Free Motion for Extension of Time - District Court of Colorado - Colorado

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

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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. MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL

Defendant American Water Development, Inc. ("AWDI") through its counsel, LOTTNER RUBIN FISHMAN BROWN & SAUL, P.C., moves for an Extension of Time to File Its Notice of Appeal pursuant to Fed. R. Civ. P. 6(b) and Fed. R. App. P. 4(a)(5) as follows: D.C.COLO.LCivR 7.1(A) CERTIFICATE In conformity with D.C.COLO.LCivR 7.1(A), AWDI's counsel has, in good faith, conferred with Plaintiffs' counsel regarding this Motion. Plaintiff's counsel indicated he would, in turn, confer with his client regarding the relief requested by this Motion. Fed. R. Civ. P. 4(a)(5)(B) allows for the motion to be filed ex parte if filed within the time allowed for appeal, as this Motion has been so filed.

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1.

This Court issued an Order of Dismissal dismissing AWDI's claims on December

31, 2003 based on the Rooker-Feldman doctrine. That Order was not a Final Judgment and AWDI requested that this Court grant Fed. R. Civ. P. 54(b) certification in order to appeal the Order. This Court granted Rule 54(b) certification on May 18, 2004. 2. AWDI appealed the Order of Dismissal to the Tenth Circuit. During the

pendency of that appeal, the United States Supreme Court ruled in Exxon Mobil Corp. v. Saudi Basic Industries Corp., ___ U.S. ___ 125 S.Ct. 1517 (2005). The decision in Exxon

unquestionably precludes the application of the Rooker-Feldman doctrine to this case. Indeed, Plaintiff stipulated to that effect. Despite the clear mandate of the Supreme Court in Exxon, the Tenth Circuit never reached the merits of the appeal and dismissed the appeal on October 12, 2005 due to a defective Rule 54(b) certification. attached hereto as Exhibit A.) 3. However, on September 28, 2005, this Court granted the remaining parties' (See, Judgment dated October 12, 2005

Stipulated Motion for Dismissal by issuing its Order of Dismissal of Plaintiffs' Claim for Breach of Contract Without Prejudice, which dismissed Stockman's Water Company, LLC and Gary Boyce's claim against Peter Hornick for breach of contract, the only remaining claim in the case. Arguably, this act of dismissing the remaining parties removed the need for any Rule 54(b) certification of the December 31, 2003 Order of Dismissal, effectively making the Order of Dismissal an appealable Final Judgment as of September 28, 2005. This issue is unclear since the Order of Dismissal has never been reduced to a Final Judgment. If the Order of Dismissal became a Final Judgment on September 28, 2005, then the Tenth Circuit's dismissal of the appeal was announced after the ten-day deadline in which AWDI could have filed a Motion -2{31427.3.10/18/2005 02:56 PM.RPRU.A0210448.DOC;1}

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

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under Fed. R. Civ. P. 59 and 60 to toll the deadline to file its Notice of Appeal with the Tenth Circuit. While the ten-day deadline does not bar the filing of a Rule 60 Motion, Motions filed more than ten days after Final Judgment will not toll the appeal deadline. See Fed. R. App. P. 4(a)(5)(C). Therefore, if the Order of Dismissal became a Final Judgment on September 28, 2005, AWDI is facing an appeal deadline of October 28, 2005. Out of an abundance of caution, AWDI must respect this deadline. 4. However, since there has been a change in the controlling legal authority upon

which the Order of Dismissal was based, Rule 60 provides the perfect opportunity for this Court to revisit, and grant AWDI relief from, the Order of Dismissal. AWDI's Motion for Relief from Order filed pursuant to Rule 60(b) will be filed within days of this Motion for Extension of Time. However, sufficient time for a Response, Reply and this Court's ruling does not exist prior to the pending October 28, 2005 appeal deadline. Therefore, AWDI requests that this Court grant an extension under Fed. R. Civ. P. 6(b) and Fed. R. App. P. 4(a)(5) for an additional 30 days to file its Notice of Appeal. This may allow enough time for the issue to be resolved prior to the need to file a Notice of Appeal saving the time and money of all parties and the resources of the Courts. WHEREFORE, AWDI respectfully requests that this Court grant a thirty-day extension, up to and including November 27, 2005, for AWDI to file its Notice of Appeal.

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Respectfully submitted this 18th day of October 2005. LOTTNER RUBIN FISHMAN BROWN & SAUL, P.C.

By:

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

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 18th day of October 2005 a true and correct copy of the foregoing MOTION FOR EXTENSION OF TIME 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 Scott Sundrstrom, Esq. NYEMASTER GOOD VOIGTS WEST HANSELL & O'BRIEN 700 Walnut Street, Ste. 1600 Des Moines, IA 50399-3899 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

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 Scott Sundstrom, Esq. NYEMASTER GOODE VOIGTS WEST HANSELL & O'BRIEN 700 Walnut St., Suite 1600 Des Moines, IA 50309-3899 Attorneys for Vaca Partners, LP and Farrallon Capital Mgmt., LLC, and Jason Fish

s/ Ed Wesselhoff

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