Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 10/26/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00684-EWN-OES

JOSEPH STEINBACH, Plaintiff, v. OMNI PROPERTIES, INC. Defendant.

RESPONSE IN OPPOSITION TO MOTION TO VACATE AND CONTINUE TRIAL

Defendant Omni Properties, Inc. ("Defendant"), hereby opposes Plaintiff Joseph Steinbach's Motion to Vacate and Continue Trial ("Motion"), based on the following: 1. This case was previously consolidated for discovery purposes with another case

before this Court, entitled Jason Steinbach v. Omni Properties, Inc., Civil Action No. 04-cv00685-EWN-OES, and the Defendant agrees with Plaintiff Joseph Steinbach that the two cases would have been tried together. 2. However, this Court granted the Defendant's motion for summary judgment in the

Jason Steinbach case on September 8, 2005, and scheduled the Joseph Steinbach case to proceed to a jury trial commencing December 5, 2005. This Court's order granting summary judgment in the Jason Steinbach has established numerous facts and issues as a matter of law for purposes of both cases which will limit the disputed facts and issues to be tried at the trial of the Joseph Steinbach case.

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3.

Jason Steinbach has filed a notice of appeal in the Jason Steinbach case and

Joseph Steinbach appears to be asking this Court to postpone the trial of the Joseph Steinbach case until after the appeal of the Jason Steinbach case has concluded. 4. As the appeal of the Jason Steinbach case may not be concluded for years, such a

postponement would be prejudicial to the Defendant. In the long time period until the appeal of the Jason Steinbach case has concluded, the Defendant's witnesses, who include numerous employees of the Defendant, may choose to leave their employment with the Defendant and relocate, and may, therefore, become difficult or impossible to locate and subpoena for trial. Further, the memories of the Defendant's witnesses may fade over time, making it more difficult for the Defendant to mount its defense at trial. 5. In essence, Joseph Steinbach's motion to vacate is largely premised on the mere This Court should not delay the

speculation that his brother's appeal will be successful.

impending trial of the Joseph Steinbach case based on mere speculation and should not, in any event, grant the prolonged delay Joseph Steinbach appears to be requesting. 6. Moreover, as no viable legal basis for Jason Steinbach's appeal of the summary

judgment order appears to exist, it is extremely unlikely that Jason Steinbach's appeal will be successful. Thus, the prolonged delay Joseph Steinbach requests is far more prejudicial to the Defendant than it is likely to be beneficial to Joseph Steinbach. 7. Defendants are prepared and have been preparing for the December 5, 2005, trial

date of the Joseph Steinbach case and wish to proceed to trial on the scheduled date. Rescheduling the trial date will substantially increase the Defendant's legal fees and costs associated with the trial.

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8.

Joseph Steinbach's alternative basis for seeking a continuance of the December

trial date is premised on unsubstantiated assertions that his counsel was previously scheduled to be out of the country, and his brother and father, whom he claims to be essential witnesses on his behalf, are scheduled to be out of town. Motion at ¶ 4. As neither Joseph Steinbach's father nor brother was present at any meetings related to Joseph Steinbach's claim that he was terminated from his employment with the Defendant, neither is an essential witness to his case. Moreover, Joseph Steinbach has provided no evidence that the "previously scheduled" absences of his counsel, father and brother cannot be altered to enable them to participate in the scheduled December trial. 9. Similarly, the contention of Joseph Steinbach's attorney that she "was previously

scheduled for a jury trial in El Paso County District Court" provides no evidence as to whether that case remains scheduled for trial or is likely to proceed to trial on that date. Motion at ¶ 5 (emphasis added). 10. Plaintiff Joseph Steinbach elected to bring this lawsuit against the Defendant.

The Defendant is entitled to a prompt trial date to vindicate its interests and resolve the case Joseph Steinbach chose to bring against it. Fed.R.Civ.P. 1. If Joseph Steinbach is dissatisfied with the outcome of the December 2005 trial, he may pursue any remedies available to him on appeal. Based on the foregoing, the Defendant respectfully requests that this Court deny Plaintiff' Joseph Steinbach's Motion to Vacate and Continue Trial. In the alternative, if the Court decides to vacate and continue the December trial date, the Defendant requests that the Court grant only a brief continuance, preferably to a date in January 2006.

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Dated: October 26, 2005 s/Colleen M. Rea Colleen M. Rea, Esq. #24960 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 COUNSEL FOR DEFENDANT OMNI PROPERTIES, INC.

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on October 26, 2005, I electronically filed the foregoing RESPONSE IN OPPOSITION TO MOTION TO VACATE AND CONTINUE TRIAL using the CM/ECF system, which will send notification of such filing to the following e-mail addressee: Patricia S. Bangert, Esq. [email protected]

s/Colleen M. Rea Colleen M. Rea, Esq. #24960 Ford & Harrison LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 E-mail: [email protected]
Denver:10219.1

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