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

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

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Filed 07/20/2005

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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 REPLY TO DEFENDANTS' RESPONSE TO MOTION TO STRIKE ______________________________________________________________________________ Plaintiff Robert Alward, by and through his attorneys, replies to Defendants' July 18, 2005 hereby responds to plaintiff's Motion to Strike, and asks the court to toll the time he has to respond to defendants' briefs, which are otherwise due on July 21, 2005 pending the court's ruling on this Motion to Strike: I. Defendants' Counsel Has Again Misrepresented Plaintiff's Compliance with D.C.COLO.LCivR 7.1A. 1. Contrary to defendants' counsel's assertions, on July 13, 2005, counsel for

plaintiff did in fact actually speak with Sherri Kuhlmann regarding this motion. In that conversation, counsel for plaintiff specifically discussed that defendants' motions exceeded the page limitations set by the court and did not comply with this court's Pretrial Procedures applicable to summary judgment motions. In addition, plaintiff's counsel specifically stated that she intended to move to strike the Affidavit of Ann George. Plaintiff's counsel informed Ms. Kuhlmann that she intended to move the court for appropriate relief, and asked Ms. Kuhlmann if

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she was willing to do anything to remedy this situation without requiring plaintiff's counsel to take it to the court. In response, defendants' counsel simply stated that it was their position that they had filed three separate motions, and the excessive length of the briefs was "de minimus." See, plaintiff's Motion to Strike (filed July 13, 2005). 2. Thus, in their Response, Defendants' counsel has misled the court on this subject. a. First, defendants' response states: "Plaintiff's counsel contacted undersigned counsel repeatedly on July 13, 2005 regarding a motion for extension of time." Mr. Ottele signed defendants' Response. Plaintiff's counsel did not speak with Mr. Ottele. Rather, she spoke with Ms. Kuhlmann. Plaintiff's counsel had three conversations with Ms. Kuhlmann on July 13, 2005 (which is memorable, because this date was one of only a handful of dates in the history of this litigation in which Ms. Kuhlmann returned plaintiff's counsel's calls, much less the same day). b. Second, Mr. Ottele clearly intends the court to conclude that plaintiff's counsel never discussed these matters with Ms. Kuhlmann at all. Such a position is contrary to the facts and Mr. Ottele's professional obligations as an officer of this court. In the third call, the parties did discuss the issues that are the subject of Plaintiff's Motion to Strike. 3. On July 18, 2005, immediately upon receiving defendants' Response, counsel for

plaintiff called Ms. Kuhlmann and Mr. Ottele and informed them that they had misrepresented to the court that plaintiff had failed to confer. Plaintiff's counsel asked each attorney to correct this misrepresentation with the court. 4. To date, Mr. Ottele has not returned Plaintiff's counsel's call.

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5.

On July 19, 2005, Ms. Kuhlmann left a message on plaintiff's counsel's voicemail

which, in sum and substance, acknowledged that the third call described above did take place, and that the parties did discuss the length of the briefs and the Ann George affidavit, but she did not believe that discussion satisfied Local Rule 7.1A. This is a distinction without a difference. Defendants' counsel has misled the court regarding plaintiff's efforts to confer, which complied with Local Rule 7.1A. Even so, defendants have failed to correct their misrepresentations to the court. 6. Finally, defendants' statements which imply that plaintiff has failed to made a

good faith attempt to confer, as required by D.C.COLO.LCivR 7.1A on any other occasion, or that the court has correctly made such a finding, are also false and misleading. See Docket 229, p. 3 n.1. In fact, it is the defendants who misrepresented their efforts in this regard on several occasions, most recently in their June 27, 2005 motion for extension of time--in which they represented to the court that they had complied, when in fact they made no effort at all to contact counsel for the plaintiff via any method of communication. See [Docket # 220]. II. Defendants' Failure To Comply With Section 6 Of This Court's Procedures, And D.C.COLO.LCivR 56.1 Shows Intent To Vexatiously And Unnecessarily Multiply These Proceedings. 7. Defendants now assert--in response to plaintiff's motion to strike--that plaintiff

has brought frivolous claims which necessitated defendants' three filings. This is not the appropriate time or manner to bring such an argument. Moreover, Defendants have never contacted plaintiff's counsel to discuss whether plaintiff would be willing to voluntarily dismiss certain claims. Had they done so earlier in this action, the issues on summary judgment could have been narrowed. At a minimum, defendants should have raised these arguments in support of a request to the court for permission to exceed the page limitation, before filing their briefs. Defendants' excuses and failure to take any such efforts before moving for summary judgment 3

