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Home My WebLink About2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 209 - Plaintiff's Response To Motion To VacateIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 21-cv-02063-CNS-MEH CITY OF FORT COLLINS, Plaintiff/Counterclaim Defendant, v. OPEN INTERNATIONAL, LLC Defendant/Counterclaim Plaintiff, and OPEN INVESTMENTS, LLC, Defendant. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO VACATE AND RESET FINAL PRETRIAL CONFERENCE Plaintiff/Counterclaim Defendant the City of Fort Collins (the “City”), by and through its undersigned counsel, respectfully submits the following Response to Defendants Open International, LLC and Open Investment, LLC’s (collectively “Defendants” or “Open”) Motion to Vacate and Reset the Final Pretrial Conference. In support thereof, the City states as follows: INTRODUCTION This case has been pending since July 2021 and it is time for the Court to set a trial date. We should not delay because setting a trial date may be complex. While the parties initially anticipated a seven-day jury trial, a two-week jury trial will likely be required. To date, and over the course of a 14-month discovery period, the parties have collectively: (1) brought eight claims/counterclaims; (2) conducted approximately 30 depositions of 22 witnesses and the parties’ Case 1:21-cv-02063-CNS-MEH Document 209 Filed 04/03/23 USDC Colorado Page 1 of 8 2 Rule 30(b)(6) depositions, with over 810 deposition exhibits entered; (3) produced over 450,000 pages of documents (not including those of third-parties); and, (4) disclosed four retained experts with over 350 pages in expert reports. The parties’ and their witnesses are also located in at least six states and two countries, with each side having at least three attorneys of record. The impact of Open’s request is to indefinitely stay the setting of trial in an almost two-year-old action that may lead to a setting in 2024 due to all of the witnesses’ and counsel’s other cases and trial schedules. This Court should deny Open’s Motion and set the case for trial. Open’s basis for vacating the Final Pretrial Conference (“FPC”) is because there is certain discovery remaining. But that discovery is very limited discovery, especially compared to the total discovery in the case. Judge Hegarty permitted limited additional discovery on the legal issue of appropriations that will impact only the amount of Open’s recoverable damages. The City’s responses to the pending three requests for production and six interrogatories will be provided by April 10th as required by Judge Hegarty. The limited 3.5-hour deposition permitted on the appropriations issue can take place in the two to four weeks following the April 10th production. While Judge Hegarty subsequently ruled on the Master’s recommendations concerning privilege designations requiring the City to produce certain documents and review its other privilege logs for consistency, it is unlikely to lead to additional discovery. Judge Hegarty also repeatedly emphasized at the discovery conference that no additional discovery will be permitted absent a beyond compelling reason. Simply put, the limited additional discovery can be complete well before any trial date that is set. There is no prejudice to setting a trial now. Open does not explain how the pretrial order will need to be modified “to prevent manifest injustice.” See Mot. ¶ 20. And, of course, if claims Case 1:21-cv-02063-CNS-MEH Document 209 Filed 04/03/23 USDC Colorado Page 2 of 8 3 or damages are limited by the appropriations discovery or this Court’s rulings on the pending summary judgment motions, the parties could revisit the pretrial order to reflect those changes. Finally, in February, the City’s counsel attempted to engage with Open’s counsel regarding trial dates and availability. Open declined to engage in such discussions, preferring to wait to set the trial at the April conference. Now Open won’t even do that. The additional discovery relied on by Open will not impact a trial set for late 2023—seven to eight months away. The City respectfully requests that the Court maintain the Pretrial Conference date so that a trial can be set. RELEVANT BACKGROUND 1. The City initiated this lawsuit on July 2, 2021, and Open removed it to this Court on July 30, 2021. See Dkt. 1. 2. Over the course of this action, the parties have engaged in approximately 30 depositions and have produced hundreds of thousands of pages of documents, with the City alone producing over 44,000 documents. 3. The parties also completed all briefing on expert-related motions on January 20, 2023, and all dispositive motions briefing on January 23, 2023. 