Free Motion to Consolidate Cases - District Court of Colorado - Colorado

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

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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.

PLAINTIFF' MOTION FOR CONSOLIDATION AND CONTINUANCE OF TRIAL S

In conjunction with his concurrently-filed motion for extension of expert disclosure and other discovery deadlines established in Mair e ug S a e s g t tJde hf r July 5, 2005 Minute Order, sa f' Plaintiff William R. Cadorna ("ln f o " Cadorna"hereby moves for consolidation for Pa tf rMr. i i" ) trial of this action with William R. Cadorna and Sandra L. Cadorna v. Safeway, Inc., District of Colorado Civil Action 04-cv-1434-REB-CBS ( h Sf a cs"and continuance of the trial " e a w y ae) t e date of June 19, 2006 in this action by no less than ninety-eight days, to September 25, 2006 or after. As grounds for this motion, Plaintiff states: 1. O A gs1,05MrC dra n h wf SnrL C dra" e n uut920, . aon ad i i , ada . aon ( h s e t

C dra" w o rco-plaintiffs in the Safeway case, filed their Motion for Continuance of aons) h a , e Trial, Extension of Discovery Deadlines, and Corresponding Modification of Scheduling Order

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in the Safeway case. This Court referred that portion of their motion concerning the resetting of pretrial deadlines to Magistrate Judge Shaffer. The C dra' aonsMotion for Continuance in the Safeway case remains pending before this Court. Plaintiff hereby requests that the instant Motion be considered and ruled upon by this Court in conjunction with its consideration and rl g n h C dra' ed g o o(s) in the Safeway case. u n o t aonspni m t n i e n i 2. I i O t e420 O dr n a w y Mo o t C no dtt s ae i n t c br ,04 reo Sf a' t n o osl a h cs wt s o e s i i e i h

the Safeway case, this Court declined to consolidate the two cases for all purposes, and instead consolidated them for the limited purpose of scheduling and conducting discovery from Safeway. The Court found that the differences in the claims asserted in the two cases were such that consolidation would not promote judicial efficiency. 3. Mr. Cadorna was compelled to file this action in 2004 order to preserve his

f e llm pni cni r i b t D neCv Sri C m i i ( o m s o" e r c i s ed g os e t n yh evr i l e c o m s o " m i i ) da a n d ao e i ve sn C sn o h apao t C m i i ha n of e s eio f d ghte a ul fl f i pelfh o m s o er g fcr dc i i i t h w s n w u y s e sn i i ' sn n n a a l discharged but refusing to reinstate or properly compensate him because he applied for age and service retirement after his termination and thereafter converted his age and service retirement to a disability retirement. 4. 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 tto uphold the f d g fv etr a " i n d iy c ha n of e s eio ii ete . n ue ,05MrC draid w l er g fcr dc i n t n r y O Jn 620, . aon fe a e-founded i i ' s n s it l l motion for reconsideration by the Commission of its decision, but the Commission perfunctorily denied his motion. On Monday, June 20, 2005, Mr. Cadorna filed a C.R.C.P. 106(a)(4) appeal of t C m i i 'dc i i D neDsi C ut T e i d ntnw r . aon' h o m s o s eio n evr ir t or h Ct i o as eMrC dra e sn sn tc . y d s 2

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complaint in that action, but instead filed an unfounded motion to strike portions of Mr. C dra cm ln MrC draepne t t t o o o A gs2,05 Mr aon' o p i . . aon r odd o h m t n n uut 620. . s at s a i C dra C.R.C.P. 106(a)(4) appeal will not be decided by the Denver District Court for many aon' s months. That appeal has consumed and will continue to consume what are, from the perspective of the Cadornas, very substantial financial resources. 5. T e o m s o'dc i spld . aon wt ad i agons pn h C m i i s eio up e MrC dra i dio lrud uo sn sn i h tn

which to assert federal claims against the City and County of Denver in this action, and requires amendment of his complaint in that action to encompass additional deprivations of substantive or procedural due process. Mr. Cadorna intends to soon request leave to so amend his complaint. 6. T e aonscash flow, already heavily burdened by their paramount obligation h C dra'

to support their two children as full-time college students, is simply insufficient to support the expense of federal litigation on even a oet " st c" h ehy l pr e xes e m dsy f tr k w i t a o us epni l a a l e s u v litigation in state court. Plaintiff can scarcely afford to proceed with all of the litigation in which he is embroiled, yet can afford even less to abandon it. 7. Pa tf udrge cusla dn ee ln fs ne i d onehs oe vr i i' sn ything he could reasonably be

expected to do to soften the financial impact of the morass of litigation in which the Cadornas still find themselves despite the indisputable judicial fact that Mr. Cadorna was unjustly discharged. 8. The Cadornas have therefore quite reluctantly concluded that it would be in their

best interest to minimize the time and expense associated with pursuing the two cases by consolidating them for all purposes, including trial. The risks and potential inefficiencies associated with trying both cases simultaneously are now outweighed by the large savings in time 3

