Jul 28, 2019 9:15:18 AM

So You’re Being Sued in the District of Colorado: 10 Things To Know

If you have a case filed in the United States District Court for the District of Colorado, if your case has been transferred here, or if it is otherwise your first time litigating a case in this District, then you will be facing a learning curve. To help you navigate that learning curve, we have compiled a list of answers to some of the most common questions we receive from new parties and litigants. While experienced, thoughtful Colorado counsel is your best guide to navigating the local terrain, we hope these questions and answers will help orient you to the federal courts in the Centennial State.

1. Is the District of Colorado geographically divided into distinct divisions?

The District of Colorado is not divided into separate divisions. The majority of cases are heard in Denver. There is, however, one magistrate judge in each of the following additional cities: Colorado Springs, Grand Junction and Durango. Cases are assigned to judicial officers on the basis of a random draw by computer, but a judge may reassign a case for the parties’ geographic convenience.

2. Who are the judges in the District of Colorado to whom my case could be assigned?

The District of Colorado is entitled to seven active, non-senior judges. At present it has six: Chief Judge Philip A. Brimmer, Judge Christine M. Arguello, Judge William J. Martinez, Judge R. Brooke Jackson, Judge Raymond P. Moore, and Judge Daniel D. Domenico. The District also has four senior judges who carry significant (50-99%) caseloads: Judge Marcia S. Krieger, Judge John L. Kane, Judge Lewis T. Babcock, and Judge Robert E. Blackburn.[1]

The District has nine magistrate judges. They are Judge Michael E. Hegarty, Judge Kristin L. Mix, Judge Kathleen M. Tafoya (Colorado Springs), Judge Nina Y. Wang, Judge Scott T. Varholak, Judge S. Kato Crews, Judge N. Reid Neureiter, Judge Gordon P. Gallagher (Grand Junction), and Judge James M. Candelaria (Durango).

You can learn more about the district and magistrate judges here.

3. Does Colorado allow for the recovery of attorney’s fees or the recovery of exemplary (punitive) damages?

This is one of the questions we’re most frequently asked. For cases involving federal statutes—e.g., claims alleging patent infringement under the Patent Act—the answer generally is the same as it would be in any other district involving the same federal statute, regardless of where the case is pending.

For diversity cases in which Colorado state law provides the rule of decision, attorney’s fees are frequently recoverable. For example, contractual fee-shifting provisions are generally valid under Colorado law, and a fee-shifting provision need not be mutual to be enforceable. Colorado also permits claims for exemplary damages where an injury was caused by fraud, malice, or willful and wanton conduct. But Colo. Rev. Stat. § 13-21-102 provides that such a claim may not be added to a complaint until after a plaintiff is able to establish prima facie proof of a triable issue. Moreover, the amount of exemplary damages generally may not exceed the amount of actual damages awarded to the injured party.

4. Do I have to hire local Colorado counsel if I have a case in the District of Colorado?

To appear as counsel of record in any case, an attorney must be a member of the bar; the District of Colorado does not allow for pro hac vice admissions to the bar. Applications to become a member of the bar may be completed online and are generally processed in one to two business days. To be eligible to become a member of the bar, a person must be licensed by the highest court of a state, federal territory or the District of Columbia; be on active status; and be in good standing in all courts and jurisdictions where admitted. An attorney does not need to associate with local counsel or be a member of the Colorado state bar to become a member.

While it is possible for non-local practitioners to become members of the bar, parties greatly benefit from having good local counsel. Having local counsel—someone who understands the local rules, customs, norms, and common pitfalls, and who is familiar with and respected by other members of the local bar and the judiciary—can be incredibly valuable for out-of-state litigants.

5. Are there any local discovery-related rules of which I should be aware?

If you get to discovery in your case, make sure you are familiar with the local rules. The District of Colorado has a number of nuances to the procedures laid out in the Federal Rules of Civil Procedure. Colorado’s unique discovery practices include guidelines for e-discovery, rules regarding depositions, and motions to restrict pubic access to documents filed with the Court.

  • E-Discovery: In 2014, Colorado adopted Guidelines Addressing the Discovery of Electronically Stored Information, and created a detailed Checklist for Rule 26(f) Meet-And-Confer Regarding Electronically Stored Information. The Guidelines are intended to promote the goals of cooperation, reasonableness, and proportionality. Among other things, the Guidelines encourage the parties to confer “at the earliest possible stages of litigation” on issues of preservation, as well as to identify types and sources of data relevant to claims and defenses. The Guidelines further identify the Rule 26(f) conference as a “critical step” in the e-discovery process. At that conference, attorneys should be prepared to address items detailed in the Checklist concerning preservation of information, location and types of data and systems, proportionality and costs of requests, methods for searching and filtering electronically stored information, any desired phasing of e-discovery, the form of production, and agreements concerning privilege, as well as identify an e-discovery liaison. Additional information specific to your judge’s expectations related to the parties’ e-discovery obligations may be found in the judge’s Civil Practice Standards posted on the District of Colorado website.