4. On January 26, 2023, Magistrate Judge Hegarty granted the City’s Motion to Amend to add a claim for negligent misrepresentation and add an appropriations affirmative defense. Judge Hegarty found that the amendment “does not so fundamentally alter the case as to establish legal prejudice.” Dkt. 191 at 7. He further found that Open did not raise a timeliness objection with respect to the City’s appropriations defense and thus, not an issue for ruling. 5. On March 20, 2023, the parties held a hearing before Magistrate Judge Hegarty on two outlier categories of discovery. The first related to Open’s Fifth Set of Discovery Requests, Case 1:21-cv-02063-CNS-MEH Document 209 Filed 04/03/23 USDC Colorado Page 3 of 8 4 including two requests for production and six interrogatories, regarding City’s appropriations and the second related to certain withheld documents by the City under the attorney-client privilege, deliberative process privilege, and/or work product privilege. 6. The City will respond to Open’s Fifth Set of Discovery Requests and produce any additional documents, to the extent not already produced, by April 10, 2023. Further, Judge Hegarty limited Open to only a half-day deposition—of 3.5 hours—of the City on appropriations to take place after the April 10th production. 7. Further, on March 21, 2023, the Court reviewed the disputed privileged documents and identified certain ones to not be privileged.1 Dkt. 205. The City produced the documents that Judge Hegarty found to not be privileged to Open on Friday, March 31. The City also intends to re-review its remaining withheld, privileged documents and will produce any additional documents to Open, should it be necessary, by no later than April 28, 2023. In any event, Judge Hegarty made clear at the discovery hearing that no additional discovery would be permitted, absent a beyond compelling reason. 8. There are no other outstanding issues. ARGUMENT The City respectfully requests that the Court set trial in this matter as it has been pending for nearly 21 months. During the parties’ conferral, Open asserted that its only basis to vacate the 1 Open asserts that these are hundreds of documents that the City wrongfully withheld. However, as an initial matter, nearly 150 of the documents are duplicates or near-duplicates. Further, many of the documents contain information that Open already asked the City about during depositions. Indeed, during the parties’ March 20, 2023 hearing, Open’s counsel did not claim Open needed the documents because they are “new” but rather, they have a City Attorney’s signature. In other words, these documents do not contain new information that requires additional discovery. Case 1:21-cv-02063-CNS-MEH Document 209 Filed 04/03/23 USDC Colorado Page 4 of 8 5 Final Pretrial Conference was due to the limited outstanding discovery permitted by Judge Hegarty. That discovery, however, is not a basis to delay as it will be completed in a matter of weeks, as communicated to Open during the parties’ conferral. The City also raised with Open this Court’s recent order in Enrique-Chavez v. Dillon Companies, Case No. 21-cv-02038-CNS- KLM. That case was removed to this Court on July 28, 2022—just two days before Open removed this case–and the parties had their Final Pretrial Conference on March 23, 2023. Ex. 1. Importantly, there, the parties also had a pending discovery dispute, including production of approximately three months of continuous streaming video by July 2023. Despite the outstanding discovery and the time it would take to produce the months of recordings, the Court set trial beginning on October 2, 2023, with the outstanding discovery to be produced by July 1, 2023. Id. Here, the Court should similarly set trial in this matter, especially since any outstanding discovery will be completed in a few weeks—months earlier than in Case No. 21-cv-02038-CNS-KLM.2 Further, contrary to Open’s statements, Courts in this District regularly move forward with Final Pretrial Conferences with pending dispositive motions. Simply, if there are any changes to any of the claims or defenses, they will be reflected in the parties’ trial briefs and addressed during the Final Trial Preparation Conference, as well as revised witness lists and exhibits lists submitted at that time. Therefore, the pending dispositive motions should not be a factor. Additionally, as mentioned above, many of the parties’ representatives in this action are either in a different state or country. For instance, at least three of the City’s witnesses are former employees or contractors