Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

Case 1:04-cv-00725-RPM

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Filed 11/15/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-725-RPM THE QUIZNO'S MASTER LLC, a Colorado limited liability company, and THE QUIZNO'S HOLDING COMPANY, a Nevada corporation, as assignee of and successor in interest to The Quizno's Corporation, a Colorado corporation, Plaintiffs, v. WESTCHESTER FIRE INSURANCE COMPANY, a New York corporation , and ROYAL INDEMNITY COMPANY, a Delaware corporation, Defendants.

DEFENDANT WESTCHESTER FIRE INSURANCE COMPANY'S AMENDED AGREED-TO MOTION TO AMEND SCHEDULING ORDER

Defendant Westchester Fire Insurance Company ("Westchester") moves this court to amend the Scheduling in this case by extending the expert disclosure dates by approximately 30 days and the discovery cut-off by approximately 60 days. A Certificate of Compliance with Local Rule 7.1(A) regarding Defendant Westchester Fire Insurance Company's Agreed-to Motion to Amend Scheduling Order is filed concurrently herewith. 1. 2. On January 7, 2005, this court entered the Scheduling Order in this case. Pursuant to the Scheduling Order, the deadline by which the parties were to

designate all experts was August 15, 2005 and the deadline to designate all rebuttal experts was September 15, 2005. The cutoff for all discovery was set for October 28, 2005.

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3.

On August 5, 2005, Leonard MacPhee, on behalf of Quizno's, filed and served an

Agreed-to Motion to Amend the Scheduling Order by extending the above dates by approximately 60 days. 4. On August 8, 2005, the court granted Quizno's motion and extended the deadline

to designate all experts and provide opposing counsel with all information required by Federal Rule of Civil Procedure 26(a)(2) to October 17, 2005, and the deadline to designate all rebuttal experts and provide opposing counsel with all information required to be provided by the Federal Rules of Civil Procedure to November 17, 2005. The discovery cut-off was set for December 30, 2005. 5. On October 7, 2005, Westchester, filed and served an Agreed-to Motion to

Amend the Scheduling Order by extending the expert disclosure dates by approximately 30 days. 6. On October 11, 2005, the court granted Westchester's motion and extended the

deadline to designate all experts and provide opposing counsel with all information required by Federal Rule of Civil Procedure 26(a)(2) to November 16, 2005, and the deadline to designate all rebuttal experts and provide opposing counsel with all information required to be provided by the Federal Rules of Civil Procedure to December 16, 2005. 7. The parties have engaged in significant activities in this case. The parties have

exchanged thousands of pages of documents pursuant to Federal Rule of Civil Procedure 26(a)(1) and have all filed motions for summary judgment, oppositions, and reply briefs. 8. Because of the volume of information and complexity of issues, together with the

press of business, the process has taken more time than originally anticipated and has revealed 2

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that additional time is necessary for discovery and preparation of expert witness disclosures and reports. 9. The parties have agreed it is appropriate to modify the initial expert disclosure

deadline by a period of 30 days in order to accommodate the schedules of the experts to be disclosed (with reports). The parties have also agreed that it is appropriate to set the deadline for disclosures regarding rebuttal experts 30 days after service of the initial disclosures. The parties have further agreed that the discovery deadline should be extended by approximately 60 days. 10. The requested extensions are not being sought for the purposes of delay, should

not result in delay of the proceedings, and will not result in prejudice to any party. The trial on this matter has not been set. 11. Westchester and Quizno's are currently exploring settlement opportunities to

resolve the dispute herein. An extension of the discovery and expert disclosure deadlines would promote economy in that the parties could potentially avoid the expense in preparing such disclosures should they reach an agreement. /// /// /// /// /// /// /// 3

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WHEREFORE, Westchester, with the agreement of Quizno's and Royal, respectfully requests the court amend the Scheduling Order by extending for approximately 60 additional days the discovery cut-off and 30 additional days the current date for initial expert witness disclosures, with disclosure of rebuttal expert information due 30 days after service of the initial expert disclosures. The new deadlines are requested to be up to and including December 16, 2005 to designate all experts and provide opposing counsel with all information required by Federal Rule of Civil Procedure 26(a)(2) and March 1, 2006 for discovery cut-off.

DATED:

November 15, 2005

/s/ R. Gaylord Smith LEWIS BRISBOIS BISGAARD & SMITH LLP R. Gaylord Smith R. Anthony Moya 550 West C. Street, Suite 800 San Diego, CA 92101 (619) 233-1006 Attorneys for Defendant Westchester Fire Insurance Company

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Civil Action No. 04 -M-725 (RP M) THE Q UIZNO'S M ASTER LLC, a Colorado limited liability company as assignee of QUIZNO'S CO RPORA TION v. ROYAL INDEMNITY COMPANY, a Delaware Corporation, WESTCHESTER FIRE INSURANCE COMPANY

CERTIFICATE OF SERVICE I hereby certify that on November 15, 2005 I electronically filed the foregoing DEFENDANT WESTCHESTER FIRE INSURANCE COMPANY'S AMENDED AGREED-TO MOTION TO AMEND SCHEDULING ORDER; and CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(A) RE: DEFENDANT WESTCHESTER FIRE INSURANCE COMPANY'S AGREED-TO MOTION TO AMEND SCHEDULING ORDER with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Joseph F. Bermudez [email protected] Cindy Coles Oliver [email protected] [email protected] Michael D. Nosler [email protected] [email protected] Leonard H. MacPhee [email protected]

Laurence Murray McHeffey [email protected] [email protected] Hilary Dawn Wells [email protected] [email protected]

and I hereby certify that I have mailed the foregoing to the following non EM/ECF participate via U.S. mail postage prepaid: Calvin S. Whang Musick, Peeler, & Garrett, LLP One Wilshire Blvd., Ste. 2000 Los Angeles, CA 90017 /s/ Sherri L. Taylor Lewis Brisbois Bisgaard & Smith 550 W "C" Street, Ste. 800 San Diego, CA 92101 Telephone: (619) 233-1006 Facsimile: (619) 233-8627 E-mail: [email protected]

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