Hardscrabble Ranch, LLC v. United States of America

Filing 38

ORDER GRANTING MOTIONS TO AMEND SCHEDULING ORDER & CONTINUE TRIAL: The 27 Fourth Motion to Amended Scheduling Oder and Motion to Modify Trial Preparation Conference Order is GRANTED. Plaintiff's 28 Unopposed Motion to Amend Scheduling Orde r is GRANTED. The 29 Motion for Leave to File Motion to Dismiss for Lack of Jurisdiction is GRANTED. Defendant's Motion to Dismiss under Rule 12(b)(1) [#29-1] and attached exhibits [#29-2 - #29-21] are ACCEPTED for filing. The court notes th at a response [# 33 ] and reply [# 35 ] addressing the motion to dismiss have been filed. The 34 Motion for Leave to File Out-of-Time Motion to Exclude Expert Testimony is GRANTED. The United States' Motion to Exclude Expert Testimony [#34-1 ], and the attached exhibits [#34-2 - #34-6] are ACCEPTED for filing. The Combined Final Pretrial Conference and Trial Preparation Conference set 2/27/2015 and the trial set to commence 3/16/2015 are VACATED and CONTINUED pending further order. Counsel SHALL CONTACT the court's administrative assistant on 4/30/2015 at 10:00 AM to reschedule the combined Final Pretrial Conference and Trial Preparation Conference and the trial. By Judge Robert E. Blackburn on 2/19/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-00426-REB-MJW
HARDSCRABBLE RANCH, LLC, f/k/a Farley Ranch, LLC,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

ORDER GRANTING MOTIONS TO AMEND
SCHEDULING ORDER & CONTINUE TRIAL
Blackburn, J.
This matter is before me on the following: (1) the Fourth Stipulated Motion To
Amend Scheduling Order and Motion To Modify Trial Preparation Conference
Order [#27]1 filed October 29, 2014; (2) the Plaintiff’s Unopposed Motion To Amend
Scheduling Order [#28] filed December 9, 2014; (3) the Motion for Leave To File
Motion To Dismiss for Lack of Jurisdiction [#29] filed December 24, 2014; and (4)
the Motion for Leave To File Out-of-Time Motion To Exclude Expert Testimony or,
in the Alternative, To Accept Fed. R. Evid 702 Challenge at Trial [#34] filed January
15, 2015. Responses were filed to the non-stipulated motions.
This case is set for trial to the court beginning March 16, 2015, at 9:00 a.m. The
claim of the plaintiff is a claim under the Federal Tort Claims Act (FTCA), 28 U.S.C.

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“[#27]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

§ 1346(b). In the motions listed above, the parties outline circumstances that have
slowed trial preparation and motions practice in this case. Some discovery was delayed
in mid-September 2014, in anticipation of an appearance of new counsel for the
defendant. New counsel entered his appearance on September 26, 2014.
In November and December 2014, the depositions of several witnesses were
delayed due to scheduling conflicts. These delays included delays related to certain
putative expert witnesses.
As these delays accrued, the parties sought extensions of certain deadlines, but
those motions were not resolved. Now, although the discovery cut-off and other
relevant deadlines have expired, the defendant reasonably seeks extensions of time to
file a dispositive motion and a motion under Rule 702.
In the dispositive motion, the defendant seeks to argue that the so-called
discretionary function exception applies to this case and, as a result, the waiver of
sovereign immunity found in the FTCA is not applicable to this case. 28 U.S.C. §
2680(a). This is a jurisdictional issue.
In addition, now that discovery related to expert witnesses is complete, the
defendant seeks to file a motion to exclude the proposed expert testimony of witness
Robert Hamilton. Given these circumstances, the plaintiff seeks an extension of certain
deadlines and the parties ask that the trial be re-set to a later date.
The United States Court of Appeals for the Tenth Circuit has outlined four
primary factors that should be considered to determine if a continuance is necessary.
See, e.g., Morrison Knudsen Corp. v. Fireman's Fund Ins. Co.,175 F.3d 1221, 1230
(10th Cir. 1999) (citing U.S. v. West, 828 F.2d 1468, 1469 (10th Cir. 1987) (listing
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factors)). The key relevant factors are
(1) the diligence of the party requesting the continuance; (2) the likelihood
that the continuance, if granted, would accomplish the purpose underlying
the party’s expressed need for the continuance; (3) the inconvenience to
the opposing party, its witnesses, and the court resulting from the
continuance; [and] (4) the need asserted for the continuance and the harm
that [movant] might suffer as result of the district court’s denial of the
continuance.
United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (quoting United States
v. West, 828 F.2d 1468, 1470 (10th Cir. 1987)). The parties’ motion addresses these
factors and describes specific facts in this case relevant to the West factors.
Applied to the present case, these factors augur toward an extension of the
dispositive motion deadline and the deadline for Rule 702 motions. Orderly resolution
of these motions will permit the court to resolve the jurisdictional issue the defendant
seeks to raise in its proposed motion to dismiss as well as the expert witness issues
related to the testimony of Robert Hamilton. Resolution of these issues prior to trial
requires a continuance of the trial date currently set.
THEREFORE, IT IS ORDERED as follows:
1. That the Fourth Stipulated Motion To Amend Scheduling Order and
Motion To Modify Trial Preparation Conference Order [#27] filed October 29, 2014,
is GRANTED on the terms stated in this order;
2. That the Plaintiff’s Unopposed Motion To Amend Scheduling Order [#28]
filed December 9, 2014, is GRANTED on the terms stated in this order;
3. That the Motion for Leave To File Motion To Dismiss for Lack of
Jurisdiction [#29] filed December 24, 2014, is GRANTED;

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4. That the Defendant’s Motion To Dismiss Under Rule 12(b)(1) [#29-1],
tendered with the defendant’s Motion for Leave To File Motion To Dismiss for Lack
of Jurisdiction [#29] filed December 24, 2014, and the attached exhibits [#29-2 - #2921], are ACCEPTED for filing2;
5. That the Motion for Leave To File Out-of-Time Motion To Exclude Expert
Testimony or, in the Alternative, To Accept Fed. R. Evid 702 Challenge at Trial
[#34] filed January 15, 2015, is GRANTED;
6. That the United States’s Motion To Exclude Expert Witness Testimony
[#34-1], and the attached exhibits [#34-2 - #34-6], are ACCEPTED for filing;
7. That the response and reply to the United States’s Motion To Exclude
Expert Witness Testimony [#34-1] shall be marshaled under D.C.COLO.LCivR 7.1(d),
based on a filing date for that motion of February 19, 2015;
8. That the combined Final Pretrial Conference and Trial Preparation
Conference set February 27, 2015, and the trial set to commence March 16, 2015, are
VACATED and CONTINUED pending further order;
9. That counsel SHALL CONTACT the court’s administrative assistant at (303)
335-2350 on April 30, 2015, at 10:00 a.m. (MDT), to reschedule the combined Final
Pretrial Conference and Trial Preparation Conference and the trial;
10. That when re-set, the trial shall be set for three consecutive trial days,
Monday through Wednesday, unless counsel for the parties requests additional trial

2

The court notes that a response [#33] and reply [#35] addressing the motion to dismiss have
been filed.

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time during the April 30, 2015, telephone setting conference; and
11. That the Trial Preparation Conference Order [#14] entered April 21, 2014,
and the Civil Scheduling Order [#13] filed April 21, 2014, are AMENDED and
SUPPLEMENTED accordingly.
Dated February 19, 2015, at Denver, Colorado.
BY THE COURT:

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