Direct Marketing Association, The v. Huber
Filing
20
Unopposed MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Dismiss Plaintiff's First Amended Complaint , and for enlargement of page limitation for opposition by Plaintiff Direct Marketing Association, The. (Attachments: # 1 Proposed Order (PDF Only) for unopposed motion)(Schaefer, Matthew)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-CV-01546-REB-CBS
The Direct Marketing Association,
Plaintiff,
v.
Roxy Huber, in her capacity as Executive
Director, Colorado Department of Revenue,
Defendant.
PLAINTIFF’S UNOPPOSED MOTION FOR EXTENSION OF TIME AND
FOR LEAVE TO EXCEED PAGE LIMITATION IN OPPOSITION TO DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [DOC.14]
______________________________________________________________________
The Plaintiff, the Direct Marketing Association (“the DMA”), moves, without
objection from the Defendant, for a one week extension of time (to August 27, 2010),
and for leave to exceed the Court’s page limitation for motions set forth in REB Civ.
Practice Standard V.B.1., in connection with the DMA’s opposition to the Defendant’s
Motion to Dismiss Plaintiff’s First Amended Complaint [Doc. 14] (“Motion to Dismiss”).
As grounds for this motion, the DMA states as follows:
1.
This action concerns the constitutionality of the provisions of a new
Colorado statute, House Bill 10-1193, “An Act Concerning The Collection Of Sales And
Use Taxes On Sales Made By Out-Of-State Retailers, And Making An Appropriation
Therefor” (“the Act”), and the regulations adopted by the Colorado Department of
Revenue (“Department”) to implement the Act, which impose notice and reporting
requirements solely on out-of-state retailers who do not collect Colorado sales tax. The
DMA’s eight-count complaint raises a number of complex constitutional issues, some of
which are matters of first impression, concerning the DMA’s contentions that the Act
and regulations: (a) impose discriminatory treatment on out-of-state retailers lacking any
physical presence in the state; (b) trample the right to privacy of Colorado residents, as
well as certain non-residents; (c) chill the exercise of free speech by certain purchasers
and vendors of products that have expressive content; (d) expose confidential
information regarding consumers and their purchases to the risk of data security
breaches; and (e) deprive retailers, without due process or fair compensation, of both
the value of their proprietary customer lists and the substantial investment made to
protect such lists from disclosure.
2.
The Defendant on July 30, 2010, filed a 36-page Motion to Dismiss the
DMA’s complaint on multiple grounds, asserting that: the DMA lacks standing to bring
the suit; the Court otherwise lacks subject matter jurisdiction over certain claims; and
the complaint fails to state a claim upon which relief may be granted with respect to
several of the counts. The DMA’s opposition is currently due on August 20, 2010.
3.
The opportunity for the DMA to respond fully to each of the Defendant’s
arguments in support of her Motion to Dismiss is vital to the DMA’s ability to pursue and
protect the constitutional rights of its members affected by the new law and of their
Colorado customers whose personal purchasing history information must be disclosed
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to the Department under the Act and regulations. The outcome of the motion to dismiss
will determine whether the DMA’s suit goes forward and on what counts, and thus will
directly impact the Court’s administration of this action.
4.
Prior to the filing of the Defendant’s Motion to Dismiss, and in light of the
complexity of the action, the DMA assented to the Defendant’s request for a one-week
extension of the time to file her Motion to Dismiss and for an enlargement of this Court’s
page limitation for motions to forty (40) pages.
5.
The Court granted the Defendant’s motion for extension of time and an
enlargement of the page limit by order dated July 21, 2010.
6.
The DMA seeks relief which precisely parallels the extension of time and
enlargement of the page limit previously granted to the Defendant. Counsel for the
DMA
has
conferred
with
counsel
for
the
Defendant
in
accordance
with
D.C.COLO.LCivR. 7.1A, and the Defendant has no objection to the DMA’s motion.
Thus, the Defendant will not be prejudiced if the Court grant’s the DMA such relief.
7.
The DMA is cognizant of this Court’s admonition in REB Civ. Practice
Standard II.G.1 regarding motions for extension of time. The DMA respectfully submits
that granting the DMA’s motion will have no adverse impact on case management. No
scheduling order has yet been entered in the case. (The Scheduling Conference is set
for September 23, 2010). Permitting the DMA an extension of time and enlargement of
the page limit that parallels whose granted the Defendant will, moreover, promote the
Court’s evaluation of the merits of the Defendant’s Motion to Dismiss, so that further
proceedings in the case may be determined accordingly.
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8.
The DMA has not previously requested or been allowed any extensions of
time. With regard to the enlargement of the page limit, counsel for the DMA will make
every attempt to ensure that the DMA’s motion is concise and helpful to the Court’s
evaluation on the motion to dismiss.
9.
In these circumstances, and given the complexity of the issues presented
in this case and the significance of the Defendant’s motion to further proceedings, the
DMA respectfully submits that good cause exists for the allowance of its motion in
accordance with the standards of REB Civ. Practice Standard II.G.1.
10.
This motion is timely filed under REB Civ. Practice Standard II.G.2.
11.
Pursuant to D.C.COLO.LCivR. 7.1F. and REB Civ. Practice Standard
V.D.1., the DMA submits with this motion a proposed form of order regarding this
unopposed motion.
WHEREFORE, the DMA requests this Court enter an Order granting it an
extension of time through August 27, 2010, and leave to file an opposition to the
Defendant’s Motion to Dismiss not to exceed forty (40) pages in length.
Dated: August 13, 2010
/s/ Matthew P. Schaefer
George S. Isaacson
Matthew P. Schaefer
BRANN & ISAACSON
184 Main Street, P. O. Box 3070
Lewiston, ME 04243−3070
Tel.: (207) 786−3566
Fax: (207) 783-9325
E-mail: gisaacson@brannlaw.com
mschaefer@brannlaw.com
Attorneys for The Direct Marketing
Association
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CERTIFICATE OF SERVICE
I hereby certify that on August 13, 2010, I electronically filed the foregoing,
Plaintiff’s Unopposed Motion For Extension of Time and For Leave To Exceed Page
Limitation In Opposition to the Defendant’s Motion to Dismiss Plaintiff’s First Amended
Complaint [Doc. 14], with accompanying proposed order, using the CM/ECF system,
which will send notification of such filing to counsel of record:
Stephanie Lindquist Scoville
Senior Assistant Attorney General
State of Colorado
1525 Sherman Street, 7th Floor
Denver, CO 80203
stephanie.scoville@state.co.us
Robert H. Dodd, Jr.
Senior Assistant Attorney General
State of Colorado
1525 Sherman Street, 7th Floor
Denver, CO 80203
robert.dodd@state.co.us
Attorneys for Defendant
/s/ Matthew P. Schaefer
Matthew P. Schaefer
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