Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-01315-REB-CBS

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Filed 03/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-01315-REB-CBS LEONARD BALDAUF, Plaintiff, v. JOHN HYATT, et. al. Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR ORDER TO SERVE AND TIME

Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan (hereinafter collectively "Defendants"), by and through their counsel, Andrew D. Ringel, Esq. and Gillian Dale, Esq. of Hall & Evans, L.L.C., hereby submit this Response to Plaintiff's Motion for Order to Serve and Time, as follows: 1. Plaintiff filed his Motion for Order to Serve and Time on March 1, 2006,

alleging he did not receive a copy of the Defendants' Motion to Dismiss Plaintiffs' Complaint filed on February 17, 2006, as well as a previous filing by the Defendants and requesting additional time to respond to the Defendants' Motion to Dismiss Plaintiff's

Case 1:01-cv-01315-REB-CBS

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Complaint.

[See Plaintiff's Motion for Order to Serve and Time].

Defendants now

respectfully respond to the Plaintiff's Motion. 2. Motion to Initially, counsel for the Defendants notes that both the Defendants' Dismiss Plaintiff's Complaint and the Defendants' Objection to

Recommendation of United States Magistrate Judge (the immediately prior submission of the Defendants before the Motion to Dismiss presumably referred to by the Plaintiff in his Motion) were mailed to the Plaintiff at the Plaintiff's address contained in the records of this Court as well as the address contained on the Plaintiff's Motion for Order to Serve and Time. [See Defendants' Motion to Dismiss Plaintiff's Complaint, at 7;

Defendants' Objection to Recommendation of United States Magistrate Judge, at 30]. Neither submission to this Court that was mailed to the Plaintiff was returned to the undersigned counsel's office. Further, Plaintiff responded to the Defendants' Objection to Recommendation of United States Magistrate Judge on January 27, 2006, so it stands to reason that the Plaintiff actually received the Defendants' Objection. [See Plaintiff's Response to Defendants' Objections, 1/27/06]. Plaintiff has also never

previously raised any issue with respect to the service of the Defendants' submissions to this Court and the United States Court of Appeals for the Tenth Circuit on him and all such submissions were mailed to the Plaintiff at his address of record in identical fashion as the last two submissions Plaintiff now complains he did not receive. Moreover, the Clerk of this Court has mailed the Defendants' Motion to Dismiss Plaintiff's Complaint to the Plaintiff so he now has this document as well if he did not have it previously. [See Supplemental Certificate of Service (CM/ECF), 3/7/06].

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Counsel for the Defendant believes he has complied with Fed. R. Civ. P. 4 in serving all of his submissions to the Plaintiff at his address of record. 3. Finally, this Court directed the Plaintiff to respond to the Defendants'

Motion to Dismiss Plaintiff's Complaint by March 20, 2006. [See Minute Order, 2/17/06]. Defendants have no objection to a reasonable extension of time for the Plaintiff to provide his response in light of the Plaintiff's representation that he did not receive the Defendants' Motion prior to when it has now been sent by the Clerk of this Court. Providing Plaintiff until March 30, 2006, to provide his response to the Defendants' Motion to Dismiss Plaintiff's Complaint would give the Plaintiff the time for such a response provided for by the Federal Rules of Civil Procedure and this Court's local rules. See Fed. R. Civ. P. 6(e) and D.C.Colo.LCiv.R. 7.1.C. WHEREFORE, for all of the foregoing reasons, Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan respectfully request this Court deny the Plaintiff's request for any finding counsel for the Defendants failed to serve his submissions to this Court on the Plaintiff, but grant the Plaintiff until March 30, 2006, to respond to the Defendants' Motion to Dismiss Plaintiff's Complaint, and for all other and further relief as this Court deems just and appropriate.

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Dated this 8th day of March, 2006. Respectfully submitted,

s/Andrew D. Ringel Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 [email protected] [email protected] 303-628-3300 ATTORNEYS FOR DEFENDANTS ABOVE NAMED

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 8th day of March, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: None and hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participant in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: Leonard Baldauf, #98415 (via U.S. Mail) Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034

s/Loree Trout, Secretary Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 303-628-3300 Fax: 303-293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHLETA, NARD CLAAR, AND RICHARD HARLAN
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