 

  • Depositions: In addition to the conduct prohibited by Fed. R. Civ. P. 30(d)(3)(A), Local Civil Rule 30.3 prohibits during a deposition: 1) making an objection or a statement that has the effect of coaching the deponent or suggesting an answer; and 2) interrupting examination by counsel except to determine whether to assert a privilege. When a judicial officer determines that a party or counsel has unreasonably interrupted, delayed or prolonged a deposition, the party or its counsel may be ordered to pay each other party’s expenses, including travel, lodging, reporter’s fees, attorney’s fees, and videotaping expenses for that portion of the deposition determined to be excessive, or for any additional depositions or hearings made necessary by the misconduct.

 

  • Motions to restrict public access – Colorado operates under a presumption of public access to all documents filed with the court. Local Civil Rule 7.2 requires parties seeking to restrict access to file a motion setting forth, among other things, an explanation why the interest to be protected outweighs the presumption of public access, identifying a clearly-defined injury that would result if access is not restricted, and explaining why no alternative to restriction is practicable. Stipulations between parties or stipulated protective orders alone are insufficient to justify restriction. Notice of the filing of a motion to restrict will be posted on the court’s website and any person may file an objection to the motion within three days.

6. Do judges in the District of Colorado regularly hear oral arguments or otherwise require the parties to appear in court?

Local Civil Rule 7.1(h) provides that a motion may be decided without oral argument, at the court’s discretion. Most of the active judges generally do not schedule argument, but several judges, including Judges Arguello, Martinez, and Wang, do give preference if the argument is requested and will be handled by an attorney of record in the case with eight years or less legal experience. As mentioned earlier, your judge will likely have a set of set of Civil Practice Standards that will provide greater detail about the judge’s courtroom and case management expectations for the parties, which will be available at the District of Colorado website.

7. “How many pages do I have for this brief?”, and other judge-specific questions.

The length of most motions is left to the discretion of the judge.[2] Each judge and magistrate has his or her own “Civil Practice Standards” posted on the Court’s website. These documents provide important information for attorneys practicing before that judge. In addition to providing technical information such as page lengths for briefs and motions, it includes the judge’s preferences on specific practices, including those that may differ from the local rules. For example, numerous judges in the District of Colorado discourage Rule 12(b)(6) motions where the defect may be corrected by an amended pleading, and require parties to confer before filing such a motion—notwithstanding Local Civil Rule 7.1(b)(2), which states that conferral is not required before filing dispositive motions. Similarly, Judge Jackson’s practice standards indicate that “the standard form protective order often used is in this District . . . is generally not going to be acceptable,” and goes on to provide more information on how a party might obtain a protective order in his courtroom. Numerous judges also discourage filing motions in limine.

8. How long will it to take to get my case to trial?

The District of Colorado is busy but efficient. Colorado has the highest weighted filing count for all the district courts in the Tenth Circuit. But for civil cases, the median time from the filing of the complaint to disposition is 7.1 months, more than three months faster than the average for the rest of the country’s federal district courts.

The median time from filing to trial in Colorado is 24.7 months—roughly two months faster than the median time for all of the federal district courts. Although numerous factors can impact the time to trial or disposition, one way to speed a case along in Colorado is to consent to disposition or trial by the Magistrate Judge if possible. Because the Magistrate Judges do not preside over felony trials, they usually are able to schedule civil trials more expeditiously and with greater certainty that the case will proceed on the date scheduled.

9. What is the local practice concerning settlement and mediation?

In 2012, the District of Colorado moved away from the use of routine settlement conferences. This change was in response to frustration with counsel not preparing seriously for settlement conferences, and was intended to conserve judicial resources. Instead, Local Civil Rule 16.6 provides that a judge or magistrate “may direct the parties to engage in an early neutral evaluation or other alternative dispute resolution proceeding.” Early Neutral Evaluation is a nonbinding, non-adjudicative assessment of a case by a magistrate judge intended to help parties candidly assess the merits of the case and potential value of claims. While settlement negotiations between the parties are encouraged, judges generally will not continue hearings, trials and pretrial deadlines to facilitate those negotiations.

10. What time do I need to file documents that are due to the Court on a given day?

The answer is 11:59 p.m. (MST) the day it is due. Like every other federal district court, the District of Colorado uses the CM/ECF system. Filings are accepted for the day of filing if complete by the end of the day. If you are using local counsel who is filing your pleading, make sure they’re available to handle at the appointed time.


About Hilgers Graben

Hilgers Graben is a nationwide litigation boutique specializing in complex commercial and intellectual property litigation and discovery counsel services. The firm uses geo-arbitrage and innovation to provide superior litigation and discovery counsel services while driving down costs for its clients. The HG EDGE discovery counsel team has pioneered unique techniques and process improvements to dramatically drive down the cost of discovery.

If you have questions or need assistance with your Colorado state court case, please reach out to info@hilgersgraben.com.

[1] Senior Tenth Circuit Judge David M. Ebel also frequently sits by designation in the District of Colorado; links to his courtroom practices may be found on the District of Colorado webpage.

[2] The exception to this is for patent cases. Local Patent Rule 17 provides that a claim construction brief or brief on a dispositive motion shall not exceed 10,000 words. If a party files a supporting brief and a reply brief, however, the two briefs together shall not exceed 10,000 words.

Topics: Colorado, Sued