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

Case 1:01-cv-00568-LTB-PAC

Document 381

Filed 07/11/2005

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-B-0568-LTB-PAC CROSS COUNTRY LAND SERVICES, INC. a Texas corporation, Plaintiff, v. PB NETWORK SERVICES, INC., a Delaware corporation, PB TELECOMMUNICATIONS, INC., a Delaware corporation, LEVEL 3 COMMUNICATIONS, LLC, a Delaware limited liability company, KIEWIT NETWORK SERVICES CO., a Delaware corporation, and KIEWIT CONSTRUCTION CO., a Delaware corporation Defendants, and PB NETWORK SERVICES, INC., a Delaware corporation, LEVEL 3 COMMUNICATIONS, LLC, a Delaware limited liability company, and KIEWIT NETWORK SERVICES CO., Delaware corporation, Third-Party Plaintiffs, v. JAMES STEVENSON, WILLIAM STEVENSON, ED CROWSTON, and LARRY ORTH, Third-Party Defendants. ________________________________________________________________________ PLAINTIFF' REPLY IN SUPPORT OF ITS MOTION FOR EXTENSION OF S TIME TO FILE OBJECTIONS TO DEFENDANTS' TRIAL EXHIBITS ________________________________________________________________________

Plaintiff, Cross Country Land Services, Inc., by and through its attorneys, files the instant reply in support of its motion for an extension of time to file its objections to Defendants' exhibits, and states: trial

Case 1:01-cv-00568-LTB-PAC

Document 381

Filed 07/11/2005

Page 2 of 5

1.

The Pretrial Order in this case was entered by the Court on May 10, 2005.

It provides that: Copies of listed exhibits must be provided to opposing counsel and any pro se party no later than 30 days after the Final Pretrial Conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served (by hand delivery or facsimile) no later than 11 days after the exhibits are provided.

2.

Upon receipt of the Court'Pretrial Order, the dates and deadlines referred s

to in the Pretrial Order were calendared by Plaintiff and, through an inadvertent error, the date for filing the objections to exhibits was calendared as being 11 days following the 30-period within which to exchange the trial exhibits, instead of 11 days from the date the exhibits were actually provided. 3. Defendants provided their first set of exhibits on May 20, 2005, with a

letter indicating that other exhibits would be forthcoming from the Defendants within the period required for providing exhibits. 4. On June 6, 2005, the e-mail exchange took place between the parties'

counsel refered to in paragraph six of Defendants' response in which undersigned counsel indicated that he assumed the 11-day period would commence on on the deadline for exchanging the trial exhibits. No further response was forthcoming from Defendants and undersigned counsel assumed that his interpretation of the Pretrial Order was agreed to by the Defendants. 5. Following this e-mail exchange, Plaintiff filed its unopposed motion for a

15-day extension of the 30-day period within which to provide the exhibits, to and including June 24, 2005. The court granted the motion for extending the date for

providing the exhibits until the requested date of June 24, 2005.

Case 1:01-cv-00568-LTB-PAC

Document 381

Filed 07/11/2005

Page 3 of 5

6.

Thereafter, Defendants' counsel continued to provide Defendants' exhibits

on a peicemeal basis on June 7 and June 24, 2005, as he had previously indicated. 7. Because Defendants appeared to agree with undersigned counsel' s

interpretation that the 11-day period would run from the final date exhibits were provided and because it made sense to wait until all exhibits were provided before filing the objections, Plaintiff assumed that the objections to exhibits were due 11 days after June 24, 2005. 8. On June 28, 2005, undersigned counsel received an invitation to

participate in a five-day Forth of July weekend vacation at Lake Powell, and because he would thus be unable to complete his review of the Defandants' exhibits, undersigned counsel called Defendants' counsel on both June 29 and 30, 2005, regarding the instant request for a one-week extention of the time for filing the objections to exhibits. Undersigned counsel did not hear back from opposing counsel before his office filed for the extension on July 5, 2005. Thus, at the time the motion for extension was filed, undersigned counsel believed that Defendants would not be opposing the one-week request for the filing of objections and that the objections were due within 11 days of June 24, 2005. 9. Undersigned counsel believes that his interpretation of the date for filing

the objections made sense here were trial was months off and the exhibits were being provided in a peicemeal fashion. 10. By waiting until all exhibits in the case were filed, the parties knew which

exhibits were being offered by both the Plaintiff and Defendants and would thus be stipulated exhibits.

Case 1:01-cv-00568-LTB-PAC

Document 381

Filed 07/11/2005

Page 4 of 5

11.

In light of the above, Plaintiff requests that the Court hold that its

interpretation of the 11-day period was reasonable under the circumstances. 12. In the event the Court concludes that undersigned counsel' interpretation s

was not reasonable, Plaintiff requests that the Court find that Plaintiff' error was s inadvertent and harmless due to the fact that the trial is nearly five months off and that, in accordance with Section XII of the Pretrial Order, the Court allow Plaintiff to file its objections " prevent manifest injustice." to Wherefore, Plaintiff prays that the Court grant its motion for an extension within which to file its objections to Defendants' exhibits up to and including Tuesday, July trial 12, 2005. Respectfully submitted this 11th day of July, 2005. FAIRFIELD AND WOODS, P.C.

s/ Gregory C. Smith____________ Gregory C. Smith Colin A. Walker Emanuel N. Anton Wells Fargo Center, Suite 2400 1700 Lincoln Street Denver, Colorado 80203-4524 Telephone: (303) 830-2400 ATTORNEYS FOR DEFENDANT CROSS COUNTRY LAND SERVICES, INC.

Case 1:01-cv-00568-LTB-PAC

Document 381

Filed 07/11/2005

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on July 11, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address: [email protected] [email protected] [email protected]

s/ Gregory C. Smith_____________ Gregory C. Smith Colin A. Walker Emanuel N. Anton Wells Fargo Center, Suite 2400 1700 Lincoln Street Denver, Colorado 80203-4524 Telephone: (303) 830-2400

#240197