Free Motion to Clarify - District Court of Colorado - Colorado

Case 1:04-cv-01050-MSK-PAC

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Filed 12/22/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01050-MSK-PAC NICKY SMITH-BEY, Plaintiff, v. CAPT. SCOTT GIBSON, SGT. PAYNE, SGT. JOSEPH BARNHILL, LISA FITZGERALD, JESSICA MEKELBURG, MICHAEL YONGER, Defendants.

MOTION FOR CLARIFICATION OF FINAL PRETRIAL ORDER [DOC 53]

Come Now, the defendants, by and through their attorney, Edward T. Farry, Jr., of Farry and Rector, L.L.P., and hereby moves for clarification of the court's final pretrial order. [Doc 53] 1. On December 5, 2005, plaintiff and defendants submitted the Amended

Proposed Final Pretrial Order [Doc 51], pursuant to the Minute Order [Doc 50] of November 3, 2005. The Amended Proposed Pretrial Order incorporated plaintiff's additions and changes made on the record at the Final Pretrial Conference, and the signatures of Mr. Smith-Bey and Mr. Farry. 2. On December 21, 2005, the court entered its Final Pretrial Order [Doc 53],

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which included handwritten changes to the proposed order. 3. On page five of the final order, beneath the heading "5. PENDING MOTIONS,"

is writing that indicates three pending documents, including Motion for Default Judgment as to all Defendants [Doc 22], Motion Requesting Sanctions [Doc 29], and Report and Recommendations re [29] Motion for Sanctions [Doc 32]. Additionally, on page nine of the final order, beneath the heading "7. EXHIBITS," typewritten text is struck out, and handwritten changes have been made to specifies dates of exhibit deadlines. Pending Motions The first motion listed as pending in the Final Pretrial Order [Doc 53] is plaintiff's Motion for Default Judgment as to all Defendants [Doc 22], filed May 3, 2005. Defendants responded [Doc 25] to the motion for default on June 17, 2005. Defendants' response argued that default judgment is unavailable to plaintiff because every defendant had answered and presented a defense on September 21, 2004 [Doc 13]. Defendants all answered the complaint within the allotted time period after waiver and acceptance of service. Additionally, as the Final Pretrial Order attests under heading "3. CLAIMS AND DEFENSES," section "b. Defendants," beginning on page three, and continuing to page five, defendants have enumerated their arguments and defenses. The second motion listed as pending is plaintiff's Motion Requesting Sanctions [Doc 29], which was denied by a Minute Order [Doc 33] dated August 8, 2005. The final document listed as pending is Magistrate Judge Patricia A. Coan's Report and Recommendations re [29] Motion for Sanctions [Doc 32], dated August 1, 2005 (actually titled "Recommendation of United States Magistrate Judge"). The recommendation stated that

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plaintiff's motion requesting sanctions should be denied, and provided ten days for filed objections. No objections were filed by any party. Magistrate Judge Coan denied the motion on August 8, 2005, by Minute Order [Doc 33]. On November 3, 2005, during the Final Pretrial Conference, Magistrate Judge Coan orally stated that all three motions in question had been denied prior to the conference, and were not pending. Exhibit Deadlines The Final Pretrial Order [Doc 53] indicates that exhibits must be provided to opposing counsel and any pro se party no later than "January 16, 2006," and Fed.R.Civ.P. 26(a)(3) objections must be filed and served no later than "January 31, 2006." However, this court's Minute Order of December 21, 2005 [Doc 52] ordered those deadlines to be January 9, 2006, and January 30, 2006, respectively. WHEREFORE, defendants request clarification of the Final Pretrial Order [Doc 53]. Respectfully submitted December 22, 2005. FARRY and RECTOR, L.L.P.

/s/ Edward T. Farry Edward T. Farry, Jr. #8273 Attorney for Defendants 131 South Weber Street Colorado Springs, CO 80903 Phone Number (719) 578-2000 Facsimile Number (719) 578-1794 Original copy signed by Edward T. Farry is on file with Farry and Rector, L.L.P.

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CERTIFICATE OF SERVICE I hereby certify that on this December 22, 2005, a true and correct copy of the foregoing was electronically filed with the Clerk of Court using CM/ECF system, which will send notification to the following, and served on each of the following at the indicated address by first class U.S. mail, postage prepaid: Nicky Smith-Bey DOC #98861 Centennial Correctional Facility P.O. Box 600 Canon City, CO 81215-0600

/s/ Kelly R. Moss Original Copy signed by Kelly R. Moss is on file with Farry and Rector, L.L.P.

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