Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00761-WDM-BNB

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Filed 06/19/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

04-cv-00761-WDM-BNB DEAN COLBY, Plaintiff, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, an Ohio corporation, Defendant.

PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO DISMISS COMPLAINT WITHOUT PREJUDICE

Plaintiff Dean Colby, by and through his attorneys of record, The Carey Law Firm, replies to Defendant's Response to Plaintiff's Motion to Dismiss Complaint without Prejudice, as follows: Defendant states that "the subject of dismissal without prejudice was never raised with Ms. Klubert, just the possibility of staying the action," and that the subject may also have been broached at the Miller settlement conference, but other than that, Defendant's counsel has no further records of any communications regarding staying this action. "The subject of this particular motion ­ dismissal without prejudice ­ was never raised by any means of communication." Def.'s Resp. at 2. Actually, Plaintiff's counsel attempted to contact Defendant's counsel on numerous occasions to attempt to reach an agreement regarding a dismissal of the within action. On April 13, April 24, May 1-2, and May 15, 2006, Rob Carey

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discussed with Louise Klubert (Progressive in-house counsel) and John Moorhead (counsel for Progressive in Soto v. Progressive Mtn. Ins. Co.), whether to either (1) stay the instant action or (2) dismiss it without prejudice and agree to toll based on the Soto v Progressive class action. Contrary to the statements in Defendant's response, John Moorhead claims to have specifically discussed dismissing the Colby action with Mr. Giometti. Ex. 4, Email memoranda. Why Progressive would have one counsel call and demand some sort of cessation in three cases but then oppose it on one specific case can only be viewed as some sort of forum shopping. Progressive's counsel first broached the subject with Plaintiff's counsel, noting that certain plaintiffs represented by The Carey Law Firm were members of the Soto v. Progressive class action (Soto v. Progressive Mtn. Ins. Co., Montrose County Dist. Ct. No. 02CV47), and mentioned Plaintiff Dean Colby by name. Defendant's counsel then stipulated to the dismissal without prejudice of two other enhanced PIP cases, Schneider v. Progressive Mtn. Ins. Co., Larimer Cty. Dist Ct. No. 05CV1310, and Murry v. Progressive Mtn. Ins. Co., Denver Cty. Dist. Ct. No. 05CV8719, with a tolling agreement. (Exs. 2 and 3.) For unknown reasons, Progressive would not respond regarding doing the same ­ dismissal ­ for the instant action, despite its express claim that Mr. Colby is a member of the Soto class. (Ex. 4.) Because Plaintiff's counsel could not get a response he filed the instant motion to dismiss without prejudice. This motion is proper, and is not pleaded in the alternative to be with prejudice, as doing so would eliminate Mr. Colby's claim. Either this case should be dismissed without prejudice, stayed pending a decision in the Soto appeal, or it should continue to trial (and thereafter would be governed by the Soto appellate decision).

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Defendant argues that "as presently postured, the present action will not be affected by the class action, since the defendant here is Progressive Casualty, not Progressive Mountain." Def.'s Resp. at 4. Prior to filing of the within action, Defendant provided Plaintiff documentation that the subject insurance policy was issued by Progressive Casualty Insurance Company. (Ex.6, Affidavit of Scott Markey.) Based upon that documentation, Plaintiff brought the within action against Progressive Cas. Ins. Co. Despite later assertions by Defendant's counsel that the correct defendant was Progressive Mountain Insurance Company, Defendant did not provide Plaintiff any documentation of that. (Ex. 7, letter of L. Dan Rector.) Only much later, did Plaintiff's counsel, through their own efforts, uncover the Progressive Mountain Ins. Co. declaration page. (Ex 8, declaration page.) Even then, it is not clear which entity issued the policy, since there is contradictory documentation. Regardless of the case styling, according to Defendant, Dean Colby is a member of the Soto class. The Soto class is defined as, "All persons in Colorado insured by Progressive Mountain Insurance Company." (Ex. 5, Soto v. Progressive Mtn. Ins. Co., Order on Class Definition, dated March 16, 2004, p. 4.) Because Defendant believes Plaintiff Dean Colby, at the time of his accident, was insured by Progressive Mountain Insurance Company, Plaintiff is willing to accept that position and be bound by the result of the Soto case. (Ex. 6, Declaration Page.) Progressive should not be allowed to first claim that Colby is a member of the Soto class, and then claim that he is not to avoid judicial streamlining. Further, only when a Plaintiff is dismissing his claim without prejudice because he concedes that there is no basis for his claim is he liable for the cost of preparation of a defense to the claim. Even-Cut Abrasive Band & Equipment Corp. v. Cleveland Container Co., 171 F.2d 873, 875 (6th Cir. 1949). That is not the case here. Plaintiff Colby is not seeking to dismiss his

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claim without prejudice because he concedes that he has no claim. He is seeking to dismiss without prejudice because he believes that the most appropriate and judicially economical thing to do is to resolve his claim via the Soto class. Proceeding through trial would result in significant time and expense on both sides, all of which would be unnecessary. It would be unjust to award any costs against Colby as he agreed to adopt Progressive's position on the scope of the Soto class to avoid duplicative litigation. Lastly, the five depositions taken by Defendant in the within action hardly constitute "significant" or "copious" amounts of discovery. (Def.'s Resp. at 4, 7). In view of the foregoing, Plaintiff respectfully requests that his motion to dismiss without prejudice be granted without an award of attorney's fees or costs to Defendant. Alternatively, Plaintiff requests that the action be stayed pending a decision in the Soto appeal. Respectfully submitted this 19th day of June, 2006. s/Julie Cliff Robert B. Carey L. Dan Rector Julie Cliff The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Telephone: (719) 635-0377 FAX: (719) 635-2920 E-mail: [email protected] Attorney for Plaintiff Dean Colby

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 19, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Gregory Raphael Giometti [email protected], [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the matter (mail, hand-delivery, etc) indicated by the non-participant's name: Dean Colby, Ph.D. 1855 Athens North, #229 Boulder, CO 80302 s/Julie Cliff Robert B. Carey L. Dan Rector Julie Cliff The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Telephone: (719) 635-0377 FAX: (719) 635-2920 E-mail: [email protected] Attorney for Plaintiff Dean Colby

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