Free Response to Motion - District Court of Colorado - Colorado

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

Document 174

Filed 03/28/2008

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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 RELIEF ______________________________________________________________________ Defendants John Hyatt, Robert Fahey, Betty Fulton, Paul Carreras, Connie Davis, Ken Maestas, Joseph Garcia, and David Archuleta (collectively, "Defendants"), by and through their counsel, Andrew D. Ringel, Esq. of Hall & Evans, L.L.C., pursuant to this Court's Minute Order dated March 18, 2008, hereby submit this Response to Plaintiff's Motion for Relief, as follows: 1. Plaintiff filed his Motion for Relief on March 11, 2008. By Minute Order

dated March 18, 2008, this Court reinstated the Plaintiff's Motion for Relief and directed the Defendants to respond to the Plaintiff's Motion for Relief. [See Doc. 173]. Pursuant to this Court's Minute Order dated March 18, 2008, Defendants now respectfully submit this Response to Plaintiff's Motion for Relief. 2. Initially, Plaintiff cites no provision of the Federal Rules of Civil Procedure This Court issued its Order Adopting Recommendation of

in his Motion for Relief.

United States Magistrate Judge on January 31, 2008. [See Doc. 162]. The Judgment

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was entered by the Clerk of this Court on February 21, 2008. [See Doc. 163]. Plaintiff's Motion for Relief was therefore filed more than ten days following the entry of judgment by this Court. Accordingly, Defendants believe the Plaintiff's Motion for Relief must be considered as a motion filed pursuant to Fed. R. Civ. P. 60(b). See, e.g., Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995) (construing a motion for reconsideration filed within ten days after entry of judgment as filed pursuant to Fed. R. Civ. P. 59(e) and one filed more than ten days after entry of judgment as filed under Fed. R. Civ. P. 60(b)). 3. Fed. R. Civ. P. 60(b) provides a district court may provide relief from a

final judgment under certain specified circumstances. Fed. R. Civ. P. 60(b)(1), provides relief from judgment is appropriate for "mistake, inadvertence, surprise, or excusable neglect." See Fed. R. Civ. P. 60(b)(1). A district court has discretion in determining whether relief is appropriate under Fed. R. Civ. P. 60(b)(1). Manning v. Astrue, 510 F.3d 1246, 1249 (10th Cir. 2007). "However, in determining whether a district court abused its discretion, we are mindful that `relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.'" Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996)). The Supreme Court, in interpreting the phrase in a bankruptcy rule, has concluded, "at least for purposes of Rule 60(b), `excusable neglect' is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence. Because of the language and structure of Rule 60(b), a party's failure to file on time for reasons beyond his or her control is not

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considered to constitute `neglect.'" Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 394 (1993). 4. Plaintiff's Motion for Relief asserts as a basis for relief that counsel for the

Plaintiff did not receive a variety of different filings submitted by the Defendants and issued by this Court through this Court's Electronic Case Filing Procedures. Motion for Relief and attached Affidavit of Robyn Lornell]. [See

Defendants believe the

failure of counsel for the Plaintiff to receive these filings through this Court's Electronic Case Filing Procedures may well constitute excusable neglect within the meaning of Fed. R. Civ. P. 60(b)(1). Defendants have no way of knowing whether counsel for the Plaintiff in fact did not receive service of the documents in question through this Court's Electronic Case Filing Procedures. Defendants have no basis to challenge the

information provided by counsel for the Plaintiff and Ms. Lornell. 1 Defendants believe this Court could conceivably accept the representations made by counsel for the Plaintiff as an officer of this Court. Defendants note that counsel for the Defendants received all of the documents in question through this Court's Electronic Case Filing Procedures. 5. Alternatively, because this Court operates the Electronic Case Filing

system internally the only way for this Court to determine what occurred with respect to the Electronic Case Filing notifications in this case to counsel for the Plaintiff is to engage in some sort of fact-finding exercise that is beyond the ability of the parties and

Indeed, this difficulty was why counsel for the Defendants took no position with respect to the Plaintiff's Motion for Relief. [See Plaintiff's Motion for Reconsideration, ¶¶ 2-3 (Doc. 171)]. 3

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their counsel to conduct.

Defendants believe this Court could take testimony from

representatives from the Clerk's Office responsible for overseeing the Electronic Case Filing system or alternatively appoint a master to investigate this issue and report to this Court. See Fed. R. Civ. P. 53(a)(1)(C) (providing a court may appoint a master to "address pretrial and post-trial matters that cannot be addressed effectively and timely by an available district judge or magistrate judge of the district."). Defendants suggest these as only possibilities for this Court if this Court is not satisfied with simply relying on the information provided by the Plaintiff in support of his Motion for Relief. WHEREFORE, Defendants John Hyatt, Robert Fahey, Betty Fulton, Paul Carreras, Connie Davis, Ken Maestas, Joseph Garcia, and David Archuleta respectfully submit the foregoing Response to Plaintiff's Motion for Relief. Dated this 28th day of March, 2008. Respectfully submitted,

s/ Andrew D. Ringel Andrew D. Ringel, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 Phone: (303) 628-3300 Fax: (303) 293-3238 [email protected] ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 28th day of March, 2008, 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: Dennis W. Hartley, Esq. Michael Obernesser, Esq. Dennis W. Hartley, P.C. 1749 South 8th Street, Suite 5 Colorado Springs, CO 80906 [email protected]

s/Loree Trout, Secretary Andrew D. Ringel, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 Phone: 303-628-3300 Fax: 303-293-3238 [email protected] ATTORNEYS FOR DEFENDANTS

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