Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:04-cv-00684-EWN-MEH

Document 70

Filed 11/20/2005

Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No: 04-cv-00684-EWN-OES JOSEPH STEINBACH, JR., Plaintiff, v. OMNI PROPERTIES Defendant. ______________________________________________________________________________ PLAINTIFF'S MOTION REQUESTING RECONSIDERATION OF DENIAL OF MOTION TO VACATE AND CONTINUE TRIAL ______________________________________________________________________________ Plaintiff, Joseph Steinbach, by and through his undersigned attorney, respectfully requests that the Court reconsider its denial of his motion to vacate and continue the trial in this matter, and, as grounds therefore, states as follows: 1. Plaintiff filed a motion to vacate the trial in this matter, now set for December 5, 2005,

on October 13, 2005. Subsequent to that motion, Plaintiff developed serious health problems, as detailed in other motions. Plaintiff provided the Court with this new information on October 31, 2005. 2. In a hearing on this matter on November 1, 2005, the Court ordered the Plaintiff to

submit a medical report that provided information on Plaintiff's diagnosis, prognosis, and his ability to assist in the preparation for trial and participation in trial. Plaintiff submitted that report to the Court on November 11, 2005. 3. The undersigned called the Court on behalf of both parties this past Monday,

November 14, 2005, to inquire about the status of the motion to vacate the trial. The Court's Clerk stated that she would call the undersigned back as to the status of the motion. No doubt because of

Case 1:04-cv-00684-EWN-MEH

Document 70

Filed 11/20/2005

Page 2 of 5

her schedule, she was not able to do so. 4. The Court had set a final pre-trial conference in the matter for November 18, 2005.

The conference either: (i) was not placed on the undersigned's electronic or written calendars, or (ii) was taken off the calendars because of the misunderstanding that the trial had been vacated, and a deposition was placed on the calendar instead. In any event, the undersigned conducted the deposition and did not appear at the scheduled final pre-trial conference. 5. Neither party drafted or submitted a final pre-trial order. Plaintiff did not do so

because the final pre-trial conference was not calendared. It is Plaintiff's understanding that Defendant did not do so because it assumed that Plaintiff would deal with the final pre-trial order after the Court had ruled on Plaintiff's motion to vacate the trial. 6. The understanding of the undersigned is that the Court denied the motion to vacate

the trial at the final pre-trial conference on November 18, 2005, and instructed the Defendant to seek a settlement date with the Magistrate Judge. The Defendant did so, setting a settlement conference with the Magistrate Judge for November 25, 2005. 7. The undersigned takes full responsibility for not being at the conference. The

undersigned meant no disrespect to the Court, and fully realizes how valuable the Court's time is, as is the time of Defendant's counsel. The undersigned commits to immediately and fully resolve issues arising from her move to a new firm from a solo practice, including issues arising from new scheduling procedures and locations. If the Court wishes to inquire, it will find that the undersigned has faithfully complied with and met court dates in her many federal cases, whether for hearings or documents, except in emergency situations. The undersigned, further, is willing to accept whatever sanction the Court deems appropriate in this matter, including, but not limited to taking a pro bono 2

Case 1:04-cv-00684-EWN-MEH

Document 70

Filed 11/20/2005

Page 3 of 5

case. 8. The undersigned begs the Court, however, not to penalize her client by ordering him

to trial or to a settlement negotiation in which he is not competent to fully participate. The undersigned has spoken to Plaintiff's father and verified Plaintiff's present incompetence. Plaintiff will submit an updated medical report as soon as he receives it, hopefully on Monday, November 21, 2005, under seal, with a copy e-mailed to Chambers and Defendant's counsel, verifying this determination. 9. The undersigned has spoken to Defendant's counsel and apologized for not being at

the hearing on Friday. In order to provide certainty to Defendant, the undersigned committed to use every effort to secure a definitive date from Plaintiff's doctor on which Plaintiff can participate in a trial and/or settlement negotiations. The undersigned has also determined from Defendant's counsel that Defendant opposes this motion. 10. Requiring Plaintiff to participate in a trial or settlement negotiations when he is not

competent deprives him of a right to meaningfully litigate his claim. Further, he has no other means to attain the relief he seeks ­ vacating the trial in this matter­ than this motion for reconsideration. WHEREFORE, Plaintiff, Joseph Steinbach, Jr., by and through his undersigned attorney, respectfully requests that the Court reconsider its denial of his motion to vacate and continue the trial in this matter, and, that the Court grant the motion to vacate and continue the trial. DATED this 20th day of November, 2005.

3

Case 1:04-cv-00684-EWN-MEH

Document 70

Filed 11/20/2005

Page 4 of 5

Respectfully submitted,

s/ Patricia S. Bangert _______________________ Patricia S. Bangert, Esq. Special Counsel to Lohf, Shaiman, Jacobs, Hyman & Feiger, P.C. 950 S. Cherry Creek Street, Suite 900 Denver, CO 80246 Phone: (303) 753-9000 Fax: (303) 753-9997 E-mail: [email protected] Attorney for Plaintiff

4

Case 1:04-cv-00684-EWN-MEH

Document 70

Filed 11/20/2005

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on November 20, 2005, I electronically filed the foregoing to the Clerk using the CM/ECF system, which will send notification of such filing to the following: Colleen Meyers Rea, Esq., [email protected].

s/ Patricia S. Bangert _____________________________ Patricia S. Bangert

5