Free Response to Motion - District Court of Colorado - Colorado

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

Document 272

Filed 10/11/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00413-JLK-BNB M.D. MARK, INC., Plaintiff, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. ______________________________________________________________________________ PLAINTIFF'S OBJECTION TO DEFENDANT'S MOTION TO STAY PROCEEDINGS TO ENFORCE THE JUDGMENT PENDING DISPOSITION OF POST-TRIAL MOTIONS ______________________________________________________________________________ Plaintiff, M.D. Mark, Inc. ("M.D. MARK"), hereby objects to Defendant's Motion to Stay Proceedings to Enforce the Judgment Pending Disposition of Post-Trial Motions. support of its objection, M.D. Mark states as follows: This court entered judgment in favor of Plaintiff, M.D. Mark ("M.D. MARK") on September 28, 2007 and the jury was discharged. On October 5, 2007, M.D. Mark filed a Motion to Amend the Judgment Pursuant to F.R.C.P. 59(e) (DOC 267). By Minute Order dated October 5, 2007, the Court directed the Defendants to file a Response to Plaintiff's Motion to Amend the Judgment on or before October 9, 2007. As of this date, October 11, 2007, the Defendants have not filed a Response to Plaintiff's Motion to Amend Judgment. On October 5, 2007, Defendants filed a Motion to Stay Proceedings to Enforce the Judgment Pending Disposition of Post-Trial Motions and represented to the Court it intended to In

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

Document 272

Filed 10/11/2007

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file post-trial motions on or before October 12, 2007, pursuant to Federal Rules of Civil Procedure 50 and 59. F.R.C.P. Rule 50(b) provides that a movant may renew its Request for Judgment as a Matter of Law by filing a motion no later than 10 days after the entry of judgment or -- if the motion addresses a jury issue not decided by a verdict -- no later than 10 days after the jury was discharged. Pursuant to the Federal Rules of Civil Procedure, any motion pursuant to F.R.C.P. Rule 50 was required to be filed no later than October 8, 2007, 10 days after the entry of judgment or 10 days after the jury was discharged. Thus, any post-trial motions to be filed by the Defendants pursuant to F.R.C. P. Rule 50 are untimely. F.R.C.P. Rule 59 provides that a Motion for a New Trial or Amendment to Judgment shall be filed no later than 10 days after entry of the judgment (Rule 59(b)) and a Motion to Alter or Amend the Judgment shall be filed no later than 10 days after entry of judgment. Thus, any post trial motion for a new trial or to amend the judgment is untimely. Therefore, all the time limitations for Kerr-McGee Corporation to: (1) respond to Plaintiff's Motion to Amend Judgment, (2) Renew Motion for Judgment as a Matter of Law, (3) Motion for a New Trial and Remittitur, and (4) Motion to Alter or Amend Judgment have passed. As a consequence, there are no motions pending, other than the Plaintiff's Motion to Amend Judgment Pursuant to F.R.C.P. 59(e). There are no motions other than the Plaintiff's Motion which substantially affect the Court's final judgment. In this case, the Plaintiff requests that Kerr-McGee Corporation not be granted a stay of the judgment without posting sufficient bond to pay for any judgment plus continuing accruing interest and costs of suit pursuant to F.R.C.P. Rule 62. By its pleadings (DOC 268), KerrMcGee sought only to stay enforcement of proceedings to enforce the judgment, and the posting 2

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

Document 272

Filed 10/11/2007

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of a supersedeas bond under Rule 61(d) until 10 days after the Court rules on post trial motions. The time has passed for filing post trial motions by Kerr-McGee and the Plaintiff requests that the Court rule on its Motion to Amend the Judgment. Because of a recent merger of Kerr-McGee Corporation into Anadarko Corporation or one of its subsidiaries, the responsible party for any judgment is uncertain and the Plaintiff requests that Kerr-McGee Corporation file a supersedeas bond with the Court that is sufficient to cover the judgment plus accruing interest, costs and attorney fees. WHEREFORE, the Plaintiff prays that the Court rule on the Plaintiff's Motion to Amend the Judgment Pursuant to F.R.C.P. 59(e) and the Court deny the Defendant's Motion for Stay as requested in their papers. DATED: October 11, 2007. Respectfully submitted, PELZ & ASSOCIATES, P.C. s/ Harlan P. Pelz Harlan P. Pelz Daniele W. Bonifazi 1873 South Bellaire Street, Suite 1401 Denver, CO 80222 Telephone: 303-691-5600 Facsimile: 303-691-5606 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on the 11th day of October, 2007, a true and correct copy of the foregoing PLAINTIFF'S OBJECTION TO DEFENDANT'S MOTION TO STAY PROCEEDINGS TO ENFORCE THE JUDGMENT PENDING DISPOSITION OF POST-TRIAL MOTIONS was faxed and placed in the United States Mail, postage prepaid, addressed as follows: 3

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

Document 272

Filed 10/11/2007

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M. Antonio Gallegos, Esq. Scott S. Barker, Esq. Gregory E. Goldberg, Esq. HOLLAND & HART, LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 303-295-8261 Fax s/ Allison E. Goldstein Allison E. Goldstein

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