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

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge David L. West Civil Action No. 04-CV-01099-JLK-DLW WOLF CREEK SKI CORPORATION, INC., Plaintiff, vs. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant.

FINDINGS AND ORDER RE: DEFENDANT' MOTION FOR LEAVE TO S EXTEND THE STIPULATED DISPOSITIVE MOTIONS DEADLINE TO PERMIT FILING THE ATTACHED MOTION FOR SUMMARY JUDGMENT

ENTERED BY MAGISTRATE JUDGE DAVID L. WEST The Defendant has filed a Motion for Leave to Extend the Stipulated Dispositive Motions Deadline to Permit Filing the Attached Motions for Summary Judgment, to which the Plaintiff objects. The matter was referred to the Magistrate Judge by Judge John L. Kane on May 17, 2006. BACKGROUND 1. Original Scheduling Conference occurred - August 10, 2004. A. B. C. Rule 26(a)(1) disclosures occurred - July 30, 2004. Deadline for Joinder of Parties - September 10, 2004. Deadline to Amend Pleadings - September 10, 2004.

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D. E. F. G.

Discovery cut-off - February 10, 2005. Dispositive Motions Deadline - March 10, 2005. Designate all Rebuttal Experts - January 10, 2005. Deadline for serving Interrogatories and Requests for Admissions and Request for Production - January 10, 2005.

2. Parties and Magistrate Judge agreed on November 19, 2004 at the conclusion of settlement conference, to a forty-five (45) day stand-still of discovery in the case in order that the parties could concentrate on settlement possibilities. 3. On December 7, 2004, the Court voided the discovery stand-still because of the lack of settlement progress, and set discovery cut-off for non-expert witnesses for March 1, 2005 and exchange of initial expert reports was to occur on or before January 24, 2005 and counter-expert reports were to be submitted by February 24, 2005. 4. On January 7, 2005, the Court again amended the Scheduling Order allowing more time to complete discovery: Fact Discovery Cut-Off Exchange of Expert Reports Expert Witness Deposition Deadline Rebuttal Expert Report Deadline Dispositive Motions Deadline April 1, 2005 February 28, 2005 April 29, 2005 March 31, 2005 May 16, 2005

5. March 25, 2005, the parties requested and were granted up to and including April 15, 2005 to complete factual discovery and to complete rebuttal expert reports. 6. On August 4, 2005, at the parties'request the Court set a final discovery cut-off for October 1, 2005. 7. Settlement Conference October 5, 2005.

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8. Defendant' Motion to Amend Scheduling Order was filed November 14, 2005 and denied s December 1, 2005 because of a failure to make a showing of good cause justifying an additional time extension. 9. January 1, 2006, dispositive motions deadline extended by Court pursuant to agreement of the parties to March 1, 2006. 10. March 29, 2006, Defendant takes deposition of Davey Pitcher pursuant to Fed. R. Civ. Procedure 30(b)(6). 11. March 31, 2006, parties filed a Joint Motion for Status Conference and requested extension of time for remaining depositions and the deadline was extended to June 1, 2006. No request was made to extend expired dispositive motions deadline. 12. April 25, 2006, Court held status conference, and it was agreed that another status conference would occur June 1, 2006 but no request was made to extend previously expired deadline for the filing of dispositive motions. 13. Defendant filed its Motion for Leave to Extend the Stipulated Dispositive Motions Deadline to Permit Filing the Attached Motion for Summary Judgment May 17, 2006. ANALYSIS Defendant claims good cause exists to extend the deadline for dispositive motions for a third time because of (1) " newly discovered evidence that occurred during Davey Pitcher' deposition on s March 29 2006; during that deposition Defendant alleged that: (a) Plaintiff for the first time, produced a document purporting to place the cost of building the covered road at $33,000,000, and (b) Davey Pitcher admitted that Plaintiff' former C.E.O., Kingsbury Pitcher, signed the Preliminary PUD which s modified the 1999 Agreement between the parties, and (2) it would be in the interest of judicial 3

