Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00456-MSK-MEH

Document 110

Filed 11/16/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-00456-MSK-OES JOHN C. DAW, O.D. JOHN C. DAW, O.D., P.C., a Colorado professional corporation, Plaintiffs, v. SHOPKO STORES, INC., a Delaware corporation, Defendant. ______________________________________________________________________________ RESPONSE TO DEFENDANT'S MOTION TO STRIKE PLAINTIFFS' TRIAL BRIEF ______________________________________________________________________________ Plaintiffs John C. Daw, O.D. & John C. Daw, O.D., P.C. by and through counsel, Gerald L. Jorgensen and Theodore J. Finn of JORGENSEN, MOTYCKA & LEWIS, P.C., respectfully file and serve this Response to Defendant's Motion to Strike Plaintiffs' Trial Brief, as follows: 1. Plaintiffs read the language identified by Defendant in the Court's July 8, 2004 order to require limiting the law as discussed within the context of the trial brief, but including that information typically found in briefs submitted to the Court, such as the statement of the facts, jurisdictional statement, argument, and conclusion. 2. Plaintiffs' brief fully complies with every limitation suggested for briefs in the Federal Rules of Civil Procedure, Local Rules for the United States District Court for the District of Colorado, and the Court's Civil Practice Standards.

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Case 1:04-cv-00456-MSK-MEH

Document 110

Filed 11/16/2005

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3.

Defendant's trial brief does not comply with its own strict interpretation of the Court's order. Defendant's summary of the application of binding law exceeds those limits Defendant reads into the Court's order and Defendant devotes over two pages to HIPAA when no claims or counterclaims even exist under that statute.

4.

Striking the trial brief is an inappropriate remedy. The trial brief is not submitted to the jury and the Court is certainly able to give whatever credence to the trial brief it feels is necessary. The more appropriate remedy would be redaction which Plaintiffs would be more than willing to do should the Court order.

WHEREFORE, Plaintiffs request the Court deny Defendant's Motion to Strike Plaintiffs' Trial Brief, deny Defendant all requested costs and attorney's fees, and for any other and further relief the Court deems just and proper. Respectfully submitted November 16, 2005. __/s/ Gerald L. Jorgensen____________ Gerald L. Jorgensen Theodore J. Finn JORGENSEN, MOTYCKA & LEWIS, P.C. 709 Third Avenue Longmont, Colorado 80501 (303) 678-0560 (303) 678-1164 facsimile Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on November 16, 2005, I served a true and correct copy of the foregoing in the United States Mail, postage prepaid, sent via courier service, by e-mail or ECF to the following: Stephen Hopkins, Esq. Torben Welch, Esq. 2

Case 1:04-cv-00456-MSK-MEH

Document 110

Filed 11/16/2005

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HIGGENS, HOPKINS, McLAIN & ROSWELL, LLC. 300 Union Boulevard, Suite 101 Lakewood, CO 80228 __/s/ Gerald L. Jorgensen__________

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