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Home My WebLink About2024-1152 - City v. Open International - 43 - Appellee's Response to Motion to ExtendUNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ____________________________________ CITY OF FORT COLLINS, a Colorado home rule municipality, Plaintiff – Appellee v. OPEN INTERNATIONAL, LLC, A Florida limited liability company, et al., No. 24-1152 (D.C. No. 1:21-CV-02063-CNS-SBP) (D. Colo.) __________________________________________________________________ PLAINTIFF-APPELLEE’S RESPONSE TO FIRST MOTION TO EXTEND TIME FOR FILING __________________________________________________________________ Appeal from the United States District Court for the District of Colorado Judge Charlotte N. Sweeney Case No. 2:21-cv-02063 Case L. Collard Andrea Ahn Wechter Maral J. Shoaei DORSEY & WHITNEY LLP 1400 Wewatta Street, Suite 400 Denver, CO 80202-5549 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: collard.case@dorsey.com wechter.andrea@dorsey.com shoeai.maral@dorsey.com Attorneys for City of Fort Collins Appellate Case: 24-1152 Document: 43-1 Date Filed: 09/24/2024 Page: 1 Plaintiff-Appellee City of Fort Collins (“Appellee”), through undersigned counsel, hereby responds to Defendants-Appellants Open International, LLC and Open Investments, LLC (“Appellants”), as follows: Appellee does not oppose the requested extension. Appellee submits this response to correct Appellants’ incomplete and misleading statement of conferral. By omitting the identity of who Appellants spoke with, Appellants’ statement of conferral implies that Appellants spoke directly with counsel for Appellee regarding the requested relief. They did not. Appellants raised the extension request via the mediator on the afternoon of September 23, 2024. Appellants did not comply with 10th Cir. R. 27.1 and 27.6(C)(2) which both require that “parties should make reasonable efforts to contact opposing parties well in advance of filing of a motion.” On September 23, 2024 at 2p.m., the parties participated in a Mediation Conference with the Tenth Circuit Mediation Office. Counsel for Appellants did not contact Appellee’s counsel prior to the mediation to confer on an extension of time to file Appellants’ brief. Rather, during the conference, Appellants communicated a request for an extension via the mediator. Because extensions are disfavored and Appellee did not understand the basis for the request, Appellee informed the meditator that they opposed the motion at that time and presume that the mediator conveyed that position to Appellants. Appellate Case: 24-1152 Document: 43-1 Date Filed: 09/24/2024 Page: 2 Immediately following the conclusion of the mediation, counsel for Appellee reached out directly to counsel for Appellants to request the basis for the extension and identifying concerns about the schedule issues the requested extension may pose, yet also noting that once Appellants provided their position, counsel would discuss the request with Appellee. Exh. A (C. Collard 3:33p.m. email). At first, counsel for Appellants responded regarding the scheduling conflicts (but without describing the basis for the extension): “It’s our understanding that first- time extension requests are granted as a matter of course, so we were surprised to learn of your position. We certainly are not trying to ruin any holidays, so assuming you’ll agree to our request of 30 days, I’m sure you’ll find us accommodating in providing an extension of your own to avoid any holiday interference. Please let me know what you had in mind.” Id. (J. Sandman 3:55p.m. email). That evening, before Appellee could respond, Appellants filed the motion for extension of time. Appellants’ counsel followed up with an email stating: “[T]hanks for your email but we decided not to waste time negotiating over a routine request for extension.” Exh. B. (L. Daniel 7:29p.m. email). Appellee submits this response to clarify the record and to request that Appellants follow Tenth Circuit procedures, including regarding conferrals. Appellate Case: 24-1152 Document: 43-1 Date Filed: 09/24/2024 Page: 3 CERTIFICATE OF COMPLIANCE 1. This filing complies with the type-volume limitation of 10th Cir. R. 27.3(B)(3) because this brief contains 427 words, excluding the parts of a brief exempted by the Federal Rules of Appellate Procedure. 