Free Motion to Strike - District Court of Colorado - Colorado

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

Document 230

Filed 07/13/2005

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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 MOTION TO STRIKE ______________________________________________________________________________ Plaintiff Robert Alward, by and through his attorneys, McClain Drexler, LLC, moves the court to strike Defendants' Motions for Summary Judgment and the three separate Briefs filed in support of that Motion [Docket # 207, 208, 209, and 210], pursuant to D.C.COLO.LCivR 56.1 and this court's Procedures. Plaintiff also moves to strike the affidavit of Anne George (attached as Exhibit A-1 to Docket # 209 and A-6 to Docket # 208), pursuant to Fed.R.Civ.P. 37. DEFENDANTS' MOTION AND BRIEFS IN SUPPORT 1. This is a single plaintiff employment discrimination and breach of contract case, which concerns issues without extraordinary complexity. 2. On June 16, 2005, Defendants' filed one Motion for Summary Judgment (Defendants' "Motion") [Docket # 207], with three separate briefs in support [Docket # 208, 209, and 210]. Two of the briefs were titled differently than the Motion, but no corresponding motions were

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

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filed motions [Docket # 209 and 210]. Thus, all three briefs should be considered as having been filed in support of the same Motion. 3. In combination, the three briefs consist of more than 40 pages, and reference nearly 100 pages of exhibits. As such, defendants' briefs exceed the page limitation set forth in Section 6.1 of the Pretrial and Trial Procedures for matters before Judge Walker D. Miller, which states, "The opening brief and answer brief shall not exceed 20 pages. Upon appropriate motion, permission to file a brief of greater length may be granted in cases of extraordinary complexity." 4. Furthermore, defendants did not move the court for permission to file the lengthy briefs, and cannot show that the issues in this case are "of extraordinary complexity" to warrant permission to exceed the page limitation. 5 . Defendants' Exhibits also fail to comply with D.C.COLO.LCivR 56.1(C), which discourages voluminous and superfluous exhibits. Defendants have attached duplicates of several exhibits, including duplicate copies of deposition transcripts (for Denise Byrne and William Jensen), and affidavits (for Anne George), to more than one brief. For example, the defendants have attached a copy of the Separation Agreement as an exhibit to each of the three briefs. See Exhibit A-3 to Defendants' Brief in Support of Motion for Summary Judgment on Plaintiff's Claims [Docket # 208]; Exhibit A-3 to Defendants' Brief in Support of Partial Motion for Partial Summary Judgment on Claims Against Defendants Jensen, Vail Resorts, Inc. and VR Holdings, Inc. [Docket #209]; and Exhibit A-1 to Defendants' Brief in Support of Their Partial Motion for Summary Judgment on Defendants' Counterclaim [Docket #210]. 6. The fact that the three briefs rely on several of the same exhibits further supports a determination that briefs could have, and should have been presented, as a single brief in support of Defendants' Motion.

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7. In addition, defendants failed to file any motions for summary judgment in conjunction with Defendants' Brief in Support of Partial Motion for Partial Summary Judgment on Claims Against Defendants Jensen, Vail Resorts, Inc. and VR Holdings, Inc. [Docket #209] or Defendants' Brief in Support of Their Partial Motion for Summary Judgment on Defendants' Counterclaim [Docket #210]. These Briefs should therefore also be stricken for failure to comply with D.C.COLO.LCivR 56.1(A). 8. Because defendants' Motion and briefs violate the essence and letter of Fed.R.Civ.P. 56, D.C.COLO.LCivR 56.1, and the Pretrial and Trial Procedures for matters before Judge Walker D. Miller, Pretrial and Trial Procedures for matters before Judge Walker D. Miller, the court should strike Docket # 207, 208, 209, and 210. AFFIDAVIT OF ANN GEORGE 9. In addition, the Affidavit of Anne George (attached to Docket #208 as Exhibit A-6 and Docket 209 as Exhibit A-1 and incorporated herein by reference) was not previously disclosed to the plaintiff and should be stricken pursuant to Fed.R.Civ.P. 37. 10. In his Second set of Discovery Requests, propounded on December 23, 2004, Plaintiff specifically requested defendants to identify all witnesses, and provide copies of all statements and affidavits defendants intended to use at trial or in support of its dispositive motions: Interrogatory No. 2: Identify all persons with knowledge or information of any of the facts or circumstances related to any of the claims or defenses raised in this action, and provide a summary of the knowledge and/or information. Interrogatory No. 3: Identify all persons you may call as witnesses at trial, or in support of dispositive motions you may file in this action, and provide a summary of the testimony or statement you expect to obtain from each person. Interrogatory No. 4: Describe all the facts and information, and identify all documents, you are aware of which may support your claims and defenses in this action.

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Request for Production No. 4: Produce copies of all documents you may use or have used as exhibits at trial, depositions, dispositive motions, to prepare witnesses for trial or depositions, and/or in support of your claims and defenses in this action. Request for Production No. 5: Produce a summary of any statements, and copies of affidavits, you have obtained from individuals in this action, including all drafts of same. Request for Production No. 6: Produce all documents which describe the relationship between the defendants your corporate financial records from 2001 to present, including but not limited to profit-loss statements, lists of assets, expenditures, tax returns, payroll records, etc. See, Plaintiff's Second Set of Discovery Requests, (attached as Exhibit A-5 to Docket # 210, and incorporated herein by reference). 11. Moreover, during the March 18 and April 15, 2005 hearings before Magistrate Judge Coan, the court instructed defendants to state that all witness statements had been produced in response to these discovery requests. Counsel for defendants represented to the court that they had, and would be. 12. Defendants failed to produce this affidavit in violation of Fed.R.Civ.P. 26(e) and the court's instructions. Accordingly, the court should strike this Affidavit from the record pursuant to Fed.R.Civ.P. 37(c), and impose sanctions on defendants' counsel pursuant to Rule 37(b).

CERTIFICATE OF COMPLIANCE 1 3 .In compliance with D.C.COLO.LCivR 7.1(A), counsel for plaintiff conferred by telephone with counsel for defendants in an attempt to resolve these issue without filing this motion. Counsel for defendants stated that she opposes the motion to strike on the basis that defendants filed three motions for summary judgment and were under no obligation to produce the Affidavit of Ann George.

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WHEREFORE, for the foregoing reasons, plaintiff respectfully requests the court enter an order: (1) Striking defendants' Motion for summary judgment and Briefs in support [Docket # 207, 208, 209, and 210] for failing to comply with this court's Pretrial and Trial Procedures, Fed.R.Civ.P. 56, and D.C.COLO.LCivR 56.1; and (2) Striking and precluding the defendants from using the Affidavit of Anne George, pursuant to Fed.R.Civ.P. 37(c); and (3) Imposing sanctions on defendants, pursuant to Fed.R.Civ.P. 37(b); for their failure to comply with the court order instructing them to produce all witness statements, in response to plaintiff's discovery requests. Dated this 13th 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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Case 1:04-cv-00860-WDM-PAC

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Filed 07/13/2005

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CERTIFICATE OF SERVICE I hereby certify that on this 13h day of July 2005, I electronically filed the foregoing PLAINTIFF'S 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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