Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01107-REB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No.: 04-cv-1107-REB-CBS ELIZABETH MEDINA, Individually as mother of and as Personal Representative of the Estate of LUCAS de HERRERA, and MARGARITO de HERRERA, Individually as father of LUCAS de HERRERA, v. Plaintiffs,

BOARD OF COUNTY COMMISSIONERS, ALAMOSA COUNTY, COLORADO, in both their individual capacities; SHERIFF DAVID STONG, in his individual capacity; UNDERSHERIFF JOHN BIANCA, in his individual capacity; SGT. RON GOODMAN, in his individual capacity; FORMER DEPUTY RICK MARTINEZ, in his individual capacity; DEPUTY LISA BENEVIDEZ, in her individual capacity; CORPORAL GARY THOMAS, in his individual capacity. Defendants. ______________________________________________________________________________ RESPONSE TO DEFENDANT BOARD OF COUNTY COMMISSIONERS OF ALAMOSA COUNTY'S MOTION FOR RECONSIDERATION ______________________________________________________________________________ Plaintiffs, by and through their counsel, David A. Lane and Marcel Krzystek of KILLMER, LANE & NEWMAN LLP, hereby respond to Defendant Board of County Commissioners of Alamosa County's Motion for Reconsideration as follows: ALAMOSA COUNTY FAILS TO ARTICULATE ANY LEGAL BASIS FOR THE GRANTING OF ITS MOTION FOR RECONSIDERATION Alamosa County asks this Court to reconsider the denial of its Motion to Dismiss. In its Motion for Reconsideration, Alamosa County essentially repeats the same arguments advanced in its Motion to Dismiss and states that "we respectfully disagree with the Court's interpretation

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of Pembaur." Motion to Reconsider Ruling on Defendant Board of County Commissioners, Alamosa County, Colorado's Motion to Dismiss, ¶ 5. However, disagreement with a court's reasoning or interpretation of case law is not a basis for seeking a motion for reconsideration.
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"A motion for reconsideration is proper when the court has `made a mistake not of reasoning but of apprehension . . . [or] if there has been a significant change or development in the law or facts since submission.'" FDIC v. Hildenbrand, 892 F. Supp. 1317, 1319-20 (D. Colo. 1995) (quoting EEOC v. Foothills Tile Guar. Co., 1991 WL 61012 at *3 (D.Colo. Apr. 12, 1991), aff'd, 956 F.2d 277 (10 Cir. 1992)). As the court wrote in Oiness v. Walgreen Co., 774 F. Supp. 1277, 1289 (D. Colo. 1991), "[a] motion for reconsideration should be granted only where the court has patently misunderstood a party or has made a mistake, not of reasoning, but of apprehension. . . . Reconsideration is also proper where there has been a significant change in the law or facts since submission to the court. . . . To the extent that a motion for reconsideration merely restates arguments previously addressed, the court should decline to reconsider the ruling. (internal citations omitted) When a court enunciates a rule of law in the course of a given case, the law of the case doctrine generally requires the court to adhere to the rule throughout the proceedings . . . . Courts have generally permitted a modification of the law of the case when substantially different, new evidence has been introduced, subsequent, contradictory controlling authority exists, or the original order is clearly erroneous. Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981) (citations omitted). See also Houston v.
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Plaintiffs, of course, agree with the Court's reasoning for all of the reasons articulated in their Response to Alamosa County's Motion to Dismiss.

