Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00860-WDM-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00860-WDM-PAC ROBERT ALWARD Plaintiff, v. VAIL RESORTS, INC., a Colorado corporation; VAIL CORPORATION, INC. D/B/A/ VAIL ASSOCIATES INC., a Colorado corporation; VR HOLDINGS, INC., a Colorado corporation; and WILLIAM JENSEN, individually and in his official capacity as Senior Vice President and Chief Operating Officer of Vail Resorts, Inc. Defendants. ______________________________________________________________________________ PLAINTIFF'S RESPONSE TO MOTION TO STRIKE ______________________________________________________________________________ Plaintiff Robert Alward, by and through his attorneys and pursuant to Fed.R.Civ.P. 12, hereby responds to Defendants' Motion to Strike Declaration of Robertson [Docket 234] ("Defendants' Motion): 1. Defendants' Motion asks the court to strike the declaration of Cliff Robertson,

which plaintiff produced to defendants on June 2, 20051, and attached as an exhibit to his Combined Motion for Summary Judgment, filed on June 7, 2005 [Docket #198] ("Plaintiff's Motion"). Because the Motion is untimely and groundless, and indicates that defendants failed to meet their obligations under the Rules, it should be denied. 2. Although that Declaration is dated January 26, 2005, Mr. Robertson mailed the

original to plaintiff's counsel from New York. In fact, plaintiff did not actually receive the Declaration from Mr. Robertson until several days after the plaintiff's January 28, 2005

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As set forth in plaintiff's counsel's letter dated June 2, 2005 (and transmitted the same day), plaintiff's counsel thought the declaration had been produced earlier. (Copy attached as Exhibit D). Defendants dispute this.

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discovery cutoff. Thus, defendants mistakenly assert that plaintiff should have produced this declaration within the discovery period. Rather, it was not possible for plaintiff to produce it during discovery. Thus, this Declaration should be treated the same as the Ann George Declaration, which the court declined to strike on Plaintiff's Motion to Strike, filed July 15, 2005. See Order dated July 21, 2005 [Docket #239]. 3. Moreover, on June 6, 2005, defendants asked the court for an extension of time to

respond to Plaintiff's Motion so that they could evaluate how to respond to the Robertson declaration [Docket #197]. 4. On June 29, 2005, Defendants' filed their Response to Plaintiff's Motion [Docket

#221]. In that Response, Defendants' relied on the Robertson Declaration in support of their opposition to Plaintiff's Motion. See Defendants' Response, p. 6. 5. Then, on July 18, 2005, almost three weeks after defendants filed their Response

plaintiff's Motion, and approximately six weeks after filing their motion for extension, defendants filed the Motion now before the court. 6. Pursuant to Rule 12, the instant Motion should be denied because it is untimely.

Rule 12(f) permits a motion to strike "before responding to a pleading..." Because defendants did not file their Motion before responding to Plaintiff's Motion--and instead relied on the Robertson Declaration in their Response to Plaintiff's Motion--the declaration should not be stricken. 7. In addition, while Rule 12(f) also permits a motion to strike to be filed "within 20

days after the service of the pleading upon the party," Defendants' Motion is untimely under this provision as well. Defendants filed their motion more than six weeks after receiving the Declaration, and after being served with Plaintiff's Motion.

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8.

Defendants have also failed to show that the Declaration should be stricken

pursuant to Fed.R.Civ.P. 37(c). First, the fact that plaintiff did not receive the Declaration before the close of discovery, and honestly believed that the declaration had previously been produced, constitutes substantial justification for any failure to disclose the declaration earlier. 9. Second, defendants have failed to show that the timing of this disclosure caused

them any harm at all. In fact, the court generously granted them a ten-day extension of time to file their dispositive motions, yet they chose do take no action until July 18, 2005 (weeks after filing their Response to Plaintiff's Motion, and their own Motions for summary judgment). Moreover, their reliance on the declaration in their response to plaintiff's Motion indicates that rather than suffering any harm, they believed the declaration to be helpful to their claims and defenses in this action. 10. Third, Defendants' assertions regarding prejudice are not credible. Defendants

assert that they have been prejudiced because they would have otherwise deposed Mr. Robertson by telephone on February 11, 2005. This argument is also without merit in fact or law. 11. Even if plaintiff had produced the Declaration before February 11, defendants still

would not have been able to depose Mr. Robertson on February 11, because Defendants' counsel failed to subpoena him in accordance with Fed.R.Civ.P. 45. Therefore, defendants had no lawful basis to compel Mr. Robertson's attendance at that deposition. 12. Specifically, on January 27, 2005, Defendants sent a subpoena by mail to Mr.

