Free Response to Motion - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-MK-2506 (CBS) CRAIG MAGRAFF, Plaintiff, v. LOWE'S HIW, INC., Defendant. DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR EXTENSION OF TIME NUNC PRO TUNC

Defendant Lowe's HIW, Inc. ("Lowe's"), by and through its attorney of record, Keith C. Hult and Joshua B. Kirkpatrick of Littler Mendelson, P.C., respectfully submits the following response to Plaintiff's Motion for Extension of Time, Nunc Pro Tunc, through and including October 20, 2005, to file his Notice of Appeal in the above-referenced action. 1. On September 19, 2005, this Court entered its Order granting Summary Judgment

in Defendant's favor on all of Plaintiff's alleged claims for relief. That same day, Judgment was entered in this case. According to Fed. R. App. Proc. 4(a)(1)(A), Plaintiff's Notice of Appeal needed to be filed on or before October 19, 2005. 2. On October 20, 2005, Plaintiff filed his Notice of Appeal, incorrectly asserting

that Judgment had been entered on September 20, 2005. 3. On October 21, 2005, the Undersigned counsel for Defendant sent

correspondence to Plaintiff's counsel noting that Plaintiff's Notice of Appeal was untimely and

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requesting that Plaintiff dismiss the appeal. (Exh. 1 hereto). 4. On October 31, 2005, Plaintiff filed his Motion for Extension of Time, Nunc Pro

Tunc, requesting that his Notice of Appeal be deemed timely filed. 5. In Plaintiff's Motion, he claims that his counsel's inadvertence was the cause of

his untimely filing. Plaintiff's claims would be more persuasive were this not the third time Plaintiff's counsel has missed a deadline in this case. 6. The first deadline Plaintiff missed in this case was the deadline to respond to

Defendant's discovery requests. On June 4, 2004, Defendant hand-delivered its First Set of Combined Discovery Requests to Plaintiff. Responses to those requests were due on or before July 6, 2004. On July 16, 2004, Plaintiff filed a Motion for Extension of Time, Nunc Pro Tunc, to respond to those requests. Defendant filed its opposition on July 19, 2004, discussing in detail the fact that counsel for Plaintiff had missed deadlines in three other cases handled by the Undersigned. See Defendant's Response To Plaintiff's Motion for Nunc Pro Tunc Extension of Time To Respond To Discovery Requests; see also Plaintiff's Rely Brief, filed July 27 ,2004; Defendant's Lodging of Additional Evidence, filed July 30, 2004. 7. The Court held a hearing on Plaintiff's Motion on August 2, 2004. At that

hearing, the Honorable Craig B. Shaffer noted that Plaintiff's proffered excuses did not meet the Tenth Circuit's standard for good cause. See Order, August 2, 2004. Accordingly, Defendant's Requests for Admissions were deemed admitted, and Plaintiff waived all objections to Defendant's requests. Id. 8. The second deadline missed by Plaintiff was the deadline to file a response to

Defendant's Motion for Summary Judgment. After Defendant filed its Motion on December 17,

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2005, Plaintiff's response was due on January 10, 2005. On January 5, 2005, Plaintiff filed an Unopposed Motion for Extension of Time to file his Response. That Motion was stricken for failure to comply with the Court's Practice Standards by the Court's Order of January 7, 2005. Despite the fact that the Motion for Extension of Time had been denied, Plaintiff waited until January 17, 2005, to file his Response. On January 18, 2005, more than ten days after the original Motion for Extension had been denied, and more than one week after the Response was due, Plaintiff filed a Revised Motion for Extension of Time seeking a nunc pro tunc order accepting the Response. That Motion was granted by the Court's Order of January 19, 2005. 9. Plaintiff's Motion appears to be based primarily on the fact that Magraff's lead

counsel, Lee T. Judd, was ill and out of the office on the day the Notice of Appeal was due, October 19, 2005. See Motion, ¶3. With due deference to Plaintiff's counsel's alleged illness, Defendant nonetheless asserts that being out of the office on the day a pleading is due does not constitute good cause for missing a deadline. In addition to Mr. Judd, Plaintiff is ably represented by Maria Lighthall, an associate in Mr. Judd's office who has been involved in this litigation since at least April 12, 2004, when she executed Plaintiff's Rule 26(a)(1) Disclosures. Notably, Ms. Lighthall also signed Plaintiff's October 31, 2005 Motion. Ms. Lighthall (or anyone else in Mr. Judd's office) could have prepared and filed the four-line Notice of Appeal or timely requested an extension of time to do so. 10. Plaintiff's counsel's other excuse, that he "mistakenly read and/or thought that the

judgment was entered on October 20, 2005" provides no excuse at all for Plaintiff's failure to comply with the deadlines prescribed in the rules. Additionally, this purported justification for the late filing suggests that Plaintiff's counsel's illness on the day the filing was due had nothing

