Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01253-MSK-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-MK-1253 RICHARD TEBO and RENEE TEBO, Plaintiffs, v. LAURA M. BAKOS, and LEVTZOW LIMO LLC, doing business as MOUNTAIN LIMO DELUXE LLC, Defendants.

DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO AMEND THEIR FIRST AMENDED COMPLAINT

Defendants, Laura M. Bakos and Levtzow Limo LLC, by and through their counsel of record, Dewhirst & Dolven, LLC, pursuant to F.R.C.P. 56, hereby submit their Response in Opposition to Plaintiffs' Motion for Leave to Amend Their First Amended Complaint (Case 1:04-cv-0253-MSK-MJW, Document 47, filed 7/18/05) and state as follows: 1. Renee Tebo, by her Response to Defendants' Motion for Partial Summary

Judgment (Case 1:04-cv-0253-MSK-MJW, Document 46, filed 7/18/05) admits that the medical costs related to her low back injury do not meet the threshold requirements of C.R.S. § 10-4-714. Therefore, she effectively concedes that summary judgment is appropriate on all of her claims except those related to the claim of loss of consortium of her husband as the result of his injuries. 2. Plaintiff Renee Tebo now seeks to amend her complaint to add a claim for her

allegedly recently diagnosed condition of Muscular Sclerosis. Renee Tebo seeks to amend her

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complaint to include the allegation that her Muscular Sclerosis was aggravated and/or accelerated by the trauma sustained in the accident underlying this litigation. 3. However, Renee Tebo cannot establish, as required by Fed. R. Civ. P. 11(b)(3)

that the allegations and factual contentions have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for investigation and discovery. Renee Tebo can only state that she has "gathered her medical records pertaining to her Muscular Sclerosis and presented them to a leading expert in this field." (Plaintiff Renee Tebo's Response to Motion for Partial Summary Judgment, Case 1:04-cv-01253-MSK-MJW, Document 46, Filed 7/18/05). In effect, Plaintiff seeks to put the cart before the horse, by first filing her complaint and then determining whether there is any factual basis for asserting a claim against the Defendants. 4. Article III of the Constitution limits federal courts to the adjudication of actual,

ongoing controversies between litigants. Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 528 (1988); Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975); SEC v. Medical Committee for Human Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 579-580, 30 L.Ed.2d 560 (1972). This circuit has held, "A court will decide only real controversies in which the rights of parties are actually involved, not abstract questions. It will not proceed to a determination when its judgment or decree cannot grant relief for want of a subject matter upon which it could operate with effect." Miller v. Udal,368 F.2d 548, 549 (10th Cir. 1966) quoting. Jackson v. Denver Producing & Refining Co., 96 F.2d 457, 461 (10th Cir. 1938). It is not enough that a controversy existed at the time the complaint was filed, and continued to exist when review was obtained in the Court of Appeals. Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct.

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553, 558, 559, 42 L.Ed.2d 532 (1975); Steffel v. Thompson, 415 U.S. 452, 459, n. 10, 94 S.Ct. 1209, 1216, n. 10, 39 L.Ed.2d 505 (1974). Likewise, it is not enough that a dispute may arise in the future. 5. At present, Plaintiff cannot assert more than a speculative claim based upon her

suspicion, and hope, that she may be able to develop a claim against Defendants for her (admittedly unfortunate) affliction more than three years after the accident at issue. 6. Plaintiff should be held to the standards applicable to any other party and be

required to develop the factual basis for her claims before asserting them in court and requiring Defendants, and the Court, to spend the time and effort to respond to speculative claims. WHEREFORE, Defendants respectfully request that the Plaintiffs' Motion for Leave to Amend their First Amended Complaint be denied. Respectfully submitted this 1st day of August 2005. DEWHIRST & DOLVEN, LLC /s/ Patrick J. Maggio, Esq. Original signature on file at the office of Dewhirst & Dolven, LLC _______________________________ Miles M. Dewhirst, Esq. Patrick J. Maggio, Esq. 102 S. Tejon Street, Suite 500 Colorado Springs, CO 80903 Phone: (719) 520-1421; Fax (719) 520-1421 [email protected] [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on August 1, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: THE KERENSKY LAW FIRM Michael W. Kerensky, Esq. 5300 Memorial Drive, Suite 950 Houston, TX 77007 Phone: 713-522-8686; Fax : 713-522-6925 [email protected] ATTORNEYS FOR PLAINTIFFS (paper copy mailed to Kerensky Law firm by Dewhirst & Dolven) BREIT BOSCH COPPOLA & MARLIN, P.C. William C. Marlin, Esq. Michael T. Leinz, Esq. 1512 Larimer St, Suite 900 Denver, Co 80202 Phone: (303) 573-7777; Fax : (303) 825-3950 [email protected] ATTORNEYS FOR PLAINTIFFS /s/ Jean A. Zapf _________________________

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