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Phoenix Insurance Co. v. Cantex, Inc.

United States District Court, Tenth Circuit

November 19, 2013

THE PHOENIX INSURANCE COMPANY, THE TRAVELERS INDEMNITY COMPANY, and THE TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA Plaintiffs,
v.
CANTEX, INC., CONCRETE MANAGEMENT CORP., LANDMARK AMERICAN INSURANCE COMPANY, OLD REPUBLIC INSURANCE COMPANY, and RBR CONSTRUCTION, INC., Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER

BOYD N. BOLAND, Magistrate Judge.

This matter arises on Plaintiffs' Motion to Amend the Scheduling Order to Extend Deadlines for Discovery Cutoff and the Filing of Dispositive Motions and for Expedited Briefing on This Motion [Doc. # 68, filed 11/14/2013] (the "Motion to Extend"), which is DENIED. In addition, I respectfully RECOMMEND that the action be administratively closed pursuant to D.C.COLO.LCivR 41.2.

This is a declaratory judgment action brought by insurance companies requesting a declaration concerning their duty to defend and indemnify Concrete Management Corp. ("CMC") and RBR Construction, Inc. ("RBR"), in connection with an underlying construction defect case pending in Mohave County, Arizona. The underlying action was commenced on January 18, 2011, and proceeded to trial on September 23, 2013. Part of the case was tried to a jury and part to the court. The jury "rendered its verdict, apparently finding CMC 85% at fault and RBR 15% at fault." Motion to Extend [Doc. # 68] at ¶12. The judge has not yet ruled on those matters presented for determination by the court, and I am informed that a transcript of the underlying action will not be available until mid-January 2013. Id. at ¶13.

Meanwhile, this action was commenced on February 27, 2013. Service of process was not completed until the end of May 2013, and a scheduling conference was held in mid-June 2013. The district judge set the case for trial commencing April 7, 2013.

The parties have resisted the prompt determination of the case. First, the plaintiffs did not promptly perfect service of process. Then, defendant Landmark sought to stay the action, Motion [Doc. # 45]; which request was joined by RBR [Doc. # 49] and Cantex [Doc. # 57]; was not opposed by Amerisure and Continental Insurance, and the plaintiffs took no position [Doc. # 45]. The plaintiffs now seek to extend the discovery cut-off and dispositive motion deadline to February 28, 2013, which are unreasonable in view of the April 7 trial date.[1] Finally, the plaintiffs have filed a motion to continue the trial date [Doc. # 62], which is pending before the district judge.

It is apparent that the plaintiffs acted imprudently in rushing to this court, a forum distant from the underlying action, to seek a declaration about their duties to defend and indemnify. Having filed an early suit, neither they nor the defendants they brought into the action, are in any position to prepare for trial within the normal time allowed by the district judge. Burdening the court with repeated requests for stays, extensions, and continuances is no way to conduct pretrial proceedings.

IT IS ORDERED that the Motion to Extend [Doc. # 68] is DENIED.

In addition, I respectfully RECOMMEND that the action be administratively closed pursuant to D.C.COLO.LCivR 41.2, subject to reopening for good cause when, if ever, the parties are in a position to prepare the case for trial.[2]


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