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underscores their vexatious conduct in this action. Defendants had two options to avoid this issue before filing. Neither would have taken as much time as drafting three briefs, and this motion. Yet, they chose to ignore the rules and all practical considerations, and instead pursue the most time-consuming, least efficient avenue. Such conduct should not be encouraged. 8. Defendants acknowledge that the briefs exceed the page limitations set by this

court, and that they failed to request permission to exceed the page limitations set by this court, in advance of filing their briefs. Defendants also acknowledge that two of the briefs were filed without accompanying motions, but assert that the single motion filed covered all three briefs. However, this argument is not persuasive. The motion filed bears the same caption as only one of the briefs. [207 and 208]. If the court accepts their argument that the motion covers all three briefs, the court must also find that the three briefs should be considered as one. As such, the briefs should be stricken for violating Section 6 of this court's procedures and D.C.COLO.LCivR 56.1. Defendants' briefs and exhibits are duplicative. 9. In addition to the examples set forth in plaintiff's Motion, defendants' briefs

should also be stricken because the briefs themselves are repetitive and include arguments the court already rejected when it ruled on defendants' Motion to Dismiss. See, Defendants' Motion to Dismiss [15]; Order on motion to dismiss, filed March 15, 2005 [152]; and Defendants' Brief in Support of Motion for Summary Judgment on Plaintiff's Claims [208], pp. 9-10 (arguing again that plaintiff's Third Claim, under ERISA § 510 should be dismissed as a matter of law). 10. Two of Defendants' briefs are filed on behalf of all the defendants and address all

of Plaintiff's claims. See [208 and 209]. The third is confusingly captioned "Defendants' Brief in Support of their Partial Motion for Summary Judgment on defendants' Counterclaim (for Breach of Contract) Against Plaintiff." [210] (Emphasis added). It appears that the defendants 4

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did not combine these three briefs into a single, cohesive brief because they intended to unnecessarily multiply these proceedings and require plaintiff's counsel to expend additional, unnecessary time preparing simultaneous responses to three separate briefs. The briefs total nearly 40 pages in length, which could have been reduced to meet the court's page limitations by deleting the duplicative and repetitive parts of each (such as the introduction, standard of review, and certain portions of the argument sections). 11. The court should not permit defendants to ignore its procedural rules in order to

vexatiously and unnecessarily multiply these proceedings. Accordingly, the court should strike defendants' motion for summary judgment and all three briefs [207, 208, 209, 210]. Even if the court does not reach this finding, at a minimum, the court should strike the briefs filed without accompanying motions and in violation of this courts' Pretrial Procedures [docket # 209 and 210]. III. Ann George Affidavit Plaintiff maintains that the affidavit of Ann George should be stricken pursuant to Rule 37, because defendants failed to produce the affidavit in response to plaintiff's discovery requests, as required by Rule 26(e). Ann George is the head of HR at Vail, and has been the defendants' corporate representative throughout this action. Therefore, defendants' counsel could have obtained her affidavit at any time before the date they filed their motion for summary judgment, and they must have known that they planned to rely on that affidavit in support of their motion. Thus, they should not be excused from the obligation to produce this affidavit pursuant to Rule 26(e). Accordingly, the affidavit should be stricken. WHEREFORE, plaintiff respectfully requests the court to immediately strike defendants' briefs and motion for summary judgment [Docket 207, 208, 209, and 210], and the Affidavit of Ann George (attached as Exhibit A-1 to [209] and Exhibit A-6 to [208]) because (1) they violate 5

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D.C.COLO.LCivR 56.1 and section 6 of this court's pretrial procedures; (2) are so duplicative and repetitive, and rehash arguments already decided by this court so as to be vexatious and brought for the purpose of unnecessarily multiplying these proceedings in violation of 28 U.S.C.§ 1927; and (3) as a sanction for defendants' affirmative misrepresentations to the court about plaintiff's efforts to confer before filing this Motion to Strike. Dated this 20th day of July 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] ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE I hereby certify that on this 20h day of July 2005, I electronically filed the foregoing PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO MOTION TO STRIKE 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 /s/ Nina H. Kazazian

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