Free Motion for Judgment - District Court of Colorado - Colorado

Case 1:03-cv-01970-MSK-BNB

Document 140

Filed 09/02/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01970 MSK - BNB MOUNTAIN STATES SHEET METAL COMPANY, Plaintiff, v. SHEET METAL WORKERS, LOCAL NO. 9, Defendant.

STIPULATED MOTION FOR RELIEF FROM JUDGMENT

COME NOW Plaintiff Mountain States Sheet Metal Company ("Plaintiff" or "MSSM") and Defendant Sheet Metal Workers, Local No. 9 ("Defendant Local 9") (collectively "Parties"), through their respective attorneys and pursuant to Fed.R.Civ.P. 60(b)(6), and respectfully submit the following Stipulated Motion for Relief from Judgment. In support of this Motion, the Parties state as follows: 1. On July 18, 2005, the Court entered an Opinion and Order Granting Summary

Judgment (hereafter "Opinion and Order") in favor of Defendant Sheet Metal Workers, Local No. 9 ("Defendant," "Union" or "Local 9"). That same day, the Court entered an Order confirming the arbitration award that is the subject of this lawsuit. 2. On August 25, 2005, the National Labor Relations Board ("NLRB" or "Board")

issued a Decision on Review and Order in Case No. 27-RM-667 (hereafter "Board Decision"). A -1-

Case 1:03-cv-01970-MSK-BNB

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true and correct copy of the Board Decision is attached hereto as Exhibit 1. In its Decision, the Board affirmed the Regional Director's Decision and Direction of Election and remanded the case to Region 27 of the NLRB. (Board Decision at 5). 3. Based upon the Board's Decision, Defendant Local 9 will not seek to enforce the

arbitral award that was the subject matter of this lawsuit, and which the Court confirmed. In recognition of the Board's primary jurisdiction over representational issues and its holding that there was a question concerning representation raised in relation to the work at issue in the arbitration, Defendant Local 9 agrees that the Court's Opinion and Order, and enforcement of the award, should be rendered null and void based upon the recent Board Decision. 4. Under Fed.R.Civ.P. 60(b)(6), the Court may relieve a party from a final judgment

for "any . . . reason justifying relief from the operation of the judgment." In this case, both parties agree that, based upon the recent Board Decision, the Court's judgment enforcing the award should be of no force and effect. An Order relieving Plaintiff from the terms of the final judgment in this case therefore is appropriate. 5. On August 5, 2005, Plaintiff filed a Motion for Stay Pending Appeal. The Parties

stipulate that Plaintiff's Motion to Stay Pending Appeal is rendered moot by the recent developments discussed above as well as the relief sought herein. Therefore, Plaintiff withdraws its Motion to Stay Pending Appeal if the instant Motion is granted. WHEREFORE, the Parties respectfully request that the instant Motion be granted and that the Court enter an Order relieving Plaintiff from the Court's Opinion and Order and Order confirming the arbitration award. A proposed order is attached. -2-

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Respectfully submitted this 2nd day of September, 2005. SHERMAN & HOWARD L.L.C. BRAUER, BUESCHER, GOLDHAMMER, KELMAN & DODGE PC

s/ Patrick J. Miller Patrick R. Scully Patrick J. Miller D.C. Box 12 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Telephone: (303) 297-2900 Facsimile: (303) 298-0940 Raymond M. Deeny 90 South Cascade Avenue, Suite 1500 Colorado Springs, CO 80903 Telephone: (719) 475-2440 Facsimile: (719)635-4576 Attorneys for Plaintiff

s/ Ellen Kelman Walter C. Brauer, III 1563 Gaylord Street Denver, CO 80206. Tel: (303) 333-7751 Attorneys for Defendant Local 9

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