Robertson (copy attached as Exhibit A), to take place by telephone from Mr. Robertson's residence in Watermill, New York. Mr. Robertson did not accept service of this subpoena by mail, so defendants had him personally served at his place of residence a couple of days before the deposition was to take place on February 11, 2005. Thus, both the place of service and the location of the deposition were within the jurisdiction of the U.S. District Court for the Eastern 3

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District of New York. Under Rule 45(b)(2), the subpoena must have been issued by that court, or served within the District of Colorado. Defendants subpoena, however, complied with neither provision--it was issued by this Court and served in Watermill, New York. As such, the subpoena was not enforceable, and (because they waited until the last possible moment to serve Mr. Robertson) defendants did not have enough time to fix their procedural error before the end of discovery on February 11, 2005. In fact, defendants voluntarily withdrew that subpoena on February 9, 2005, when counsel for plaintiff pointed out these procedural defects. See Exhibit B. Defendants never asked the court for additional time to obtain this deposition in accordance with Rule 45. 13. In addition, the court should note that on December 30, 2005, Defendants

identified Mr. Robertson as a person with information they intended to use in support of their Counterclaim. See Exhibit C, Defendants Second Supplemental Rule 26(a) Disclosures. Under Rule 11 and Rule 26, defendants had an affirmative obligation to investigate these matters before filing their Counterclaim (on September 24, 2004), and before making their Rule 26(a) disclosures (most recently on December 30, 2005). Apparently, they failed to do so at any time, and their signature on these pleadings misrepresented to the court that they had made the required investigation. Had they done so, they should have determined more than nine months ago whether they needed to depose Mr. Robertson.2 14. Thus, plaintiff denies that the timing of the production of the Robertson

Declaration has prejudiced defendants in any way. Rather, if defendants suffered any prejudice at all, it is the result of their own failure to act in accordance with the rules and cannot be cured
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Also, defendants noticed the depositions of Bob Borgo and Spike Kullus to take place the first week in February 2005, but cancelled those depositions after concluding that these individuals' testimony would not have been helpful to their claims or defenses. Plaintiff later obtained declarations from these individuals as well, but defendants do not claim they would have deposed these individuals had those declarations been obtained earlier. Thus, defendants' own actions contradict their arguments in this Motion.

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by the relief they now seek. Defendants' Motion is merely the latest installment in their tactic of flagrantly violating the rules of this court to prevent discovery on the merits in this case, and then blaming the plaintiff for their own misconduct.3 15. For all these reasons, Defendants' Motion is wholly without merit in fact or law,

and should be denied. 16. Moreover, the court should impose sanctions on counsel for defendants pursuant

to Fed.R.Civ.P. 11(c) and 26(g)(3), for their transparent violation of Rule 11(b) and Rule 26 (a) and (g), and, pursuant to 28 U.S.C. §1927, for apparently interposing this frivolous Motion and their Counterclaim (file September 24, 2005) [Docket #50] in bad faith for the primary purpose of unnecessarily multiplying these proceedings and harassing the plaintiff. WHEREFORE, for the foregoing reasons, plaintiff respectfully requests the court DENY defendants' Motion to Strike, and impose the appropriate sanctions on counsel for defendants pursuant to Fed.R.Civ.P. 11(c) and 26(g)(3), and 28 U.S.C. §1927, including an award to the plaintiff of his attorneys' fees and costs incurred in responding to this Motion, as well as replying to Defendants' Response to Plaintiff's Motion for Summary Judgment. Dated this 8th day of August 2005. McCLAIN DREXLER, LLC By: /s/ Nina H. Kazazian Nina H. Kazazian Of Counsel 1700 Lincoln Street Suite 3850 Denver, Colorado 80203-4538 Telephone: (303) 860-8400 Email: [email protected]
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Moreover, defendants' counsel intentionally misrepresented to the court that plaintiff's counsel has been sanctioned for her conduct. As of the date of Defendants' Motion, the court had vacated all sanctions against plaintiff's counsel, and none have subsequently been imposed. Plaintiff's counsel denies that she has acted in bad faith in any aspect of this case.

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ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE I hereby certify that on this 8h day of August 2005, I electronically filed the foregoing PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO REPLY TO MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the defendants addressed to the following email address: Sherri Heckel Kuhlmann Christopher Ottele Holme Roberts & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 [email protected]

/s/ Nina H. Kazazian

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