HomeMy WebLinkAbout2023CV30130 - City Of Fort Collins V. Directional Plus, Et Al. - 013 - Case Management OrderPage 1 of 6
District Court, Larimer County, Colorado
Court Address:
201 LaPorte Ave., Ste. 100
Fort Collins, CO 80521
970-494-3500
COURT USE ONLY
Plaintiff: CITY OF FORT COLLINS
v.
Defendants: DIRECTIONAL PLUS, LLC and MASTEC
NORTH AMERICA, INC.
Case Number:
2023 CV 30130
Division 3B
CASE MANAGEMENT ORDER
The case management conference set for May 19, 2023, at 9:00 a.m., before
District Court Judge Juan G. Villaseñor is vacated. The Court accepted the parties’
proposed discovery schedule.
1. The “at issue date” is: April 10, 2023
2. Responsible attorney’s name, address, phone number and email address:
Attorney for Plaintiff:
Andrew W. Callahan, #52421
Wick & Trautwein, LLC
323 S. College Ave., Suite 3
Fort Collins, CO 80524
970-482-4011
acallahan@wicklaw.com
Attorney for MasTec North America, Inc.
Ivan A. Sarkissian, #28817
Joseph F. Nistico, III, #49909
McConaughy & Sarkissian, P.C.
4725 S. Monaco Street, Ste. 200
Denver, CO 80237
DATE FILED: May 17, 2023 11:00 AM
CASE NUMBER: 2023CV30130
Page 2 of 6
303-649-0999
isarkissian@mslawpc.com
tnistico@mslawpc.com
Attorney for Directional Plus, LLC
Stuart D. Morse, #16978
Amber L. Brink, #57381
Stuart D. Morse & Associates, LLC
5445 DTC Parkway, Ste. 250
Greenwood Village, CO 80111
303-996-6661
smorse@sdmorselaw.com
abrink@sdmorselaw.com
3. The lead counsel for each party met and conferred in person or by telephone
concerning this Proposed Order and each of the issues listed in Rule 16(b)(3)(A) thro ugh
(E) on May 4, 2023.
4. Brief description of the case and identification of the issues to be tried (not more than
one page, double-spaced, for each side):
Plaintiff:
This lawsuit arises out of an incident on February 23, 2021 in which Defendants
Directional Plus and MasTec negligently drilled into a City-owned 36 inch transmission
water main while boring a hole for fiber optic cables in the City of Fort Collins. Defendant
MasTec was the general contractor and Defendant Directional Plus was a subc ontractor
responsible for the specific drilling incident in question. The City of Fort Collins alleges
that both MasTec and Directional Plus were negligent in the way they proceeded to
excavate the boring hole because they failed to make a timely utility locate request
through the Colorado 811 notification program and because they failed to use reasonable
care to locate and excavate around the City water main before commencing lateral
underground boring. As a result of Defendants’ negligence, Directional Plus struck and
punctured the City water main causing the City to incur expenses in excess of $274,000
to plug and repair the water main.
Plaintiff has asserted a claim for civil penalties pursuant to C.R.S. §9-1.5-104.5 for failure
to comply with the statutory requirements for protecting underground facilities during
excavation. Plaintiff has also asserted claims for negligence and breach of contract
against Defendants all arising out of the failure to use reasonable care in excavation.
The issues to be tried in this case are the negligence of Defendants in failing to locate the
water main, the applicability of the Colorado 811 regulations and statutes, and the extent
and nature of Plaintiff’s damages in repairing the water main.
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Defendant Directional Plus, LLC:
Defendant Directional Plus (“Directional”) denies any and all causes of action set forth
against it, and specifically denies that it caused any damages. It is Directional’s position
that The City of Fort Collins is responsible for their alleged damages because Directional
was merely following the direction of The City, representatives from which were providing
direction. It is also Directional’s position that there were locates and that The City of Fort
Collins was negligent for mis-locating their water line. Directional disputes the nature and
extent of the damages asserted by Pinnacol. Directional also incorporates its denials and
affirmative defenses as set forth in its Answer and Jury Demand to Plaintiff City of Fort
Collins’ Complaint and Jury Demand.
Defendant MasTec North America, Inc.:
Defendant MasTec North America, Inc. (“MasTec”) retained Directional to perform the
drilling work at issue. MasTec denies that any of the alleged damages are attributable to
MasTec’s work or that MasTec performed any work in an improper or negligent manner.
MasTec incorporates the affirmative defenses identified within its Answer, including that
the City of Fort Collins failed to “use reasonable care to advise the excavator of the
location, number, and size of any underground facilities in the proposed excavation area,
including laterals in the public right-of-way, by marking the location of the facilities with
clearly identifiable markings within eighteen inches horizontally from the exterior sides of
the facilities….” See C.R.S. § 9-1.5-103(4)(a).
5. The following motions have been filed and are unresolved: None
6. Brief assessment of each party’s position on the application of the proportionality
factors, including those listed in C.R.C.P. 26(b)(1):
Plaintiff’s position is that the proportionality factors of C.R.C.P. 26(b)(1) support utilizing
the presumptive discovery limits in this case. The City of Fort Collins incurred in excess
of $274,000 in damages as a result of this incident and therefore the amount in
controversy justifies substantial discovery. There is a dispute as to the facts surrounding
the incident and thus discovery is necessary to help resolve the disputes between the
parties as to how this incident occurred. All three parties to this case have sufficient
financial resources to fully participate in discovery and Plaintiff believes that the burd ens
of discovery will not outweigh the benefit herein.
