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EX„ 762 P.2d 703,705 (Colo. App 1988); K.R_Funds(tiv. Fox,640 P.2d 257,258(Colo. App. <br /> 1981)(trial couures refusal to grant motion to amend was an abuse of descretion where only prejudice <br /> to opposing party was having the case decided on the merits). <br /> Further, the proposed Amended Third-Party Complaint generally requests that this Court <br /> enforce the Reclamation Plan which DMO agreed to as part of the Bankruptcy Liquidation Plan and <br /> this was the sort of relief requested in the original Third-Party Complaint. As DMG notes on page <br /> three of its Objection, the Third-Party Complaint specifically requested that"this Court . . .order <br /> DMG's full and complete compliance with the Plaun- . ." <br /> DMG complains that the.injunction requested in the Fifth Claim for Relief of the proposed <br /> Amended Third-Party Complaint is to restrain demolition of structures not owned by Third-Party <br /> Defendants. While this is true,demolition of those structures would cost money and those fluids <br /> would come from the $3 million pool of reclamation funds established by the Bankruptcy <br /> Liquidation Plan. Defendants and the owners of the property containing the structures have <br /> repeatedly requested that DMG agree not to destroy the structures, but DMG has never agreed. <br /> DMG also complains that the declaratory judgment requested in the Sixth Claim for Relief concerns <br /> liability under a discharge permit issued by the Colorado Department of Public Health and <br /> Environment("COPHE")which is not a party to this action. Defendants contend that CDPHE is not <br /> needed to adjudicate the liability under the permit between Defendants and DMG. <br /> DMG will not be prejudiced in preparing its case for trial mainly because there is not a trial <br /> date currently sat. Most likely a trial date will not be set until well into 1999, giving all parties <br /> ample time to exchange written discovery,take depositions and adequately prepare to try the claims <br /> asserted in the proposed Amended Third-Party Complaint. <br /> The cases relied upon by DMG are distinguishable. In QjAW=YyMatnuctte M_ $s.Inc,, <br /> 688 P.2d 1128(Colo.App. 1988),the Motion to Amend was made less than one month before trial. <br /> In Polk v,Psamear O&A $49 P.2d 23 (Colo. 1993),the Motion to Amend was made three <br /> years after the original filing and only five months before the scheduled trial date. no moving-party <br /> knew of the basis for the claims being asserted at the time it filed its original pleading and the <br /> moving party could provide no reason for failing to bring the claims earlier other than that it now <br /> had new counsel. In contrast,no trial date is set in this case,therefore,there is neither any threat to <br /> this Court's schedule nor to DMas ability to prepare for trial. Further, as pointed out above, <br /> Defendants did not know of the basis for the claims asserted m the proposed Amended Third-Party <br /> Complaint at the time the initial Third-Patty Complaint was filed,those claims only became apparent <br /> slowly over the last few months and filing the proposed Amended Third-Party Complaint before <br /> August 1998 would have been extremely counterproductive to the settlement negotiations which <br /> were occurring in the Spring and Summer of 1998. <br /> Finally, Plaintiff Board of County Commissioners of Piddn County, has filed a Position <br /> Statement in this matter indicating that it may have some interest in the outcome of the proposed <br /> Amended Third-Party Complaint making it clear that this lawsuit and this forum are indeed the <br /> proper places to adjudicate these claims. <br /> 3 <br /> 170-d so:sz si 'das <br />