Direct Marketing Association, The v. Huber

Filing 45

Unopposed MOTION for Extension of Time to Produce Final Expert Report 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 A THREE-DAY EXTENSION OF TIME
TO PRODUCE FINAL EXPERT REPORT
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 a three-day extension of
time in which to produce a final expert report for one of its experts. 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 via email on
October 27 and 28, 2010. Plaintiff does not object to the relief requested in this motion.
2.

Under the Scheduling Order entered by the Court on October 1, 2010,

the deadline for Defendant to complete its Rule 26(f) disclosures in connection with
Plaintiff’s Motion for Preliminary Injunction is November 5, 2010.
3.

Defendant anticipates designating three experts in connection with

Plaintiff’s Motion for Preliminary Injunction. Defendant anticipates producing complete
Rule 26(f) materials for two of its experts by November 5, 2010. Defendant, however,
only recently was able to retain a third expert whose opinions will be offered to rebut
the opinions of Plaintiff’s expert, F. Curtis Barry, who offered opinions regarding the
costs for retailers to comply with the challenged Act. Accordingly, Defendant requests
an additional three days in which to produce a final expert report for this expert.
4.

Rule 16(b) permits modification of a scheduling order for good cause.

“Rule 16(b) does not focus on the bad faith of the movant, or the prejudice to the
opposing party. Rather, it focuses on the diligence of the party seeking leave to modify
the scheduling order to permit the proposed amendment. Properly construed, “good
cause” means that the scheduling deadlines cannot be met despite a party's diligent
efforts. In other words, this court may “modify the schedule on a showing of good cause
if [the deadline] cannot be met despite the diligence of the party seeking the extension.”
Pumpco, Inc. v. Schenker, Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (internal
quotations and citations omitted).
5.

Good cause exists for a short extension of time to produce a full report

for Defendant’s compliance costs expert. The requested extension is actually a partial
extension with regard to Defendant’s Rule 26(a)(2)(B) materials for this expert. The
parties have agreed that for this expert, Defendant will disclose to Plaintiff by
November 5, 2010, the name of the expert, a summary of his qualifications, and a
summary of his opinions and the bases therefore. The parties further have agreed to
begin discussions regarding scheduling this expert’s deposition and the depositions of

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Defendant’s other experts prior to Defendant’s November 5, 2010 disclosure deadline.
Defendant then will produce her compliance costs expert’s final report by November
10, 2010.
6.

Although Plaintiff’s other two experts’ opinions were previously disclosed

with its Motion for Preliminary Injunction, Plaintiff did not identify Mr. Barry or produce
his opinions until October 1, 2010. Defendant did not receive all the materials relating
to Mr. Barry’s opinions until October 15, 2010. Since that time, counsel for Defendant
has devoted considerable effort to locating and retaining an expert with the
appropriate subject matter expertise to respond to Mr. Barry’s opinions.
7.

Defendant has made diligent efforts to comply with the deadlines set in

the Scheduling Order. Granting the requested relief will not prejudice any party and
will not result in any delay in meeting the remaining deadlines in this case, including
the November 19 deadline for Plaintiff to depose Defendant’s experts.
8.

As required by to D.C.COLO.LCivR. 6.1D, Defendant represents that she

sought a prior extension of time in which to respond to the Complaint. Additionally,
while the parties attempted to work out a process and schedule for the preliminary
injunction phase of the case, Defendant also sought to extend the time in which to
respond to the Motion for Preliminary Injunction and reply in support of her Motion to
Dismiss. These extensions were granted in some form.
9.

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.

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WHEREFORE, Defendant requests this Court enter an Order granting Defendant
up to and including November 15, 2010 in which to produce a final expert report for its
expert on the issue of compliance costs.
Respectfully submitted this 28th day of October, 2010.
JOHN W. SUTHERS, Attorney General
s/ Stephanie Lindquist Scoville
STEPHANIE LINDQUIST SCOVILLE*
Senior Assistant Attorney General
Civil Litigation and Employment Law Section
Telephone: [phone]
FAX: [phone]
E-Mail: [e-mail]
JACK M. WESOKY*
Senior Assistant Attorney General
MELANIE SNYDER*
Assistant Attorney General
Revenue, Business and Licensing
Telephone: [phone] (Wesoky)
Telephone: [phone] (Snyder)
Fax: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
*Counsel of Record
Attorneys for Defendant
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
*Counsel of Record

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CERTIFICATE OF SERVICE
I hereby certify that on October 28, 2010, I electronically filed the foregoing
DEFENDANT’S MOTION FOR A THREE-DAY EXTENSION OF TIME TO PRODUCE
FINAL EXPERT REPORT with the Clerk of the Court using the CM/ECF system which
will send notification of such filing to the following e-addresses:
[e-mail]
[e-mail]
Attorney for Plaintiff
and I hereby certify that I have mailed or served the document of paper to the following
non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the nonparticipant’s name:
Ms. Roxy Huber
Executive Director
Colorado Department of Revenue
1375 Sherman Street
Denver, Colorado 80261
Defendant
s/ Stephanie Lindquist Scoville

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