Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02671-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02671-RPM-OES JOHNNY WELLS, DONALD J. BROOKINS, and RILEY ANDREW SCHAEFFER, on behalf of themselves and all others similarly situated, Plaintiffs, vs. GANNETT RETIREMENT PLAN and GANNETT CO., INC. Defendants. ____________________________________________________________________________ REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR EXTENSION OF TIME TO FILE RESPONSE TO SUMMARY JUDGMENT MOTION _____________________________________________________________________________ Plaintiffs respectfully submit this Reply in Support of Plaintiffs' Motion for Extension of Time to File Response to Summary Judgment Motion, and in support of their motion state as follows: 1. It is indeed unfortunate that the parties need to impose on this Court to resolve an issue relating to a disagreement over whether Plaintiffs should have a 15 day or 30 day extension to respond to a dispositive motion in a case that has been pending for four years, but given all the circumstances and Defendants' position Plaintiffs reluctantly concluded that they had no alternative. 2. Defendants' Motion for Summary Judgment asks this Court to summarily dismiss all of Plaintiffs' claims. In support of that motion, Defendants submitted a 34 page Memorandum

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of Law with 53 pages of attached appendices. In addition, Defendants submitted: (a) a five page Declaration from their expert, Lawrence Sher, as well as a 20 page Report from Mr. Sher with an additional six pages of appendices; (b) a four page Declaration from Margaret A. Clemens with 71 pages of attached appendices; and (c) a ten page Declaration from Roxanne V. Horning with 87 pages of attached appendices. Thus, in all, Defendants filed a total of 290 pages with the Court in support of its Motion for Summary Judgment. The motion is therefore not only dispositive but extremely complex and lengthy. 3. After reviewing Defendants' Motion and the numerous supporting declarations and documents it became clear to Plaintiffs' counsel that they would require more than the standard amount of time to properly respond, particularly given the potentially dispositive nature of the motion. In addition, Plaintiffs counsel are located in two different cities and in responding to this very complex and critical motion Plaintiffs counsel will be required to confer with their consulting experts who also reside in different cities. Moreover, as Plaintiffs' counsel explained to Defendants' counsel in conferring regarding the requested thirty day extension, long before Defendants filed this motion Plaintiffs' counsel had made commitments involving both other pending court cases and personal plans during the relevant time period. 4. Despite the foregoing, Defendants, without any suggestion that there would be any prejudice to them, declined Plaintiffs request for a thirty day extension and are now asking the Court to either deny the motion entirely or arbitrarily limit the extension to 15 days. As Plaintiffs previously explained to Defendants' counsel, that is simply not adequate given the importance and ramifications of this motion, the complexity of the issues raised in Defendants' lengthy motion, and the other professional and personal commitments of Plaintiffs' counsel and their consulting experts.

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5. In what appears to be an effort to generate controversy where none in fact exists, Defendants also contend that Plaintiffs are in some fashion inappropriately seeking to evade this Court's deadlines by indicating an intention to consider filing a cross-motion. Defendants' concern is misplaced. 6. As Plaintiffs' counsel explained to Defendants' counsel when conferring regarding the requested 30 day extension, Plaintiffs do not at this time believe that there are any material facts in dispute regarding Plaintiffs' liability claims. Where that is the case--i.e., there are no genuine issues of material fact--this Court has previously noted that the `weight of authority is that summary judgment may be rendered in favor of the opposing party even though he has made no formal cross motion under Rule 56.' Pueblo of Santa Ana v. Mountain States Tel., 734 F.2d 1402 (10th Cir. 1984)(rev'd on other grounds, 105 S.Ct. 2587); See, 10A Wright, Miller, and Kane, Federal Practice and Procedure: Civil 2d § 2720, at 29-30; 6 Moore's Federal Practice 2d, ¶ 56.12 (Cum.Supp.1988).'" Holt v. Bowen, 712 F.Supp. 813, 819 (D.Colo.1989). 7. This court's ruling in Holt is fully consistent with long-standing Tenth Circuit precedent. As the Tenth Circuit noted in Dickeson v. Quarberg, 844 F.2d 1435, 1444 (10th Cir. 1988): [T]he weight of authority is that summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion under rule 56. 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d § 2720. And while an appellate court should not grant summary judgment in favor of the nonmoving party where the movant has not had the opportunity to present the applicable facts, Fountain v. Filson, 336 U.S. 681, 683, 69 S.Ct. 754, 755, 93 L.Ed. 971 (1949), if the facts were fully developed at the summary judgment hearing so that the court of appeals can determine that the nonmoving party clearly was entitled to a judgment as a matter of law, an entry of judgment for the nonmoving party may be proper if there is no procedural prejudice to the moving party. C. Wright, A. Miller & M. Kane, supra. 8. The Tenth Circuit's ruling in Dickeson is consistent with this Circuit's rulings in other cases. For example, in Pueblo of Santa Ana v. Mountain States Tel. and Tel. Co., a case relied

