Free Motion for Leave - District Court of Colorado - Colorado

Case 1:03-cv-01305-MEH-CBS

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Filed 03/13/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-1305-MEH-CBS VICTORIA GIANNOLA Plaintiff, v. ASPEN/PITKIN COUNTY HOUSING AUTHORITY and STEVE BARWICK, Defendants. ______________________________________________________________________________ DEFENDANT STEVE BARWICK'S MOTION FOR LEAVE TO FILE A MOTION FOR SUMMARY JUDGMENT ON THE STATUTE OF FRAUDS ______________________________________________________________________________ Defendant Steve Barwick, by his undersigned attorney, respectfully submits this Motion for Leave to file a Motion for Summary Judgment on the Statute of Frauds. As grounds therefor, Defendant states as follows. D.C.COLO.L.CivR. 7.1 A. Certification: Undersigned counsel herein certifies that Plaintiff opposes this Motion. 1. Pursuant to this Court's Order at the Telephonic Status Conference on March 6,

2006, Defendant was granted leave to file a Motion for Leave to File Additional Dispositive Motions and the proposed dispositive motion on or before March 13, 2006.

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2.

Against Defendant Steve Barwick, Plaintiff has asserted one claim for Relief ­ a

claim under 42 U.S.C. §1983. (See the September 20, 2004 Final Pretrial Order, page 3, paragraph A, Claims of Plaintiff.)1 3. Previously, Defendant Barwick filed a Motion for Summary Judgment,

contending that when she was hired Plaintiff was not given any promise of employment for five years, whether from the statement in the job description or by any alleged oral assurances. Defendant APCHA also filed a Motion for Summary Judgment with the same contention. Both Defendants asserted this to be an undisputed fact. 4. In response to the Motions for Summary Judgment, and in her own Motion for

Summary Judgment previously filed with this Court, Plaintiff has contested the Defendants' assertion and has contended that the reasons she claims she was hired under a contract for employment of five years are (1) the statement in the job description and (2) alleged oral assurances by her supervisor. However, to date she has not alleged, nor has she produced, any written contract, note, or memorandum in writing and signed by herself, any representative of APCHA, or Steve Barwick confirming this alleged agreement of employment for a term of five years. Plaintiff has filed three substantive briefs (Plaintiff's Brief in Support Motion for Summary Judgment, dated August 16, 2004; Plaintiff's Brief in Response to Defendant Aspen/Pitkin County Authority's Brief in Support of Motion for Summary Judgment, dated September 24, 2004; and Plaintiff's Response to Defendant Steve Barwick's Motion for Summary Judgment, dated September 24, 2004), and on no occasion has she ever even alleged,

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Against the Aspen/Pitkin County Housing Authority ("APCHA"), Plaintiff has asserted four claims for relief: breach of contract, promissory estoppel, breach of the covenant of good faith and fair dealing, and a claim under 42 U.S.C. §1983. 2

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let alone produced, any writing signed by anyone establishing the existence of a five-year contract of employment. 5. Notwithstanding Defendants' arguments in their Motions for Summary Judgment

that Plaintiff was not hired under any contract of employment, in its February 7, 2006 Order and Judgment, the Tenth Circuit Court of Appeals determined that factual issues exist as to whether, when Plaintiff was hired at APCHA, the job description and alleged statements by APCHA's (then) Executive Director created a contract of employment for five years. 6. Defendant Steve Barwick specifically plead the Statute of Frauds in his Answer,

and Defendant expressly preserved this defense in the September 20, 2004 Final Pretrial Order (page 5, paragraph III.C, subparagraph 5). Accordingly, the defense has not been waived. See the February 7, 2006 Tenth Circuit Court of Appeals Order and Judgment, slip op., page 7, fn. 3 ("We also note that while Mr. Barwick did raise a statute of frauds defense in his Answer....") 7. In his first Motion for Summary Judgment, Defendant Barwick did not request

summary judgment on the Statute of Frauds. One of the reasons is that this Defendant and APCHA have contended that no contract of employment, oral or otherwise, for a five-year term was ever created. However, in order to argue the Statute of Frauds defense, Defendant has to presume, for the sake of argument, that an oral contract existed but that it is void because it is not capable of being performed within one year and it was not reduced to writing and signed by either Defendant. Defendant did not raise this defense in his first Motion for Summary Judgment because Defendant had been convinced that the evidence was undisputed that no contract or promise of employment for five years was ever created in the first instance, so the Statute of Frauds issue did not arise.

