Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-00623-WYD-PAC

Document 117

Filed 06/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-00623-WYD-PAC EVA LYONS, Plaintiff, v. RED ROOF INNS, INC., Defendant.

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO ADD CLAIM OF LIBEL AGAINST THE DEFENDANT

COMES NOW Red Roof Inns, Inc., by and through its attorneys, Frank D. Sledge and Lance E. Shurtleff, and in response to Plaintiff's Motion to Add Claim of Libel Against the Defendant, states as follows: I. SUMMARY OF ARGUMENT

Ms. Lyons' latest motion is, essentially, another motion to amend. The issue of whether Ms. Lyons is able to assert a libel claim has been decided, and there is no support for Ms. Lyons' second attempt to assert an untimely libel claim. This issue should not be re-argued, and Ms. Lyons' motion should be denied.

Case 1:03-cv-00623-WYD-PAC

Document 117

Filed 06/21/2006

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II.

ARGUMENT

Ms. Lyons does not have a viable claim for libel. The Court decided this issue on April 19, 2006, when it entered its Order Affirming and Adopting the Recommendation of US Magistrate Judge. (Order, dated April 19, 2006.) When a court decides on a rule of law, that decision will continue to govern the same issues in subsequent stages of same case. United States v. Jerry Lee Williams, 2006 U.S. App. LEXIS 14847, *3-*4 (10th Cir. 2006) (relying on Arizona v. California, 460 U.S. 605, 618 (1983)). This "law of the case" doctrine is intended to prevent continued re-argument of issues already decided. Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995). There are only three exceptions to this doctrine: "(1) when evidence in a subsequent trial is substantially different; (2) when controlling authority made a contrary decision of the law applicable to such issues; and (3) when the decision was clearly erroneous and would work a manifest injustice." McIlravy v. Kerr-Mcgee Coal Corp., 204 F.3d 1031, 1035 (10th Cir. 2000). Plaintiff's first attempt to assert a libel claim was denied by this Court. (Order, dated April 19, 2006.) Judge Daniel set forth specific reasons for his decision, and there is no good reason to re-argue the issue of whether Ms. Lyons is able to bring an untimely libel claim. Nothing has changed since Ms. Lyons' last attempt to assert a libel claim, and there is absolutely no support, legal or otherwise, for her argument that the use of exhibits 5, 7, 19, 20 and 21 during trial amounts to libel. Moreover, her attempt to add a libel claim is untimely and can be denied on that basis alone. Ms. Lyons' Motion to Add Libel Claim should be denied in its entirety.

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It is worth noting at this point that Red Roof Inns has informed Ms. Lyons that her Motion to Add Claim of Libel does not comply with Fed.R.Civ.P. 11 and Red Roof Inns will be seeking to recover costs and expenses incurred, including attorneys fees, for responding to this motion and other motions which do not comply with Fed.R.Civ.P. 11. III. CONCLUSION

Ms. Lyons is attempting to re-argue the denial of her first attempt to assert a libel claim in this case. There is no change in circumstances allowing Ms. Lyons to assert a libel claim, and her motion should be denied. WHEREFORE, defendant Red Roof Inns, Inc. respectfully requests that this Court deny Ms. Lyon's Motion to Add Claim of Libel Against the Defendant in its entirety. DATED this 21st day of June, 2006. Respectfully submitted, s/ Lance E. Shurtleff Frank D. Sledge Lance E. Shurtleff Attorneys for Defendant WHITE AND STEELE, P.C. 950 17th Street, 21st Floor Denver, CO 80202-2804 Phone: (303) 296-2828 Fax: (303) 296-3131 Email: [email protected] Email: [email protected]

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Case 1:03-cv-00623-WYD-PAC

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Filed 06/21/2006

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on June 21, 2006, a true and correct copy of the foregoing was electronically filed via CM/ECF, and that a true and correct copy was mailed to the following: Eva Lyons P.O. Box 5712 Colorado Springs, CO 80931

s/ Charlene Falk For WHITE AND STEELE, P.C. 950 17th Street, 21st Floor Denver, CO 80202-2804 Phone: (303) 296-2828 Fax: (303) 296-3131 Email: [email protected]

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