Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:04-cv-01002-MSK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 04-cv -1002- MK-CBS Donja Vaughn, Plaintiff v. : : : :

Simms Rhea Gary Shoun, Joel Stevenson, Joseph Olt Defendants : ORDER AND NOW, this ______ day of ___________________________, 2006, upon consideration of PLAINTIFF'S MOTION FOR RECONSIDERATION, and the response thereto, said motion is GRANTED. Accordingly, the May 30, 2006 order is vacated as follows: 1. Plaintiff's Motion for Leave to File amended Complaint is GRANTED. 2. Defendant Shoun and Stevenson's Motion to Dismiss is DENIED, and their Motion for Summary Judgment is DENIED. 3. Defendant Rhea's Motion to Strike is DENIED. 4. The Judgment entered for alleged breaches by Plaintiff for failing to carry the required amount of insurance, failing to advise Defendant Rhea of Plaintiff's insolvency and failing to pay veterinary bills is VACATED. 5. Judgment is entered on the due Process and replevin claims regarding Elgin in favor of Plaintiff and against Defendant Rhea. 6. The Claim for Retaliation for Complaints of Official Misconduct against Defendants Shoun, Stevenson and Rhea shall go to the jury.

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IT IS SO ORDERED. BY THE COURT: _______________________________ Marcia Kreiger, U.S.D. Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 04-cv -1002- MK-CBS Donja Vaughn, Plaintiff v. Defendants : : : : :

Simms Rhea, Gary Shoun, Joel Stevenson and Joseph Olt

PLAINTIFF'S MOTION FOR RECONSIDERATION By counsel, in support of this motion, Plaintiff avers as follows: 1. The court entered an order May 30, 2006 which is inconsistent

with existing case law in several respects. 2. In the October, 2005 depositions, the document indicating a

transfer of the horses to the trust was used to cross-examine Plaintiff. Defendants had every opportunity to ask questions and did so. To state they are prejudiced by a Motion for Leave to Amend filed 7 months before trial is without basis in fact. Local Rules or orders may not ignore the liberal amendment policy of Rule 15. 3. No case has ever held Brand Inspectors are prosecutors subject to absolute immunity. The horses here were not needed for the trial, which had to do with different horses, as the criminal charges pending had nothing to do with Edes or Elgin. Colorado law permits seizure of horses, or a hold on title, only where they were strays or there was risk of serious physical injury to them. It is undisputed neither occurred here and Defendants Shoun and Stevenson violated CO equine law.

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4. The information provided in the Supplement to Plaintiff's Motion for Summary Judgment is highly relevant, organized and needed for the court to consider dispositive motions. It was provided over 100 days before the motions were ruled upon. Striking them is an abuse of discretion. 5. Plaintiff testified she attempted to get insurance on Edes, was told it was unavailable for a horse of that age, told Rhea and she agreed she did not need insurance. This is undisputed. There was evidence Plaintiff had some unpaid bills. One had to do with Edes due to an extraordinary circumstance of microtoxin poisoning. Edes' other bills were all paid and the agister's lien was filed when Plaintiff owed no money. A reasonable finder of fact could find there insufficient evidence Plaintiff breached the contract by her insolvency. 6. Defendant Rhea testified she told Plaintiff she wanted a foal by H. Baron Gyemant and told Plaintiff she did not want Elgin. Plaintiff confirmed this. There was no evidence any bills as to Elgin were unpaid or that he was not properly cared for. The Veterinary Records confirm this. Exhibit 29, Plaintiff's Motion for Partial Summary Judgment. The Breeding Agreement gave Defendant Rhea the right to a foal by H. Baron Gyemant or Fokus. id, Exhibit 1. It is undisputed Elgin was not sired by either. Defendant Rhea had no right to Elgin, or, if she did, she waived it.

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7. On May 3, 2002 counsel for Plaintiff wrote to Shoun and on May 31, 2002 to Don Ament and the attorney general, complaining abut the illegal hold on title, ban on contract between Plaintiff and her horses and lack of access. id, Exhibit 8. Defendant Shoun admitted he knew of both letters. On June 18, 2002 he worked with Defendants to transfer horses in known violation court orders. A retaliation claim has been pled. WHEREFORE, Plaintiff Vaughn seeks relief in the form of the attached order. Date: June 12, 2006 s/ J. Michael Considine, Jr. J. Michael Considine, Jr. CO Reg. No. 029253 12 East Barnard Street, Suite 100 West Chester, PA 19382 (610)431-3288 Counsel for Plaintiffs

CERTIFICATE On June 1, 2006, I spoke to Counsel for Defendants Olt, Rhea, Shoun and Stevenson. None would concur with Plaintiff's Motion for Reconsideration. I have made a reasonable effort to obtain concurrence without success. Date: June 12, 2006 s/ J. Michael Considine, Jr. J. Michael Considine, Jr.

CERTIFICATE OF SERVICE I, J. Michael Considine, Jr., hereby certify that I electronically filed a true and correct copy of PLAINTIFF'S MOTION FOR RECONSIDERATION to the following counsel of record on the date indicated below: Kathleen L. Spalding, Asst. Attorney General, State Services Building, 1525 Sherman Street, 5th Floor, Denver, CO 80202, Edmund M. Kennedy and David R. Brougham, Hall & Evans, LLC, 1125 Seventeenth Street, Suite 600, Denver, CO 80202, Jack B. Robinson, Spies, Powers & Robinson, P.C., 1660 Lincoln Street, Suite 2220, Denver, CO 80264 Date: June 12, 2006 s/J. Michael Considine, Jr.
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J. Michael Considine, Jr.

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