Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

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Filed 02/28/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, JAMES A. SESTRICH, KELLEY S. CALDWELL, JOSEPH R. HART and FRANK J. HOFFMAN, Defendants.

UNOPPOSED MOTION BY PLAINTIFF FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Plaintiff William R. Cadorna ("ln f o " Cadorna"hereby moves pursuant to Pa tf rMr. i i" ) Fd .iP 1( ad 5b,n wt D f dn ' rt cnet o l v to file his Second e. Cv .5a n 1()ad i e nat w ie osn fre e R . ) h e s tn , a Amended Complaint to narrow claims asserted, to eliminate the individual Defendants in this action, to conform his complaint to the evidence obtained through discovery to date, and to clarify the basis of his claims against the remaining Defendant, the City and County of Denver ( i" As grounds for this motion, Plaintiff states: " t) Cy. 1. Mr. Cadorna filed this action in 2004 to preserve his federal claims pending

cni r i b t D neCv Sri C m i i ( o m s o"o h apao t os e t n yh evr i l e c o m s o " m i i ) f i pelfh d ao e i ve sn C sn s e Commission Hearing Ofcr January 30, 2004 decision finding that he was unlawfully fe s i ' discharged, but refusing to reinstate or properly compensate him because he applied for age and

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service retirement after his termination and thereafter converted his age and service retirement to a disability retirement. Pa tf l to p i w s iFr A edd o p i ,id n u ln fsa cm ln a h it m ne C m ln fe o Jl i i' s at s s at l y 820, h eh pre w ra ai t ot m o Pa tf C m i i apa ,04w i t a i e w in h u o e f ln fs o m s o pel l e ts e tg e c i i' sn . 2. On May 20, 2005, the Commission finally issued a bizarrely arbitrary decision in

which it relied upon a clearly erroneous, imaginary " ni o ei n a f t(that, contrary to f d g fv etr a " i n d iy c all the undisputed evidence, Plaintiff applied for retirement prior to his dismissal) to uphold the Hearing Ofcr dc i in its entirety. f e s eio i ' sn 3. On Monday, June 20, 2005, Mr. Cadorna filed a timely Colo.R.Civ.P. 106(a)(4)

apao t C m i i 'dc i iD neDsi C ut T e i repeatedly filed pelfh o m s o s eio n evr ir t or h Ct e sn sn tc . y unfounded, dilatory m t n tsi Pa tf complaint in that action, and so avoided o oso tk ln fs i r e i i' as e n Pa tf cm ln i t tco ut, believe it or not, February 17, 2006. Such is nw r g ln fs o p i nh at n n l i i i' at a i i t s to "u poes i t Cto D ne h te fde rcs n h i f evr ea " e y . 4. The decision of the Commission, indisputably a final decision by a policy-making

body of the City, supplied Mr. Cadorna with additional grounds upon which to assert federal claims against the City, and requires amendment of his complaint to expand existing claims or encompass additional deprivations of substantive or procedural due process. Recent discovery hs l c ri o r el s n i n f tr eato ln fs lm t teu e a a o l ie re a d i ic ta se vn tPa tf c i sh r i s afd v e g fa c l i i' a a qr m d i t n rup m n t n f ln fs lm . oic i o spl eti o Pa tf c i s f ao e ao i i' a 5. Though the conduct of the individual Defendants in this action was execrable, and

Pa tf allegations against them are well founded, Plaintiff has decided to resolve his claims ln fs i i' against the individual Defendants, leaving the City as the sole Defendant at trial.

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6.

Though Pa tf allegations against the City for race or ethnic discrimination are ln fs i i'

likewise well founded, Plaintiff has decided to resolve those claims, and focus this action on his highly meritorious claims of due process violations and age and disability discrimination concerning t w yn h h e a " iodd i termination and involuntary retirement by h a i w i h w s r l ae"n e c ar to the City, then denied full relief for his indisputably unlawful termination because of his age and d ait ad n eac uo a nn i b i,n i r i e pn "o-evidentiary non-finding of non-f tb t Ct s s ly ln a " yh i ' c e y kangaroo Commission. 7. The parties have a settlement agreement in principle, but are still working on

settlement documents. Once those are completed, which should be within the next week or so, Plaintiff will file the appropriate dismissals. 8. Defendant City has suffered, and will suffer, no prejudice by the filing of

Pa tf Scn A edd o p i at this time. Obviously, the narrowing of claims and ln fs eod m ne C m ln i i' at dismissal of individual Defendants is to the considerable advantage of the individual Defendants. Pa tf cusln D f dn 'onehv r u r cm ui t dr gh l t ln fs onead e nat cuslaee l l o m n a d ui t a several i i' e s g ay ce n e s w es ocri t poalnr wn o Pa tf c i s D f dn 'onehso ek cne n h rbb a o i f ln fs lm . e nat cusl a fr ng e e r g i i' a e s weeks known of the claims he might choose to attack in any dispositive motions filed by tomorrw s ed n. Pa tf cusl a in the last week sa d r i s r to Pa tf o 'dal e ln fs onehs i i i' hr pe o da s f ln fs e vu f i i' Scn A edd o p i wt D f dn 'oneto avoid unfair surprise. eod m ne C m ln i e nat cusl at h e s 9. T ein o Pa tf Scn A edd o p i wlgreatly contribute to h fi f ln fs eod m ne C m ln i lg i i' at l

judicial economy, by substantially reducing the issues to be reviewed by this Court before trial, and significantly simplifying the facts or issues to be presented to the jury at trial. Indeed, the

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Ct si itfrg ad i r i t nn e s go e state or grant full relief to Plaintiff i'lb i o ae n d c m n i ir ui t r n y a ly s i ao f n i may quite possibly be established as a matter of law, on the basis of now undisputed facts. 10. In compliance with Fed.R.Civ.P. 15(a) and D.C. COLO.LCivR. 7.1(A), the

undersigned certifies that, after appropriate consultation, opposing counsel gave his written cneto ln fsin o h Scn A edd o p i . osntPa tf fi f i eod m ne C m ln i i' l g s at WHEREFORE, good cause having been shown, Plaintiff respectfully requests that this Court grant Plaintiff leave to file the Second Amended Complaint filed contemporaneously with this motion. DATED this 28th day of February, 2006. Respectfully submitted,

/S/

Mark E. Brennan

Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO. 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) [email protected] ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE In compliance with D.C.COLO.LCivR. 6.1(D), the undersigned hereby certifies that, on this 28th day of February, he served a copy of the foregoing Unopposed Motion for Leave to File Second Amended Complaint on the following person(s) via electronic mail: Jack Wesoky, Esq. Office of the City Atty. 201 W. Colfax, Dept. 1108 Denver, CO. 80202 /S/

Mark E. Brennan
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