Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00617-LTB-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-617-LTB-BNB POLYROCK TECHNOLOGIES, LLC, a Colorado limited liability company, Plaintiff, v. GENERAL STEEL DOMESTIC SALES, LLC, et al. Defendants. P A N IFS OPPOSITION TO CERTAIN L I TF ' DEFENDANTS' MOTION FOR EXPEDITED DISCOVERY, L A ET S P L ME TD F N A T ' T O T D S S E V O U P E N E E D N S MO I N O IMIS AND FOR A HEARING Plaintiff poe df dn ' eus for expedited discovery and to supplement their opss e nat r et e s q s Motion to Dismiss as unneces r adw s fl fh C ut adpre'i e n r or s s y n at u o t ors n a i t ad e uc . a e e ' ts m s e Wi r a t df dn 'eusfr ha n o i Motion to Dismiss, plaintiff believes that t e r o e nat r eto a er g n t h gd e s q i s a hearing is unnecessary in view of the weak basis for the motion but is more than willing to attend and participate should the Court decide to set a hearing.1 I. D F N A T ' E U S F RE P D T DD S O E YA DL A ET E E D N S R Q E T O X E I E IC V R N E V O SUPPLEMENT. 1. Pursuant to Fed. R. Civ. P. 26(f), the parties must confer by June 21, 2005 in order to develop a proposed discovery plan that encompasses the course, scope and schedule for

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Defendants filed their Motion For Expedited Discovery, Leave ToS pl et e nat up m n D f dn ' e e s Mo o T Ds i A dF r H a n ( t nF r ev" o Ma 3, 05 i cn nt n t n o i s n o A er g " i o L ae) n y 1 20,n oj co i m s i Mo o u i wt D f dn ' t nT Ds i P r at oFd R Cv P 4()" t nt Ds i " i e nat Mo o o i s us n T e. . i . 1b ( i o i s ) h e s i m s u . Mo o m s, a ofe Ma 3.P r atot C ut Mi tO dr a dJn 6 20, ln fr pns l id y 1 us n t h ors n e re dt ue , 05 p i i e od s l u e ' u e a tf s herein to the Motion for Leave. Pursuant to D. Colo. LCivR 7.1C and Fed. R. Civ. P. 6, plaintiff will respond to the Motion to Dismiss on June 23.

Case 1:04-cv-00617-LTB-BNB

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discovery in this action. Rule 26(f) and D. Colo. LCivR 26.1(A) require the parties to submit a proposed Scheduling Order embodying the discovery plan and to exchange their Rule 26 disclosures on July 5, in advance of the Scheduling Conference and motion hearing set for July 12. 2. Pursuant to Fed. R. Civ. P. 26(d), the parties may commence discovery upon completion of the Rule 26(f) conference on June 21. 3. In their Motion for Leave, defendants ask for "nepd e d cvr pr do 6 a xeid i oe e o f 0 t s y i dy"i w i t cnut i oe o m tr allegedly bearing on their Motion to Dismiss. as n h h o odc d cvr f ae c s y ts (Mot. for Leave at 1, 3 ¶ 9.) Significantly, defendants also fail to explain why, if discovery can commence under the rules on June 21, they need additional relief allowing them to take "xeidd cvr. D f dn do not suggest that the scope and timing of the ordinary epd e i oe " e nat t s y e s discovery processes are insufficient for them to obtain the information, to the extent discoverable, described in their Motion For Leave. Defendants thus fail to show any need for expedited discovery over and above what the rules will permit them to take. To the extent defendants believe they need certain information by a certain date, they can sequence their discovery requests accordingly. discovery for this reason alone. 4. Defendants also do not describe the scope or terms of the expedited discovery sought. Pa tf nes o po p d cvr a at least as pressing as those of defendants. Promptly ln fs ed fr rm t i oe r i i' s y e a e t oei o d cvr, ln fi ed t bg i u yi odf dn ' rcs s n f rh pn g f i oe p i i n nso ei n i n e nat poes ad t e n s y a tf t n qr t e s e methods of manufacturing their products, in order to confirm p i i' c i s information ln fs lm and a tf a that df dn hv m sprpie ada ui p i i' t d sc t (Plaintiff further e nat ae i por t n r s g ln fs r e er s e s a ad e n a tf a e. The Court should deny de nat r us frepd e f dn ' e et o xeid e s q t

