Free Motion to Vacate - District Court of Colorado - Colorado

Case 1:04-cv-00701-LTB-MJW

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Filed 08/30/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-0701-LTB-MJW NICOLAS MEDRANO, Plaintiff, v. KARL SCHERCK, Defendant.

MOTION TO VACATE SEPTEMBER 7, 2005 FINAL PRETRIAL CONFERENCE AND SEPTEMBER 2, 2005 FINAL PRETRIAL ORDER FILING REQUIREMENT ______________________________________________________________________________ Defendant, KARL SCHERCK, by his attorneys, THOMAS S. RICE and GILLIAN FLENER, of the law firm SENTER GOLDFARB & RICE, L.L.C., and pursuant to Fed.R.Civ.P. 16(d) and (e), hereby moves this Court for an Order vacating the September 7, 2005 Final Pretrial Conference and the requirement that a Final Pretrial Order be filed on or before September 2, 2005. IN SUPPORT THEREOF, Defendant states as follows: 1. Pursuant to D.C.COLO.LCivR 7.1(A), undersigned counsel conferred on August

29, 2005 by electronic mail with Mr. William Meyer, counsel for Plaintiff in this matter, and Mr. Meyer states that he will not take a position on the relief requested herein. 2. Fed.R.Civ.P. 16(d) provides, in relevant part, that "[a]ny final pretrial conference

shall be held as close to the time of trial as reasonable under the circumstances." This Rule

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further provides that "[t]he participants at any such conference shall formulate a plan for trial, including a plan for facilitating the admission of evidence." Fed.R.Civ.P. 16(d). 3. In this case, as detailed below, Judge Babcock has vacated the previously-set trial

date of December 5, 2005, discovery is not complete, and there is an evidentiary hearing currently set for September 26, 2005 in order to determine which of Plaintiff's claims this Court has subject matter jurisdiction to hear. Accordingly, it is not only appropriate, but necessary that the Final Pretrial Conference be vacated and reset for a later date when Defendant has completed discovery to which he is entitled, and the issues of which claims are properly before the Court have been resolved. 4. Plaintiff filed his original Complaint in state court on December 8, 2003, asserting Defendant filed a Motion to Dismiss for lack of subject matter

a claim for negligence.

jurisdiction asserting that Defendant was acting as a "public employee" at the time of the subject incident, and Plaintiff's tort claim of negligence is therefore barred by the Colorado Governmental Immunity Act, C.R.S. §§ 24-10-109, et seq. Plaintiff opposed the Motion to Dismiss and amended his Complaint to include a claim under 42 U.S.C. § 1983. At that time, Defendant removed the case to federal court and renewed his Motion to Dismiss for Lack of Subject Matter Jurisdiction. 5. On April 14, 2005, Defendant filed a Motion to Dismiss for failure to prosecute

and cooperate in discovery, which was not fully briefed until August 5, 2005. On August 12, 2005, the Court made its rulings on the two pending motions to dismiss and ordered, as relevant to this motion, that "the trial date be vacated and reset to allow Mr. Scherck adequate time to conduct discovery and prepare his defense." [Dkt. # 42 at p. 3.] The Court further ordered that

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the Motion to Dismiss for lack of subject matter jurisdiction is held in abeyance and an evidentiary hearing will be held on September 26, 2005. [Dkt. # 42 at p. 5.] 6. In this case, Defendant would be prejudiced if he were required to submit a Final

Pretrial Order by September 2, 2005, which complies with the requirements of Fed.R.Civ.P. 16, D.C.COLO.LCivR 16.3, and Appendix G of the Local Rules. Defendant has not had the

opportunity to conduct discovery and prepare his defense due to Plaintiff's failure to participate in this case thus far and Plaintiff's failure to participate in discovery. Defendant is not in a position to list his "will call" and "may call" witnesses at this time, nor can he list his experts. At this time, Defendant also cannot provide a list of exhibits to be offered and identify those to be stipulated into evidence at trial. Most significantly, discovery has not been completed due to Plaintiff's actions, and Defendant has been permitted by the Court to conduct such discovery. The Court has not reset a trial date in this matter. 7. As set forth in Appendix G of the Local Rules, a Final Pretrial Order typically

controls the subsequent course of an action, has the effect of deeming the pleadings merged, and supersedes the Scheduling Order. The present case is nowhere near ready for trial as evidenced by the Court's Order of August 12, 2005. Defendant would be prejudiced if he were required to submit a Final Pretrial Order at this time and participate in the Final Pretrial Conference currently scheduled to take place on September 7, 2005 at 9:00 a.m. in front of Magistrate Judge Watanabe.

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WHEREFORE, Defendant respectfully requests that this Court vacate the September 7, 2005 Final Pretrial Conference and the requirement that a Final Pretrial Order be filed on or before September 2, 2005. Respectfully submitted, s/ Gillian Flener Gillian Flener Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: [email protected] Attorney for Defendant

CERTIFICATE OF MAILING I HEREBY CERTIFY that on this 30th day of August, 2005, a true and correct copy of the above and foregoing MOTION TO VACATE SEPTEMBER 7, 2005 FINAL PRETRIAL CONFERENCE AND SEPTEMBER 2, 2005 FINAL PRETRIAL ORDER FILING REQUIREMENT with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following email addresses: William D. Meyer, Esq. Hutchinson Black and Cook, LLC 921 Walnut Street, Suite 200 Boulder, Colorado 80302 [email protected] David J. Bruno, Esq. Bruno, Bruno & Colin, P.C. 1560 Broadway, Suite 1099 Denver, Colorado 80202 [email protected] s/ Stephanie Nelson Stephanie Nelson E-mail: [email protected] Secretary for Attorney Gillian Flener

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