Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:00-cv-02098-REB-MJW

Document 235

Filed 08/03/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-2098 - REB - MJW KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and all others similarly situated, Plaintiffs, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

DEFENDANT'S OPPOSITION TO PLAINTIFF'S PARTIALLY OPPOSED MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT [docket # 229]

Plaintiff opposed the filing of defendant's March 9, 2007 motion for partial summary judgment. As a result, the time for Plaintiff to respond has been

extended to August 8, 2007, five months after the motion was originally served upon her counsel. Thus, Plaintiff has already had ample time to prepare a response. Defendant normally does not oppose requested extensions of time. Here, however, the extension will adversely affect case management, and prejudice Defendant in delayed trial preparation, by substantially reducing the limited time the Court will have to decide the motion before trial. If the extension is granted, Plaintiff's opposition brief will be filed August 23, and Defendant's reply brief will be due September 4, a scant six weeks before the October 15 trial setting. Resolution of Defendant's motion as soon before trial as possible would

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Case 1:00-cv-02098-REB-MJW

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benefit the parties and the Court in terms of clarifying the issues for trial and streamlining trial preparations. Moreover, if granted in whole or in part, the length of trial would be significantly shortened. Plaintiff has three law firms and four lawyers working on this case. That one of the lawyers has been on vacation since July 28 (despite signing the August 1 motion for extension), and that other lawyers are busy preparing three court papers (press of business), does not constitute good cause. (REB Civ. Practice Standard II.G.1.) Moreover, the delay in completing a Rule 30(b)(6) deposition referenced in Plaintiff's motion (postponed from June 15 to July 25) was occasioned by Plaintiff's disingenuous request for a witness to testify about the claims of numerous other policyholders during a multi-year period. This required several weeks of time to identify, locate and transport several hundred long closed claim files from storage, and in excess of 100 hours to review each of them. (See, docket # 221, at p. 7, Defendant's response to motion to compel Rule 30(b)(6) deposition, discussing burden of responding). Although Defendant did so at great expense, and its witness was fully prepared to answer questions concerning those files at the Rule 30(b)(6) deposition as noticed, Plaintiff's counsel did not ask a single question about those files at the deposition. Thus, the delay of which Plaintiff complains was entirely of her counsel's own making and completely unnecessary. Finally, if Plaintiff wishes to use the deposition in its opposition, counsel could easily request the court reporter to expedite the transcript, or ask the videographer for a copy.

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While Defendant does not oppose a five day extension as a courtesy to Plaintiff, it opposes the requested 15 day extension because five months is sufficient for Plaintiff's opposition brief, and any further delay may leave the Court inadequate time to decide Defendant's summary judgment motion before trial. Respectfully submitted this 3rd day of August, 2007.

Campbell, Latiolais & Ruebel, P.C. By: ___s/Clifton J. Latiolais, Jr.________ Clifton J. Latiolais, Jr., #13765 825 Logan Street Denver, CO 80203-3114 (303) 861-7760 (phone) (303) 861-7767 (fax)

Bryan Cave LLP Bruce C. Oetter 211 N. Broadway, Suite 3600 St. Louis, Missouri 63102-2750 (314) 259-2000 (phone) (314) 259-2020 (fax)

Attorneys for Defendant

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Case 1:00-cv-02098-REB-MJW

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CERTIFICATE OF SERVICE

I hereby certify that on this 3rd day of August, 2007, a true and correct copy of the foregoing DEFENDANT'S OPPOSITION TO PLAINTIFF'S PARTIALLY OPPOSED MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT was filed and served electronically via CM/ECF to the following: L. Dan Rector, #7568 Franklin D. Azar & Associates, P. C. 5536 Library Lane Colorado Springs, CO 80918 (719) 527-8000 Robert B. Carey, #1717 Leif Garrison, #14394 Steve W. Berman, c/o The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Steve W. Berman, WSBA # 12536 Hagens Berman, LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Attorneys for Plaintiff

Courtesy copy to: Magistrate Judge Michael J. Watanabe United States District Court U.S. Courthouse, Room C-337 1929 Stout Street Denver, CO 80294

s/ Denise L.Albares______

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