Direct Marketing Association, The v. Huber

Filing 85

Joint STATUS REPORT and Proposed Order by Plaintiff Direct Marketing Association, The. (Attachments: # 1 Proposed Order (PDF Only))(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.

JOINT STATUS REPORT AND PROPOSED ORDER
______________________________________________________________________
Plaintiff, the Direct Marketing Association, and Defendant, Roxy Huber,
Executive Director of the Colorado Department of Revenue, submit this Joint Status
Report to present to the Court the parties’ joint proposal for reaching a final judgment on
Counts I and II of the Plaintiff’s First Amended Complaint asserting claims under the
Commerce Clause, while deferring further action on all other claims asserted in the
complaint. The parties believe that the procedure and schedule they propose for the
prompt filing of cross-motions for summary judgment on the Commerce Clause claims,
based on the existing record and without further discovery, will promote the efficient
resolution of potentially controlling issues of law in this case, while reducing litigation

costs and preserving judicial resources. The parties respectfully request that the Court
approve this procedure by entering the accompanying proposed Order.
Objective Of The Parties’ Joint Proposal
The parties agree that the Commerce Clause claims asserted by the Plaintiff
present potentially controlling issues of law as to which there is no dispute that the
Plaintiff has standing. The parties believe that establishing a process for facilitating a
final ruling by the Court on the Commerce Clause issues, and for subsequent review of
such claims by the Tenth Circuit Court of Appeals, will greatly promote the ultimate
resolution of the Plaintiff’s constitutional challenge to the Colorado law at issue in this
case.
Furthermore, the parties are in agreement that no further discovery or
submission of additional evidence is necessary for the Court to enter a final judgment
on the Plaintiff’s Commerce Clause claims. In connection with the Plaintiff’s Motion for
Preliminary Injunction, granted by the Court on January 26, 2001 [#79], the parties
conducted discovery and submitted evidence that they believe adequately addresses
the limited factual issues presented by such claims.

Thus, the Commerce Clause

claims appear to be ripe for decision by the Court through dispositive motions.
By contrast, the other constitutional claims asserted in Plaintiff’s complaint, and
the defenses to them raised by the Defendant, present complex issues that may require
substantial discovery and factual development, including opinion testimony by several
additional expert witnesses. A final ruling on the Commerce Clause claims may allow

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the parties to avoid costly and time consuming discovery and pre-trial motion practice
on such claims, thereby preserving judicial resources, as well.
Such efficiencies can only be realized, however, if a final ruling on the potentially
controlling Commerce Clause claims can be presented to the Tenth Circuit Court of
Appeals through an interlocutory appeal, while further action on the remaining claims is
held in abeyance. In order for the parties to obtain review of the Commerce Clause
claims by the Tenth Circuit, the Court would need to certify its final ruling on the
Commerce Clause claims for interlocutory appeal pursuant to 28 U.S.C. §1292(b).1 The
parties respectfully request that the Court evaluate now, in the event that the Court
awards summary judgment to one of the parties, whether it would be prepared to certify
its summary judgment order for interlocutory appeal under Section 1292(b). Although a
request for certification prior to the filing of summary judgment motions may be unusual,
in this case the Court has had the opportunity to evaluate the Commerce Clause issues
in connection with the Plaintiff’s Motion for Preliminary Injunction, and thus is likely in a
better position than in most cases to determine whether such claims are appropriate for
certification for interlocutory appeal.
Proposed Procedure
The parties have conferred extensively regarding a procedure for framing the
Commerce Clause issues presented in this case for final determination by the Court
and, ultimately, the Tenth Circuit Court of Appeals, and respectfully propose the
following:
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The parties recognize that under Section 1292(b) the Court of Appeals must exercise
its discretion to accept an interlocutory appeal in order for the parties to obtain review.

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1. The parties shall conduct no further discovery and make no additional
evidentiary submissions on Counts I and II (Commerce Clause).

The Court

shall defer further proceedings on all other Counts in the complaint pending
final resolution of Counts I and II.
2. The parties shall submit cross-motions for summary judgment on Counts I
and II based on the existing record and according to the following schedule:
a. Motions Due:

45 days after the entry of the relevant Order
by the Court;

b. Responses Due:

21 days after the relevant Motion is filed;

c. Replies Due:

14 days after the relevant Response is filed.

3. The Court shall certify any order granting summary judgment on Count I
and/or Count II for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
4. If the Court enters final judgment on Count I and/or Count II, all further
proceedings shall be stayed pending final action by the Tenth Circuit in
response to a notice of appeal filed by one or both parties.
5. If the Court awards neither party summary judgment, the Magistrate shall
promptly enter a Scheduling Order for resolution of all remaining issues in the
case following the denial of such motions.
The Defendant does not waive her right to file a notice of appeal of the Order
granting Plaintiff’s Motion for Preliminary Injunction in the event the Court does not
issue an order approving the procedure outlined herein before the period runs for the
filing of the notice of appeal.

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For the foregoing reasons, the parties respectfully request that the Court approve
their joint proposal for further proceedings on the Commerce Clause claims and enter
the accompanying proposed Order.

.

Respectfully submitted,

Dated: February 16, 2010

s/ George S. Isaacson
George S. Isaacson
Matthew P. Schaefer
BRANN & ISAACSON
184 Main Street, P. O. Box 3070
Lewiston, ME 04243−3070
Tel.: (207) 786−3566
Fax: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for Plaintiff
s/ Jack Wesoky
Jack Wesoky
Senior Assistant Attorney General
Stephanie Lindquist Scoville
Senior Assistant Attorney General
Melanie J. Snyder
Assistant Attorney General
State of Colorado
1525 Sherman Street, 7th Floor
Denver, CO 80203
E-mail: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant

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CERTIFICATE OF SERVICE
I hereby certify that on February 16, 2010, I electronically filed the foregoing Joint
Status Report and Proposed Order, using the CM/ECF system, which will send
notification of such filing to counsel of record:
Jack Wesoky
Senior Assistant Attorney General
Stephanie Lindquist Scoville
Senior Assistant Attorney General
Melanie J. Snyder
Assistant Attorney General
State of Colorado
1525 Sherman Street, 7th Floor
Denver, CO 80203
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant

s/ George S. Isaacson
George S. Isaacson

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