Defendants do not dispute Plaintiff’s position as it relates to the proportionality factors.
7. The lead counsel for each party met and conferred concerning possible settlement.
The prospects for settlement are:
The parties have explored the possibility of settlement prior to the initiation of this
lawsuit and at the initial meet and confer on May 4, 2023. Because there are significant
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disputed facts surrounding the incident, the prospects for settlement are unkn own at this
time. The parties’ ADR deadline is October 31, 2023.
8. Deadlines for:
a. Amending or supplementing pleadings: July 24, 2023
b. Joinder of additional parties: July 24, 2023
c. Identifying non-parties at fault: June 6, 2023
9. Dates of initial disclosures: Defendant’s filed their disclosures on May 8 and May 9,
2023. Plaintiffs shall file their initial disclosures by May 16, 2023.
Objections, if any, about their adequacy: None at this time.
10. If full disclosure of information under C.R.C.P. 26(a)(1)(C) was not made because
of a party’s inability to provide it, provide a brief statement of reasons for that party’s
inability and the expected timing of full disclosures and completion of discovery on
damages: N/A
11. Proposed limitations on and modifications to the scope and types of discovery,
consistent with the proportionality factors in C.R.C.P. 26(b)(1): The parties have agreed
that the presumptive limitations on discovery are appropriate in this case at this time.
Depending on the number of witnesses present at the time of the incident, the parties
anticipate they may need to take additional depositions of fact witnesses who are
employees of the parties, but the parties agree they are not requesting additional
discovery at this time and will raise the issue with the Court if necessary.
Number of depositions per party (C.R.C.P. 26(b)(2)(A) limit 1 of adverse party + 2 others
+ experts per C.R.C.P. 26(b)(4)(A)): No modification.
Number of interrogatories per party (C.R.C.P. 26(b)(2)(B) limit of 30): 30
Number of requests for production of documents per party (C.R.C.P. 26(b)(2)(D) limit of
20): 20
Number of requests for admission per party (C.R.C.P. 26(b)(2)(E) limit of 20): 20
Any physical or mental examination per C.R.C.P. 35: N/A
Any limitations on awardable costs: None
State the justifications for any modifications in the foregoing C.R.C.P. 26(b)(2)
limitations: None
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12. Number of experts, subjects for anticipated expert testimony, and whether experts
will be under C.R.C.P. 26(a)(2)(B)(I) or (B)(II):
Plaintiff anticipates calling an expert to testify as to the appropriate standard of care for
directional boring excavations as well as the standard of care for reportin g excavations
under the Colorado 811 system. If necessary, Plaintiff will also provide expert testimony
regarding its damages sustained in this case.
Defendant Directional Plus anticipates calling one expert to testify as to liability and the
standard of care for each of the parties involved, one expert to assess the
reasonableness and relatedness of the claimed damages , and possibly one expert to
assess allocation of responsibility. Directional will attempt to combine these areas of
expertise as much as possible.
Defendant MasTec also anticipates calling one expert to testify as to liability and the
standard of care for each of the parties involved, one expert to assess the
reasonableness and relatedness of the claimed damages, and possibly one expert t o
assess allocation of responsibility. MasTec will attempt to combine these areas of
expertise as much as possible.
If more than one expert in any subject per side is anticipated, state the reasons why
such expert is appropriate consistent with proportio nality factors in C.R.C.P. 26(b)(1)
and any differences among the positions of multiple parties on the same side: N/A
Each party shall be limited to two experts. Should they require additional
experts, they may so move and must show good cause.
13. Deadlines for expert witness disclosure if other than those in C.R.C.P. 26(a)(2):
a. production of expert reports:
i. Plaintiff/claimant: September 8, 2023
ii. Defendant/opposing party: October 13, 2023
b. production of rebuttal expert reports: November 3, 2023
c. production of expert witness files: 7 days after a request is made
State the reasons for any different dates from those in C.R.C.P. 26(a)(2)(C): N/A
14. Oral Discovery Motions. The court does not accept written discovery motions. The
parties must comply with the Court’s discovery-dispute procedures.
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15. Electronically Stored Information (“ESI”). The parties do not anticipate needing to
discover a significant amount of electronically stored information. The following is a brief
report concerning their agreements or positions on search terms to be used, if any, and
relating to the production, continued preservation, and restoration of electronically stored
information, including the form in which it is to be produced and an estimate of the
attendant costs. The parties shall produce ESI in PDF, TIFF, or JPEG format.
16. Discovery Cutoff: December 4, 2023.
The parties shall file a notice to set a four-day trial (along with pretrial
conference), or a notice indicating that the case will settle, two business days after
the close of discovery.
CASE MANAGEMENT ORDER
IT IS HEREBY ORDERED that the foregoing, including any modifications made
by the Court, is and shall be the Case Management Order in this case.
SO ORDERED on May 17, 2023.
BY THE COURT:
________________________
JUAN G. VILLASEÑOR
District Court Judge
APPROVED AS TO FORM:
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Attorney for Plaintiff
STUART D. MORSE & ASSOCIATES, LLC
By: s/ Amber L. Brink
Amber L. Brink #57381
Attorney for Defendant Directional Plus, LLC
McCONAUGHY & SARKISSIAN, P.C.
By: s/ Joseph F. Nistico, III
Joseph F. Nistico, #49909
Attorney for Defendant MasTec North America, Inc.