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and expense that would be achieved through a joint trial. The Cadornas will thereby avoid the very large extra expense of subpoenaing witnesses twice, preparing trial exhibits and other materials twice, presenting expert witnesses to offer testimony on the same matters twice, and all the other duplicative time and expense inevitably associated with conducting a week-long trial concerning two very similar or overlapping nuclei of facts on two separate occasions. Absent consolidation for all purposes, the Cadornas may find it very difficult to pursue their claims in both cases. 9. Postponement of the trial to September, 2006 or after, coupled with a

consolidation and a somewhat more relaxed disclosure and discovery schedule in this case and t Sf a cs,hu a od ln feog f ac lbet n ro "o ud lo h h a w y aesol f r Pa tfnuh i ni "r h g om tfn a f i e e d f ii n a ai l s cases to conclusion. 10. Plaintiff believes that it should be possible to minimize the risk of jury confusion

concerning the claims against each Defendant, and the damages to be assessed against each, to an acceptable degree through the judicious use of jury instructions and interrogatories. Obviously, a single trial will also impose far less strain on this C ut t er or sad aec. orsi ,e uc ,n ptne ' m s e i 11. To facilitate consolidation of the two cases for trial, Plaintiff intends to explore

wtD f dn t t m o w i im y e os lt r o e ln fs lm aa st i e nat h e s n h ht a b ps b o e l Pa tf c i s gi th h e s e r c i e s v i i' a n e individual Defendants, leaving the City ad on o D ne( i"a t slD f dn i n C ut f evr" t )sh o e natn y Cy e e e this action. Plaintiff also intends to explore with Defendant City the terms on which it may be ps b t r o e ln fs lm aa st Ctfrae rt id c m nt n n fc os l o e l Pa tf c i s gi th i o r o e n i r i i ad ous i e s v i i' a n e y c h c s i ao o Pa tf ae n d aitd c m nt n lm ad u poes lm udr 2 ... n ln fs g ad i b i i r i i c i s n de rcsc i s ne4 USC i i' s ly s i ao a a §1983. 4

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12.

The Cadornas earnestly struggled over the course of the summer, but were unable,

to generate financial resources sufficient to proceed with the retention of experts in time (given the necessity of retention of experts at least two months in advance of disclosure deadlines) to comply with the revised September 15, 2005 deadline for Rule 26(a)(2) disclosures, and to proceed with completion of depositions and other discovery. Pa tf counsel was therefore ln fs i i' foreclosed from the retention of experts or undertaking depositions or other significant discovery. 13. Plaintiff has, however, taken extraordinary measures to generate at least some

resources required to fund further litigation, and intends to take further such measures in the near future. A aeu , ln fs onehsi l be alt i tts n i nd cvr O s r l Pa tf cusl a f ay en b on ie i ic ti oe . n s t i i' nl e ia g f a s y A gs3,05Pa tf ad e nat cuslo p t a i v it for the purpose of uut020, ln fs n D f dn 'onecm le se i i i' e s ed t s taking photographs and interviewing a Safeway security investigator at the Safeway store, at 4884 Chambers St. in Denver, from which Safeway and the City of Denver falsely accused Plaintiff of shoplifting a cookbook. On Tuesday, September 13, 2005, Plaintiff followed up on that site visit by completing the first phase of his Rule 30(b)(6) deposition of Safeway concerning its security systems and policies or practices concerning the prosecution of theft from its facilities. 14. Because strong grounds for offensive summary judgment under the ADA and

ADEA exist in this case, continuance of the trial will afford the parties and this Court an adequate period in which to contend over and resolve such a motion well in advance of trial. 15. 16. No continuance of the trial date has previously been requested. In compliance with D.C. COLO.LCivR. 7.1(A), the undersigned certifies that he

attempted to consult with opposing counsel concerning the subject of this motion. 5

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WHEREFORE, good cause having been shown, Plaintiff respectfully requests that this Court consolidate this action for trial with William R. Cadorna and Sandra L. Cadorna v. Safeway, Inc., District of Colorado Civil Action 04-cv-1434-REB-CBS, and continue the trial date of June 19, 2006 in this action by no less than ninety-eight days, to September 25, 2006 or after. DATED this 15th day of September, 2005. Respectfully submitted,

/S/

Mark E. Brennan

__________________________________ Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO. 80161-2556 (303) 797-7687 Attorney for Plaintiff

CERTIFICATE OF SERVICE In compliance with D.C.COLO.LCivR. 6.1(D), the undersigned hereby certifies that, on this 15th day of September, 2005, he served a copy of the foregoing Motion for Consolidation and Continuance on the following person(s) via U.S. Mail, first class postage prepaid or e-mail: William and Sandra Cadorna 5503 S. Moore St. Littleton, CO. 80127 Jack Wesoky, Esq. Office of the City Atty. 201 W. Colfax, Dept. 1108 Denver, CO. 80202 Greg Eurich, Esq. Holland & Hart P.O. Box 8749 Denver, CO. 80201-8749 /S/

Mark E. Brennan

_________________________________

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