Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01973-PSF-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-1973-PSF-MJW (Consolidated with 04-cv-02112-PSF-MJW) THE WALKER GROUP, INC. Plaintiff, v. FIRST LAYER COMMUNICATIONS, INC. and J.E.H. KNUTSON Defendants.

REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S APPLICATION FOR ATTORNEYS' FEES AND COSTS

Plaintiff The Walker Group, Inc. ("Walker Group") submits this reply to Defendant J.E.H. Knutson's ("Defendant") opposition brief to Walker Group's application for attorneys' fees, pursuant to Fed. R. Civ. P. 37 and the direction of the Court in the Order Regarding Plaintiff Walker Group's Motion to Compel and for Sanctions ("Order") entered on August 11, 2006. (Docket No. 226.) Argument Defendant's "opposition" brief, filed on September 8, 2006 (Docket No. 231), should be disregarded and denied by the Court for the following reasons:

Case 1:03-cv-01973-PSF-MJW

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· Procedurally improper1. Defendant's brief is an untimely attempt to object to the Order by re-arguing matters already decided by the Court. As the Court previously noted in its Order, "any objections" to an Order should be raised "pursuant to Fed. R. Civ. P. 72 within ten (10) days after being served with a copy of such Order." (See Order ¶ 5 (citing Fed. R. Civ. P. 72(a)).) Defendant failed to file Rule 72 objections. Thus, having missed the deadline for filing objections, they have been waived. (See Order ¶ 5.) · No actual opposition to requested attorneys' fees. Defendant's brief

contains no opposition to the attorneys' fees requested by Walker Group. The Order allowed Defendant fifteen (15) days to respond to Plaintiff's fee application. Amazingly, Defendant's Opposition ignores the Court's

instructions by completely failing to address Defendant's fee application. Lacking any discussion of Plaintiff's fee application, it should be deemed unopposed. Walker Group respectfully requests that the Court find its

attorneys' fees reasonable and grant its unopposed fee application. · Factually incorrect. Even if the Court was to consider the arguments

contained in Defendant's brief, those arguments are factually incorrect. First, Defendant served his supplemental discovery responses after the courtimposed deadline, and did so at his own risk. (See E-mail attached to

Defendant repeatedly argues in his opposition brief that Plaintiff attempted to mislead the Court. That was decidedly not the case and is denied. Nonetheless, the proper time for Defendant to have addressed such alleged efforts would have been in his response brief to Defendant's Motion to Compel and for Sanctions, not in his afterthe-fact opposition to Plaintiff's fee application.

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Defendant's brief as Exhibit A (confirming that Walker Group did not agree to an extension of time and, moreover, reserved its right to raise any delay with the Court in the event Walker Group deemed the late responses deficient2).) Second, a "General Objection" raised at the outset of his discovery responses did not serve as a proper objection to Interrogatories 8(f) and 10, primarily because Defendant did not cite this "General Objection" in response to either Interrogatory (unlike in his responses to other Interrogatories, such as Interrogatories 3, 6, 8(a), 8(b), 8(c), 8(d), 9, and 12). (See Discovery

Responses attached to Defendant's brief as Exhibit B.) Third, regardless of what Defendant may have thought was "material," Request for Production Nos. 14 and 18 explicitly sought certain information from Defendant (including state tax returns and financial information pertaining to Defendant's wife), and Defendant failed to comply with the Court's June 20 Order clearly requiring Defendant to "respond fully" to these requests by providing the requested documents. Finally, Walker Group has consistently maintained that Defendant may not rely upon documents produced in prior litigation to satisfy his production obligations in this case, primarily because those previouslyproduced documents contained redactions and Walker Group sought, in part, to discover the redacted information. Thus, even if the Court considers

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The Court agreed with Walker Group that Defendant's supplemental responses were, indeed, deficient.

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Defendant's procedurally improper arguments, they do not advance Defendant's position. Conclusion Walker Group respectfully submits that, for the foregoing reasons, Defendant's "opposition" brief should be disregarded and denied and that Walker Group's application for attorneys' fees should be deemed unopposed and therefore reasonable, warranting an award of all of Walker Group's requested attorneys' fees ($4730.00) in connection with its Motion to Compel and for Sanctions. Respectfully submitted, this the 11th day of September, 2006.

s/ Richard S. Gottlieb Richard S. Gottlieb Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 Attorneys for Plaintiff Walker Group, Inc. Joshua Maximon, Esq. The Maximon Law Firm, LLC 12202 Airport Way, Suite 170 Broomfield, Colorado 80021 Telephone: (303) 991-3344

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 11, 2006, I electronically filed the foregoing REPLY TO OPPOSITION TO PLAINTIFF'S APPLICATION FOR ATTORNEYS' FEES AND COSTS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected], and I hereby certify that I have mailed or served the document or paper to the following by first class mail addressed as follows: Michael R. McCurdy, Esq. Colin A. Walker, Esq. Fairfield and Woods, P.C. Wells Fargo Center, Suite 2400 1700 Lincoln Street Denver, Colorado 80203-4524

s/ Richard S. Gottlieb Richard S. Gottlieb Attorney for Plaintiff Walker Group, Inc. Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 [email protected]

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