Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 2:91-cv-00180-RNC

Document 514

Filed 01/13/2006

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT P.J., et al. Plaintiffs v. STATE OF CONNECTICUT, et al. Defendants : : : : : : CIVIL ACTION NO. 2:91CV00180(RNC)

JANUARY 12, 2006

DEFENDANTS' SUPPLEMENTAL SUBMISSION REGARDING PLAINTIFFS' ASSERTED FACTS IN PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS' APPLICATION FOR FEES AND COSTS

In response to inquiry from the Court (Martinez, J.) at oral argument, the defendants hereby respond on the issue of whether they concur with the "factual background" contained in pages 2 through 17 of plaintiffs' December 17, 2004 reply memorandum in support of the plaintiffs' October 1, 2004 application for attorneys' fees and costs. There are four assertions as "fact" defendants do not agree with. The first appears on page 2, as the last sentence of the first full paragraph, wherein plaintiffs assert that "[n]one of the drafts circulated during the Phase I negotiations contained any provision relating to fees." In fact, at least two drafts so circulated referred to fees. The first was sent to Attorney Laski on September 7, 1999 (Attachment A hereto), and, at page 6, set forth a figure for "attorneys' fees and costs in full and final payment of such fees and costs." A second, faxed to both the Court (Martinez, J.) and Attorney Shaw on February 16, 2000 (Attachment B hereto), at page 9, contained a provision reading "[t]he defendants will make a one-time payment to plaintiffs for costs and attorney's fees in the amount of $______." Notably, these documents

Case 2:91-cv-00180-RNC

Document 514

Filed 01/13/2006

Page 2 of 4

contradict plaintiffs' repeated claims that they had never seen anything like the "one time payment" language prior to their receipt of the draft that was submitted to the State legislature.1 The handwritten "agreed-upon changes" (referred to in the last full sentence appearing on page 5 of plaintiffs' reply memorandum) that defendants have differ from what is contained in plaintiffs' Exhibit E to their reply memorandum, although perhaps not materially so. (Attachment C hereto). Defendants' notes more exactly track the language of the final Agreement. Plaintiffs again claim on page 7 of their reply memorandum that Section X was new language "plaintiffs had never seen prior to June 7, 2001." Again, Attachments A and B hereto contradict such a statement. Finally, whether purposeful or not, plaintiffs' recitation and exhibits jump from the November 19, 2001 conference with Chief Judge Chatigny, reflected in Exhibit R to plaintiffs' reply memorandum, to the February 8, 2002 settlement conference with the Court (Martinez, J.), referred to in Exhibit S to plaintiffs' reply memorandum. Omitted from the chronology is the December 10, 2001 letter from Attorney Shaw to undersigned counsel (Attachment D hereto) wherein Attorney Shaw proposed specific language to overcome the then current dispute. As can be seen from this letter, the language Attorney Shaw proposed is not all that far from what appears in the final Agreement, signed by the parties. This document contradicts plaintiffs' claim that they had no role is negotiating or drafting the language contained in Exhibits S and T to plaintiffs' reply memorandum -- the so-called "side letter."

The defendants believe all the documents attached to this memorandum were previously submitted to the Court as attachments to defendants' November 5, 2001 memorandum in opposition to plaintiffs' so-called "motion to enforce settlement agreement." Defendants' pleadings in response to plaintiffs' motion appear to be Nos. 441 and 446 of the Court's docket entries. 2

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Case 2:91-cv-00180-RNC

Document 514

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DEFENDANTS STATE OF CONNECTICUT ET AL. RICHARD BLUMENTHAL ATTORNEY GENERAL BY: /s/ Ralph E. Urban_____________________ Ralph E. Urban Assistant Attorney General Federal Bar No. 00349 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 Tel: (860) 808-5210 Fax: (860) 808-5385

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Case 2:91-cv-00180-RNC

Document 514

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CERTIFICATION I hereby certify that a copy of the foregoing, with attachments, was mailed in accordance with Rule 5(b) of the Federal Rules of Civil Procedure on this 12th day of January, 2006, first class postage prepaid to: The Honorable Donna Martinez United States Magistrate Judge 450 Main Street Hartford, CT 06103 David C. Shaw, Esq. 34 Jerome Avenue Suite 210 Bloomfield, CT 06002 Frank J. Laski, Esq. Mental Health Legal Advisors Committee 294 Washington Street, Suite 320 Boston, MA 02108

/s/ Ralph E. Urban____________________________ Ralph E. Urban Assistant Attorney General

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