

s/ Karen Wood Karen Wood Montgomery, Kolodny, Amatuzio & 475 Seventeenth Street, 16th Floor Denver, Colorado 80202 Telephone: (303) 592-6600 Fax: (303) 592-6666 [email protected]

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