Free Motion to Clarify - District Court of Colorado - Colorado

Case 1:04-cv-01099-JLK-DW

Document 305

Filed 04/07/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1099-JLK-DLW WOLF CREEK SKI CORPORATION, INC. Plaintiff(s), v. LEAVELL-MCCOMBS JOINT VENTURE D/B/A THE VILLAGE AT WOLF CREEK Defendant(s). ______________________________________________________________________________ DEFENDANT'S MOTION/REQUEST FOR CLARIFICATION OF MINUTE ORDER DATED MARCH 17, 2008 ______________________________________________________________________________ Defendant, Leavell-McCombs Joint Venture ("Joint Venture") by and through its undersigned counsel, hereby respectfully moves for clarification of the Minute Order dated March 17, 2008, docket number 294, as follows: Certificate of Conferral: Pursuant to D.C.Colo.LCivR. 7.1A, counsel for the Joint Venture has conferred with opposing counsel to resolve the matter disputed herein and such counsel indicated a contrary understanding of the applicable orders and rules and therefore will oppose this motion. 1. At the Pretrial Conference on January 23, 2008, this Court set the deadline for

filing motions in limine, objections to exhibits, and objections to deposition designations as March 14, 2008. See docket no. 266. (Hereafter, objections to exhibits and objections to

deposition designations will be referred to collectively as "Objections.") That deadline was reconfirmed by Minute Order dated February 21, 2008. See docket no. 281.

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2.

The deadline changed, as to the Joint Venture only, when it sought, and was

granted, a one-week extension. See docket no. 291 ("Unopposed Motion") and docket no. 294 (Minute Order granting Unopposed Motion). The Minute Order provided in pertinent part: Motions in Limine, Objections to Deposition Designations, and Objections to Exhibits are due March 21, 2008; responses are due April 5, 2008; replies are due April 16, 2008. As a result of the new deadlines set herein, responses to the Plaintiff's Objections to Deposition Testimony (doc. #292) and Plaintiff's Objections to Trial Exhibits (doc. #293) are also due April 5, 2008; replies are due April 16, 2008. Exhibit A, docket no. 294 (italics in original). 3. It is the outlined provision (the "Provision") that is the subject of this request for

clarification. The following three interpretations have been identified: 4. First, the literal interpretation is that, as a result of the Joint Venture's motion for

extension of deadlines, the deadline for the Joint Venture to submit a required response to Plaintiff's Objections is April 5 and the deadline for Plaintiff to reply is April 16. Plaintiff's deadlines are unchanged from the original deadline (March 29, 2008). Although Defendant would have agreed to an extension of Plaintiff's deadline, no request for same was sought. As a result, Plaintiff has apparently missed its deadline and waived any responses it may have had. 5. Second, Plaintiff's interpretation focuses on the belief that responses to Objections

are mandatory and due on April 5, 2008. 1 Plaintiff believes that the deadlines are the same for both parties. Although this interpretation is not consistent with the literal interpretation above, the Plaintiff does not join in this request for clarification and denies that the Provision is ambiguous.
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Both sides agree that, since April 5 is a Saturday, the proper day for filing is Monday, April 7, 2008.

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6.

Third: Defendant's understanding is that the Provision carries over an ambiguity

in the Joint Venture's Unopposed Motion and that the deadlines are actually intended to apply only to motions in limine (because the parties have already designated exhibits and deposition testimony and have already objected to each other's designations and neither custom nor the Fed. R. Civ. P. provide for responses and replies to Objections). As a result of the contrary belief held by Plaintiff, as well as the other possible interpretations identified above, the Joint Venture seeks clarification of the Provision. 7. Prior to filing this motion, the Joint Venture's counsel conferred at length with

opposing counsel. As both parties intend to continue to work towards submitting a concise exhibit list, free from duplicates and stipulated to the extent possible, it seemed a needless involvement of judicial resources to submit additional briefing on this matter unless or until an impasse is reached. Moreover, it appears that any disputes unresolved within the next two weeks will be addressed at the May 8, 2008 hearing, which itself is two months before trial. Since exhibit lists were produced on January 19, 2008, Plaintiff has submitted a revised exhibit list and Defendant will be submitting its revised, and much abbreviated list, very shortly and seeking conferral with Plaintiff on same to see if stipulation is possible. Unfortunately, conferral between counsel did not resolve the present confusion over the Provision. 8. Prior to filing this motion, Counsel also reviewed this Court's General Practices

and Procedures, and the Pretrial Statement herein to see if they resolved the confusion and thereby obviated the need for this motion. The former discusses, on page 11, Objections and motions in limine as well as responses to "such motions" but does not reference responses to

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Objections.2 The latter includes a similar discussion but includes the additional words "or objection" as follows: "Unless otherwise ordered, a written response to such a motion [in limine] or objection must be filed no later than 15 days after the motion is filed..." See docket no. 268. The reference to "15 days after the motion is filed" suggests that responses and replies are tied to motions. As a result, the Joint Venture is still uncertain as to the meaning of the Provision and whether or not responses and replies are required in response to Objections. 9. WHEREFORE, the Joint Venture respectfully requests clarification from the

Court as to the meaning of the Provision in the Minute Order dated March 17, 2008. In the event that the Joint Venture is required to submit responses to Plaintiff's Objections, such response is attached hereto as Exhibit B for filing if this Court so orders. Respectfully submitted this 7th day of April, 2008 BERG HILL GREENLEAF & RUSCITTI LLP ___s/ Kim A. Tomey____________ George V. Berg, Jr. Kim A. Tomey 1712 Pearl Street Boulder, CO 80302 Phone: (303) 402-1600 Fax: (303) 402-1601 Email: [email protected] Attorneys for Defendant
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The specific wording on page 11 of the General Practices and Procedures is:

No later than 30 days before the Final Trial Preparation Conference: Motions in limine, including objections to exhibits and to designated deposition testimony (but not including Daubert/Kumho Tire motions, which are subject to a different filing and briefing schedule). Unless otherwise ordered, the other parties must file a written response to such a motion no later than 15 days after the motion is filed, and any reply must be filed no later than 11 days after the response. The parties should be prepared to argue any pending motion in limine or other evidentiary objection at the Final Trial Preparation Conference. (Underlining and italics in original; bold italics added).

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CERTIFICATE OF SERVICE I hereby certify that on this 7th day of April, 2008, I electronically filed the foregoing DEFENDANT'S MOTION/REQUEST FOR CLARIFICATION with the Clerk of the Court using the CM/ECF system which will send notification to such filing to the following e-mail addresses, Andrew R. Shoemaker Hogan & Hartson LLP 1470 Walnut Street, Suite 200 Boulder, CO 80302 [email protected] Jim Moriarty Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] Cynthia A. Mitchell Hogan & Hartson LLP 1470 Walnut Street, Suite 200 Boulder, CO 80302 [email protected] Robert D. Erben Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] David Krivit Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] Michael E. McLachlan McLachlan & Underell, LLC 813 Main Avenue, Suite 308 Durango, CO 81301 [email protected]

____s/ Linda D. Smith_______

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