Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 245

Filed 10/17/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, a Municipal Corporation, Defendant. DEFENDANT'S RESPONSE TO MOTION BY PLAINTIFF FOR EXTENSION OF PLAINTIFF'S MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL UNDER 28 U.S.C. §1292(b) Defendant, City and County of Denver, Colorado, a Municipal Corporation, by and through its Attorneys, Christopher M.A. Lujan and Franklin A. Nachman, Assistant City Attorneys, for its Response to Motion by Plaintiff for Extension of Plaintiff's Motion for Certification of Interlocutory Appeal under 28 U.S.C. §1292(b) states as follows: PROCEDURAL AND FACTUAL BACKGROUND On September 27, 2007, this Court entered an Order Granting Motion for New Trial Because of Attorney Misconduct. The Court served the parties by electronic means on September 28, 2007. On October 12, 2007 at 11:44 p.m., Plaintiff's counsel filed a Motion By Plaintiff for Extension of Plaintiff's Motion for Certification of Interlocutory Appeal Under U.S.C. 28 §1292(b) (ECF No. 244). While paragraph 1 of the Motion stated that in compliance with D.C. COLO.L.CivR.7.1(A), Plaintiff's counsel

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certified that he attempted in good faith to consult with Defendant's inside and outside counsel concerning the subject of this motion, undersigned counsel represents to this Court that Plaintiff's sole effort consisted of leaving one voicemail message on undersigned counsel's work telephone at 6:30 p.m. on Friday, October 12, 2007, approximately five hours before filing the Motion, and after undersigned counsel had left his office for the day and week. Defendant opposes this Motion for two reasons: 1) Plaintiff utterly failed to comply with local Rule 7.1(A). Leaving one voicemail message after the close of business and filing the Motion five hours later does not comport with the local rule requiring a good faith effort to confer; and 2) this Court lacks jurisdiction to extend the ten day deadline for filing a Motion to Certify an Interlocutory Appeal pursuant to U.S.C. 28 §1292(b). LEGAL ARGUMENT A. Duty to Confer As previously noted, Plaintiff's sole effort at discharging his duty to confer in good faith with Defendant before bringing this Motion was to leave a voicemail message on opposing counsel's work telephone at 6:30 p.m. on a Friday, then proceeding to file the Motion shortly before midnight the same day. Cases in this District have held that similar efforts are insufficient to discharge counsel's duty to confer in good faith. In Hoezel v. First Select Corp, 241 F.R.D. 634 (D. Colo. 2003); the District Court held that a single email communication was insufficient to comply with Rule 7.1(A). Likewise, in Echostar v. Newscorp LTD,180 F.R.D 391 (D. Colo. 1998), the Court held

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that serving some defendants with a Motion to Compel four hours before the Motion was filed was insufficient to comply with the duty to confer. See also, Pulsecard, Inc. v. Discover Card Servs., 186 F.R.D. 295, 302 (D. Kan. 1996) (holding that a single telephone call or email was insufficient to comply with the duty to confer). Plaintiff's counsel's efforts to comply with Rule 7.1(A) fell woefully short of that Rule's requirements. The Motion should be denied on that basis alone. B. Jurisdictional Prerequisites Plaintiff has requested an extension of time above and beyond the ten day requirement set for in 28 U.S.C.§1292(b) to seek certification by this Court of an Interlocutory Appeal to the United States Court of Appeals for the Tenth Circuit. He cited no authority in support of this motion. However, Rule 26(b)(1) of the Federal Rules of Appellate Procedure provides that while a Court may extend the time provided by its rules, the Court may not extend the time to file Notice of Appeal (except as authorized in Rule 4) or a Petition for Permission to Appeal. That Rule has been construed to make the ten-day period for seeking permission to appeal an interlocutory order jurisdictional, and one that cannot be extended. The Tenth Circuit has held that the timeliness requirement for seeking certification for an interlocutory appeal is mandatory. Carpenter v. The Boeing Co., 456 F. 3d 1183, 1190 (10th Cir. 2006); Delta Airlines v. Butler, 383 F.3rd 1143, 1144 (10th Cir. 2004) (because the Petition was not filed within the mandated time period, motion dismissed for lack of jurisdiction).

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Courts in a least two other circuits have reached the same conclusion. In Tranello v. Frey, 962 F. 2nd 244 (2nd Cir. 1992), the Second Circuit Court of Appeals noted that Section 1292(b) and Rule 5 of the Federal Rules of Appellate Procedure clearly provide that permission to appeal an interlocutory Order must be sought "within ten days after entry of the Order." It proceeded to hold that the plain language of Section 1292(b) and Rule 5 make it apparent that the ten-day window is mandatory not discretionary. It further stated: No exception in this rule is set forth in either provision, nor is there any indication that courts are free to enlarge this period under circumstances such as those revealed here. It is beyond the power of this Court to enlarge the period within certification is sought in order to provide for a broader time frame than that already established by statute. 962 F.2nd at 247. See also, Casey v. Long Island R.R.Co., 406 F.3rd 142, 146 (2nd Cir. 2005), in which the Court held it was beyond the power of that Court to enlarge the period for seeking certification for an interlocutory appeal, citing Tranello, supra. The United States Court Appeals for the Ninth Circuit has reached a similar decision In re Benny, 812 F.2nd 1133 (9th Cir. 1986). That Court also held that it had no authority to extend the ten-day time limit, as provided by Fed.R.App.P.26(b). These cases all stand for the proposition that the ten-day period for seeking certification for an interlocutory appeal is jurisdictional and cannot be extended by this Court. For this additional reason, Plaintiff's Motion must be denied.

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CONCLUSION Plaintiff's Motion fails, both as a matter of procedure and as a matter of substance. Procedurally, as a threshold matter, Plaintiff's counsel failed to satisfy his duty to confer with Defendant's counsel before bringing this Motion, as required by this Court's rules. Even if the Court should decide that Plaintiff's counsel discharged this procedural duty, as a matter of substantive law it cannot extend the ten-day jurisdictional limit for a Motion requesting certification for an interlocutory appeal. The Plaintiff has cited no legal authority to support the enlargement of this jurisdictional limit. In the event this Court grants Plaintiff's Motion and Plaintiff does seek permission to file Interlocutory Appeal, Defendant reserves the right respond to what it believes to be a futile gesture. Dated this 17th day of October 2007. Respectfully submitted, s/ Christopher M.A. Lujan__________ Christopher M.A. Lujan Franklin A. Nachman Assistant City Attorney Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 E-mail: [email protected] Attorneys for Defendant City and County of Denver

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of October, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark E. Brennan [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Interoffice mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee St. Denver, CO 80204 Chief Jim Sestrich Department of Safety Denver Fire Department 745 W. Colfax Denver, CO 80204

s/ Cristina Peña Helm Denver City Attorney's Office

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