all living in different states. Also, numerous Open representatives are 2 Even if the parties are not able to complete discovery in a few weeks, there is no reason why they will not be able to with plenty of time before trial. Case 1:21-cv-02063-CNS-MEH Document 209 Filed 04/03/23 USDC Colorado Page 5 of 8 6 located in the country of Colombia and its President is located in Florida. Further, there are several third-parties that may need to appear at trial, all of which are located in other states. Moreover, the parties are represented by several attorneys with differing schedules, including previously-set trials into the fall of 2023. While the City is agreeable to delaying the submission of a Pre-Trial Order at a later date,3 setting the trial now will, at minimum, promote judicial efficiency and the parties’ abilities to coordinate amongst themselves, third-parties, and former employees, including preparation of numerous potential trial exhibits, deposition designations, and other various pre- trial matters. Indeed, Open has provided no justification, much less any indication, that its remaining limited discovery as to the City’s appropriations defense seeking to limit Open’s damages will somehow change or limit its counterclaims against the City. Rather, the City anticipates that Open will aggressively assert all damages and argue against the appropriations required by law. There has been no good cause shown to just vacate the FPC for an indefinite amount of time to prevent prompt setting of the jury trial in this action. 3 Open asserts that the parties are not able to conduct discovery after submission of the Pretrial Order. Counsel for the City attempted to inform Open’s counsel that the Court has allowed for discovery, such as in Case No. 21-cv-02038-CNS-KLM. In any event, the City understands that the Court will allow the parties to amend any Pre-Trial Order, if necessary, due to the outstanding discovery. Therefore, the City does not believe this is a sufficient reason to vacate the Final Pretrial Conference and forego prompt setting of the jury trial. Case 1:21-cv-02063-CNS-MEH Document 209 Filed 04/03/23 USDC Colorado Page 6 of 8 7 CONCLUSION For the foregoing reasons, the City respectfully requests that the Court maintain the Final Pretrial Conference in order to set trial in this matter. Respectfully submitted this 3rd day of April, 2023. DORSEY & WHITNEY LLP s/ Case Collard Case Collard Andrea Ahn Wechter Maral J. Shoaei 1400 Wewatta Street, Suite 400 Denver, Colorado 80202-5549 Telephone: (303) 629-3400 Fax: (303) 629-3450 E-mail: collard.case@dorsey.com E-mail: wechter.andrea@dorsey.com E-mail: shoaei.maral@dorsey.com Attorneys for Plaintiff City of Fort Collins Case 1:21-cv-02063-CNS-MEH Document 209 Filed 04/03/23 USDC Colorado Page 7 of 8 8 CERTIFICATE OF SERVICE I hereby certify that on April 3, 2023, I caused the foregoing document to be electronically filed via CM/ECF system which will send notification of such filing to the following: Alexander D. White Paul D. Swanson Hannah E. Armentrout Anna C. Van de Stouwe Alexandra E. Pierce HOLLAND & HART LLP 555 17th Street, Suite 3200 Denver, CO 80202 Telephone: (303) 295-8578 adwhite@hollandhart.com pdswanson@hollandhart.com hearmentrout@hollandhart.com acvandestouwe@hollandhart.com aepierce@hollandhart.com Attorneys for Defendants s/ Stacy Starr Dorsey & Whitney LLP Case 1:21-cv-02063-CNS-MEH Document 209 Filed 04/03/23 USDC Colorado Page 8 of 8 Exhibit 1 Case 1:21-cv-02063-CNS-MEH Document 209-1 Filed 04/03/23 USDC Colorado Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JUDGE CHARLOTTE N. SWEENEY Civil Action: 21-cv-02038-CNS-KLM Date: March 23, 2023 Courtroom Deputy: Meghan Smotts Court Reporter: Sarah Mitchell Parties Counsel ANGELIA ENRIQUE-CHAVEZ James Anderson Kenneth Fiedler, Sr. Plaintiff v. DILLON COMPANIES LLC Ashley Larson Caroline Knight Defendant COURTROOM MINUTES FINAL PRETRIAL CONFERENCE Court in Session: 9:05 a.m. Appearance of counsel. Proposed Final Pretrial Order reviewed. ORDERED: Request for settlement conference with the Magistrate Judge is GRANTED. Five-day Jury Trial is set to commence October 2, 2023, at 8:00 a.m. with a Trial Preparation Conference on September 15, 2023, at 10:00 a.m. Defendant is to provide video requested to Plaintiff as discussed on the record by July 1, 2023. Pretrial order approved with interlineations and will be issued today. Court in Recess: 9:17 a.m. Hearing concluded. Total time in Court: 00:12 Case 1:21-cv-02038-CNS-KLM Document 98 Filed 03/23/23 USDC Colorado Page 1 of 1Case 1:21-cv-02063-CNS-MEH Document 209-1 Filed 04/03/23 USDC Colorado Page 2 of 2