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

Case 1:02-cv-00289-RPM

Document 217

Filed 10/16/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02CV00289-RPM ROCKIE LEE ZIMMERMAN, Plaintiff, v. JOHN L. CHADBOURNE, II RUDY FANNIN, JOSH BENNER, MR. LAWRENCE, MR. DAZEY, MR. STECKLER, THE PIKES PEAK REGIONAL LAW ENFORCEMENT ACADEMY, Defendants.

PLAINTIFF'S REPLY IN SUPPORT OF HIS MOTION TO VACATE JUDGMENT IN FAVOR OF DEFENDANTS AND MOTION TO ENTER JUDGMENT IN HIS FAVOR, PURSUANT TO FED. R. CIV. P. 68

Plaintiff, through his counsel of record, McConnell Siderius Fleischner Houghtaling & Craigmile, LLC, and pursuant to Fed. R. Civ. P. 59, respectfully submits this Reply in Support of his Motion to Vacate Judgment entered in Defendants' favor. As grounds, Plaintiff states: 1. On September 21, 2006, Defendants served upon the Plaintiff an Offer of

Judgment dated September 20, 2006, pursuant to Fed. R. Civ. P. 68. (Exh. A to Pltfs' Mtn.). 2. On September 26, 2006, five days later, the Court entered an Order Granting

Summary Judgment of Dismissal in favor Defendants. Docket # 206. The Court entered Judgment in favor of the Defendant on the same day. Docket # 207. 3. On September 27, 2006, a day after the Court entered its Order Granting

Case 1:02-cv-00289-RPM

Document 217

Filed 10/16/2006

Page 2 of 4

Summary Judgment of Dismissal, Plaintiff served on the Defendants a Notice of Acceptance of Defendants' Offer of Judgment, pursuant to Fed. R. Civ. P. 68. (Exh. B to Pltfs' Mtn.). 4. Under Fed. R. Civ. P. 68, the Plaintiffs' acceptance of the Defendants' Offer of

Judgment requires the Court to vacate its judgment entered in favor of the Defendants and instead enter judgment in favor of the Plaintiff. See, e.g., Perkins v. U.S. West Comm., 138 F.3d 336, 339 (3d Cir. 1998). 5. In their Response, Defendants agrees that this law is correct. Defendants'

Response to Plaintiff's Motion to Vacate Judgment in Favor of Defendants and Motion to Enter Judgment in His Favor, Pursuant to Fed.R.Civ.P. 68, docket # 216. Defendants argue, however, that the Court should not enter judgment in Plaintiff's favor because Plaintiff filed his Motion on October 10, 2006, which was 14 days after the Court's entry of judgment, counting intermediate weekend days and legal holidays. Defendants therefore claim Plaintiff's Motion was late. 6. Defendants are wrong. A party seeking relief from a judgment under Fed. R. Civ.

P. 59(e) must file his motion ten (10) days after entry of judgment. Fed. R. Civ. P. 6(a) governs the computation of time. Rule 6(a) plainly explains: "When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation." Id. Accordingly, in computing the 10 days, the intermediate Saturdays, Sundays and legal holidays "shall be excluded" from the computation. Id. 7. Here, the Court entered its Judgment on September 26, 2006, which was a

Tuesday. Docket # 207. Under Fed. R. Civ. P. 6(a), the day that the judgment was entered is not factored into the calculation. Id. ("...the day of the act, event, or default from which the designated period of time begins to run shall not be included."). Hence, the 10 days under Fed.

2

Case 1:02-cv-00289-RPM

Document 217

Filed 10/16/2006

Page 3 of 4

R. Civ. P. 59(e) began to run on September 27, 2006. 8. Intermediate Saturdays, Sundays and legal holidays are not included in the

calculation. Fed. R. Civ. P. 6(a). October 9, 2006 was Columbus Day, a legal holiday. Id. Thus, the ten applicable days are: 9-27-06 (Day 1), 9-28-06 (Day 2), 9-29-06 (Day 3), 9-29-06 (Day 4), 10-2-06 (Day 5), 10-3-06 (Day 6), 10-4-06 (Day 7), 10-5-06 (Day 8), 10-6-06 (Day 9), and 1-10-06 (day 10). Id. 9. Plaintiff filed his Motion on October 10, 2006, indisputably the tenth day.

Accordingly, Defendants' objection is misguided. Plaintiff's Motion was timely. Moreover, since the Defendants agree that the law supporting the Plaintiff's Motion is correct, the Court must vacate its earlier judgment and enter judgment in favor of the Plaintiff. WHEREFORE, for the foregoing reasons, and pursuant to the foregoing authority, Plaintiff respectfully requests that the Court vacate its earlier Judgment, entered on September 26, 2006, and enter Judgment in favor Plaintiff for $2,500. Dated this 16th day of October, 2006.

Respectfully submitted,

s/ Troy R. Rackham_________ Troy R. Rackham McConnell Siderius Fleischner Houghtaling & Craigmile, LLC 4700 South Syracuse, Suite 200 Denver, CO 80237 Telephone: (303) 480-0400 Email: [email protected] Attorneys for Plaintiff Rockie Lee Zimmerman

3

Case 1:02-cv-00289-RPM

Document 217

Filed 10/16/2006

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on October 16, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to email addresses: David M. Tenner, Esq. Bond & Morris, P.C. 303 East 17th Avenue, Suite 888 Denver, Colorado 80203 [email protected] Shane White, Esq. Senior Attorney Office of the City Attorney P.O. Box 1575 30 South Nevada Avenue Colorado Springs, Colorado 80901 [email protected] /s/ Leah Stevens

4