Free Motion to Strike - District Court of Colorado - Colorado

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

Document 161

Filed 10/11/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-F-1973 (MJW)

J. E. H. KNUTSON, Plaintiff, v. THE WALKER GROUP, INC., Defendant

THE WALKER GROUP, INC. Plaintiff, v. FIRST LAYER COMMUNICATIONS, INC. and J.E.H. KNUTSON Defendants.

MOTION TO STRIKE PLAINTIFF'S AMENDED EXHIBIT LIST

Defendant Walker Group, Inc. ("Walker Group"), by and through counsel and pursuant to Federal Rule of Civil Procedure 26(a)(3) and Section 7.b. of the Final Pretrial Order entered by this Court on April 28, 2005, moves to strike Plaintiff's Amended Exhibit List. In support of this Motion, Walker Group shows as follows:

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

Document 161

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1.

The parties final exhibit lists were exchanged in advance of the April 28, 2005

Pretrial Conference and incorporated in the Court's April 28, 2005 Final Pretrial Order. 2. Pursuant to the terms of the Final Pretrial Order, on May 17, 2005, Walker Group

filed its objections to Plaintiff's proposed exhibits. 3. By correspondence dated September 30, 2005 Plaintiff served an Amended

Exhibit List, purporting to designate an additional eleven (11) exhibits (Plaintiff's Amended Exhibit List attached as Exhibit A.) 4. Plaintiff's Amended Exhibit List is untimely, coming more than four months after

Walker Group filed its objections to Plaintiff's proposed exhibits in accordance with Section 7.b. of the Court's Pretrial Order entered on April 27, 2005 and is consistent with Plaintiff's pattern of delay. (See, e.g., April 12, 2005 Minute Order noting that Plaintiff has caused numerous delays in this matter.) 5. Pursuant to Section 12 of the Final Pretrial Order, "this Order . . . may not be

amended except by consent of the parties and approval of the by the court or by order of the court to prevent manifest injustice." (emphasis in original). Plaintiff neither sought consent from Walker Group to amend the Final Pretrial Order to include an amended exhibit list, nor has it moved the Court to amend the Final Pretrial Order. Moreover, Plaintiff has not shown that manifest injustice will occur absent an amendment to the Final Pretrial Order. 6. Pursuant to D.C.COLO.LCivR, on October 5, 2005 counsel for Walker Group

conferred with Plaintiff's counsel, by facsimile correspondence, and requested that Plaintiff withdraw his Amended Exhibit List (Correspondence attached as Exhibit B.) No response was received from Plaintiff's counsel.

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Wherefore, Walker Group respectfully moves the Court for an Order: 1. 2. Striking Plaintiff's Amended Exhibit List; and For such other and further relief as the Court deems just and proper.

Respectfully submitted, this the 11th day of October, 2005.

/s/ Richard S. Gottlieb Richard S. Gottlieb Laura A. Greer Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 Attorneys for Defendant Walker Group, Inc. Joshua Maximon, Esq. The Maximon Law Firm, LLC 12202 Airport Way, Suite 170 Broomfield, Colorado 80021 Telephone: (303) 991-3344
02560-207219 WINLIB01:1151951.2

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

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on October 11, 2005, I electronically filed the foregoing WALKER GROUP'S MOTION TO STRIKE PLAINTIFF'S AMENDED EXHIBIT LIST 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 non CM/ECF participants by first class mail addressed as follows: none.

/s/ Richard S. Gottlieb Richard S. Gottlieb Attorney for Defendant Walker Group, Inc. Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 [email protected]
02560-207219 WINLIB01:1151951.2