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r <br /> r <br /> 3. Also during discovery, it became apparent that DMG refused to honor repeated <br /> requests from Defendants to agree not to destroy certain real property improvements that are on <br /> private land and are further described in paragraph 48 of the attached Amended Third-Party <br /> Complaint. The owner of that private property does not want the improvements destroyed and <br /> doing so will further squander reclamation funds that could otherwise be paid over to creditors <br /> pursuant to the Liquidation Plan. <br /> 4. Finally, the proposed Amended Third-Party Complaint seeks a declaratory judgment <br /> regarding the parties' rights and responsibilities with respect to settling ponds on property for which <br /> MCR is the permitee. MCR believes the ponds will be significantly and adversely affected by <br /> additional reclamation activities of DMG. The question becomes: which party has responsibility for <br /> cleaning the ponds if DMG causes sedimentation of the ponds. <br /> C.R.Civ.P. 15(a) states that leave to amend pleadings "shall be freely given when <br /> justice so requires." In Super Valu Stores Inc. v. District Court in and for Weld County, 906 P.2d <br /> 72 (Colo. 1995), the Colorado Supreme Court stated that a trial court may permit amendment to <br /> pleadings at any stage of the litigation process so long as undue delay does not result and other <br /> parties are not prejudiced by such amendments. <br /> 6. In this case, a trial was originally set to begin on August 7, 1998. In June 1998, <br /> Defendants and DMG filed a Joint Motion to Vacate Pre-trial and Trial Schedule based on ongoing <br /> settlement negotiations between the parties. While the parties have negotiated, they have been <br /> unable to come to any agreement. On August 3, 1998, this Court held a Status Conference and at <br /> that time, ordered a further Status Conference for August 28, 1998 in order to review the status of <br /> this matter again and to set the case for trial. Therefore, since no trial date is currently scheduled, <br /> the Amended Third-Party Complaint will not affect this Court's current trial schedule. <br /> 7. Further, additional time can be scheduled for pre-trial discovery for both Defendants <br /> and DMG so that no parties will be prejudiced by the raising of the additional issues in the <br /> Amended Third-Party Complaint. <br /> WHEREFORE, Defendants and Third-Party Plaintiffs, Mid-Continent Resources, Inc. and <br /> Louis M. LaGiglia, Creditors' Trustee under Bankruptcy Plan of Liquidation, respectfully request <br /> that this Court grant their Motion to Amend the Third-Party Complaint, allow for the filing of such <br /> Third-Party Complaint and for such further relief as the Court deems just. <br /> DATED this 12`h day of August, 1998. <br /> 2 <br /> CIVIL NO. 97 CV 131-3 MOTION TO AMEND <br /> THIRD-PARTY COMPLAINT <br />