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Case 1:04-cv-00617-LTB-BNB

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anticipates seeking appropriate expedited relief after completing the necessary discovery). Plaintiff thus opposes any special scheduling for the matters described n e nat r usfr i df dn 'e eto e s q expedited discovery. Instead, t od a rl t t m t d o d cvr m yb ue i ay h ri r u h " e os f i oe a e sd n n e ny e a h s y sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, does not operate to delay any other pr 'd cvr" a ys i oe should apply. See Fed. R. Civ. P. 26(d) t s y 5. Pa tf l opssdf dn ' ln f a o poe e nat request for leave to supplement their Motion to ii s e s Dismiss. Defendants fail to explain the grounds or need for the requested supplementation. Indeed, other than the introductory and concluding paragraphs of their Motion for Leave, in which defendants merely state the request, they do not even mention supplementation in their Motion for Leave. 6. A sm n t t h pe i udr i df dn 'r us t spl et that s i h t r s ne y g e nat e et o up m n is u g a e m e ln e s q e defendants want to submit additional information supporting their Motion to Dismiss following requested expedited discovery, then the request to supplement implicitly admits that the Motion to Dismiss as filed lacks adequate support. In effect, defendants want a second opportunity to support their Motion to Dismiss,pa n yfl wn p i i' i tlepne apr t o o i ln fsn i r os (due June 23). e l l g a tf ia s If the Court were to permit supplementation, plaintiff would have to respond twice to the Motion to Dismiss ­an unnecs r bre.Moevrdf dn 'eusfrev t sed6 dy es y udn a r e e nat r eto l e o pn 0 as o , e s q a taking discovery and to then supplement their Motion to Dismiss will unduly delay the process of completing the proceedings and obtaining a decision on that motion. Defendants make serious charges in their Motion to Dismiss that plaintiff misrepresented certain matters to the Court. Plaintiff wishes to have the motion heard and decided at the earliest possible date, so that icn e tdf dn s ae sacst n ad ocn ate on the merits of this litigation. ta r u e nat bsl s cuaos n cnet fe e ' e i r

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Case 1:04-cv-00617-LTB-BNB

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II.

D F N A T ' E U S F RAH A I GO T E RMOTION TO DISMISS. E E D N SR Q E T O E RN N H I 1. A it cs wt df dn 'eust spl ett yf loep i o ee ss h ae i e nat r eto up m n h a t xln r vn e h e s q e ,e i a,

mention, their request for hearing in the body of their Motion for Leave, instead merely stating the hearing request in the first and last paragraphs of the motion. 2. Although plaintiff has not yet responded t df dn sMotion to Dismiss, it has o e nat e ' sufficiently researched and considered the factual and legal issues raised by the motion to conclude that they are neither so complex nor so close as to warrant a hearing. 3. However, in the event that the Court were to set a hearing on the Motion to Dismiss, plaintiff will of course welcome the opportunity to participate and present its position. DATED: June 20, 2005 Respectfully submitted s/ John A. DeSisto John A. DeSisto W. Curtis Graves FEATHERSTONE DESISTO LLP 600 17th Street, Suite 2400 Denver, Colorado 80202 Telephone: (303) 626-7100 Facsimile: (303) 626-7101 E-mail: [email protected] Attorneys for Plaintiff PolyRock Technologies, LLC

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Case 1:04-cv-00617-LTB-BNB

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Filed 06/20/2005

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CERTIFICATE OF SERVICE I hereby certify that on June 20, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Susan M. Hargleroad Pendleton, Friedberg, Wilson & Hennessey, P.C. [email protected] Kurt S. Lewis Lewis Scheid LLC [email protected] David J. Stephenson, Jr., Fairfield and Woods, P.C. [email protected] s/ John A. DeSisto John A. DeSisto FEATHERSTONE DESISTO LLP 600 17th Street, Suite 2400 Denver, Colorado 80202 Telephone: (303) 626-7100 Facsimile: (303) 626-7101 E-mail: [email protected] Attorneys for Plaintiff PolyRock Technologies, LLC

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