Free Motion for Extension of Time - District Court of Colorado - Colorado

Case 1:04-cv-01009-EWN-MEH

Document 109

Filed 07/07/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1009-EWN-MEH MARIAN J. BARCIKOWSKI, v. SUN MICROSYSTEMS, INC., a Delaware corporation, Defendant. ______________________________________________________________________________ PLAINTIFF'S FOURTH UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE STIPULATED MOTION TO DISMISS ______________________________________________________________________________ COMES NOW the Plaintiff, by and through his attorneys, Roseman & Kazmierski, LLC, and respectfully moves that this Court grant him a seven-day extension of time, to and including July 14, 2006, to file a stipulated motion to dismiss this case. AND FOR CAUSE, Plaintiff shows unto the Court: 1. 2006." 2. The parties have exchanged drafts of a settlement agreement. However, they have a On May 31, 2006, this Court entered a Minute Order, directing the parties, Plaintiff,

"[p]ursuant to the settlement in this case, ... to submit a stipulation of dismissal on or before June 7,

disagreement about certain terms of that agreement. 3. On or about May 31, 2006, Plaintiff's undersigned attorney telephoned Mag. Judge Judge Hegarty informed Plaintiffs' undersigned attorney that he would

Michael E. Hegarty to request his assistance in mediating the parties' dispute over those terms of the settlement agreement. contact Steven J. Merker, lead counsel for Defendant in this case, to attempt to help the parties resolve those differences. 4. On June 2, 2006, Judge Hegarty left a telephone message for Plaintiff's undersigned

attorney. He stated in that message that he had attempted to speak to Mr. Merker by telephone, but to no avail, and that he would not be available to continue those efforts during the week of June 5, 2006. Mr. Merker informed Plaintiff's undersigned attorney, on June 5, 2006, that he and Judge Hegarty had exchanged telephone messages but had not spoken to each other about the parties' differences concerning certain terms in the settlement agreement.

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5.

On June 7, 2006, Plaintiff requested that this Court grant him an additional nine (9)

days, to and including June 16, 2006, to submit a stipulated motion for dismissal of this case. Plaintiff understood at that Judge Hegarty again would be available, during the week of June 12, 2006, to try to help the parties resolve their differences. 6. During the early evening of June 16, 2006, Mag. Judge Hegarty informed Plaintiff's

undersigned attorney that he had spoken to Mr. Merker and that he believed he had resolved the parties' differences. He suggested that Plaintiff's undersigned attorney telephone Mr. Merker the morning of June 19, 2006, to finalize the language in the parties' settlement agreement. 7. Plaintiff's undersigned attorney telephoned Mr. Merker the morning of June 19,

2006. Mr. Merker stated in that telephone conversation that all he had informed Mag. Judge Hegarty the late afternoon or early evening of June 16, 2006, was that he would contact his client to determine whether his client was willing to agree to language that would resolve the parties' differences. He told Plaintiff's undersigned attorney in that telephone call that he would contact his client later that day to find out whether his client was willing to do so. 8. Plaintiff's undersigned attorney left follow-up voice-mail messages for Mr. Merker

on June 21 and 22, 2006, to attempt to determine the status of this matter. Mr. Merker did not respond to that message. An employee in Mr. Merker's law firm stated on June 22 that Mr. Merker is out of town for a meeting with other attorneys, apparently other attorneys in that law firm, and would not be back in the office until Monday, June 26, 2006. On Friday, June 23, 2006, Diana from Mr. Merker's office left a voice-mail message for Plaintiff's undersigned attorney, in which she advised him that Mr. Merker had tried to reach his client on several occasions, but that his client's representative was out of town during the week of June 19, 2006, apparently on vacation. 9. Plaintiff's undersigned attorney, after moving for a third extension of time to file a

stipulated motion to dismiss, telephoned Mr. Merker while on vacation in Anaheim, California, on June 30, 2006, to determine whether Mr. Merker had been able to reach his client's representative. Mr. Merker informed Plaintiff's undersigned attorney in that telephone conversation that Defendant had agreed to one of the changes in the settlement agreement that had been proposed by Plaintiff, but that it was not willing to the other major change that Plaintiff had proposed earlier. 10. Plaintiff's undersigned attorney communicated with Plaintiff through electronic

mail messages over the next several days. After receiving authority from his client, on July 5, 2006

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Plaintiff's undersigned attorney sent an electronic mail message to Mr. Merker, who by that date was himself in California. Plaintiff's undersigned attorney attached to that electronic mail message a revised draft of the settlement agreement, containing an additional sentence concerning the change to that agreement that Mr. Merker had informed him on June 30 that Defendant had approved. Plaintiff's undersigned attorney also proposed changing one word in an earlier draft of the settlement agreement in order to resolve the other major issue concerning the text of that document that the parties' attorneys had discussed earlier. 11. On July 6, 2006, Mr. Merker informed Plaintiff's undersigned attorney that he had

forwarded to a representative of his client the revised draft of the settlement agreement that Plaintiff's undersigned attorney sent to him on July 5, 2006. As of the close of business on July 7, 2006, Plaintiff has not received any substantive response from Defendant about the revisions contained in that draft. 12. Plaintiff requests that this Court grant him an additional seven-day extension of

time, to and including July 14, 2006, to file a stipulated motion for dismissal of this case. Plaintiff hopes that the parties will be able to resolve their differences and to finalize the text of the settlement agreement by that date. 13. Plaintiff's undersigned attorney certifies that he has conferred with opposing

counsel concerning the extension of time requested this Motion before filing it. Specifically, on July 6, 2006, Mr. Merker informed Plaintiff's undersigned attorney that Defendant has no objection to the extension of time requested herein. WHEREFORE, Plaintiff moves that this Court grant him a seven-day extension of time, to and including July 14, 2006, to file a stipulated motion to dismiss this case. Respectfully submitted, ROSEMAN & KAZMIERSKI, LLC s/Barry D. Roseman BARRY D. ROSEMAN 1120 Lincoln Street, Suite 1607 Denver, Colorado 80203 303/839-1771 Attorneys for Plaintiff

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CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the seventh day of July, 2006, a true and correct copy of the above and foregoing Plaintiff's Fourth Unopposed Motion for Extension of Time to File Stipulated Motion to Dismiss was sent via CM/ECF electronic filing, addressed to the following party: Steven J. Merker, Esq. R. Stephen Hall, Esq. DORSEY & WHITNEY LLP 370 17th Street, Suite 4700 Denver, Colorado 80202-5647

s/Karin C. Bailey Karin C. Bailey

CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the seventh day of July, 2006, a true and correct copy of the above and foregoing Plaintiff's Fourth Unopposed Motion for Extension of Time to File Stipulated Motion to Dismiss was sent via electronic mail, addressed to the following party: Marian J. Barcikowski 8757 Fawnwood Drive Castle Rock, CO 80108-8248

s/Karin C. Bailey Karin C. Bailey