Free Reply to Response to Motion - District Court of Colorado - Colorado

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

Document 115

Filed 03/27/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01305-MEH-CBS

VICTORIA GIANNOLA Plaintiff v. ASPEN/PITKIN COUNTY HOUSING AUTHORITY and STEVE BARWICK Defendants DEFENDANT ASPEN/PITKIN COUNTY HOUSING AUTHORITY'S REPLY IN SUPPORT OF MOTION TO AMEND ANSWER Defendant Aspen/Pitkin County Housing Authority ("Authority"), by and through its attorneys, Treece, Alfrey, Musat & Bosworth, P.C., submits the following Reply in Support of its Motion to Amend Answer. 1. Plaintiff argues that the Authority's Motion to Amend its Answer is untimely

based upon the deadlines set forth in the Scheduling Order. The Scheduling Order states that the deadline for the parties to amend its pleadings was November 4, 2003. Discovery did not commence, specifically, Plaintiff's deposition did not take place, until after the deadline to amend pleadings had passed. The Authority was still gathering facts and reviewing evidence in November 2003. Regardless, the Authority asserted a defense adequate to include a defense based upon the applicability of the statute of frauds. 2. F.R.C.P. 15(a) contemplates allowing amendments freely when justice requires.

See, R. E. B., Inc. v. Ralston Purina Co., 525 F.2d 749 (10th Cir. 1975). Changes are not to be

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allowed on remand if to do so would run counter to the mandate of the appellate court. Britton v. Dowell, 243 F.2d 434 (10th Cir. 1957). Because the Tenth Circuit's mandate did not address and therefore did not preclude the amendment of pleadings, the Authority should not be precluded from asserting the statute of frauds defense. 3. Plaintiff contends that the Authority must comply with not only F.R.C.P. 15(a),

but also with F.R.C.P. 16(b) based upon the fact that the amendment comes after the deadline established in the Scheduling Order. The request to amend does not add a claim, nor does it add a defense of which Plaintiff was not already on notice. While the Authority asserted an affirmative defense stating that no enforceable contract exists, the Authority only seeks to further clarify its position as to the application of the statute of frauds to Plaintiff's claims. Good cause exists to allow a simple clarification. WHEREFORE, Defendant Aspen/Pitkin County Housing Authority respectfully requests that the Court grant its motion to amend its Answer. Respectfully submitted this 27th day of March, 2006. TREECE, ALFREY, MUSAT & BOSWORTH, P.C. /Laura A. Childs __________________________________ Paul E. Collins Laura A. Childs 999 18th Street, Suite 1600 Denver, Colorado 80202 (303) 292-2700 Attorneys for Defendant Aspen/Pitkin County Housing Authority

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

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Filed 03/27/2006

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CERTIFICATE OF SERVICE I hereby certify that on this 27th day of March, 2006, a true and correct copy of the foregoing DEFENDANT ASPEN/PITKIN COUNTY HOUSING AUTHORITY'S REPLY IN SUPPORT OF MOTION TO AMEND ANSWER was served upon the following by the method indicated: Steven J. Dawes, Esq Light, Harrington & Dawes, P.C. 1512 Larimer Street, Suite 550 Denver, CO 80202 via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail

Sander N. Karp, Esq. Leavenworth & Karp, P.C. 201 14th Street, Suite 200 P. O. Drawer 2030 Glenwood Springs, CO 81602

/sTheresa Webb

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