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Terry D. Hamilton, et al v. Henry W. Willms

March 20, 2013




ORDER SETTING THIS ACTION FOR TRIAL ON NOVEMBER 5, 2013 (Documents #781, #782, & #783)


This action was filed on July 17, 2002, in the United States District Court for the District of Colorado, but it was transferred to this court. The Court is proceeding with Plaintiffs' second amended complaint filed on June 11, 2003.

The Court's November 2, 2006 Pretrial Order set the trial in this action for December 5, 2006 and the motions in limine hearing set for November 21, 2006, which was later reset to November 28, 2006. The parties then filed motions in limine. On November 28, 2006, at the motions in limine hearing Plaintiffs raised the issue of their need to still depose Suzzane Conry. On November 29, 2006, Plaintiffs filed a motion to compel the deposition of Ms. Conry and to compel the enforcement of a previous agreement with Defendants concerning Ms Conry's deposition. After informal discovery interventions by Magistrate Judge Sandra M. Snyder were unsuccessful, on December 4, 2006, the Court held a telephonic hearing with the parties and denied any request to continue the trial to resolve the discovery matter concerning Ms. Conry.

A little before 4:00 p.m. on December 4, 2006, the parties' attorneys contacted the Court and stated that they had reached a stipulation to continue the trial. The parties and the parties' attorneys informed the Court that they had negotiated a stipulation that would continue the trial in exchange for Plaintiffs eliminating certain parties and certain claims from this action. The parties stated the purpose of this agreement was to allow Plaintiffs time to file a motion regarding any agreement on Ms. Conry's deposition. The Court then vacated the trial date and ordered that the stipulation be memorialized in a written document, signed by counsel and the parties.

When the parties did not file the stipulated dismissal and order agreeing to allow further discovery motions, on December 11, 2006, Defendants filed a motion to enforce the stipulation and award sanctions. On March 6, 2007, the Court granted Defendants' motion to enforce the December 4, 2006 oral stipulation. (Doc. # 559). As part of this order, the Court granted judgment in favor of several Defendants and entered judgment in favor of the remaining Defendants on the fifth and sixth claims for relief. The Court also awarded sanctions. On October 4, 2007, the Court denied Plaintiffs' motions for reconsideration of the March 6, 2007 order. (Doc. #672).

On September 27, 2007, November 19, 2007, and April 30, 2008, Plaintiff filed numerous discovery motions concerning Ms. Conry's deposition and other discovery agreements. On June 6, 2008, Magistrate Judge Snyder issued a minute order clarifying that the only issue before the Court was whether Plaintiffs should be permitted to take the deposition of Ms. Conry. On June 6, 2008, Judge Snyder issued a minute order allowing Plaintiffs to reopen discovery for the limited purpose of taking Ms. Conry's deposition. Judge Snyder then informed the parties that the deposition must be appropriately noticed and held at the Courthouse for the Federal District and Division within which Ms. Conry resided pursuant to Rule 45(a)(2) of the Federal Rules of Civil Procedure. The deposition of Ms. Conry was never taken pursuant to Rule 45.

This entire action was then informally stayed as the parties litigated a related state court action. On February 8, 2011, Defendants filed a status report in which they notified the Court that the state court action had been concluded.

On March 28, 2011, the Court denied any outstanding motions for the Court to enforce any discovery agreement concerning Ms. Conry's deposition. The Court then set this action for trial. The Court ordered the parties to file an Amended Pretrial Statement by July 29, 2011, set the Pretrial Conference for August 12, 2011, and set trial in this action for September 20, 2011

On July 29, 2011, Defendants file their Pretrial Statement. Plaintiffs did not file a Pretrial Statement, ask for additional time in which to file a Pretrial Statement, or contact the Court in any way. On August 11, 2011, the Court found that Plaintiffs' failure to "file a pre-trial statement rendered the pre-trial procedures incomplete and the pre-trial conference impractical." The Court then ordered Plaintiff to show cause in writing why this action should not be dismissed for Plaintiffs' failure to file a pre-trial statement.

On August 11, 2011, Attorney Michael L. Abbott ("Attorney Abbott"), on behalf of Plaintiffs, filed an application requesting that the Court find certain prior orders final for the purposes of appeal.

After requesting an extension of time, on September 30, 2011, Plaintiffs filed a response to the Court's August 11, 2011 order to show cause. Plaintiffs stated that issues with their attorneys had caused them to not file a timely Pretrial Statement. Plaintiffs also requested to be allowed to appeal the Court's March 28, 2011 order (Document #559). As to Attorney Abbott, Plaintiffs requested that the Court enter an Order for Attorney Abbott to prepare a "Substitution of Counsel" for Plaintiffs to execute, the Court issue an Order clarifying that Attorney Abbott was no longer Plaintiffs' counsel of record in the instant case, and the Court advise any new counsel Plaintiffs may retain that they will be treated fairly.

On October 28, 2011, the Court discharged the order to show cause and gave Plaintiffs the exact order they had requested concerning the issue of Attorney Abbott's representation.

The Court ruled as follows:

Finally, Plaintiffs request that the court enter an order requiring Attorney Abbott to withdraw from this action. The court has reviewed the docket and agrees with Plaintiffs that whether Attorney Abbott is Plaintiffs' counsel of record is unclear. The court's proof of service and list of attorneys representing Plaintiffs indicate Attorney Abbott is no longer Plaintiffs' attorney and Plaintiffs are appearing pro se. The court will issue an order confirming this.


Accordingly, the court ORDERS that:

1. The court's August 11, 2011 order to show case is DISCHARGED;

2. Plaintiffs' request for permission to appeal the March 28, 2011 discovery order pursuant to Rule 54(b) is DENIED without prejudice;

3. Any further motion that seeks the court's permission to appeal SHALL be filed within thirty days of this ...

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