Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00074-MSK-CBS

Document 82

Filed 12/06/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00074-MSK-CBS JIMMY L. STROZIER, Plaintiff, v. JOHN E. POTTER, Postmaster General, U.S. Postal Service, Defendant.

RESPONSE TO MOTION TO STRIKE ________________________________________________________________________ Defendant, by and through William J. Leone, United States Attorney for the District of Colorado, and Elizabeth Weishaupl, Assistant United States Attorney, hereby files the following Response to Plaintiff's Motion to Strike. In support thereof Defendant states as follows: 1. Plaintiff's sole ground to strike the reply is that the reply was filed in support of an allegedly untimely motion to dismiss. 2. On September 22, 2005, this Court issued an order requiring Plaintiff to submit a "statement of claims" within thirty days of the order and granting the Defendant 10 days from the date of the filing to file a responsive motion.

Case 1:04-cv-00074-MSK-CBS

Document 82

Filed 12/06/2005

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3.

Fed. R. Civ. P. 6 provides that "when the time period proscribed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded from the computation." Fed. R. Civ. P. 6(a).

4.

Plaintiff filed his "statement of claims" on October 4, 2005. The first day for counting the 10 day time period was October 5 and three days accrued until the weekend. Counting would recommence on October 11, as the Columbus Day Holiday was not counted, and four additional days accrued until the weekend. Two additional days accrued until October 18, 2005, the date of filing Motion to Dismiss. Thus, nine days of the prescribed ten days passed prior to the filing of the Motion to Dismiss.

5.

As the Motion to Dismiss was actually filed one day early, Plaintiff's argument regarding an alleged "late" filing of the Motion to Dismiss has no merit.

DATED this 6th day of December, 2005. Respectfully submitted, WILLIAM LEONE United States Attorney s/ Elizabeth A. Weishaupl ELIZABETH A. WEISHAUPL Assistant United States Attorney 1225 Seventh Street, Suite 700 17 th Street Plaza Denver, CO 80202 (303) 454-0100 (303) 454 -0404 [email protected] 2

Case 1:04-cv-00074-MSK-CBS

Document 82

Filed 12/06/2005

Page 3 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on December 6, 2005, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: None

, and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name:

Jimmy L. Strozier (mail) 1467 Illinois Street Leeds, Alabama 35094

s/ Elizabeth A. Weishaupl Elizabeth A. Weishaupl Attorney for Defendant United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected]

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