Free Supplement/Amendment - District Court of Colorado - Colorado

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

Document 113

Filed 09/14/2005

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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 Supplemental Authorities

Defendant Randy Overley, through his attorneys Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., submits the following supplemental authorities in accordance with the Court's directions on September 7, 2005. 1. Citations regarding the applicability of laches to the United States notwithstanding any alleged "unclean hands." · Compare United States v. Summerlin, 310 U.S. 414, 416 (1940) (cited by plaintiff) ("It is well settled that the United States is not bound by state statutes of limitation or subject to the defense of laches in enforcing its rights.") (emphasis supplied) with · United States v. Beebe, 127 U.S. 338, 344 (1888) (holding that laches may apply in cases where "the government, although a nominal complainant party, has no real interest in the litigation, but has allowed its name to be used therein for the sole benefit of a private [entity]," and

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

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that application of laches is appropriate where government is "not the real contestant party to the title or property in the land in controversy") id. at 346 (emphasis supplied) and · Marshall v. Intermountain Elec. Co., 614 F.2d 260, 263 (10th Cir. 1980) (distinguishing rule that laches does not apply in actions "brought exclusively for the benefit of the federal government": "the doctrine of laches may be applied in these hybrid cases [where an action is brought by the government to enforce private as well as public rights] to limit relief") (emphasis supplied). 2. Citations regarding the applicability of the "unclean hands" doctrine to bar Mr. Overley's laches defense. · Compare Salzman v. Bachrach, 996 P.2d 1263, 1269 (Colo. 2000) (cited by plaintiff at bar) (holding that trial court on remand should determine whether plaintiff had "unclean hands," a doctrine which "dictates that one who has engaged in improper conduct . . . may, as a result, lose entitlement to an equitable remedy") with · Dove v. United States, 1987 WL 14497, at *3 & n.2 (D.D.C. 1987) ("`[U]nclean hands' doctrine is normally invoked by a defendant seeking to defeat the plaintiff's claim for equitable relief, not by a plaintiff seeking to defeat his opponent's defense. The traditional arguments favoring application of the "unclean hands" defense do not apply with equal force in these circumstances.") (footnote omitted) and · Manufacturers' Finance Co. v. McKey, 294 U.S. 442, 449 (1935) (holding that one who enters court of chancery and seeks equitable remedies can received no such remedies "except upon condition that he consent to accord to the other his correlative equitable rights"). 3. Citations regarding the applicability of the "unclean hands" doctrine to bar Mr. Overley's laches defense for the period after January 2000.

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· Ajay Sports, Inc. v. Casazza, 1 P.3d 267, 276 (Colo. Ct. App. 2000) (holding that improper conduct constituting "unclean hands" "must relate directly to the underlying litigation[--it] must have an immediate and necessary relation to the claims under which relief is sought") (emphasis supplied). Dated: September 14, 2005. Respectfully submitted, HADDON, MORGAN, MUELLER, JORDAN, MACKEY & 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 September 14, 2005, I electronically filed the foregoing Defendant Overley's Supplemental Authorities 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] And I hereby certify that I have served the to the following non-CM/ECF participant via U.S. Mail: David B. St. Germain 16300 Ledgemont Lane, Unit 2504 Addison, TX 75001 / s/Cynthia Pantelis /

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