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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. Page 3 of 6 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 Page 4 of 6 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 Page 5 of 6 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. Page 6 of 6 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.