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

Case 1:00-cv-02350-LTB-MJW

Document 68

Filed 03/02/2006

Page 1 of 8

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-02350-LTB-MJW PAULETTE GOMEZ, Plaintiff, v. KING SOOPERS, INC., Defendant.

DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR ATTORNEYS' AND EXPERT'S FEES ______________________________________________________________________________ Defendant King Soopers, Inc. ("Defendant"), through its attorneys, Sherman & Howard L.L.C., and pursuant to Fed.R.Civ.P. 7(b) and D.C.COLO.LCivR 7.1 files this Reply Brief In Support of Defendant's Motion For Attorneys' And Expert's Fees ("Defendant's Motion") as follows. INTRODUCTORY STATEMENT On January 24, 2006, Defendant filed Defendant's Motion, seeking its attorney's fees and expert witness fees from the time this case was reopened on January 31, 2005, until it was dismissed on January 10, 2006, due to Plaintiff and her previous counsel's failure to prosecute this case. On February 13, 2006, Jessica L. West, Esq. entered her appearance for Plaintiff, and on February 20, 2006, Plaintiff's new counsel filed a response to Defendant's Motion. Defendant now files its Reply Brief in Support of Defendant's Motion.

Case 1:00-cv-02350-LTB-MJW

Document 68

Filed 03/02/2006

Page 2 of 8

ARGUMENT A. The Court Should Award Defendant Its Fees Pursuant To Rule 16(f). In general, this Court has broad discretion to issue sanctions under F.R.C.P. 16(f). Gripe v. City of Enid, Okl., 312 F.3d 1184, 1188 (10th Cir. 2002) ("Rule 16(f) `indicates the intent to give courts very broad discretion to use sanctions where necessary to insure . . . that lawyers and parties . . . fulfill their high duty to insure the expeditious and sound management of the preparation of cases for trial.'") (quoting Mulvaney v. Rivair Flying Serv., Inc., 744 F.2d 1438, 1440 (10th Cir.1984)). When determining whether sanctions are appropriate, courts

review, "the totality of the circumstances, including the specific case under review, the total management problems for courts, and access and cost problems for litigants." Comcoa, Inc. v. NEC Telephones, Inc., 931 F.2d 655, 666 (10th Cir. 1991). In response to Defendant's request for fees under F.R.C.P. 16(f), pursuant to the recommendation of Magistrate Judge Watanabe, Plaintiff complains that an award of fees against her would not be just and that there is no nexus between the misconduct in this case and the request for fees. Plaintiff is incorrect. In support of Plaintiff's argument that awarding fees against her would be unjust, Plaintiff states that she has no other experience with the legal system other than this case. In particular, she submitted a sworn Declaration that includes the following statement, "Prior to initiating this action, I had never been involved in litigation of any kind. I had never been a plaintiff, defendant or witness in a case. I had never before retained an attorney." Plaintiff's Declaration, ¶ 3.

2

Case 1:00-cv-02350-LTB-MJW

Document 68

Filed 03/02/2006

Page 3 of 8

This statement is incorrect. Plaintiff actually has extensive experience with the legal system, and has retained counsel a number of times. See Paulette Jarrett v. James Webber, 1996 CV-000038 (Pueblo District Court 1996) (breach of contract action brought by Plaintiff and in which Plaintiff retained Deborah Rene Eyler as her attorney); People v. Paulette Gomez, No. 1992 M-001478 (Pueblo County Court 1992) (misdemeanor assault); People v. Paulette Gomez, No. 1991 R-0180 (El Paso County Court 1991) (traffic infraction); Paulette Hernandez v. John Hernandez, 1982 DR-004774 (Denver District Court 1982) (divorce action in which Plaintiff retained George Whitcomb as her attorney); Paulette Jarrett and Michael Jarrett, No. 1976 DR003191 (Boulder District Court 1976) (divorce action); Paulette Jarrett and Michael Jarrett, No. 1976 DR-001528 (Pueblo District Court 1976) (divorce action in which Plaintiff retained Russell Olin as her attorney); Paulette Jarrett and Michael Jarrett, No. 1975 DR-000244 (Pueblo District Court 1975) (divorce action in which Plaintiff retained Thomas Farley as her attorney).1 Most notable of these is the breach of contract action that Plaintiff filed in 1996, two years before she filed her Complaint in this case. Not only did she file that case and retain counsel, but also that litigation continued for almost an entire year. It also is noteworthy that Plaintiff currently works as a Deputy City Clerk for the City of Federal Heights, and that in that position, she has assisted in the courtroom. See Exhibit A. Therefore, it is clear that Plaintiff is familiar with the legal process. Given Plaintiff's familiarity with the legal process, her claim that she had no idea what was going on in this case rings hollow. This is especially true when one considers the other Counsel for Defendant has confirmed that Plaintiff's previous last names included Jarrett and Hernandez. 3
1

Case 1:00-cv-02350-LTB-MJW

Document 68

Filed 03/02/2006

Page 4 of 8

sworn statements in her Declaration. She states that her first attorney, Mark Rau, did not keep her informed about her case and that she had to "hound" him with "multiple telephone calls" before he would call her back. Plaintiff's Declaration, ¶ 6. Indeed, she goes so far as to state that a representative of her union would call her and tell her about things that were going on in her case about which she had no idea. Id. Despite this very glaring problem, Plaintiff apparently made no effort to obtain other counsel, and her case then was transferred to Cecilia Serna. According to Plaintiff, Ms. Serna was no better about communicating with her, as she states that she had to "hound Ms. Serna with multiple telephone calls" before she would hear back. Plaintiff's Declaration, ¶ 8. Indeed, again, Plaintiff goes so far as to state that she was involved in settlement discussions with her union in 2003, but she refused the settlement offer because she could not reach Ms. Serna regarding it. Id. at ¶ 9. Despite these glaring problems, Plaintiff continued to have Ms. Serna represent her and apparently made no efforts to obtain other counsel. Then, Plaintiff states that she met with Ms. Serna one time in June, 2005 to discuss discovery responses. Plaintiff's Declaration, ¶ 11. She further states that Ms. Serna told her that her case would be concluded by August or September of 2005, but there is no mention of any other involvement in the case by Plaintiff. Given Plaintiff's experience with the legal system, surely she could not have believed that she would have no further involvement in the case and that it would just "conclude" in August or September.