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upon by this Court in Holt v. Bowen, the Circuit noted that "the commentators generally agree that where there is no genuine issue of fact, the court may enter summary judgment for either party, whether or not such party has made a motion therefor. See 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2720, at 29-30, `the weight of authority is that summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion under Rule 56.'" 734 F.2d at 1408. 9. There is nothing either startling or extreme in that notion. As the Tenth Circuit ruled in Wilder v. Prokop, 846 F.2d 613, 626 (10th Cir. 1988), "[t]he purpose of Rule 56 is to permit expeditious disposition of cases in which there is not a substantial issue of fact. Broderick Wood, 195 F.2d at 435-436. If there is no genuine issue as to any material fact upon which the outcome of the litigation depends, the court may enter such a judgment. Id. `[T]he fact that it [judgment] may be granted on a ground other than that specified in the motion therefore does not warrant the disturbing of the judgment on appeal.'" (Citations omitted.) 10. Assuming that Plaintiffs ultimately conclude, as they currently anticipate, that there are no genuine issues of material fact needed to resolve Defendants' motion, this Court will necessarily be called upon to determine the law governing Plaintiffs' claims in ruling on Defendants' Motion for Summary Judgment. Procedural labels aside, given the pivotal issue in this case it is almost inevitable that a ruling adverse to the Defendants would de facto resolve the liability issue in favor of the Plaintiffs. Thus, whether Plaintiffs file a cross-motion or not is essentially irrelevant. It would be contrary to the governing law and it would make no sense whatsoever for the Court or the parties to ignore the consequences of the Court's ruling, whether it is favorable to Plaintiffs or Defendants. That is what Plaintiffs indicated to Defendants'

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counsel during the course of conferring and that is what Plaintiffs motion for extension alluded to when it was filed. Given the lack of any prejudice cited by the Defendants in opposing Plaintiffs modest request for a 30 day extension to properly brief this very important and potentially dispositive motion and the length and complexity of Defendants' voluminous filings along with the other prior professional and personal commitments of Plaintiffs' counsel, Plaintiffs respectfully request that the Court grant Plaintiff's motion for an extension of thirty days, to and including September 12, 2007, to respond to Defendants' Motion for Summary Judgment. Respectfully submitted: August 10, 2007

HILL & ROBBINS, P.C. By: s/ Robert F. Hill Robert F. Hill John H. Evans Hill & Robbins, P.C. 100 Blake Street Building 1441 Eighteenth Street Denver, CO 80202 Telephone: (303) 296-8100 [email protected] [email protected]

Douglas R. Sprong Korein Tillery LLC 701 Market Street, Suite 300 St. Louis, MO 63101-1820 Telephone: (314) 241-4844 [email protected] Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on August 10, 2007, 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: Michael S. Beaver Greg Eurich Parker W. Dragovich Kerri J. Atencio Holland & Hart LLP 8390 East Crescent Parkway Suite 400 Greenwood Village CO 80111 [email protected] [email protected] [email protected] [email protected] Margaret A. Clemens Nixon Peabody LLP Clinton Square, P.O. Box 31051 1300 Clinton Square Rochester, NY 14603-1051 [email protected]

s/Robert F. Hill_______________________ Attorneys for Johnny Wells, et. al. John H. Evans John F. Walsh Hill & Robbins, P.C. 100 Blake Street Building 1441 Eighteenth Street Denver, CO 80202 Telephone: (303) 296-8100 FAX: (303) 296-2388 Email: [email protected] [email protected] [email protected]

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