2. This filing complies with the typeface and type style requirements of Federal Rule of Appellate Procedure 32(a) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman. DATE: September 24, 2024 By: /s/ Case L. Collard Case L. Collard Andrea Ahn Wechter Maral J. Shoaei Dorsey & Whitney LLP 1400 Wewatta Street, Suite 400 Denver, CO 80202-5549 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: collard.case@dorsey.com wechter.andrea@dorsey.com shoaei.maral@dorsey.com Attorneys for City of Fort Collins Appellate Case: 24-1152 Document: 43-1 Date Filed: 09/24/2024 Page: 4 CERTIFICATE OF SERVICE The undersigned certifies that on September 24, 2024, the foregoing was served via this Court’s ECF system on the following attorneys for Defendants/Appellants: Webb Daniel Friedlander LLP 75 14th Street NE Suite 2450 Atlanta, Georgia 30309 (404) 433-6430 Webb Daniel Friedlander LLP 5208 Magazine Street Suite 364 New Orleans, Louisiana 70115 (978) 886-0639 /s/ Stacy Starr Appellate Case: 24-1152 Document: 43-1 Date Filed: 09/24/2024 Page: 5 Exhibit A Appellate Case: 24-1152 Document: 43-2 Date Filed: 09/24/2024 Page: 1 From:Jeff Sandman To:Collard, Case; Laurie Daniel Cc:Wechter, Andrea Subject:RE: Extension Date:Monday, September 23, 2024 3:55:44 PM Attachments:image001.png EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS. Hi Case, We have not yet sought an extension from the 10th. After we filed an amended notice of appeal following oral argument on post-trial motions, the 10th moved the briefing deadline sua sponte to accord with that renewed filing. We have had no extra time to prepare our briefing than what comes standard. It’s our understanding that first-time extension requests are granted as a matter of course, so we were surprised to learn of your opposition. We certainly are not trying to ruin any holidays, so assuming you’ll agree to our request of 30 days, I’m sure you’ll find us accommodating in providing an extension of your own to avoid any holiday interference. Please let me know what you had in mind. From: collard.case@dorsey.com <collard.case@dorsey.com> Sent: Monday, September 23, 2024 4:33 PM To: Jeff Sandman <jeff.sandman@webbdaniel.law>; Laurie Daniel <laurie.daniel@webbdaniel.law> Cc: wechter.andrea@dorsey.com Subject: Extension Hi Jeff and Laurie – I think the mediator informed you that we did not agree to the extension during the call today. We do not understand the basis for an extension in light of the prior stay and extension, so if you want to share the basis we will discuss it further with the client. We are also concerned with pushing our briefing time into the holidays, so please let us know how you would address that if there were an extension. Thanks. Case Case Collard Partner, Denver Office Head Pronouns: He/Him/His 1400 Wewatta Street, Suite 400 | Denver, CO 80202-5549 P: (303) 352-1116 C: (720) 839-4353 CONFIDENTIAL COMMUNICATION E-mails from this firm normally contain confidential and privileged material, and are for the sole use of the intended recipient. Appellate Case: 24-1152 Document: 43-2 Date Filed: 09/24/2024 Page: 2 Use or distribution by an unintended recipient is prohibited, and may be a violation of law. If you believe that you received this e-mail in error, please do not read this e-mail or any attached items. Please delete the e-mail and all attachments, including any copies thereof, and inform the sender that you have deleted the e-mail, all attachments and any copies thereof. Thank you. Appellate Case: 24-1152 Document: 43-2 Date Filed: 09/24/2024 Page: 3 Exhibit B Appellate Case: 24-1152 Document: 43-3 Date Filed: 09/24/2024 Page: 1 From:Laurie Daniel To:Collard, Case; Jeff Sandman Cc:Wechter, Andrea Subject:RE: Extension Date:Monday, September 23, 2024 7:29:50 PM Attachments:image001.png Open International First Motion to Extend Time for Filing Opening Brief.pdf EXTERNAL FROM OUTSIDE DORSEY. BE CAUTIOUS OF LINKS AND ATTACHMENTS. Case, thanks for your email but we decided to not waste time negotiating over a routine request for extension. So we’re just asking the Court for permission. Motion is attached. Best, Laurie Laurie Webb Daniel Webb Daniel Friedlander LLP An Appellate Boutique 75 14th Street NE Suite 2450 Atlanta, Georgia 30309 (404) 433-6430 (cell) www.webbdaniel.law From: collard.case@dorsey.com <collard.case@dorsey.com> Sent: Monday, September 23, 2024 5:33 PM To: Jeff Sandman <jeff.sandman@webbdaniel.law>; Laurie Daniel <laurie.daniel@webbdaniel.law> Cc: wechter.andrea@dorsey.com Subject: Extension Hi Jeff and Laurie – I think the mediator informed you that we did not agree to the extension during the call today. We do not understand the basis for an extension in light of the prior stay and extension, so if you want to share the basis we will discuss it further with the client. We are also concerned with pushing our briefing time into the holidays, so please let us know how you would address that if there were an extension. Thanks. Case Case Collard Partner, Denver Office Head Pronouns: He/Him/His 1400 Wewatta Street, Suite 400 | Denver, CO 80202-5549 P: (303) 352-1116 Appellate Case: 24-1152 Document: 43-3 Date Filed: 09/24/2024 Page: 2 C: (720) 839-4353 CONFIDENTIAL COMMUNICATION E-mails from this firm normally contain confidential and privileged material, and are for the sole use of the intended recipient. Use or distribution by an unintended recipient is prohibited, and may be a violation of law. If you believe that you received this e-mail in error, please do not read this e-mail or any attached items. Please delete the e-mail and all attachments, including any copies thereof, and inform the sender that you have deleted the e-mail, all attachments and any copies thereof. Thank you. Appellate Case: 24-1152 Document: 43-3 Date Filed: 09/24/2024 Page: 3