Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01070-PSF-PAC

Document 72

Filed 07/18/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-1070-PSF-PAC DANNIE W. JOHNSON and MARTHA D. JOHNSON Plaintiffs, v. OVERRIGHT TRUCKING, INC., a New Mexico corporation, and ROSS A. REED, Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFFS' OMNIBUS MOTION IN LIMINE AND SUPPORTING AUTHORITIES
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COME NOW the Defendants, Overright Trucking, Inc., a New Mexico corporation (hereinafter "Overright") and Ross A. Reed, by and through their attorneys of record, Wittman & McCord, and for their Response to Plaintiffs' Omnibus Motion in Limine and Supporting Authorities, state as follows: I. RESPONSE TO OMNIBUS MOTION IN LIMINE

Defendants agree generally with the Motion regarding hearsay statements, prejudicial statements, facts not in evidence, documents or exhibits not previously disclosed and reference to placing oneself in the shoes of a party. It should be noted that the prohibition against such would apply equally to both parties herein. The statements regarding the above, however, are general and specific disputes regarding same would have to be determined on a case-by-case basis. Further, such would not include appropriate impeachment and/or rebuttal and/or statements otherwise admissible under the Federal

Case 1:04-cv-01070-PSF-PAC

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Rules of Evidence. Defendants, therefore, respectfully request that the Court deny the Motion to the extent that it seeks to limit permissible cross-examination, impeachment and/or rebuttal, or introduction of evidence otherwise admissible under the Federal Rules of Evidence, and/or reserve ruling until trial when specific evidentiary can be addressed by the Court and the parties. As to Plaintiffs' Motion in Limine Regarding Withdrawal of Affirmative Defenses, it is submitted that such is contrary to the course of proceedings and discovery herein. In particular, Defendants have previously submitted responses to written discovery requests dated October 7, 2004 withdrawing certain affirmative defenses and admitting under the Federal Rules of Civil Procedure that the sole negligence of Ross Reed caused the subject accident, reserving only the nature and extent of Plaintiffs' damages as issues for trial. On October 7, 2004 Defendants further submitted responses to Requests for Admissions that the accident was the sole fault of Defendant Ross Reed and that neither of the Plaintiffs were comparatively negligent as to the subject accident and/or damages. These admissions and withdrawal of defenses were made consistent with F.R.C.P. 16, to streamline the issues and evidence to presented at trial herein. In that regard, Defendants also incorporate herein by reference Defendants' Response to Motion For Sanction on file herein. As noted therein, admissions pursuant to Fed. R. Civ. P. Rule 36(b) are designed to ". . . to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be." See, Advisory Committee Notes, 2 Rule 36. As the Committee notes further state, "In form and substance a Rule 36 admission is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial . . .". See also Howell v. Maytag, 168 F.R.D. 502, 504 (M.D. Pa. 1996).

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Plaintiffs' assertion that if allowed to withdraw affirmative defenses, that they should be entitled to amend to include claims for punitive damages as a separate issue, is untimely and without good cause. This is a matter that was previously submitted to the Court pursuant to Motion for Leave to Amend, and denied. Such would merely add claims, long after the Pre-Trial Order has been filed, following the completion of discovery and on the eve of trial. Amendment to add claims would also be untimely and would lack good cause. Pumpco, Inc. v. Schenker Intern. Inc., 24 F.R.D. 667 (D. Colo. 2001). Defendants respectfully request, therefore, that the Court deny Plaintiffs' Motion in Limine Regarding Withdrawal of Affirmative Defenses, and such other and further relief as the Court deems proper. Respectfully submitted this 18th day of July, 2005. WITTMAN & McCORD

s/ J. Bradley Hardman J. Bradley Hardman (#17122) 5825 Delmonico Drive, Suite 320 Colorado Springs, CO 80919 Telephone: (719) 590-9899 Fax: (719) 590-9984 Email: [email protected] Attorney for Defendants

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Case 1:04-cv-01070-PSF-PAC

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Filed 07/18/2005

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANTS' RESPONSE TO PLAINTIFFS' OMNIBUS MOTION IN LIMINE AND SUPPORTING AUTHORITIES was electronically filed with the Clerk of the Court, this 18th day of July, 2005, using the CM/ECF system which will send notification of such filing to the following, via their respective email addresses: Michael W. Baty, Esq. 1040 Main Avenue P.O. Box 1157 Durango, CO 81301 Randolph H. Phillips, Esq. 609 Pine Avenue P.O. Box 2303 Albany, GA 31702 /s/ Regina Dineen

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