Phillips v. Lincare Inc. et al

Filing 4

ORDER Re Rule 121 Duty to Confer by Russell H. Granger, District Court Judge on 06/04/2013. (dbera, )

District Court, Clear Creek County, Colorado
405 Argentine St., PO Box 367
Georgetown, CO 80444
Phone: [phone]
Fax: [phone]

DATE FILED: June 4, 2013

Plaintiff: PHILLIPS, HOWARD

v.
Defendant: LINCARE INC et al

▲COURT USE ONLY▲

Case Number: 13CV30010
Div. 1

ORDER RE RULE 121 DUTY TO CONFER

C.R.C.P. 121 § 1-15(8) states that “[m]oving counsel shall confer with opposing
counsel before filing a motion.” At the outset of this action, the Court now provides the
parties with its interpretation of this rule, so that the parties will have a clearer
understanding of their duties in the event they decide to file motions as the matter
proceeds.
The clear purpose of Rule 121 is to require the parties to identify and attempt to
resolve emerging issues before engaging in motion practice. The plain language definition
of the word “confer” means “[t]o meet in order to deliberate together or compare views;
consult.” American Heritage Dictionary of the English Language. From the foregoing,
the Court puts the parties on notice that the word “confer” requires the moving party to
partake in interactive discussions with any party who might potentially oppose the relief
requested. Before filing a motion, the moving party must speak with a party, either faceto-face or via phone, in order to satisfy the duty to confer. It is unacceptable for the
parties to “confer” by non-interactive means, including but not limited to voice message,
e-mail, letter, fax, or text message.
In further interpreting the first sentence of C.R.C.P. 121 § 1-15(8) above, the Court
reads the word “shall” as creating a mandatory requirement. Accordingly, before filing a
Motion, the Court routinely expects the moving party to confer with any potentially
opposing party, as detailed above.

C.R.C.P. 121 § 1-15(8) does provide that, “[i]f no conference has occurred, the
reason why shall be stated.” On occasions where the moving party offers such a reason in
lieu of actually conferring, the Court expects the reason to be explained in substantive
detail. The Court also expects it to fall within the realm of an unusual occurrence. On one
end of the spectrum, it will not be acceptable for the moving party to make one phone call,
leave a voicemail requesting the opposing party to confer, and then submit a
corresponding shortly thereafter. Contemporaneously, the Court will not require a moving
party to be hamstrung, where said party has attempted to contact the opposing party on
numerous occasions, left several voice messages asking to confer, but has nonetheless
received no return communication in a timely fashion. Since individual circumstances
vary between these two extremes, the Court will evaluate whether the parties have
satisfied the duty to confer on a case-by-case basis.
Finally, the Court reads C.R.C.P. 121 § 1-15(8) as applying to pro se parties in the
same manner as it applies to any attorney entering an appearance before this Court.

Court Ordered Mediations and limited English proficient (LEP) individuals:
The best option for court-ordered mediations involving LEP individual is always a
bilingual mediator. A list of bilingual mediators can be found at www.ColoradoODR.org
or by calling at [phone].
Indigent parties: The Office of Dispute Resolution (“ODR”) provides court-ordered
mediation services to both indigent and non-indigent parties. ODR mediators or their
designees are responsible for scheduling interpreters (when an appropriate bilingual
mediator is not available). When an indigent party requires an interpreter for ODR
mediation services, ODR is responsible for payment of the interpreter’s fees, subject to
availability of funds.
Non-indigent parties: Non-indigent parties may receive court–ordered mediation from
ODR mediators or other mediators working in a private capacity. The courts are
responsible for the scheduling and payment of language interpreters for all court-ordered
mediation for non-indigents parties. Please contact the Managing Court Interpreter for
the 5th Judicial District (Ana Carolina Martin-Childers @ [e-mail] or [phone]) as soon as you can, for her to schedule
interpreters for your mediation. Please include the case number and contact information.

DATED: 6/4/2013