Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

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

Document 161

Filed 12/01/2005

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger 03-CV-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and DOES 1 through 100, inclusive Defendants. MARELICH MECHANICAL CO., INC., dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant and Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; and ROES 20 through 50, inclusive, Counter-Defendants. MARELICH MECHANICAL CO., INC., dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff, v. FRICK COMPANY, a Pennsylvania corporation, n/k/a YORK INTERNATIONAL CORPORATION, a Delaware corporation; and ROES 50 through 80, inclusive, Third Party Defendants,

REQUEST TO BE EXCUSED FROM THE DECEMBER 9, 2005 SETTLEMENT CONFERENCE

COMES NOW York International Corporation ("York"), by its attorneys Holland & Knight LLP and Montgomery Kolodny Amatuzio & Dusbabek, LLP and respectfully requests that the Court excuse it from attending the December 9, 2005 Settlement Conference.

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

Document 161

Filed 12/01/2005

Page 2 of 3

Pursuant to D.C.COLO.Civ.L.R. 7.1 A, on November 30, 2005, counsel for York conferred by telephone with counsel for University Marelich Mechanical ("UMM") who did not object to the relief requested herein. This case was filed more than eighteen months before York was sued by UMM on July 7, 2005 on a third party cross-complaint for indemnity and declaratory relief. On July 27, 2005, York filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) and (b)(3) because its contract with UMM require any litigation to be conducted in California. UMM filed a Brief in Response on August 16, 2005, and, on August 22, 2005, York filed a reply in support of the motion to dismiss. Since August 22, 2005, York has waited for a ruling on its motion. On two separate occasions, October 6, 2005, the other on October 21, 2005, York requested a ruling from the Court. York continues to await a ruling on its motion to dismiss. In the interim, York has not propounded discovery upon any parties. Significantly, York was not invited to participate in a mediation of the parties held on October 20, 2005 in Oakland, California. Under the circumstances, York believes it would not be appropriate to participate in a settlement conference and respectfully requests that it be excused from attending on December 9, 2005. Dated: December 1, 2005 Respectfully submitted,

s/ C. Michael Montgomery C. Michael Montgomery Paul R. Flick MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, LLP 475 Seventeenth St., 16th Floor Denver, CO 80202 Telephone: (303) 592-6600 Facsimile: (303) 592-6666 Attorneys for YORK INTERNATIONAL CORPORATION

s/ N. Kathleen Strickland N. Kathleen Strickland (CO Bar No. 027027) HOLLAND & KNIGHT LLP 50 California Street, 28th Floor San Francisco, CA 94111 Telephone: (415) 743-6900 Facsimile: (415)743-6910 Attorneys for YORK INTERNATIONAL CORPORATION

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

Document 161

Filed 12/01/2005

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on December 1, 2005,1 electronically filed the foregoing YORK INTERNATIONAL CORPORATION'S REQUEST TO BE EXCUSED FROM THE DECEMBER 9, 2005 SETTLEMENT CONFERENCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Richard C. Kaufman at [email protected] Peter J. Ippolito at [email protected] Michael G. Bohn at [email protected] Bret Matthew Heidemann at bheidemann @campbellbohn.com Francis J. Hughes at [email protected] Patrick Q. Hustead at [email protected] Patrick T. Markham at [email protected] John D. Mereness at [email protected] Daniel J. Nevis at [email protected] And I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner indicated by the non-participant's name: Federal Insurance Company Post Office Box 1615 Warren, NJ 07061-1615 (Via United States Mail)

s/ N. Kathleen Strickland HOLLAND & KNIGHT LLP 50 California Street, 28th Floor San Francisco, California 94111 Tel: (415) 743-6900 Fax:(415)743-6910 Attorneys for YORK INTERNATIONAL CORPORATION e-mail: [email protected]

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