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

Case 1:01-cv-00083-REB-CBS

Document 348

Filed 11/21/2005

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:01-CV-00083-REB-CBS CABEZA DE VACA LAND & CATTLE CO., LLC, a Colorado limited liability company, Plaintiff, vs. STOCKMAN WATER COMPANY, LLC, a Colorado limited liability company, Defendant, -andRELATED CASES. REPLY IN SUPPORT OF MODIFIED MOTION FOR RELIEF FROM ORDER

American Water Development, Inc. ("AWDI"), through its counsel, files its reply in support of the Modified Motion for Relief from Order, and states as follows: Defendants argue that AWDI is seeking to "prolong this protracted litigation even further." Response, p. 1. This position, however, ignores the fact that AWDI has only

maintained the goal of having its day in court. Indeed, the parties were prepared to go to trial in 2003 and would have done so but for the last-minute procedural maneuvering of Defendants to deny AWDI an opportunity to even present its case at trial. Defendants want this case resolved based on findings from a limited hearing that was never intended to resolve all of AWDI's claims. Accordingly, this court should allow AWDI to finally take its claims to trial and proceed on the merits.

{31427.3.11/21/2005 03:30 PM.RPRU.A0213223.DOC;2}

Case 1:01-cv-00083-REB-CBS

Document 348

Filed 11/21/2005

Page 2 of 5

Defendants are asking that this Court bar AWDI's claims for breach of contract due to findings from the Spurious Lien Hearing held by the state court. However, rulings "...that are avowedly preliminary or tentative, do not trigger law of the case consequences." Governor's Ranch Prof'l Ctr., Ltd. v. Mercy of Colorado, Inc., 793 P.2d 648, 650 (Colo. App. 1990). Consistent with these principles, the jurisdictions that have considered the issue have uniformly concluded that factual findings made in a preliminary injunction hearing may not sua sponte be used to dispose of an action on the merits by means of summary judgment. Id. (citations omitted.) This conclusion is found with the following reasoning: The party moving for a preliminary injunction has no obligation to present his entire case in the hearing, and, because the scope of the hearing does not encompass a decision on the ultimate merits of the case, he does not have the incentive to develop his case as thoroughly as during trial. Id. at 651. The same reasoning holds true here since the only issue before the State Court at the Spurious Lien Hearing was the continued validation of AWDI's liens. Defendants merely note in a footnote that a preliminary hearing and the Spurious Lien Hearing are not analogous. However, they ignore the similarities between having a preliminary hearing on a particular issue that is not intended to resolve the entire case, and the Spurious Lien Hearing, that was held for the particular purpose of determining if AWDI's liens were spurious and was not intended to resolve the entire case. The analogy is sound and demonstrates why such factual findings should not be used to conclude matters that should be resolved at trial. Defendants also make the unsound argument that there is no difference between this Court dismissing AWDI's claims under the Rooker-Feldman doctrine or dismissing under issue preclusion. Defendants fail to recognize that Rooker-Feldman is a jurisdictional doctrine that 2
{31427.3.11/21/2005 03:30 PM.RPRU.A0213223.DOC;2}

Case 1:01-cv-00083-REB-CBS

Document 348

Filed 11/21/2005

Page 3 of 5

can be raised at any time, while issue preclusion is merely an affirmative defense. See Kenmen Eng'g v. City of Union, 314 F.3d 468, 479 (10th Cir. 2002) ("The Rooker-Feldman doctrine is a jurisdictional prohibition."); Lance v. Davidson, 379 F.Supp.2d 1117, 1123 n. 5 (D. Colo. 2005) ("In contrast to Rooker-Feldman, issue preclusion is not jurisdictional and is instead an affirmative defense asserted after the court already has jurisdiction over a claim."). According to the last Scheduling Order, dispositive motions were to be filed by August 15, 2001. The Final Pre-Trial Order in this case was issued on November 14, 2003. As trial approached, Defendants filed a last-minute motion to dismiss for lack of subject matter jurisdiction. The only reason the Court entertained this motion was the jurisdictional nature of the Rooker-Feldman Doctrine. Defendants are now trying to supplant Rooker-Feldman with issue preclusion as a basis for dismissal. However, Defendants would not have been allowed to raise the issue of issue preclusion after the deadline for dispositive motions was clearly past and the parties were prepared for trial. Defendants should not be allowed to simply swap arguments by now substituting an argument that could not have been made at the time of the flawed jurisdictional motion to dismiss. Accordingly, this Court should not allow Defendants to, once again, use procedural maneuvering to deny AWDI the opportunity to try this case to a jury, a trial that AWDI has been attempting to have for years. For the reasons stated in AWDI's Motion, and this Reply, this Court should vacate its Order of Dismissal and allow this case to finally go to trial. As submitted by Defendants, the state court has recently issued on order granting summary judgment on AWDI's claims. However, this Order was issued on November 16, 2005 and the time for appeal and/or an appeal to the Colorado Court of Appeals has not passed. 3
{31427.3.11/21/2005 03:30 PM.RPRU.A0213223.DOC;2}

Case 1:01-cv-00083-REB-CBS

Document 348

Filed 11/21/2005

Page 4 of 5

Therefore, the Order is in no way a final order and should not be considered by this Court on the pending issues. Respectfully submitted this 21st day of November 2005.

s/ Richard I. Brown Patrick J. Casey LOTTNER RUBIN FISHMAN BROWN & SAUL, PC 633 Seventeenth Street, Suite 2700 Denver, CO 80202 Telephone (303) 292-1200

4
{31427.3.11/21/2005 03:30 PM.RPRU.A0213223.DOC;2}

Case 1:01-cv-00083-REB-CBS

Document 348

Filed 11/21/2005

Page 5 of 5

CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 21st day of November 2005 a true and correct copy of the foregoing REPLY IN SUPPORT OF MODIFIED MOTION FOR RELIEF FROM ORDER was served via the CM/ECF system, addressed as follows: Allan L. Hale, Esq. John G. Lubitz, Esq. Robert G. Hoban, Esq. HALE FRIESEN, LLP 1430 Wynkoop St., Suite 300 Denver, CO 80202 Attorneys for Stockman's Water Co. and Gary Boyce Stanley L. Garnett, Esq. A. W. Victoria Jacobs, Esq. Susan P. Klopman, Esq. Annie T. Kao, Esq. BROWNSTEIN HYATT & FARBER, PC 410 17th St., Suite 2200 Denver, CO 80202-4437 Attorneys for Vaca Partners, LP and Farrallon Capital Mgmt., LLC, and Jason Fish

Elliot R. Peters, Esq. Michael S. Kwun, Esq. KEKER & VAN NEXT, LLP 710 Sansome Street San Francisco, CA 94111-1704 Attorneys for Vaca Partners, LP and Farrallon Capital Mgmt., LLC, and Jason Fish Robert J. Bruce, Esq. LINDSEY & BRUCE, P.C. 730 17th Street, Ste. 370 Denver, CO 80202 Attorneys for Peter Hornick s/ Ed Wesselhoff

5
{31427.3.11/21/2005 03:30 PM.RPRU.A0213223.DOC;2}