Fogle v USA

Filing 61

ORDER Granting Motion to Continue Trial. 59 Unopposed Motion to Vacate Trial Setting and Related Deadlines is Granted. That the Trial Preparation Conference Order 43 entered June 5, 2015, is amended and supplemented accordingly. Telephonic (non-appearance) Conference set for 4/15/2016 at 10:00 AM. Signed by Judge Robert E. Blackburn on 3/22/2016.(cmira)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-00486-REB-KLM
CURTIS M. FOGLE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

ORDER GRANTING MOTION TO CONTINUE TRIAL
Blackburn, J.
This matter is before me on the Unopposed Motion To Vacate Trial Setting
and Related Deadlines [#59]1 filed March 21, 2016. The motion is unopposed and is
granted.
Currently, trial is scheduled to begin April 4, 2016. A combined Final Pretrial
Conference and Trial Preparation Conference is set for April 1, 2016.
On March 8, 2016, the assigned magistrate judge issued a recommendation
[#58] concerning the Motion to Dismiss for Lack of Subject Matter Jurisdiction [#51]
filed by the defendant. The magistrate judge recommends that the motion to dismiss be
granted. The plaintiff’s objections, if any, to the recommendation are due March 22,
2016. Obviously, if I approve and adopt the recommendation, then the need for a trial is
obviated. In addition, during the same week this case is set for trial, a trial in a criminal
1

“[#59]” 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.

matter is set to proceed before this judge. Criminal trial settings take precedence over
civil trial settings.
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
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)).2 Applied to the present case, these
factors augur toward a continuance of the trial and the combined Final Pretrial
Conference and Trial Preparation Conference.
THEREFORE, IT IS ORDERED as follows:
1. That the Unopposed Motion To Vacate Trial Setting and Related
Deadlines [#59] filed March 21, 2016, is granted;
2. That the combined Final Pretrial Conference and Trial Preparation
Conference set April 1, 2016, and the trial set to begin April 4, 2016, are vacated and
continued without date;

2

In my civil practice standards, I specify that a motion to continue shall be determined pursuant
to, inter alia, the West factors. See REB Civil Practice Standard II.F.2.

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3. That on April 15, 2016, at 10:00 a.m. (MDT), counsel for the parties shall
contact the court’s administrative assistant at [phone] to reschedule, if
necessary, the combined Final Pretrial Conference and Trial Preparation Conference as
well as the trial;
4. That the trial, if necessary, shall be scheduled for four (4) trial days;
5. That counsel for the plaintiff shall arrange and coordinate the conference call
necessary to facilitate this telephone conference; and
6. That the Trial Preparation Conference Order [#43] entered June 5, 2015, is
amended and supplemented accordingly.
Dated March 22, 2016, at Denver, Colorado.
BY THE COURT:

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