Free Brief in Support of Motion - District Court of Colorado - Colorado


File Size: 34.7 kB
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Date: October 12, 2007
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State: Colorado
Category: District Court of Colorado
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Case 1:01-cv-00413-JLK-BNB

Document 273

Filed 10/12/2007

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I N T HE U NITED S TATES D ISTRICT C OURT F OR T HE D ISTRICT O F C OLORADO Civil Action No. 01-cv-0413-JLK M.D. MARK, INC. Plaintiff, vs. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. DEFENDANT'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO STAY PROCEEDINGS TO ENFORCE THE JUDGMENT PENDING DISPOSITION OF POST-TRIAL MOTIONS

Defendant Kerr-McGee ("Kerr-McGee") hereby submits this Reply brief in support of its motion to stay proceedings to enforce the judgment pending disposition of post trial motions, stating as follows: Kerr-McGee has until October 15, 2007 to file post-trial motions under Rules 50 and 59. Such motions could substantially affect the final judgment in this case, and, as a result, the amount of the supersedeas bond that Kerr-McGee may be required to post. Rules 50 and 59 require post-trial motions to be filed within 10 days after entry of judgment, which, in this case, was September 28, 2007. F ED . R. C IV . P. 50(b), 59(e). Rule 6(e) governs the manner in which this 10-day period is computed, and, in its relevant portion, provides:

Case 1:01-cv-00413-JLK-BNB

Document 273

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[T]he day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday ... When the period prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. F ED . R. C IV . P. 6(a). Since the Rule 50 and 59 deadlines are less than 11 days, the following days must be excluded from the computation of Kerr-McGee's deadline to file post-trial motions: (a) (b) (c) September 28 (date judgment was entered); September 29-30 and October 6-7 (Saturdays and Sundays); and October 8 (Columbus Day ­ legal holiday).

Id. Johnson v. United States, 211 F.R.D. 633, 633-34 (D. Colo. 2002) (applying Rule 6(a) to deadline under Rule 59(e)). This makes Monday, October 15, 2007 the true deadline for Kerr-McGee's anticipated post-trial motions, thus negating Plaintiff's argument that Kerr-McGee is now prohibited from challenging the jury verdict and judgment at the trial court level. Plaintiff also expresses concern that it is not certain the entity who will be responsible for the judgment. However, if and when the Court determines that a supersedeas bond is required, Kerr-McGee Corporation and Oryx Energy Co., as the entities against whom judgment was entered, will be named as the principal on the bond. The surety for the bond will be a reputable insurance company. Accordingly, Plaintiff's concern over accountability for the judgment against Kerr-McGee are unfounded.

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WHEREFORE, Defendant Kerr-McGee respectfully requests that this Court GRANT its motion to stay proceedings to enforce the judgment and to stay the posting of a supersedeas bond, until 10 days after the Court rules on post trial motions. Dated this 12th of October, 2007. Respectfully submitted,

s/M. Antonio Gallegos____________ Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8513 Fax: (303) 975-5416 [email protected] [email protected] [email protected]

A TTORNEYS F OR D EFENDANTS

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Certificate Of Service I hereby certify that, on October 12, 2007, I electronically filed the foregoing document with the Clerk of Court using CM/ECF system which will serve such filing by e-mail to: Harlan P. Pelz Daniele W. Bonifazi Pelz, Bonifazi & Inderwish [email protected] [email protected]

s/Randi L. Dixon ________________

3775897_1.DOC

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