Direct Marketing Association, The v. Huber
Filing
28
Unopposed MOTION for Extension of Time to File Response/Reply in Support of her Motion to Dismiss by Defendant Roxy Huber. (Attachments: # 1 Proposed Order (PDF Only))(Scoville, Stephanie)
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.
DEFENDANT’S UNOPPOSED MOTION FOR EXTENSION OF TIME IN WHICH TO
REPLY IN SUPPORT OF HER MOTION TO DISMISS
Defendant, Roxy Huber, in her official capacity as the Executive Director of the
Colorado Department of Revenue, (“Director” or “Department”), through the Colorado
Attorney General’s Office, respectfully moves the Court for an additional extension of
time in which to reply in support of her Motion to Dismiss. As grounds therefore,
Defendant states as follows:
1.
Pursuant to D.C.COLO.LCivR. 7.1A of the Federal Rules of Civil
Procedure, counsel for Defendant conferred with counsel for Plaintiff on September 15
and 16, 2010. Plaintiff does not object to the relief requested in this motion.
2.
Plaintiff brings this suit challenging the constitutionality of a new
Colorado statute. Plaintiff challenges the Act’s constitutionality under the Commerce
Clause, the First Amendment, and on a variety of theories under the Fifth and
Fourteenth Amendments.
3.
Defendant moved to dismiss Plaintiff’s Complaint in full [Dkt #14].
4.
Since that time, the parties have extensively conferred and resolved
Defendant’s objections to Plaintiff’s assertion of standing as to its claims under the
Commerce Clause. Defendant contemporaneously files a motion to withdraw the
portions of its Motion to Dismiss relating to the Commerce Clause challenges.
5.
Plaintiff also has since filed a Motion for Preliminary Injunction, which is
based only on its Commerce Clause claims [Dkt #15].
6.
Good cause exists for extension of time for Defendant to Reply in
support of the Motion to Dismiss. Because the Commerce Clause challenges are the
basis for the Motion for a Preliminary Injunction and are the only claims not covered by
Defendant’s Motion to Dismiss, the parties worked together to craft a proposal to
consolidate the Motion for Preliminary Injunction with a trial on the merits of Plaintiff’s
Commerce Clause claims [Dkt #27 “Defendant’s Unopposed Motion 1) for Limited
Expedited Discovery, 2) to Consolidate Preliminary Injunction Proceedings with a Trial
on the Merits on Plaintiff’s Commerce Clause Claims, 3) to Stay Proceedings on
Plaintiff’s Remaining Claims, and 4) in the Alternative, for an Extension of Time in which
Defendant May Respond to Plaintiff’s Motion for Preliminary Injunction and Reply in
Support of Her Motion to Dismiss” (hereinafter “Unopposed Motion to Consolidate
Proceedings”)]. As part of this proposal, the parties agreed to stay further briefing on
the Motion to Dismiss and to stay discovery on all of Plaintiff’s remaining claims until
the Commerce Clause challenge is resolved. Defendant moved the Court in the
alternative that if the motion to consolidate were not granted, that the Court permit
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Defendant up to September 21, 2010 in which to reply in support of her Motion to
Dismiss. The Court has not yet ruled on the Unopposed Motion to Consolidate.
7.
Resolution of Plaintiff’s Commerce Clause claims may dispose of this
action in its entirety. In order to conserve resources and permit the parties and the
Court to focus on the most important issues at hand (the Commerce Clause
challenges), Defendant moves the Court for an extension of time in which to complete
briefing on the remainder of Plaintiff’s claims (all claims other than the Commerce
Clause).
8. Defendant, therefore, moves that if the Court does not grant the relief
requested in the Unopposed Motion to Consolidate [Dkt #27] that she be permitted up
to and including October 22, 2010 in which to reply in support of her Motion to
Dismiss.
9.
No trial or other deadlines have been set in this matter. Granting the
requested extensions will not impact any other deadlines and will not prejudice any
party.
10.
As required by to D.C.COLO.LCivR. 6.1D, Defendant represents that she
sought a prior extension of one week in which to respond to Plaintiff’s Complaint,
which was granted. Defendant also requested an extension of time in which to reply
in support of her Motion to Dismiss as part of the broader Unopposed Motion to
Consolidate [Dkt #27]. That motion has not yet been ruled on by the Court.
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11.
Pursuant to D.C.COLO.LCivR. 6.1E, counsel for Defendant certifies that a
copy of this Motion has been served on Defendant at the address listed in the
Certificate of Service.
WHEREFORE, Defendant requests this Court enter an Order that if the Court
denies the relief requested in Defendant’s Unopposed Motion to Consolidate [Dkt #27],
that Defendant be permitted up to and including October 22, 2010 in which to reply in
support of her Motion to Dismiss.
Respectfully submitted this 16th day of September, 2010.
JOHN W. SUTHERS
Attorney General
s/ Stephanie Lindquist Scoville
STEPHANIE LINDQUIST SCOVILLE*
Senior Assistant Attorney General
Civil Litigation and Employment Law Section
Telephone: 303.866.5241
FAX: 303.866.5443
E-Mail: stephanie.scoville@state.co.us
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JACK M. WESOKY*
Senior Assistant Attorney General
KAREN M. MCGOVERN*
Assistant Attorney General
Revenue, Business and Licensing
Telephone: (303) 866-5512 (Wesoky)
Telephone: (303) 866-5455 (McGovern)
Fax: (303) 866-5395
E-mail: jack.wesoky@state.co.us
E-mail: karen.mcgovern@state.co.us
*Counsel of Record
Attorneys for Defendant
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
*Counsel of Record
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CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that on the 16th day of September, 2010, a copy of the
foregoing DEFENDANT’S UNOPPOSED MOTION FOR EXTENSION OF TIME TO
REPLY IN SUPPORT OF HER MOTION TO DISMISS was, in addition to being
electronically filed with the Clerk of the Court using the CM/ECF system, sent to the
following e-mail addresses via the CM/ECF system:
gissacson@brannlaw.com
mschafer@brannlaw.com
s/ Stephanie Lindquist Scoville
cc: Via inter-office mail
Ms. Roxy Huber
Executive Director
Colorado Department of Revenue
1375 Sherman Street
Denver, Colorado 80261
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