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1. On April 5, 2011 the Division filed a Motion to Dismiss Itself as a Party Defendant to <br />Plaintiffs' judicial review of final agency action.' Plaintiffs' response to this Motion was due <br />April 25, 2011. In its Motion, the Division argued that it made no final agency decisions on the <br />PR -6 application that would be subject to judicial review. The Board, a distinct legal entity from <br />the Division, is the only entity that took the final agency action by approving PR -6. Therefore, <br />the Division should be dismissed as a party. <br />2. On April 22, 2011, the Friday before the Monday response filing deadline, Plaintiffs' <br />counsel "conferred" by e -mail requesting an extension of time to May 3, 2011 to respond in both <br />this matter, 2010 CV 548, and another matter, 2010 CV 367. Undersigned counsel received this <br />e -mail around 9:20 a.m. on Monday April 25, 2011 and immediately responded that the Division <br />did not object to the extension requests in both matters. The e -mail string, attached as <br />Attachment 1, is the full extent of the correspondence between Plaintiffs' attorney and <br />undersigned counsel regarding this matter. <br />3. Undersigned counsel agreed to a motion for enlargement of time to May 3, 2011 to allow <br />Plaintiffs additional time to respond to the Division's Motion to Dismiss Itself as a Party. <br />4. What was ultimately filed by Plaintiffs' counsel, at 4:59 on April 26, 2011, one day after <br />the period to timely respond had passed, was an Unopposed Motion to Set Aside Order. Not only <br />was this a surprise, but the motion contained a statement that the "Undersigned counsel has <br />conferred with counsel for Defendant DRMS pursuant to C.R.C.P. 121, and is informed that <br />Defendant does not oppose this motion." Motion at paragraph 1. <br />5. This Court entered an Order granting the Division's dismissal from the judicial review <br />action at 1:31 p.m. on April 25, 2011. Plaintiffs' Motion to Set Aside Order was filed at 4:59 <br />p.m. on April 26, 2011.2 At no time did Plaintiffs' counsel attempt to contact undersigned <br />counsel to advise him of the significant change in circumstances, although Plaintiffs' counsel had <br />' Plaintiffs' erroneously state in the Unopposed Motion to Set Aside Order that the Division's Motion to Dismiss <br />was filed on April 8, 2011. <br />2 Due to an error by the clerk of court, the Division's party status in Lexis File and Serve was changed from active to <br />inactive ,prior to the clerk entering the Court's Order and Plaintiffs' Motion into Lexis File and Serve. Therefore, as <br />a party with "inactive" status, undersigned counsel was not served through Lexis File and Serve and was not even <br />aware that the Court had entered an Order or that Plaintiffs' filed the Unopposed Motion to Set Aside Order until it <br />was received in an e-mail from Defendant Western Fuels Colorado's counsel on Wednesday April 25, 2011. <br />