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

Case 1:03-cv-01041-PSF-BNB

Document 131

Filed 10/24/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01041-PSF-BNB UNITED STATES OF AMERICA, Plaintiff, v. DAVID B. ST. GERMAIN, and RANDY OVERLEY, Defendants.

Defendant Overley's Reply in Support of His Amended Motion to Alter or Amend the Judgment
The defendant Randy Overley, through his attorneys, Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., submits this Reply in support of his Amended Motion to Alter or Amend the Judgment ["Amended Motion"].1 1. Mr. Overley's Amended Motion makes two points. First, plaintiff failed to carry its burden of proving unjust enrichment by failing to show benefit

On October 4, 2005, Mr. Overley moved for leave to file an Amended Motion to Alter or Amend the Judgment and conditionally filed the Amended Motion. The motion for leave is pending before the Court.

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to Mr. Overley at plaintiff's "expense," Donchez v. Coors Brewing Co., 392 F.3d 1211, 1221 (10th Cir. 2005) (internal quotations omitted). That is true whether codefendant David St. Germain is considered a "plaintiff" or not. Second, assuming arguendo plaintiff carried its burden of proof as to some of the monies allegedly paid into constructing the home, plaintiff failed to carry its burden of proving the expenditures of certain monies, detailed at Paragraphs 13-19 of the Motion. 2. At the end of the day, the evidence simply failed to show that the monies Mr. St. Germain claimed he "expended" were his. After all, the checks were drawn on a Dyman Properties account, and Mr. St. Germain admitted he forged Scott Lambert's name on the checks. The only evidence that the monies were his was his own testimony but, as this Court has found on more than one occasion, he has no credibility when it comes to the subject of money, among other things. The evidence at trial proved he prevaricated on countless occasions before and during the trial. 3. The plaintiff's "Opposition" is no opposition at all. It is an untimely Rule 59(e) motion to alter or amend the judgment masquerading as an "opposition." For example, rather than discuss whether it carried its burden of

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proving each element of unjust enrichment, plaintiff "requests that the Court . . . amend the judgment so that the crime victim can be made whole." 4. Plaintiff's opposition/motion should be rejected. A Rule 59(e) motion "shall be filed no later than 10 days after entry of the judgment," Fed. R. Civ. P. 59(e). This court entered judgment on September 21, 2005, 34 days ago. The Court lacks jurisdiction to consider an untimely Rule 59(e) motion. E.g., Brock v. Citizens Bank of Clovis, 841 F.2d 344, 347 (10th Cir. 1988), cited with approval in Watson v. Ward, 404 F.3d 1230, 1231 (10th Cir. 2005). Moreover, Local Rule 7.1.C. provides that "[a] motion shall not be included in a response or reply to the original motion. A motion shall be made in a separate paper." (Emphasis supplied.) It was improper for plaintiff to combine an opposition and motion. 5. On the merits, the opposition's "request" for Rule 59(e) relief is meritless. It reargues points plaintiff has repeatedly made and lost. 6. We have scrutinized plaintiff's Opposition. No part it appears to join any of the issues raised in Mr. Overley's Rule 59(e) Motion. 7. Plaintiff's failure to join any of the issues is effectively a confession of the Motion. Mr. Overley respectfully requests that this Court grant the relief requested in the Motion.

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Dated: October 24, 2005. Respectfully submitted, HADDON, M ORGAN, M UELLER, JORDAN, M ACKEY & FOREMAN, P.C.

s/ Ty Gee Ty Gee 150 East 10th Avenue Denver, CO 80203 (303) 831-7364 facsimile (303) 832-2628 Attorneys for Defendant Randy Overley

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Certificate of Service I hereby certify that on October 24, 2005, I electronically filed the foregoing Defendant Overley's Reply in Support of His Amended Motion to Alter or Amend the Judgment with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following: Christopher Alberto, Esq. Special Attorney for the United States United States Attorney's Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 [email protected] s/ Jennifer Bell I hereby certify that on October 24, 2005, I served Defendant Overley's Reply in Support of His Amended Motion to Alter or Amend the Judgment to the following non-CM/ECF participant via U.S. Mail: David B. St. Germain 16300 Ledgemont Lane, Unit 2504 Addison, TX 75001 s/ Jennifer Bell

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