Free Motion to Supplement - District Court of Colorado - Colorado

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

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Filed 07/07/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-F 1070 (PAC) DANNIE W. JOHNSON and MARTHA D. JOHNSON Plaintiffs, v. OVERRIGHT TRUCKING, INC., a New Mexico Corporation, and ROSS A. REED, Defendants. PLAINTIFFS' MOTION FOR LEAVE TO SUPPLEMENT RESPONSE TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiffs, by and through their undersigned Counsel, for their Motion For Leave To Supplement Response to Defendants' Motion For Partial Summary Judgment states: CERTIFICATE OF CONFERRAL Pursuant to D.C. Colo. LCivR 7.1, the undersigned counsel certify that they have conferred unsuccessfully with opposing counsel to resolve the dispute raised herein and the within Motion was filed thereafter. A. PROCEDURAL BACKGROUND 1. This Motion is brought pursuant to Fed. R. Civ. P. 15 (d) where the Rule states: "Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading, setting forth transactions or occurrences of events which have happened since the date of the pleading sought to be supplemented." 2. Defendants filed a Motion For Protective Order during their depositions, which due to

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Defendants' schedule conflicts, had been postponed to March 11, 20051, which was nearly the last day allowed for discovery. 3. Because of the Motion For Protective Order, the depositions of the Defendants were suspended on March 11, 2005. 4. Using Plaintiff's completed depositions for factual support, the Motion And Brief for Partial Summary Judgement was filed by the Defendants on March 30, 2005. 5. Plaintiffs Response thereto was filed on April 21, 2005 without complete references to the testimony of the Defendants. 6. On April 26, 2005, at the Hearing on the Motion for Protective Order, the protective relief was denied and Defendants were ordered to both be deposed and release certain documents to Plaintiffs. 7. Due to scheduling limitations, Defendants' depositions were resumed and completed on May 18, 2005. 8. The completed transcripts of Defendants' depositions were delivered to the undersigned on June 20, 2005. 9. The facts obtained by Plaintiffs regarding the events which have happened since the filing of the RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT ( which is the "pleading sought to be supplemented") are contained in the depositions of the Defendants. B. FACTUAL BACKGROUND 10. On the stated basis of irrelevancy, Defendant Reed's deposition was suspended to prevent discovery of Defendant Reed's use of amphetamines and methamphetamines and any facts about

According Magistrate Judge Coan's December 1, 2004 Minute Order, the last day for discovery was March 14, 2005.

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how the incident happened and what Reed's contribution to damages was. 11. On the similarly stated basis of irrelevancy, Defendant Overright's deposition was suspended to prevent discovery of the facts surrounding Defendant Reed's termination as a water truck driver for Overright and also prevent discovery of Overright Trucking's factual basis for claiming that "Plaintiffs should take nothing by their complaint"; that somehow Plaintiffs were contributorily negligent; that Plaintiffs had failed to mitigate their damages; and other Affirmative Defenses and the prayer for relief denying any award to Plaintiffs as set forth in Defendants' Answer. 12. Defendants' arguments against discovery were presented before Magistrate Judge Coan on April 26, 2005, and the discovery protection sought by Defendants was denied, in part, because the Defendants' Answer had never been amended, leaving the defenses of, (among other defenses) "contributory negligence"; "mitigation of damages" and the prayer for relief that Plaintiffs take nothing by their complaint, in effect. C. LEGAL BASIS FOR SUPPLEMENTATION 13. Motions to supplement are left to the sound discretion of the trial court. See Reid v. International Union, UAW Dist. Lodge 1093, 479 F.2d 517, 520 (10th Cir.), cert. denied 414 U.S. 1076, 94 S. Ct. 592, 38 L. Ed. 2d 483 (1973), but should be liberally granted unless good reason exists for denying leave, such as prejudice to the defendants. Gilihan v. Shillinger 872 F.2d 935, 941 (10th Cir, 1989) 14. Leave to supplement should be freely granted unless good reason exists for denying leave, such as prejudice to the defendants. See Case-Swayne Co. v. Sunkist Growers, Inc. 369 F.2d 449, 462 (9th Cir.) rev'd in part on other grounds. 389 U.W. 384, 88 S. Ct. 528, 19 L.Ed. 2d 621 (1967).

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15. In a deprivation of prisoner property case Gillihan v. Shillinger et. al. 872 F.2d 935 (10th Cir. 1989) leave to supplement a complaint was granted because the supplemented pleading concerned events which took place after the complaint was filed. 16. In this instance, the evidence (deposition testimony) only became available to Plaintiffs after the Response was due and filed. 17. Here, no prejudice would come to the Defendants where it was their own testimony that was denied the Plaintiffs during discovery that is being use to supplement the prior Response. D. CONCLUSION 18. During the discovery phase of this proceeding, through a series of schedule conflicts and a Motion for Protective Order, the Defendants were able to block Plaintiffs from obtaining information prejudicial to the Defendants until after the Plaintiffs' Response to the Motion for Partial summary Judgment was required to be filed. Once the Motion was denied and discovery was completed, the Plaintiffs were able to obtain substantial and new facts to both support their claims and to attack factual issues contained in Defendants' Motion for Partial Summary Judgment. Accordingly, the Plaintiffs' leave file their supplemental pleading should be granted.

WHEREFORE, on the basis of the facts and authorities set forth above, Plaintiffs pray the Court grant leave to supplement their prior Response to the Motion for Partial Summary Judgment and accept the pleading so designated and submitted herewith.

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Respectfully submitted this

day of June, 2005 by: PHILLIPS & GRAHAM

MCDANIEL BATY MILLER AGRO WALES & ROBBINS LLC \s\ original signature on file Michael W. Baty, Esq. #14804 (Colo.) 1040 Main Ave. P.O. Box 1157 Durango, CO 81301 (970) 247-1113

\s\ original signature on file Randolph H. Phillips, Esq. #576575 (GA) 609 Pine Ave P.O. Box 2303 Albany, Georgia 31702 (229) 435-4452

CERTIFICATE OF SERVICE The undersigned certifies that on the 6th day of July, 2005, a true and correct copy of the foregoing Motion to Supplement Response to Motion for Partial Summary Judgment was electronically filed with the Clerk of Court suing the CM/ECF system which will send notification of such filing to the following e-mail addresses and previously fax filed to opposing counsel on the 2nd day of July 2005 at approximately 2:30 A.M.. and re-filed on the 7th day of July, 2005 as follows: Mr. Brad Hardman, Esq. Mr. Ted Bills, Esq. Wittman & McCord fax#: 719/590-9899 UMB Bank Building 5825 Delmonico Drive, Suite 320 Colorado Springs, CO 80919 [email protected] \s original signature on file Michael W. Baty Attorney for Plaintiffs McDaniel Baty Miller Agro Wales & Robbins LLC 1040 Main Ave. Durango, CO 81301 (970) 247-1113 (970) 259-2690 [email protected]