HomeMy WebLinkAbout2023CV30130 - City Of Fort Collins V. Directional Plus, Et Al. - 012 - Proposed Case Management OrderPage 1 of 5
JDF 622SC 5/18 PROPOSED CASE MANAGEMENT ORDER
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
PROPOSED CASE MANAGEMENT ORDER
Pursuant to C.R.C.P. 16(b), the parties should discuss each item below. If they agree, the agreement should be
stated. If they cannot agree, each party should state its position briefly. If an item does not apply, it should be
identified as not applicable.
This form shall be submitted to the court in editable format. When approved by the court, it shall constitute the Case
Management Order for this case unless modified by the court upon a showing of good cause.
This form must be filed with the court no later than 42 days after the case is at issue and at least 7 days before the
date of the case management conference.
The case management conference is set for May 19, 2023 at 9:00 a.m.
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
303-649-0999
isarkissian@mslawpc.com
tnistico@mslawpc.com
Attorney for Directional Plus, LLC
DATE FILED: May 16, 2023 10:17 AM
FILING ID: 41C9C667AD5D2
CASE NUMBER: 2023CV30130
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JDF 622SC 5/18 PROPOSED CASE MANAGEMENT ORDER
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) through (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
subcontractor 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 Co lorado 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.
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, representative s 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 i n
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).
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JDF 622SC 5/18 PROPOSED CASE MANAGEMENT ORDER
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 su fficient financial resources to fully participate in
discovery and Plaintiff believes that the burdens 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 disputed facts surrounding the incident, the prospects
for settlement are unknown at this time. The parties propose a mediation deadline of 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 numb er 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
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JDF 622SC 5/18 PROPOSED CASE MANAGEMENT ORDER
State the justifications for any modifications in the foregoing C.R.C.P. 26(b)(2) limitations: None
12. Number of experts, subjects for anticipated expert testimony, and whether experts will be u nder 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 reporting 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 to 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 proportionality factors in C.R.C.P. 26(b)(1) and any differences among the positions of multiple
parties on the same side: N/A
13. Proposed 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.
15. Electronically Stored Information. 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 elec tronically
stored information, including the form in which it is to be produced and an estimate of the attendant costs.
16. Parties’ best estimate as to when discovery can be completed: December 4, 2023 (30 days after rebuttal
expert reports are produced)
Parties’ best estimate of the length of the trial: 5 days
Trial will commence on (or will be set by the court later): To be set by the Court later.
17. Other appropriate matters for consideration: None at this time.
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JDF 622SC 5/18 PROPOSED CASE MANAGEMENT ORDER
By checking this box, I am acknowledging I am filling in the blanks and not changing anything else on the
form.
By checking this box, I am acknowledging that I have made a change to the original content of this
form.
__________________________________________________________________________________________
SIGNATURE
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.
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.
Dated this ______ day of ________________________, 20__.
BY THE COURT:
__________________________
District Court Judge