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Mile High Adventist Academy, 872 F. Supp. 829, 831 (D. Colo. 1994). Alamosa County does not allege that this Court patently misunderstood its argument, made any mistake of apprehension, or that there has been any significant change in the facts or law since the submission of Alamosa County's Motion to Dismiss. Furthermore, Alamosa County's Motion for Reconsideration again incredulously ignores and completely fails to address C.R.S. § 30-11-105, which, as this Court noted, provides that suits against counties are brought in the name of the board of commissioners for the county. Alamosa County's incessant references to "the Board" are disingenuous as it has repeatedly been on notice, by way of C.R.S. § 30-11-105, Plaintiffs' counsel and their pleadings, and now this Court, that Alamosa County and not its Board of Commissioners is the municipal defendant in this case. Finally, Alamosa County's reliance upon Bristol v. Board of Commissioners of Clear Creek, 312 F.3d 1213 (10 Cir. 2004) is misplaced. Bristol addressed the limited issue of whether or not the board of county commissioners was the "employer" of a sheriff's deputy for purposes of the Americans with Disabilities Act. See id. at 1221 ("In sum, the Board had no duty as an "employer" under the ADA to provide reasonable accommodation to Bristol.") In fact, Bristol supports Plaintiffs' position in that it re-affirms the liability of a county for the civil rights violations of a sheriff: Bristol also cites several cases from other circuits in support of his contention that the Board is his employer. Four of these cases involve § 1983 actions in which the acts of the Sheriff were held to set the "official policy" of the County, thus making the County liable under § 1983 for the Sheriff's unconstitutional actions and those of the Sheriff's employees. See Lucas v. O'Loughlin, 831 th F.2d 232, 233 (11 Cir. 1987) (termination in violation of First Amendment); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986)
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(strip search); Blackburn v. Snow, 771 F.2d 556, 571 (1 Cir. 1985) th (same); Marchese v. Lucas, 758 F.2d 181, 188-89 (6 Cir. 1985) (assault by deputies). These cases do suggest that counties can be held liable for the misdeeds of Sheriffs and their employees when the Sheriff is held to set "official policy" for the county. Bristol, 312 F.3d at 1221. Because Alamosa County's simple disagreement with the Court's interpretation of case law cannot serve as the basis for a motion for reconsideration, and because its motion simply restates the same argument raised in its Motion to Dismiss, the motion must be denied. FAILURE TO CONFER Alamosa County's Motion for Reconsideration must be denied on the further ground that it fails to certify that counsel for Defendant conferred with Plaintiff's. In fact, Defendant's counsel did not confer with Plaintiff's counsel prior to filing such motion. D.C.COLO.L.CIV.R. 7.1A provides: Duty to Confer. The court will not consider any motion, other than a motion under Fed. R. Civ. P. 12 or 56, unless counsel for the moving party or a pro se party, before filing the motion, has conferred or made reasonable, good-faith efforts to confer with opposing counsel or a pro se party to resolve the disputed matter. The moving party shall state in the motion, or in a certificate attached to the motion, the specific efforts to comply with this rule. "The purpose of Rule 7.1A is to require the parties to confer and to attempt to resolve a dispute before incurring the expense of filing a motion and before requiring the court to address a disputed issue." Hoelzel v. First Select Corp., 214 F.R.D. 634, 635 (D. Colo. 2003). Local Rule 7.1A applies to motions to reconsider, as such motions do not fall under Rule 12 or 56 of the Federal Rules of Civil Procedure. See Visor v. Sprint/United Mgmt. Co., Civ. Action No. 96-K1730, 1997 WL 796989 (D. Colo. Dec. 31, 1997) (Local Rule 7.1A applies to motions for

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reconsideration); M.M. v. Zavaras, 939 F. Supp. 799, 800 (D. Colo. 1996) (same). Courts in this jurisdiction deny motions that fail to comply with D.C.COLO.L.CIV.R. 7.1A. See, e.g., Echostar Communications Corp. v. News Corp. LTD., 180 F.3d 391, 394 (D. Colo. 1998) ("The failure to comply with Local Rule 7.1A is sufficient alone to warrant a denial of the motion to compel"); McCoy v. West, 965 F. Supp. 34, 35 (D. Colo. 1997) ("[defendant] has presented no evidence of his effort to comply with [Local Rule 7.1(A)], and his motions are untenable on that basis alone"). Due to its failure to comply with Rule 7.1A, and for the reasons detailed above and briefed in Plaintiffs' Response to Alamosa County's Motion to Dismiss, Alamosa County's Motion for Reconsideration must be denied. Respectfully submitted this 15 day of July, 2005. KILLMER, LANE & NEWMAN LLP /s/ Marcel Krzystek David A. Lane Marcel Krzystek 1543 Champa St., Suite 400 Denver, Colorado 80202 (303) 571-1000 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on July 15, 2005, 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 email addresses:
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Jonathan Ariel Cross [email protected] [email protected] Stefani Goldin [email protected] [email protected] KILLMER, LANE & NEWMAN LLP 5

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/s/ Marcel Krzystek Marcel Krzystek Attorney for Plaintiff 1543 Champa St., Suite 400 Denver, Colorado 80202 (303) 571-1000 (303) 571-1001 ­ FAX [email protected]

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