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economy because the proposed Motion for Summary Judgment would permit summary adjudication as a matter of law on a very simple and straightforward basis. Information concerning the cost of covered road, was given to Defendant February 28, 2005 in Beeler' report, attached to Plaintiff' Objection to Defendant' Motion to Amend the Scheduling s s s Order to Extend the Stipulated Dispositive Motions Deadline and File an Out-of-Time Motion for Summary Judgment, as Exhibit A, which occurred about one (1) year before the dispositive motions deadline. The second alleged " newly discovered evidence"is Davey Pitcher' testimony that Kingsbury s Pitcher, the C.E.O. of Wolf Creek Ski Area, had the authority to sign the Preliminary PUD, in the year 2000, on behalf of Wolf Creek. Plaintiff alleges that the Preliminary PUD was produced at the inception of the litigation and both Davey Pitcher and Kingsbury Pitcher were deposed about the document in early 2005. This Preliminary PUD apparently does not require a covered road as required in the June 1999 agreement. Davey Pitcher was questioned extensively in February 2005 about the covered road. See, e.g., February 24, 2005 Deposition, pp. 277-350, Exhibit B attached to Plaintiff' Objection to Defendant' Motion to Amend the Scheduling Order to Extend the s s Stipulated Dispositive Motions Deadline and File an Out-of-Time Motion for Summary Judgment. In any event, Defendant prepared the Preliminary PUD in the year 2000, so obviously Defendant was aware of its contents and the fact that Kingsbury Pitcher signed it at that time, and is not newly discovered. The Federal Rules of Civil Procedure 16(b) provide that a Scheduling Order " shall not be modified except upon a showing of good cause and by leave of the Magistrate Judge." The case cited by Defendant, Pump Co., Inc. v. Schenker Intern., Inc., 204 F.R.D. 668 4

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(D.Colo. 2001) states the good cause standard required in Rule 16(b) for modifying the scheduling deadline, which is that: " focuses on the diligence of the party seeking leave to modify the it scheduling order to permit the proposed amendment. Properly construed, ` good cause'means that scheduling deadlines cannot be met despite a party' diligent efforts. In other words, this court may s ` modify the schedule on a showing of good cause if [the deadline] cannot be met despite the diligence of the party seeking the extension.' Colorado Visionary Academy v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000). The deadline for dispositive motions was originally set for March 10, 2005 and was subsequently extended to March 1, 2006. Defendant filed its Motion for Leave to Extend Stipulated Dispositive Motions Deadline to Permit Filing of the Attached Motion for Summary Judgment on May 17, 2006, fourteen (14) months after original deadline and two and one-half (2 ½) months after the extended deadline. The original scheduling order and its subsequent two extensions, afforded both parties adequate time for discovery and the filing of dispositive motions. Neither party requested an extension prior to the final deadline and Defendant' request comes two and one-half (2 ½ ) months s after the deadline. The Court finds that the Defendant has not established the " good cause"standard required in Rule 16(b). The scheduling deadlines could have been met. If the proposed Motion for Summary Judgment were such a straightforward and simple question of law, then said motion could easily have been filed by March 10, 2005. Whether a contract has been modified is a question for the trier of fact. Modification of an agreement requires mutual consent of the parties which can be explicitly given or inferred from the parties' conduct. Dime Box Petroleum Corp. v. Louisiana Land and Exploration Co., 717 F. Supp. 717, (D. Colo. 1989). The

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intended use of an easement is also a question of fact. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229 (Colo. 1998). CONCLUSION On the basis of the foregoing, the Court concludes that the Defendant has not established good cause for leave to modify the Scheduling Order to again extend the deadline for filing dispositive motions, therefore: IT IS HEREBY ORDERED that Defendant' Motion for Leave to Extend the Stipulated s Dispositive Motions Deadline to Permit Filing the Attached Motion for Summary Judgment is DENIED. NOTICE: Pursuant to Fed. R. Civ. P. 72(a), " [w]ithin 10 days after being served with a copy of the magistrate' order, a party may serve and file objections to the order; a party s may not thereafter assign as error a defect in the magistrate judge' order to which objection s was not timely made. The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge' order found to s be clearly erroneous or contrary to law." See 28 U.S.C. § 636(b)(1)(A) (" judge of the court a may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate' order is clearly erroneous or contrary to law." s ). DATED this 31st day of August, 2006. BY THE COURT:

s/David L. West United States Magistrate Judge

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