Free Response to Motion - District Court of Colorado - Colorado

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

Document 344

Filed 10/25/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-83-REB-CBS STOCKMAN'S WATER COMPANY, LLC, a Colorado limited liability company, Plaintiff, and PETER HORNICK, an individual domiciled in New York, and AMERICAN WATER DEVELOPMENT, INC., a Colorado corporation, Intervening Plaintiffs, vs. VACA PARTNERS, L.P., a Delaware limited partnership; FARALLON CAPITAL MANAGEMENT, LLC, a Delaware limited liability company; and JASON FISH, a California resident, an individual, Defendants.

DEFENDANTS' RESPONSE TO MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL

Defendants, Vaca Partners, L.P., Farallon Capital Management, LLC, and Jason Fish (collectively, "Defendants"), hereby submit the following Response to Intervening Plaintiff American Water Development, Inc.'s ("AWDI") Motion for Extension of Time to File Notice of Appeal ("AWDI's Motion"): 1. In its Motion, AWDI seeks an enlargement of time to file a Notice of Appeal of

the judgment entered in this case. The basis for the requested enlargement is that it will provide time for the parties to brief fully AWDI's pending Modified Motion for Relief From Order or in the Alternative for Entry of Judgment (the "Rule 60 Motion").

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2.

Defendants do not oppose AWDI's Motion, which is made in conjunction with the

Rule 60 Motion. (Had AWDI given Defendants' counsel more than a few hours to ascertain its clients' position, AWDI would have been able to file its Motion as an unopposed motion.)1 This does not mean, however, that Defendants believe relief under Rule 60 is appropriate. They do not, because it is futile. 3. As Defendants will show in their forthcoming Response to AWDI's Rule 60

Motion, although this Courts' dismissal of AWDI's claims on Rooker-Feldman grounds is not sustainable in light of the United States Supreme Court's subsequent decision in Exxon Mobil Corp. v. Saudi Basic Industries Corp., ___ U.S. ___, 125 S. Ct. 1517 (2005), the dismissal is mandated on the alternative ground of issue preclusion. During the time AWDI's appeal of the dismissal of its claims was pending before the Tenth Circuit Court of Appeals, the Colorado Court of Appeals issued its decision in a related case holding that it was AWDI, not Defendants, who breached the contract underlying each of AWDI's claims. And because AWDI's claims in this Court are dependent on a finding that Defendants breached the underlying contract ­ and AWDI is barred by the doctrine of collateral estoppel from relitigating that issue in this Court ­ AWDI cannot prevail on its claims.

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Counsel for AWDI, Richard I. Brown, telephoned counsel for Defendants, Stanley L. Garnett, early afternoon on October 18, 2005, to ask the position of Garnett's clients on an enlargement of time to file a Notice of Appeal. Garnett indicated that he would have to consult with his clients, and would let Brown know before the end of the day on October 19, 2005, but that if Brown did not hear from Garnett by the end of the day on October 19, Brown could represent that Garnett's clients did not oppose the Motion. A few hours later ­ without waiting to hear back from Garnett ­ Brown filed the Motion in which he stated that he had "in good faith conferred with Plaintiffs' [sic] counsel regarding this Motion." (Mot. at 1 (punctuation omitted).) As this Court has recognized, however, a call such as Brown's call to Garnett, does not satisfy the requirements of D.C. COLO.LCivR 7.1A. See Hoelzel v. First Select Corp., 214 F.R.D. 634, 636 (D. Colo. 2003).

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4.

Because collateral estoppel will dispose of AWDI's claims completely, AWDI's

Rule 60 Motion is futile and thus should be denied. Nonetheless, Defendants agree that it would be more efficient for the Parties to address the issue of collateral estoppel in their briefing of AWDI's Rule 60 Motion, before a Notice of Appeal is filed. ACCORDINGLY, Defendants do not oppose AWDI's Motion for a 30-day enlargement of time to file a Notice of Appeal. Respectfully submitted this 25th day of October, 2005. BROWNSTEIN HYATT & FARBER, P.C.

By: s/Richard P. Barkley_______________ Stanley L. Garnett Richard P. Barkley Annie T. Kao 410 17th Street, 22nd Floor Denver, Colorado 80202 (303) 223-1100 [email protected] [email protected] [email protected] ATTORNEYS FOR APPELLEES, VACA PARTNERS, L.P., FARALLON CAPITAL MANAGEMENT, LLC, AND JASON FISH

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 25th day of October, 2005, a true and correct copy of the foregoing DEFENDANTS' RESPONSE TO MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL was served via the CM/ECF system to the following addresses: Allan L. Hale, Esq. John G. Lubitz, Esq. Robert T. Hoban, Esq. Hale Friesen, LLP 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 [email protected] [email protected] [email protected] Richard I. Brown, Esq. Patrick J. Casey, Esq. Laura J. Nelson, Esq. John Alan Call, Esq. Lottner Rubin Fishman Brown & Saul, P.C. 633 Seventeenth Street, Suite 2700 Denver, Colorado 80202 [email protected] [email protected] [email protected] [email protected] Robert J. Bruce, Esq. Lindsey & Bruce, P.C. 730 17th Street, Ste. 370 Denver, CO 80202 [email protected]

s/ Catherine Olguin______________ Catherine Olguin

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