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8.

However, because (1) the Tenth Circuit has determined that factual issues exist as

to whether Ms. Giannola had a contract of employment for five years, and (2) Plaintiff's briefs and papers filed with this Court fail to allege the existence of any written or signed agreement, the Statute of Frauds defense is now ripe. Defendant has preserved this defense, and it should be decided now, rather than at trial, because there are no material facts in dispute, and summary judgment is appropriate. 9. In the October 21, 2003 Scheduling Order, the deadline for filing dispositive

motions was originally April 30, 2004. That deadline was extended to August 16, 2004. All parties filed motions for summary judgment on that deadline. Then, the circumstances changed. The original trial date of November 1, 2004 was vacated and reset to December 13, 2004. That trial date was vacated, and the trial was reset to April 18, 2005. The dispositive motion deadline was extended again, to December 1, 2004. On March 24, 2005, Magistrate Judge Schlatter issued an Order granting both Defendants' Motions for Summary Judgment, denying Plaintiff's Motion for Summary Judgment, and dismissing Plaintiff's claims. Obviously, that decision canceled the second trial date of April 18, 2005. Plaintiff appealed to the Tenth Circuit, which reversed the summary judgment decision issued by Magistrate Judge Schlatter. 10. In light of the passage of time and the Tenth Circuit's Order and Judgment, all

parties agreed at the recent Telephonic Status Conference that Defendants can take the deposition of Plaintiff to the extent of any new information regarding her damage claims since her last deposition over two years ago, and that deposition has been scheduled. In addition, all parties agreed that the Final Pretrial Order needed to be prepared again and a new Pretrial Conference held, which this Court has ordered.

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11.

Further, Plaintiff has long been apprised of the Statute of Frauds defense because

it was pled in Defendant's Barwick's Answer; it was asserted by this Defendant in the original Scheduling Order; it was asserted by this Defendant in the Final Pretrial Order; it was discussed by the Court at oral argument before the Tenth Circuit; and it was discussed in the Tenth Circuit's Opinion. Plaintiff has long known of this defense, and she can hardly claim prejudice by the assertion of this defense, particularly since she has had ample time, and has failed, in her multiple memorandum briefs filed with this Court to allege the existence of a signed writing confirming the existence of the alleged contract of employment. 12. Pursuant to this Court's Order at the Telephonic Status Conference, Defendant has

contemporaneously filed his Motion for Summary Judgment on the Statute of Frauds and his Memorandum Brief in Support of Motion for Summary Judgment on the Statute of Frauds. WHEREFORE, Defendant Steve Barwick respectfully requests that this Court grant Defendant's Motion for Leave to File his Motion for Summary Judgment on the Statute of Frauds.

Respectfully submitted, s/ Steven J. Dawes ___________________________________ Steven J. Dawes Light, Harrington & Dawes, P.C. 1512 Larimer St., Suite 300 Denver, CO 80202 Phone: 303-298-1601 Fax: 303-298-1627 E-mail: [email protected] Attorney for Defendant Steve Barwick

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CERTIFICATE OF SERVICE The undersigned herein certifies that on this 13th day of March 2006 a true and complete copy of the foregoing DEFENDANT STEVE BARWICK'S MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT ON THE STATUTE OF FRAUDS was electronically filed using the CM/ECF system, which will send notification of such filing to the following e-mail addresses of the parties Sander N. Karp, Esq. [email protected] Paul E. Collins, Esq. [email protected]

s/ Steven J. Dawes ___________________________________ Steven J. Dawes Light, Harrington & Dawes, P.C. 1512 Larimer St., Suite 300 Denver, CO 80202 Phone: 303-298-1601 Fax: 303-298-1627 E-mail: [email protected] Attorney for Defendant Steve Barwick

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