Free Response to Motion - District Court of Colorado - Colorado

Case 1:02-cv-00289-RPM

Document 216

Filed 10/13/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-CV-00289-RPM

ROCKIE LEE ZIMMERMAN, vs. JOHN L. CHADBOURNE, II, RUDY FANNIN, JOSH BENNER, MR. LAWRENCE, MR. DAZEY, MR. STECKLER,

Plaintiff,

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

COME NOW Defendants, John L. Chadbourne, II, Rudy Fannin, Josh Benner, Mr. Lawrence, Mr. Dazey, and Mr. Steckler, by and through the Office of the City Attorney, and hereby submit the following response: 1. On September 26, 2006, this Court entered an Order Granting Summary Judgment of

Dismissal in favor of Defendants. 2. On September 26, 2006, this Court issued the Judgment and awarded Defendants

costs upon the filing of a bill of costs. 3. 4. On October 6, 2006, Defendants filed a Bill of Costs (docket No. 208). On October 10, 2006, Plaintiff filed a Motion to Vacate Judgment pursuant to

Fed.R.Civ.P. 59.

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Case 1:02-cv-00289-RPM

Document 216

Filed 10/13/2006

Page 2 of 3

5.

Pursuant to Fed.R.Civ.P. 59(e), "[a]ny motion to alter or amend a judgment shall be

filed no later than 10 days after entry of the judgment." 6. 7. Plaintiff filed his Rule 59 motion fourteen days after entry of judgment. While Plaintiff's recitation of the case law regarding the offer and acceptance of offer

of judgment appears to be correct, Plaintiff has nevertheless failed to move for an amended judgment within the time prescribed. Therefore, while Plaintiff may be entitled to enforcement of the offer of judgment, Defendants are entitled to an award of costs pursuant to the judgment which cannot by rule now be amended. WHEREFORE, for the foregoing reasons, Defendants respectfully request that this Honorable Court grant Defendants their costs, as set forth in the bill of costs. Dated this 13th of October, 2006. Respectfully Submitted,

s/ Shane White Shane White Senior Attorney Reg. No. 19034 Office of the City Attorney P.O. Box 1575 30 South Nevada Avenue Colorado Springs, Colorado 80901 Telephone: (719) 385-5909 Attorney for Defendants

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Document 216

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 13th day of October, 2006, I electronically filed the foregoing RESPONSE TO PLAINTIFF'S MOTION TO VACATE JUDGMENT IN FAVOR OF DEFENDANTS AND MOTION TO ENTER JUDGMENT IN HIS FAVOR, PURSUAN TO FED.R.CIV.P. 68 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] , and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participants name:

By:

s/ Hilda Manifor-Cooks Hilda Manifor-Cooks, Legal Assistant

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