Wyers, et al v. Greenberg Traurig, LLP et al

Filing 128

ORDER. ORDERED that a five-day jury trial is set to commence on Monday, August11, 2014, at 8:30 a.m. in Courtroom A-1002. Further, a Trial Preparation Conference is set for Tuesday, July 15, 2014, at 10:00 a.m. ORDERED that the Plaintiffs' Mot ion For Summary Judgment Regarding Admissibility Of Evidence Of Mediation Communications 79 and the Defendants' Motion To Exclude Expert Testimony Of Melinda M. Harper 121 Denied Without Prejudice. ORDERED that the Parties' Joint Mo tion To Extend Briefing Deadlines 127 is DENIED IN PART and GRANTED IN PART. The Plaintiffs' shall respond to the Defendants Motion For Summary Judgment 123 on or before Friday, December 20, 2013 by Judge Wiley Y. Daniel on 12/09/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-00750-WYD-CBS
PHILIP W. WYERS, and,
WYERS PRODUCTS GROUP, INC.,
Plaintiffs,
v.
GREENBERG TRAURIG, LLP;
MARK L. HOGGE;
LAURA M. KLAUS; and,
ROBERT P. CHARROW,
Defendants.

ORDER

THIS MATTER is before the Court on: (1) the plaintiffs’ Motion For Summary
Judgment Regarding Admissibility Of Evidence Of Mediation Communications [ECF No.
79]; (2) the defendants’ Motion To Exclude Expert Testimony Of Melinda M. Harper
[ECF No. 121]; (3) the Final Pretrial Order [ECF No. 126]; and, (4) the parties’ Joint
Motion to Extend Briefing Deadlines [ECF No. 127].
BACKGROUND
On December 21, 2012, Philip W. Wyers and Wyers Products Group, Inc. (“the
Plaintiffs”), filed an Amended Complaint [ECF No. 53] against Greenberg Traurig, LLP,
Mark L. Hogge, Laura M. Klaus, and Robert P. Charrow (“the Defendants”) alleging that
the Defendants committed legal malpractice in connection with representing the
Plaintiffs in an patent appeal before the United States Court of Appeals for the Federal

-1-

Circuit. The substance of the Plaintiffs’ claim is that: (1) the Defendants failed to
properly apprise the Plaintiffs of the governing law regarding the patent appeal; (2) the
Defendants failed to accept an alleged lucrative settlement offer; (3) the Defendants
filed an insufficient appellate brief on the Plaintiffs’ behalf; and, (4) as a result of the
above mentioned actions, the United States Court of Appeals for the Federal Circuit
ruled against the Plaintiffs in the patent appeal.
ANALYSIS
A. Final Pretrial Order [ECF No. 126]
On November 29, 2013, Magistrate Judge Shaffer issued the Final Pretrial Order
[ECF No. 126]. As such, this action is ripe for a trial setting. Accordingly, a five-day jury
trial is set to commence on Monday, August 11, 2014, at 8:30 a.m. in Courtroom A1002. Further, a Trial Preparation Conference is set for Tuesday, July 15, 2014, at
10:00 a.m. in Courtroom A-1002.
B. The Plaintiffs’ Motion For Summary Judgment Regarding Admissibility Of
Evidence Of Mediation Communications [ECF No. 79] And The Defendants’
Motion To Exclude Expert Testimony Of Melinda M. Harper [ECF No. 121]
In the Plaintiffs’ Motion For Summary Judgment Regarding Admissibility Of
Evidence Of Mediation Communications [ECF No. 79], the Plaintiffs request that I find
the content of certain mediation communications which took place under a directive
from the United States Court of Appeals for the Federal Circuit admissible. In the
Defendants’ Motion To Exclude Expert Testimony Of Melinda M. Harper [ECF No. 121],
the Defendants request that I exclude Melinda M. Harper’s testimony.
Both motions [ECF Nos. 79 & 121] request a ruling regarding the admissibility of
evidence. Such a request is the substance of a motion in limine, not a motion for

-2-

summary judgment.1 Pursuant to Rule III(C)(1) of my PRACTICE STANDARDS, motions in
limine “may be filed not earlier than seventy-five (75) days and not later than thirty (30)
days prior to the Trial Preparation Conference.” The Trial Preparation Conference is set
for Tuesday, July 15, 2014. Both motions [ECF Nos. 79 & 121] were filed earlier than
75 days prior to the Trial Preparation Conference. Therefore, the motions [ECF Nos. 79
& 121] are premature and DENIED WITHOUT PREJUDICE.
C. The Parties’ Joint Motion To Extend Briefing Deadlines [ECF No. 127]
The parties consent to extending the deadline for Plaintiffs’ response to the
Defendants’ Motion To Exclude Expert Testimony Of Melinda Harper [ECF No. 121].
The request is MOOT because that motion [ECF No. 121] is denied without prejudice.
The parties further consent to extending the deadline for Plaintiffs’ response to
the Defendants’ Motion For Summary Judgment [ECF No. 123] to Friday, December 20,
2013. That request is GRANTED.
CONCLUSION
After careful consideration of the matters before this Court, it is
ORDERED that a five-day jury trial is set to commence on Monday, August
11, 2014, at 8:30 a.m. in Courtroom A-1002. Further, a Trial Preparation
Conference is set for Tuesday, July 15, 2014, at 10:00 a.m. in Courtroom A-1002.
It is
FURTHER ORDERED that the Plaintiffs’ Motion For Summary Judgment
Regarding Admissibility Of Evidence Of Mediation Communications [ECF No. 79] and
the Defendants’ Motion To Exclude Expert Testimony Of Melinda M. Harper [ECF No.
1

Pursuant to Rule 56(a) of the FEDERAL RULES of CIVIL PROCEDURE, “[a] party may move for summary
judgment, identifying each claim or defense – or part of each claim or defense – on which summary
judgment is sought.” (emphasis added).
-3-

121] are DENIED WITHOUT PREJUDICE. This ruling does not foreclose any party
from raising the issues in these motions [ECF Nos. 79 & 121] under the proper
procedural device, at the proper time, in accordance with my PRACTICE STANDARDS.
It is
FURTHER ORDERED that the Parties’ Joint Motion To Extend Briefing
Deadlines is DENIED IN PART and GRANTED IN PART. The motion is DENIED AS
MOOT to the extent the parties consent to extending the deadline for the Plaintiffs to
respond to the Defendants’ Motion To Exclude Expert Testimony Of Melinda Harper
[ECF No. 121] because that motion is denied without prejudice. The motion is
GRANTED to the extent the parties consent to extending the time for Plaintiffs to
respond to the Defendants’ Motion For Summary Judgment [ECF No. 123]. As such,
the Plaintiffs’ shall respond to the Defendants’ Motion For Summary Judgment [ECF No.
123] on or before Friday, December 20, 2013.
Dated: December 9, 2013.

BY THE COURT:

/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

-4-