Free Appeal of Magistrate Judge Decision to District Court - District Court of Colorado - Colorado

Case 1:00-cv-01864-REB-BNB

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Filed 03/28/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-1864-REB-BNB (Consolidated with 00-cv-1908-REB-BNB, 00-cv1910-REB-BNB, 00-cv-1919-REB-BNB, 00-cv-1945-REB-BNB, 00-cv-1954-REB-BNB, 00-cv-1957-REB-BNB, 00-cv-1963-REB-BNB, 00-cv-1996-REB-BNB, 00-cv-2040-REBBNB, 00-cv-2074-REB-BNB, 00-cv-2149-REB-BNB, 00-cv-2243-REB-BNB, and 00-cv2316-REB-BNB) In re ICG COMMUNICATIONS, INC. SECURITIES LITIGATION ______________________________________________________________________ DEFENDANTS' RULE 72 OBJECTIONS TO MARCH 13, 2006 ORDER ______________________________________________________________________ Defendants J. Shelby Bryan and William S. Beans, Jr. ("Defendants"), by and through their attorneys, Brownstein Hyatt & Farber, P.C. and O'Melveny & Myers LLP, file these Objections, pursuant to Fed. R. Civ. P. 72(a), to Magistrate Judge Boyd N. Boland's March 13, 2006 Order insofar as it denied an extension of the dispositive motion deadline. In support, Defendants state as follows: 1. On August 24, 2004, the Court entered an order resolving Defendants'

motion to dismiss the Consolidated Amended Complaint, filed May 14, 2002, granting the motion in part, and denying it in part. On July 18, 2005, the Court granted Plaintiffs leave to file a Second Consolidated and Amended Complaint ("Second Amended Complaint") to correct the pleading deficiencies identified by the Court in its August 24, 2004 order. Defendants moved to dismiss the Second Amended Complaint on August 1, 2005. 2. The Private Securities Litigation Reform Act of 1995 generally provides for

a stay of discovery and other proceedings pending a decision on any motion to dismiss

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in a private action arising under Chapter 2B of the Exchange Act, 15 U.S.C. § 78u4(b)(3)(B). Thus, all discovery in this case was stayed until August 24, 2004, and did not begin until the scheduling order dated January 21, 2005. To avoid further dispute, and in the interests of economy and justice, the Parties filed a Stipulated Motion to Stay Proceedings in Part on August 1, 2005. On August 5, 2005, the Court granted the Parties' motion (the "Partial Stay"), thereby limiting discovery to certain written discovery requests related to (i) the claims previously upheld by the Court in its August 24, 2004 order, and (ii) the proposed class under the Second Amended Complaint. It stayed all other discovery and briefing on Plaintiffs' motion for class certification. 3. On February 7, 2006, this Court issued its Order Concerning Defendants'

Motion to Dismiss, granting in part and denying in part that motion. The Order also had the effect of lifting the August 5, 2005 Partial Stay of proceedings. 4. On March 10, 2006, after unsuccessfully seeking to vacate the trial date,

the parties filed a Stipulated Motion to Amend the January 21, 2005 Scheduling Order. On March 13, 2006, Magistrate Judge Boyd N. Boland granted the motion in part, extending the discovery cut-off to August 11, 2006, and establishing other interim deadlines. But the Court denied the motion insofar as it sought an extension of the dispositive motion deadline, finding the parties' request for an extension unworkable in view of the September 11, 2006 trial date. 5. Because the dispositive motion deadline expired on February 1, 2006 (six

days before this Court ruled on Defendants' motion to dismiss the Second Amended Complaint), this ruling had the effect of precluding summary judgment motions.

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6.

Defendants respectfully submit that the March 13, 2006 Order was issued

in error and is contrary to law. Fed. R. Civ. P. 72(a). Rule 56 of the Federal Rules of Civil Procedures entitles a defendant to seek summary judgment in its favor, at any time, as to all or any part of a claim asserted against it. 7. Allowing Defendants to bring summary judgment motions at any time up to Such

a month before trial is also reasonable in view of the established schedule.

motions are likely to resolve substantial claims, if not the entire case, and thereby promote the efficient use of scare judicial resources. Thus, denying Defendants the right to seek summary judgment unfairly restricts their ability to secure a just, speedy and inexpensive determination of the action. 8. Defendants were served with a copy of the March 13, 2006 Order on

March 14, 2006. As such, these objections are timely filed.

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Case 1:00-cv-01864-REB-BNB

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WHEREFORE, Defendants respectfully request that the Court set aside the March 13, 2006 Order insofar as it denied an extension of the dispositive motion deadline and enter an order extending the deadline for Defendants to file dispositive motions to August 15, 2006 or such other time as the Court deems appropriate.

Dated: March 28, 2006 Denver, Colorado

Respectfully submitted,

s/ Peter J. Korneffel, Jr. Peter J. Korneffel Jr. Brownstein Hyatt & Farber, P.C. 410 17th Street, 22nd Floor Denver, CO 80202-4437 T:(303) 223-1100 F:(303) 223-1111 [email protected] O'MELVENY & MYERS LLP Bradley J. Butwin Jonathan Rosenberg William J. Sushon 7 Times Square New York, New York 10036 (212) 326-2000 Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on this 29th day of March, 2006, a true and correct copy of the foregoing DEFENDANTS' RULE 72 OBJECTIONS TO MARCH 13, 2006 ORDER was filed electronically with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected]

and I hereby certify that I have served the document to the following non CM/ECF participants as indicated below: Via US MAIL and facsimile Daniel L. Berger Mark Lebovitch Eric T. Kanefsky Bernstein Litowitz Berger & Grossmann, LLP 1285 Avenue of the Americas New York, NY 10019 Norman Berman Bryan A. Wood Joseph C. Merschman Berman DeValerio Pease Tobacco Burt & Pucillo One Liberty Square Boston, MA 02109

s/ Peter J. Korneffel Peter J. Korneffel, Jr. Brownstein Hyatt & Farber, P.C. 410 17th Street, 22nd Floor Denver, CO 80202-4437 T:(303) 223-1100 F:(303) 223-1111 [email protected] Attorney for Defendants

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