4

Case 1:00-cv-02350-LTB-MJW

Document 68

Filed 03/02/2006

Page 5 of 8

Moreover, even when the case did not conclude in August or September, apparently Plaintiff did nothing else, as she states that she never heard from Ms. Serna again. Plaintiff's Declaration, ¶ 11. Then, two months later, Plaintiff finally decided that she ought to do

something when she received documents from her former attorneys. All of these circumstances establish that it would be just to assess fees against Plaintiff here. If she had agreed to settle her case in 2003, Defendant never would have incurred any of these fees in the first place. In addition, despite repeated and glaring warning signs that her case was not being handled appropriately, she continued blithely on, making absolutely no effort to obtain other representation or otherwise discover what was really happening with her case.2 Her experience with the legal system certainly should have apprised her that she needed to be more proactive about what was going on in her case. Finally, it is noteworthy that Plaintiff is not without recourse here; she certainly has a cause of action, at least against Ms. Serna. With regard to the nexus argument, there is a nexus here because as detailed in Defendant's Motion, Plaintiff and her former counsel failed to comply with virtually every rule of this Court from the time the case was reopened until it was dismissed. The only thing that Plaintiff's former counsel did was belatedly assist in preparing a draft of the scheduling order3 and attend the scheduling conference. No initial or expert disclosures were served, no written discovery was served and no depositions were taken. One response to Defendant's written

Although it is an obvious point, it is worth noting that Defendant's counsel had no ability to contact Plaintiff directly about what was going on in her case. 3 Plaintiff's former counsel failed to provide information to Defendant's counsel in time to submit the scheduling order, and thus forced Defendant's counsel to submit its own scheduling order without input from Plaintiff's counsel. 5

2

Case 1:00-cv-02350-LTB-MJW

Document 68

Filed 03/02/2006

Page 6 of 8

discovery was served months after it was due and even then, it clearly was inadequate. Defendant's counsel's efforts to obtain adequate written discovery responses and documents were ignored, as were Defendant's counsel's efforts to obtain releases for documents and an examination of Plaintiff pursuant to Rule 35. Defendant's counsel then was required to file motions to compel, which were granted. However, there was no compliance by Plaintiff or her counsel with the Court's Orders on the motions to compel. Finally, Plaintiff's former counsel failed to submit a confidential settlement statement, Plaintiff and her former counsel did not attend the settlement conference and Plaintiff and her former counsel did not attend the hearing on the order to show cause. Thus, there is a clear nexus between Plaintiff and her former counsel's misconduct and the award of fees Defendant seeks in this case.4 B. The Court Also Should Award Defendant Its Fees Pursuant To Its Inherent Power. As stated by Plaintiff's current counsel, this Court also has an "inherent power" to "levy sanctions in response to abusive litigation practices." Jones v. Thompson, 996 F.3d 261, 264 (10th Cir. 1993). Plaintiff argues that the Court should not award fees pursuant to its inherent power because she did not act in bad faith. Given the circumstances of this case, Plaintiff's bad faith is evident. As stated above, contrary to Plaintiff's sworn statement, she is no neophyte to the legal system, having been involved in both civil and criminal actions previously. Her complete inaction in the face of circumstances that would alarm anyone, whether they are familiar with the legal system or not, Plaintiff's current counsel also argues that an award of fees would be inappropriate here because these are discovery violations that should be handled under F.R.C.P. 37. However, F.R.C.P. 16(f) is specifically addressed to handle pretrial matters and it incorporates many of the sanctions set out in F.R.C.P. 37. 6
4

Case 1:00-cv-02350-LTB-MJW

Document 68

Filed 03/02/2006

Page 7 of 8

resulted in Defendant having to incur fees in a case that should have settled in 2003 and never should have been reopened. Finally, Plaintiff has recourse against her former counsel. CONCLUSION For the foregoing reasons, as well as those set out in Defendant's Motion, Defendant requests this Court enter judgment in its favor, and against the Plaintiff, in the amount of $33,521.25 for attorneys' fees and $4,561.57 for expert fees, for a total of $38,082.82. Respectfully submitted this 2nd day of March, 2006. SHERMAN & HOWARD L.L.C.

s/ Edward J. Butler Raymond M. Deeny Edward J. Butler 90 South Cascade Avenue, Suite 1500 Colorado Springs, CO 80903 (719) 475-2440/Telephone (719) 635-4576/Facsimile [email protected]; [email protected] Attorneys for Defendant

7

Case 1:00-cv-02350-LTB-MJW

Document 68

Filed 03/02/2006

Page 8 of 8

CERTIFICATE OF SERVICE I hereby certify that on March 2, 2006, a true and correct copy of the foregoing was electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Jessica L. West, Esq. Smith & West, LLC Blake Street Terrace 1860 Blake Street, Suite 420 Denver, CO 80202

s/ Peggy J. Barber, Secretary to Edward J. Butler

8