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

Case 1:04-cv-00714-CBS-MJW

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FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00714-CBS-MJW KENNETH PICHOTTA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

DEFENDANT'S SECOND UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE A MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 25(a)(1)

Defendant United States of America, through the undersigned Assistant United States Attorneys, moves for a 45-day extension of time (i.e., until September 9, 2005) to file its motion to dismiss pursuant to Federal Rule of Civil Procedure 25(a)(1), upon the following grounds. 1. Kenneth Pichotta filed this medical malpractice action against the United

States of America on April 9, 2004. On November 12, 2004, Mr. Pichotta's counsel filed a motion to stay proceedings, and informed the Court that Mr. Pichotta had died on October 8, 2004. See Docket No. 23. 2. At a status conference on March 16, 2005, the Court directed Defendant to

file, by Friday, March 18, 2005, a motion to dismiss this action pursuant to Federal Rule 1

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of Civil Procedure 25(a)(1). 3. Following the status conference on March 16, 2005, Defendant moved for

an extension of time to file its motion to dismiss pursuant to Rule 25(a)(1) on the ground that the 90-day limitations period established by that rule does not commence until a formal suggestion of death has been served and made on the record. Defendant indicated that it would serve the suggestion of death upon the proper persons as soon as possible , once their identities could be ascertained. 4. Defendant subsequently made efforts to locate and serve the proper persons.

Those persons were all served by late May 2005, and Defendant then filed the suggestion of death, with certificates confirming service on such persons, on June 2, 2005. 5. Because the suggestion of death was filed on June 2, 2005, it appears that

Defendant's motion to dismiss pursuant to Rule 25(a)(1) may not be filed until the first week of September, 2005. Accordingly, Defendant requests that the deadline for filing the Rule 25(a) motion be extended forty-five days, from July 26, 2005, to September 9, 2005. 6. Pursuant to D.C.COLO.LCivR 7.1(A), undersigned counsel for Defendant

certifies that he has conferred regarding this motion with counsel for the late M r. Pichotta (Dennis Wanebo, Esq.). Mr. Wanebo stated that he has no objection to the motion. 7. Pursuant to D.C.COLO.LCivR 6.1(C), Defendant certifies that it has sought

one prior extension as to this matter, on March 16, 2005, immediately following the March 16, 2005 status conference. That request was granted.

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8.

Pursuant to D.C.COLO.LCivR 6.1(D), undersigned counsel certifies that a

copy of this motion is being served on agency counsel. WHEREFORE, for the reasons stated, Defendant respectfully requests that the Court grant Defendant a 45-day extension of time, until September 9, 2005, to file its motion to dismiss pursuant to Federal Rule of Civil Procedure 25(a)(1). A proposed order is attached. Dated this day of July, 2005. WILLIAM J. LEONE Acting United States Attorney

By:

s/Kevin Traskos Kevin Traskos s/Habib Nasrullah Habib Nasrullah Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0404 E-mail: [email protected] E-mail: [email protected] Attorneys for Defendant United States of America

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CERTIFICATE OF MAILING I hereby certify that on the 25 th day of July, 2005, I electronically filed the foregoing DEFENDANT'S SECOND UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE A MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PRO CEDURE 25(a)(1) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Plaintiff's Counsel: Dennis B. Wanebo, Esq. [email protected] and I hereby certify that I have served the document to the following non CM/ECF

participant in the manner indicated by the nonparticipant's name:
Via U.S. Mail: Ida Stark, Esq. Department of Health and Human Services Office of the General Counsel General Law Division Cohen Building, Room 4760 330 Independence Avenue, S.W. Washington, D.C. 20201

By:

s/Kevin Traskos Kevin Traskos s/Habib Nasrullah Habib Nasrullah Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0404 E-mail: [email protected] E-mail: [email protected] Attorneys for Defendant United States of America