Free Motion to Vacate - District Court of Colorado - Colorado

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

Document 57

Filed 10/13/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00684-EWN-OES JOSEPH STEINBACH, JR. Plaintiff, v. OMNI PROPERTIES, INC., Defendant. _____________________________________________________________________________ PLAINTIFF'S MOTION TO VACATE AND CONTINUE TRIAL _____________________________________________________________________________ Plaintiff, by and through his undersigned attorney, respectfully requests that the Court vacate the trial set in this matter for December 5, 2005, and, as grounds therefore, states as follows: 1. This case was initially filed with a related case, Jason Steinbach v. Omni

Properties, Inc., Civil Action No. 04-cv-00685-EWN-OES. Defendant Omni Properties filed a summary judgment motion in the companion case, which motion was granted by the Court on September 14, 2005. See Document # 75 [Civil Action No. 04-cv-00685-EWN-OES]. 2. The Court's decision on summary judgment in the companion case is being

appealed to the Tenth Circuit Court of Appeals. In the event that the Court is reversed and the case is remanded, it is anticipated that both this case and the related case would be tried together. In addition, Defendant will most likely argue that some factual issues have been decided in the opinion on summary judgment in the companion case, and are, therefore, binding in this case. In the event that the Court is reversed, those arguments would not be available to Defendants. 3. Subsequent to the granting of summary judgment in the related case, the Court set

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

Document 57

Filed 10/13/2005

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trial in this matter on a trailing docket, to begin on December 5, 2005. See Document # 56. 4. The undersigned attorney was previously scheduled to be out of the country the

week of December 5, 2005. Mr. Steinbach's father and brother - two of the three essential witnesses for Plaintiff - are also scheduled to be out of town during that week. 5. In addition, the undersigned was previously scheduled for a jury trial in El Paso

County District Court, to begin on November 28, 2005. 6. The undersigned has spoken with Defendant's counsel and she states that

Defendant opposes this motion. WHEREFORE, because of the appeal of the companion case and the unavailability of both the undersigned and Mr. Steinbach, Plaintiff respectfully requests that the Court vacate and continue the trial set in this matter for December 5, 2005. DATED this 13th day of October, 2005.

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

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

Document 57

Filed 10/13/2005

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on October 13, 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

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