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to do with the tardiness of the filing, i.e., even if Mr. Judd had been in the office on October 19, he nonetheless would have filed the Notice of Appeal late because he had made a mistake in perceiving the date judgment had been entered. 11. Plaintiff's Motion cites no rules or case authority. However, the relief which

Plaintiff seeks is governed by Fed. R. App. Proc 4(a)(5): (5) Motion for Extension of Time. (A) The district court may extend the time to file a notice of appeal if: (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause. (B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules. (C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later. 12. According to Rule 4(a)(5)(A)(ii), Plaintiff must demonstrate "excusable neglect or

good cause." In Broitman v. Kirkland (In re Kirkland), 86 F.3d 172 (10th Cir. 1996) (superceded by statute on other grounds), the Tenth Circuit discussed the "good cause" and "excusable neglect" standards, noting that good cause requires a slightly higher showing that excusable neglect and stating as follows: Unexplained assertions of miscalculation do not constitute "good cause." See Yosef v. Passamaquoddy Tribe, 876 F.2d 283, 287 (2d. 4

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Cir. 1989), cert. denied, 494 U.S. 1028, 108 L. Ed. 2d 611, 110 S. Ct. 1474 (1990). Although a small delay in achieving service may not prejudice the defendant, absence of prejudice alone does not constitute good cause. Despain [v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1439 (10th Cir. 1994)]. 86 F.3d at 176; see also Graphic Communs. Int'l Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 6 (1st Cir. 2001) (affirming district court's rejection of appeal that was one day late due to ignorance of applicable rule and noting that, "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect.") (quoting Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 123 L. Ed. 2d 74, 113 S. Ct. 1489 (1993)); Gooch v. Skelly Oil Co., 493 F.2d 366, 370 (10th Cir. 1974) (finding that District Court abused it discretion in permitting untimely appeal where only one of two attorneys on the case received notice of order triggering appeal deadline); Gibbons v. United States, 317 F.3d 852, 855 (8th Cir. 2003) (affirming District Court's order denying untimely appeal and holding that counsel's alleged illness did not meet excusable neglect standard where counsel was not ill for the entire period that she could have filed appeal, provided no information regarding specifics of illness, and took no steps to have cases handled by others during period of illness). 13. Because Plaintiff's counsel has consistently missed deadlines in this and other

cases, and because the facts relied upon by Plaintiff do not meet the standards set forth above, Plaintiff's neglect is not excusable, and there is no good cause for Plaintiff's failure to timely file his Notice of Appeal. 14. In accordance with Kirkland, supra, Plaintiff's contention that Defendant has not

been prejudiced by Plaintiff's failure to timely file (Motion, ¶5) is of little moment.

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15.

Rule 4(a)(5)(B) also requires that, because Plaintiff's Motion was filed outside of

the time prescribed in Rule 4(a)(1), notice must be given to Defendant. Paragraph 1 of Plaintiff's Motion explicitly states that Plaintiff did not confer with the Undersigned. WHEREFORE, Defendant respectfully requests that Plaintiff's Motion for Nunc Pro Tunc extension of his deadline to appeal be denied.

Dated this 1st day of November, 2005. s/ Joshua B. Kirkpatrick Joshua B. Kirkpatrick LITTLER MENDELSON A Professional Corporation 1200 17th Street, Suite 1300 Denver, CO 80202.5835 Telephone: 303.629.6200 Keith C. Hult LITTLER MENDELSON A Professional Corporation 200 North La Salle Street, Suite 2900 Chicago, IL 60601-1014 Telephone: 312.372.5520 ATTORNEYS FOR DEFENDANT LOWE'S HIW, INC.

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CERTIFICATE OF SERVICE I hereby certify that on this 1st day of November, 2005, a true and correct copy of the foregoing DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR EXTENSION OF TIME NUNC PRO TUNC was hand-delivered to the following: Lee T. Judd, Esq. Andrew T. Brake, P.C. 777 E. Girard Avenue Suite 200 Englewood, CO 80110-2767

s/ Gale S. Antczak

Firmwide:80555092.1 028756.1319

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