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

Case 1:03-cv-02506-MSK-CBS

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Filed 11/02/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02506-MSK-CBS CRAIG MAGRAFF, Plaintiff, v. LOWES HIW, INC, Defendant.

PLAINTIFF'S FIRST AMENDED MOTION FOR EXTENSION OF TIME, NUNC PRO TUNC

COMES NOW the Plaintiff, Craig Magraff (hereinafter referred to as "Mr. Magraff" or Plaintiff), by and through his attorneys of record, Andrew T. Brake, P.C. and for his First Amended Motion for Extension of Time, Nunc Pro Tunc states: 1. Plaintiff's counsel Maria T. Lighthall, had erroneously stated in her initial Motion Nunc

Pro Tunc, filed with the Court on October 31, 2005 that a representative of the undersigned's office had not conferred pursuant to D.C.COLO.LCivR 7.1 and had meant to state that a representative had conferred and it is understood that Defendant's counsel will oppose the relief sought herein. In light of this inadvertent mistake the Court denied Plaintiff's Motion Nunc Pro Tunc without prejudice for failure to comply with D.C.COLO.LCivR 7.1A. As such Plaintiff files his First Amended Motion for Extension of Time, Nunc Pro Tunc. 2. In accordance with D.C.COLO.LCivR 7.1, Plaintiff's lead attorney, Lee Judd

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conferred with Defendant's counsel on October 31, 2005, and Defendant's counsel will oppose the relief sought herein. 2. Defendant's Motion for Summary Judgment was fully briefed on or about February 2,

2005. The Opinion and Order Granting Defendant's Motion for Summary Judgement was filed on September 19, 2005. Thereafter, the Judgment was entered and filed on September 19, 2005. As such, Plaintiff's Notice of Appeal was due to be filed thirty (30) days thereafter, on or before October 19, 2005. 3. Plaintiff's lead counsel, Lee Judd, who is primarily responsible for this case filed

Plaintiff's Notice of Appeal on October 20, 2005. In light of coming down with an illness and being out of the office, Mr. Judd had mistakenly read and/or thought that the Judgment was entered on September 20, 2005 instead of September 19, 2005, and therefore he filed Plaintiff's Notice of Appeal on October 20, 2005, after being sick, thinking that it had been timely filed. After further reflection and in preparing the appeal docket statement Plaintiff's counsel realized for the first time that the Notice of Appeal should have been filed on the day Mr. Judd was ill and out of the office, on October 19, 2005. 4. Due to Plaintiff's lead counsel being seriously ill and mistakenly filing the Notice of

Appeal one day late, Plaintiff should not be penalized as a result, as the error was inadvertent. Accordingly, request is hereby made that the Court enter an order granting Plaintiff an extension of time nunc pro tunc, up to October 20, 2005 for timely filing his Notice of Appeal. 5. No party to this action will be unduly hindered or prejudiced by the granting of the

requested relief. Further it would be in the interests of justice, equity and substantial fair play to grant the requested relief, especially as a result of the nature of the relief sought. 2

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WHEREFORE, Plaintiff respectfully requests that this Court enter an Order granting him to and including October 20, 2005 for the filing and acceptance of his Notice of Appeal. Additionally, Plaintiff requests such other and further relief as is deemed just and proper. DATED this 2nd day of November, 2005. Respectfully submitted, ANDREW T. BRAKE, P.C.

By: s/Lee T. Judd Maria T. Lighthall Lee T. Judd Attorneys for Plaintiff 777 East Girard Ave., #200 Englewood, Colorado 80113 (303) 806-9000 Email: [email protected]

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CERTIFICATE OF SERVICE (CM/ECF) The undersigned hereby certifies that on the 2nd day of November, 2005, true and correct copies of the above and foregoing PLAINTIFF'S MOTION FOR EXTENSION OF TIME, NUNC PRO TUNC were filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] In addition, the undersigned hereby certifies that a copy of the above listed document was mailed to the following non-CM/ECF participants by mail, postage prepaid to the following individuals: Craig Magraff 4735 Scenic Circle, #1 Colorado Springs, Colorado 80917

/s/ Maria T. Lighthall

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