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

Case 1:03-cv-02669-MSK-PAC

Document 87

Filed 07/01/2005

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable M arcia S. Krieger Case No. 03-cv-2669-M SK-PAC LEPRINO FOODS COM PANY, Plaintiff, v. BIG-D CONSTRUCTION CORP.- CALIFORNIA, a Utah corporation, BIG-D CONSTRUCTION CORP., a Utah corporation, and Does 1-100, inclusive, Defendants/Counterclaimants

BIG-D CONSTRUCTION CORP.- CALIFORNIA, a Utah corporation, BIG-D CONSTRUCTION CORP., a Utah corporation, and Does 1-100, inclusive, Third Party Plaintiffs, v. M ARELICH M ECHANICAL CO., INC. dbs UNIVERSITY M ARELICH M ECHANICAL, a California corporation, Third Party Defendant.

M ARELICH M ECHANICAL CO., INC. dbs UNIVERSITY M ARELICH M ECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation, FEDERAL INSURANCE COM PANY, an Indiana corporation,

Case 1:03-cv-02669-MSK-PAC

Document 87

Filed 07/01/2005

Page 2 of 3

FRICK COM PANY, and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

ORDER DENYING MOTION TO S TAY PROCEEDINGS OR FOR AN EXTENS ION OF DIS COVERY CUT-OFF AND RELATED DATES

THIS M ATTER comes before the Court on a motion by M arelich M echanical Co., Inc. ("M arelich") to stay proceedings or for an extension of the discovery cut-off and other discovery dates (#72). Having considered the motion, the response (#78) and replies (#81, #82) thereto, the Court finds that its consideration of the issues would not be enhanced by oral argument. Therefore based upon the written submissions, the Court FINDS and CONCLUDES that: M arelich asks the Court to stay this action pending a determination from the Ninth Circuit Court of Appeals regarding an appeal filed by Big-D Construction Corporation California ("Big-D") in a case commenced by Big-D against Leprino Foods Company ("Leprino"). According to M arelich, the Ninth Circuit's ruling could render the litigation in this Court unnecessary. The subject of the appeal is whether by virtue of a contractual forum selection clause, the controversy between Leprino and Big-D is required to proceed in Colorado. Arguably, the Ninth Circuit could reverse the District Court decision that so held, which would allow the claims brought in this action to proceed in the Eastern District of California. 2

Case 1:03-cv-02669-MSK-PAC

Document 87

Filed 07/01/2005

Page 3 of 3

Although the Ninth Circuit's ruling could have such effect, M arelich has demonstrated no basis for staying this action. This case is in the discovery stage, and such stage will not be complete until after M arelich anticipates that the Ninth Circuit will issue its opinion. Any discovery conducted in the instant case will undoubtedly benefit the parties regardless of whether it is the California or Colorado case that proceeds to trial. Thus, any stay of this action is premature. The Court observes that M arelich's motion does contain a complete caption listing all parties to this litigation. Indeed, numerous filings by various parties have contained varying forms of the case caption. In the future, all Court filings shall bear the caption set forth in this Order. IT IS THEREFORE ORDERED that: (1) The motion to stay proceedings or for an extension of the discovery cut-off and other discovery dates (#72) is DENIED. (2) All future Court filings shall bear the caption set forth in this Order.

Dated this 1st day of July, 2005. BY THE COURT:

M arcia S. Krieger United States District Judge

3