Free Motion to Vacate - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Case No. 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 1-100, 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. MARELICH MECHANICAL CO., INC. dbs UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant.

MARELICH MECHANICAL CO., INC. dbs UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. ­ CALIFORNIA, a Utah corporation, FEDERAL INSURANCE COMPANY, an Indiana corporation, FRICK COMPANY, and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

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PARTIES' STIPULATED MOTION TO VACATE AND RESCHEDULE NOVEMBER 1, 2005 MANDATORY SETTLEMENT CONFERENCE -ANDCERTIFICATE OF COMPLIANCE WITH D.C.COLO.LR 6.1D

Plaintiff Leprino Foods Company ("Leprino"), Defendants Big-D Construction Corp, Big-D Construction Corp ­ California, Big-D Corporation and Big-D Capital and Third Party Defendant Marelich Mechanical Co., Inc. (hereinafter collectively referred to as the "Parties"), each through their respective attorneys of record, hereby stipulate and respectfully request the Court to vacate Mandatory Settlement Conference currently scheduled for November 1, 2005 and to reschedule the Settlement Conference for a date on or after November 15, 2005 at the Court's earliest convenience. This Stipulated Motion is based upon the following facts and circumstances: 1. WHEREAS, on May 24, 2005, the Court entered a Second Amended

Scheduling Order setting a Mandatory Settlement Conference for November 1, 2005; and 2. WHEREAS, on August 30, 2005, the parties jointly filed a stipulated

motion to further amend the Second Amended Scheduling Order. The joint motion requested that the date of the Mandatory Settlement Conference be postponed for two weeks, until November 15, 2005, in order to permit the parties an opportunity to complete the depositions of critical percipient and expert witnesses; and 3. WHEREAS, by order dated September 2, 2005, the Court approved the

parties' joint motion and ordered the parties to submit a proposed order to chambers on or before September 9, 2005 (Exhibit "A"); and

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4.

WHEREAS, on September 9, counsel for Big-D complied with the

Court's request and submitted the proposed order; and 5. WHEREAS, the Court then directed counsel for Big-D to re-submit copies

of the proposed order in WordPerfect format; correctly formatted copies of which were submitted to chambers by counsel for Big-D on September 21, 2005 (Exhibit "B"); but 6. WHEREAS, on September 14, 2005, the Court also issued an order

(Docket #122) requiring the parties to submit a Third Amended Scheduling Order reflecting the changed dates as set forth in the parties' proposed order; and 7. WHEREAS, the parties mistakenly and inadvertently believed that the

submission of the proposed order, which set forth the amended dates for discovery and the Mandatory Settlement Conference, were in compliance with the Court's request; as a result, the parties inadvertently failed to submit a Third Amended Scheduling Order; and 8. WHEREAS, the parties were thus unaware that the Court had maintained

the date of the Mandatory Settlement Conference for November 1, 2005. Each of the parties mistakenly assumed that the Court had rescheduled the Mandatory Settlement Conference to November 15, 2005, and did not plan to submit confidential settlement conference statements to the Court until November 8, 2005; and 9. WHEREAS, on October 20, 2005, the parties and their respective counsel

in good-faith, but unsuccessfully, engaged in a full-day mediation with attorney Randy Wulff at Mr. Wulff's office in Oakland, California; and 10. WHEREAS, the parties and their respective counsel are prepared to

appear on November 1, 2005 for the Mandatory Settlement Conference, but believe that additional time is needed to address the issues that precluded a settlement from being

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reached at the mediation on October 20, 2005, before additional settlement discussions would be productive and an efficient use of the Court's efforts; THEREFORE, the parties respectfully request that the Mandatory Settlement Conference on November 1, 2005 be vacated and rescheduled for November 15, 2005, or on a date as soon thereafter as may be convenient for the Court. Attached hereto as Exhibit "C" is a proposed order reflecting the parties' joint request. Respectfully stipulated and submitted this ___ day of October, 2005:

Attorneys for Defendant/Third Party Plaintiff: s// ____________________________ Daniel J. Nevis Miller Morton Caillat & Nevis, LLP 25 Metro Drive, 7th Floor San Jose, California 95110 (408) 292-1765 (phone) (408) 436-8272 (fax) BIG-D CONSTRUCTION CORP; BIG-D CONSTRUCTION CORP ­ CALIFORNIA; BIG-D CORPORATION; and BIG-D CAPITAL Attorneys for Third Party Defendant: FEDERAL INSURANCE COMPANY Attorney for Third Party Defendant: s// _____________________________ Peter J. Ippolito McKenna Long & Aldridge, LLP 750 B Street, Suite 3300 San Diego, CA 92101 (619) 595-5400 (phone) (619) 595-5450 (fax) MARELICH MECHANICAL CO., INC dba UNIVERSITY MARELICH

s// _____________________________ Patrick Markham Jacobson & Markham 8880 Cal Ctr. Drive #100 (916) 854-5969 (phone) (916) 854-5965 (fax)

Attorneys for Plaintiff, LEPRINO FOODS COMPANY

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