Free Response - District Court of Colorado - Colorado

Case 1:03-cv-02504-REB-CBS

Document 189

Filed 08/31/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 03-CV-02504-REB-CBS PETER HORNICK, Plaintiff v. GARY BOYCE AND JOANNE BOYCE, Defendants

PLAINTIFF HORNICK'S RESPONSE TO BOYCES' NOTICE OF STAY PURSUANT TO FED.R.CIV.P. 62(f)

Plaintiff Peter Hornick, by and through his undersigned attorneys, files the following Response to the Boyces' Notice of Stay Pursuant to Fed.R.Civ. P. 62(f):

1. The Boyces have filed a notice of an interim stay entered by the Saguache County District Court in Case No. 06CV135, which is the action in which Hornick has domesticated his judgment in this case pursuant to the Colorado Uniform Enforcement of Foreign Judgments Act. 2. The Bocyes assert that the fact that the State Court has issued an interim stay, effective while their Forthwith Renewed Motion for Stay of Execution Pending Appeal is pending in this Court, means that there is automatically a stay of the

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Case 1:03-cv-02504-REB-CBS

Document 189

Filed 08/31/2007

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judgment entered by this Court pursuant to Fed. R. Civ. P. 62(f). They cite as authority this Court's Orders Re: Defendants' Post -Trial Motions (Document 136) as authority. In that Order, this Court stated "I note that the District Court of Saguache County, Colorado, has entered a similar stay under § 13-53-105, C.R.S., which state court stay implicates Fed.R.Civ.P. 62(f)." 3. The instant stay entered by the Saguache County District Court in 06CV135 is an interim stay issued in the interest of comity to allow this Court time to decide the Boyces' motion without having the state collection process go forward. It is not a stay to which the Boyces are "entitled" pursuant to Rule 62(f). It is rather a stay they have received at the discretion of the state Court. Accordingly, Rule 62(f) is not implicated by the interim stay issued in 06CV135, Saguache County District Court. 4. There is no stay of federal proceedings to execute on the judgment currently in place. Respectfully Submitted this 31st day of August, 2007

s/ Erich Schwiesow Erich Schwiesow Lester, Sigmond, Rooney & Schwiesow P.O. Box 1270 Alamosa, Colorado 81101 Telephone: (719) 589-6626 FAX (719) 589-5555 Email: [email protected] Attorney for Plaintiff, Peter Hornick

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Case 1:03-cv-02504-REB-CBS

Document 189

Filed 08/31/2007

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CERTIFICATE OF SERVICE I hereby certify that on the 31st day of August, 2007, I electronically filed the foregoing Plaintiff Hornick's RESPONSE TO BOYCES' NOTICE OF STAY PURSUANT TO FED.R.CIV.P. 62(f) 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] [email protected] s/ Erich Schwiesow

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