Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-cv-02325-MSK-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORP. ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants. and Civil Action No. 01-cv-02307-MSK-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, et al., ANGLOGOLD ASHANTI (COLORADO) CORP. ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants.

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR RECONSIDERATION

Plaintiffs hereby file this Response to Defendants' Motion for Reconsideration [Doc. #363] filed February 15, 2007, and request that the Motion be DENIED for the following reasons:

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I.

INTRODUCTION

On January 22, 2007, Plaintiffs filed a Motion for Stay of Judgment Pending Appeal and to Waive Bond, or in the Alternative to Allow for Letter of Credit or Reduced Bond [Doc. #351] ("Plaintiffs' Motion for Stay"). Local rule D.C.COLO.LCivR 7.1C provides that "[t]he responding party shall have 20 days after the filing date of the motion...in which to file a response." This local rule does not provide for an additional 3 days for mailing under Fed.R.Civ.P. 6(e). Fed.R.Civ.P. 6(e) applies only where "a party must or may act within a prescribed period after service," and not where a deadline is triggered by "filing date" as under D.C.COLO.LCivR 7.1C. Defendants filed a Response to Plaintiffs' Motion for Stay [Doc. #360] on February 14, 2007, twenty-three (23) days after the filing of the Motion for Stay. On the same day, this Court issued an Order [Doc. #361] granting in part and denying in part Plaintiffs' Motion for Stay. Defendants filed a Motion for Reconsideration under Fed.R.Civ.P. 60(a) on February 15, 2007 [Doc. #363]. Defendants' Motion for Reconsideration should be denied because it constitutes an inappropriate use of Fed.R.Civ.P. 60(a) as there has been no "clerical error" by the Court in need of correction. II. DEFENDANTS DID NOT FILE A TIMELY RESPONSE

Defendants filed their Motion for Reconsideration [Doc. #363] relying exclusively on Fed.R.Civ.P. 60(a). Rule 60(a) states, "[c]lerical mistakes in judgments, orders, or parts of the record may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any as the court orders." Rule 60(a) motions must be factually based on the specific criteria in the Rule. Helm v. Resolution Trust Co., 43 F.3d 1163, 1167 (7th 2

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Cir. 1995). Rule 60(a) is limited to truly clerical errors. It may not be used to alter previous substantive decisions. Security Mut. Cas. Co. v. Century Cas. Co., 621 F.2d 1062, 1065 (10th Cir. 1980); Britt v. Whitmire, 956 F.2d 509, 512 (5th Cir. 1992). In order to grant a Rule 60(a) motion based on an alleged clerical error, the moving party must be free from fault with regard to the clerical error. Bratnober v. Illinois Farm Supply Co., 169 F.Supp. 85, 89 (D.C. Minn. 1958). As the basis for its assertion that the Court committed a "clerical error," Defendants contend that their brief was timely as a result of Fed.R.Civ.P. 6(e). However, by its plain language, this Rule appends an extra three days only where "a party must or may act within a prescribed period after service." Fed.R.Civ.P. 6(e) (emphasis added). The applicable Rule setting the deadline in this instance, D.C.COLO.LCivR 7.1C, sets the due date for responses to motions at twenty (20) days following the "filing date" of the motion. D.C.COLO.LCivR 7.1C. As such, Fed.R.Civ.P. 6(e) is inapplicable. The Tenth Circuit "has adopted a plain-meaning rule that precludes application of Rule 6(e) to orders requiring a party to take action within a certain number of days of the order being filed...." Parker v. Central Kansas Medical Center, 57 Fed.Appx. 401, 403, 2003 WL 408109 at *2 (10th Cir. Feb 23, 2003)(unpublished). Thus, "[t]he Rule is applicable only when the deadline for a party's action is established by date of service." U.S. v. Rodriguez-Aguirre, 30 Fed.Appx. 803, 805 n.3, 2002 WL 182117 at *1 n.3 (10th Cir. Feb. 6, 2002)(unpublished). Accord, Heffington v. Sedgwick County Dist. Court, 2007 WL 211280, at *2 (10th Cir. 2007)(refusing to apply Fed.R.Civ.P. 6(e) to "a Rule 59(e) motion, because the deadline for filing such a motion is triggered by entry of judgment and not by service of notice."); Delta Airlines v. Butler, 383 F.3d 1143, 1145 (10th Cir. 2004) (Fed.R.Civ.P. 6(e) applies "only when a party may, or is required to, 3

