Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:04-cv-01873-REB-OES

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Filed 10/19/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1873-REB-OES LEONARD A. TRUJILLO, Plaintiff(s), v. GARY M. HISE, in his individual capacity; UNKNOWN JOHN DOE SUPERVISORS I-IV of the Denver Police Department; UNKNOWN JOHN DOE TRAINING PERSONNEL I-IV of the Denver Police Department; GERALD WHITMAN, Chief of Police of the City and County of Denver, Colorado; and the CITY AND COUNTY OF DENVER, COLORADO, Defendant(s).

DEFENDANT'S MOTION TO RECONSIDER COURT'S DECISION GRANTING PLAINTIFF'S MOTION FOR BRIEF EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT The Defendants by and through their attorneys, Luis A. Corchado, Assistant City Attorney, and Christopher M.A. Lujan, Assistant City Attorney of the Denver City Attorney's Office, respectfully request that this Court reconsider its decision granting the Plaintiff a two-day extension to file his response to the Defendant's Motion for Summary Judgment, and that this Court accept the Plaintiff's first Brief in Opposition to [the] Defendants' Motion for Summary Judgment that he previously filed on 18 October 2005. AS GROUNDS THEREFORE, the Defendants state as follows: D.C.COLO.LCivR 7.1 Certification

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1.

The Defendants have attempted to contact Plaintiff's counsel via

telephone to ascertain his position on this motion but have been unsuccessful in contacting him. 2. Several reasons underscore the Defendants' Motion to Reconsider.

First and foremost is the Plaintiff's unauthorized decision to file his motion for an extension of time with the Defendants' counsel's signature affixed to the pleading. In the signature block of this motion, Plaintiff's counsel attached an electronic version of Defendants' counsel Luis A. Corchado's signature. At no time in the parties' discussion of the Plaintiff's extension did Defendants' counsel ever agree to his request for an extension to respond to this motion. However, Defendants' counsel did strongly communicate their objections to this motion for an extension of time. 3. Plaintiff's unauthorized attachment of Mr. Corchado's signature gives

the impression that the Defendants agreed to this request for an extension of time. In light of the Plaintiff's motion being granted without the benefit of a response from the Defendants, their counsel feels that it is important for this Court to know that they did not authorize Mr. Corchado's signature on this pleading and that they respectfully request that this Court reconsider its decision if it was made with the understanding that the parties agreed to this extension of time.

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4.

In addition to their objection over defense counsel's unauthorized

signature, the Defendants also object to the Plaintiff's extension of time because the Court's Order rewards Plaintiff's counsel for his lack of diligence in prosecuting his case. In his motion for an extension of time, Plaintiff's counsel cites to "extensive time and resources...spent [in] obtaining affidavits." See Motion For Brief Extension of Time and to Exceed Page Limit For Plaintiff's Response to Defendant's Motion For Summary Judgment, ¶4. Further, Plaintiff's counsel has "found significant, unexpected obstructions to getting affidavits in this case." Id. 5. Plaintiff's counsel is attempting to obtain affidavits from his own

witnesses first named in his F.R.Civ.P. Rule 26 (a) (1) disclosures filed with the Defendants on 07 January 2005. Between January and the 15 August 2005 discovery deadline for lay witnesses, the Plaintiff did not move to depose the very witnesses now proving to be problematic for obtaining their affidavits for his summary judgment response. The failure of these witnesses to respond throughout the discovery process was highlighted when these witnesses failed to appear at depositions scheduled by the Defendants on 14 July 2005. These witnesses failed to appear despite being served with subpoenas and being paid witness fees by the Defendant. Finally, Plaintiff's counsel was aware of the witnesses' challenges in cooperating in this case when defense counsel filed its

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opposed motion for this Court to issue contempt citations on 12 August 2005. Despite this knowledge, Plaintiff's counsel still failed to subpoena his witnesses and depose them for the purpose of securing their testimony and preventing the very problems that he now claims underlie his reasoning for his motion for an extension of time. 6. Plaintiff's counsel also represents that he contemplated filing a

F.R.Civ.P. Rule 56(f) to address his witness difficulties. Id. As was true with his failure to subpoena and depose his witnesses, Plaintiff's counsel had the opportunity to file his Rule 56 (f) motion at any time prior to the day that his summary judgment response was due. At no time did Defendants' counsel actively dissuade Plaintiff's counsel from filing for this relief far in advance of the deadline and the fact that he thought about filing this motion should not serve as an adequate basis for receiving a two-day extension to file his response. 7. In addition to rewarding Plaintiff's counsel for a lack of diligence in

utilizing the litigator's legal tools in securing witness testimony, the Defendants object to the two-day extension because it gives the Plaintiff the opportunity to improve the content of his previously filed response to the Defendants' Motion for Summary Judgment and to conform with this Court's pleading requirements. As part of his justification in requesting an extension, Plaintiff's counsel states that his previously filed response "was somewhat incomplete and unedited." Id., ¶3.

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Further, the Plaintiff cites to the "complexity of the issues in dispute" as a reason for the extension as well. Id. 8. Plaintiff's counsel will undoubtedly use the two-day extension of time

to improve on the substantive content of his response to survive summary judgment. The Plaintiff, in keeping with a briefing schedule that he ultimately agreed to, should be forced to stand on the untimely response brief that he filed yesterday. The Court's two-day extension essentially transforms the Plaintiff's first response brief into a draft form of a pleading that he can ultimately improve on during this extension. Neither the Federal Rules of Civil Procedure, the Local Rules, nor this Court's Practice Standards for Civil Actions allow for licensed litigants to file drafts of pleadings in compliance with briefing deadlines and then rely on extensions of time to improve pleadings that he is disssatisfied with. In short, Plaintiff's counsel should have to stand on the arguments made in his first response brief and should be precluded from improving this brief. WHEREFORE, the Defendants respectfully request that this Court issue an Order denying the Plaintiff's Motion for an Extension of Time to file his Response to the Defendants' Motion for Summary Judgment and that it accept the Plaintiff's first filing of its Brief in Opposition to Summary Judgment that it filed on 18 October 2005.

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Respectfully submitted this 19th day of October, 2005.

By /s Christopher M.A. Lujan Christopher M.A. Lujan Luis A. Corchado Assistant City Attorneys Denver City Attorney's Office Litigation Section 201 West Colfax Ave., Dept. No. 1108 Denver, CO 80202-5332 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 [email protected] Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on this 19th day of October, 2005, I electronically filed the foregoing DEFENDANTS' MOTION TO RECONSIDER COURT'S DECISION

Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Walter L. Gerash, Esq. Lonn M. Heymann, Esq. WALTER L. GERASH LAW FIRM, P.C. 1439 Court Place Denver, CO 80202 [email protected] David J. Bruno, Esq. BRUNO, BRUNO & COLIN, P.C. 1560 Broadway, Suite 1099 Denver, CO 80202 [email protected]

GRANTING PLAINTIFF'S MOTION FOR BRIEF EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT with the

and I hereby certify that I have served the document or paper to the following non CM/ECF participants via Inter-Department Mail: Al LaCabe Manager of Safety s/Jessica Schilling Denver City Attorney's Office Litigation Section 201 West Colfax Ave., Dept. No. 1108 Denver, CO 80202-5332 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 [email protected]

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