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file a response or perform an act after a paper is served on that party."); Parker v. Board of Public Utilities of Kansas City, Kan., 77 F.3d 1289, 1291 (10th Cir. 1996) (same); Savage v. Cache Valley Dairy Ass'n, 737 F.2d 887, 888 (10th Cir. 1984) (holding identical 3-day extension provision under Fed.R.App.P. 26(c) inapplicable to the filing of a cross-appeal under Fed.R.App.P. 4(a)(3) because "a cross-appeal must be filed within fourteen days from the date on which the first notice of appeal is filed, not from the date on which the notice is served." (emphasis in original)). Other circuits also interpret Fed.R.Civ.P. 6(e) narrowly. For instance, the Fifth Circuit has squarely ruled that Fed.R.Civ.P. 6(e) applies only where "service" triggers a deadline: For purposes of the applicability of Rule 6(e), "the fact that notice is to be served by mail is not dispositive," but, rather, "[t]he correct inquiry is whether the required actions must be performed within a prescribed period of filing or of service" and, "[i]f the act is to be taken after filing, the time for action begins to run from that date." Crutcher v. Cockrell, 301 F.3d 656, 657 (5th Cir. 2002)(emphasis in original) quoting Lauzon v. Strachan Shipping Co., 782 F.2d 1217, 1220 (5th Cir. 1985)("Because section 914 requires action within ten days of filing, as opposed to service, Rule 6(e) is inapplicable."). Accord, Albright v. Virtue, 273 F.3d 564, 571 (3rd Cir. 2001) quoting 1 James Moore et al., Moore's Federal Practice § 6.053[3], at 6-35 (3d ed. 1998) ("Rule 6(e) does not apply to time periods that begin with the filing in court of a judgment or order."). Thus, because D.C.COLO.LCivR 7.1C unambiguously provides for the filing of a response no later than "20 days after the filing date of the motion," Fed.R.Civ.P. 6(e) is inapplicable. The Court properly determined that the date for Defendants to file a response to the

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Motion for Stay was February 12, 2007, such that Defendants' response filed February 14, 2007 was untimely. Defendants' Motion for Reconsideration [Doc. #363] cites exclusively to Fed.R.Civ.P. 60(a) as its basis. Motion at 2. However, as demonstrated, there has been no clerical error by the Court in the consideration of Plaintiffs Motion for Stay. Instead, it was Defendants that committed a mistake by failing to file a timely response. Defendants are not free from fault with regard to this "clerical mistake." Bratnober, 169 F.Supp. at 89. Rule 60(a) is therefore inapplicable, and Defendants' Motion for Reconsideration should be denied. Further, to date Defendants have failed to file a motion for leave of the Court to file an untimely response brief, or explain any reason for its untimely response. As a result, Defendants have failed to establish good cause, or follow the proper procedures for filing a tardy response brief. See MSK Civ. Practice Standard II.G. (showing of good cause required for motion for extension of time); MSK Civ. Practice Standard V.B. (untimely responses may be denied). Defendants have failed to carry their burden of proof that the Court made any clerical mistake or that any good cause exists for an extension. As such, Defendants' Motion for Reconsideration under Fed.R.Civ.P. 60(a) should be denied. III. PLAINTIFFS WILL BE PREJUDICED IF MOTION IS GRANTED

Defendants' Motion for Reconsideration should be denied because Plaintiffs will be prejudiced if Defendants' motion is granted. During the week of March 5, 2007 Plaintiffs will obtain the security directed by this Court in its February 14, 2007 Order [Doc. #363]. See, Declaration of Lynn Smith attached hereto as Exhibit 1, ¶ 4. Plaintiffs expended significant time and financial resources in obtaining this security. Id. at ¶¶ 3-6. 5

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Furthermore, Defendants have not shown that the security ordered by this Court on February 14, 2007 is inadequate to secure the judgment on appeal. As such, there is no basis for this Court to reconsider its prior ruling. IV. CONCLUSION

Based upon this brief and the declaration submitted herewith, Plaintiffs respectfully request that the Court DENY Defendants' Motion for Reconsideration. Should this Court grant the Motion for Reconsideration or otherwise rescind its Order [Doc. # 361] granting in part and denying in part Plaintiffs' Motion for Stay, Plaintiffs request an opportunity to file a Reply to Defendants' Response [Doc. #360] within fifteen (15) days of the Court's entry of such Order. See D.C.COLO.LCivR 7.1C ("The moving party may file a reply within 15 days after the filing date of the response, or such lesser or greater time as the court may allow.").

Dated: March 7, 2007 s/ Jeffrey Parsons _________________________ Jeffrey Parsons, Esq. Western Mining Action Project P.O. Box 349 Lyons, CO 80540 (303) 823-5738 [email protected] John M. Barth Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 [email protected] 6

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Randall M. Weiner, Atty. No. 23871 1942 Broadway, Suite 408 Boulder, Colorado 80302 Tel: 303-938-3773 Fax: 303-442-6622 [email protected]

CERTIFICATE OF SERVICE I hereby certify that on this 7th day of March 2007, I electronically filed the foregoing Response to Motion for Reconsideration with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Eugene Riordan Vranesh & Raisch P.O. Box 871 Boulder, CO 80306 [email protected] Craig R. Carver Carver, Kirchhoff, Schwartz McNab & Bailey, P.C. 1600 Stout Street, Suite 1700 Denver, CO 80202 [email protected] Don H. Sherwood 10861 West 28th Place Denver, CO 80215 [email protected] Robert C. Troyer Hogan & Hartson L.L.P. 1200 17th Street, #1500 Denver, CO 80202

s/ Jeffrey Parsons

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