Free Motion to Amend/Correct/Modify - 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 Honorable Marcia S. Krieger Civil Action No. 04-cv-01067-MSK-CBS WILLIAM R. CADORNA, v. Plaintiff,

THE CITY AND COUNTY OF DENVER, a municipal corporation, Defendant. DEFENDANT'S MOTION TO AMEND FINAL PRETRIAL ORDER Defendant, City and County of Denver, Colorado, by and through its attorneys, Christopher M.A. Lujan and Franklin A. Nachman, Assistant City Attorneys, move this Honorable Court to amend the Final Pretrial Order previously entered in this case. In support of this Motion, Defendant states as follows: CERTIFICATION UNDER LOCAL RULE 7.1 On August 5, 2008 at approximately 11:00 a.m., undersigned counsel called Mark Brennan, counsel for Plaintiff. Mr. Brennan was not available, and undersigned counsel left a voice mail message explaining the purpose of the call with a direct dial telephone number. As of the time of the filing of this motion, Mr. Brennan has not responded. FACTUAL BACKGROUND

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1. This case was tried to a jury in June, 2006. Before trial the Court granted Defendant's Motion for Summary Judgment on Plaintiff's claim alleging violation of the Americans with Disabilities Act ("ADA"), and on a claim brought under 42 U.S.C. §1983 alleging violation of procedural due process. At trial the Court granted Defendant's Motion for Judgment as a Matter of Law on Plaintiff's 42 U.S.C. § 1983 claim alleging violation of substantive due process. The case proceeded to verdict in Plaintiff's favor on his Age Discrimination in Employment Act (ADEA) claim. 2. In September 2007, the Court granted Defendant's Motion for a New Trial based on attorney misconduct, and vacated the judgment in Plaintiff's favor. The Court subsequently denied Plaintiff's motions for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and Plaintiff's Motion for Reconsideration of the Order granting a new trial. After initially denying Plaintiff's Motion for Recusal, District Court Judge Robert Blackburn entered an Order sua sponte recusing himself. The case has recently been reassigned to this Court. A hearing in this case is scheduled for August 15, 2008. 3. The Final Pretrial Order in this case was entered on April 17, 2006. Because of subsequent events as set forth in the previous two paragraphs, the Final Pretrial Order needs significant revision. 4. Some of the matters needing revision are as follows, with numbers corresponding to paragraphs as they appear in the Final Pretrial Order: 1. DATE AND APPEARANCES

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Defendant's attorney listed in the Order no longer represents Defendant and has withdrawn his appearance. Two other counsel have entered their appearances on the City's behalf. 3. CLAIMS AND DEFENSES

Several of the claims and defenses have been eliminated by rulings before and during trial. This section may be significantly shortened. 4. STIPULATIONS

There are 51 stipulations, many of which are not relevant to the one remaining ADEA claim in the case. They can and should be shortened. 5. PENDING MOTIONS

There are no pending motions. However, Defendant will request the Court for leave to file a Motion for Summary Judgment based on the safe harbor provision of the ADEA. Defendants contemplate filing Daubert motions and motions in limine at the appropriate times as required by this Court's Practice Standards. 6. WITNESSES

Plaintiff designated 15 will-call witnesses, some of whom did not testify at the first trial. Some of the testimony was related to the claims that were dismissed before and during trial. Plaintiff also listed 36 may-call witnesses, the vast majority of whom did not testify at the first trial. Several of the witnesses' testimony pertained in whole or in part to Plaintiff's § 1983 claims and his claims for compensatory damages. Because the remaining ADEA claim does not permit compensatory damages, such evidence would be irrelevant and inadmissible. Defendant listed a total of 12 witnesses, some of whom

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overlapped with Plaintiff's witnesses. These lists need to be pared down to coincide with what is left of this litigation. Neither side listed expert witnesses. Nevertheless, during the trial, Plaintiff was allowed to elicit expert opinion testimony from David Shuetz, an employee of Safeway Stores on the subject of investigations; and from Ida Roberts, on the subject of damages. If Plaintiff intends to call expert witnesses, then he should be required to follow Rules 16 and 26 of the Federal Rules of Civil Procedure, which were not followed before the first trial. If Plaintiff is allowed to endorse expert witnesses, Defendant should be afforded the opportunity to endorse a rebuttal expert witness on that subject. In either event, Defendant will seek leave to call an expert on the issue of economic loss. 7. EXHIBITS

As in previous sections, the extensive lists of exhibits covers matters dismissed before and during trial, as well as those not admitted at trial. These lists also need to be reduced to address specifically Plaintiff's remaining legal claims. LEGAL ARGUMENT By its own terms, the Final Pretrial Order controls the subsequent course of the action and the trial, and may not be amended except by consent of the parties and approval by the Court. That is also in the law in this circuit. Trujillo v. Uniroyal Corp., 608 F. 2d 815, 817 (10th Cir. 1979). A proper pretrial order is definitive, sharpens and simplifies the issues to be tried, and represents a complete statement of all of the contentions of the parties. Id.

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Rule 16(e) of the Federal Rules of Civil Procedure provides for issuing an order following a final pretrial conference. The order may be modified "only to prevent manifest injustice." Id. The factors to consider when faced with the issue of amending a Final Pretrial Order are: 1) prejudice or surprise to the party opposing the trial of the issues; 2) the ability of that party to cure any prejudice; 3) disruption to the orderly and efficient trial of the case by inclusion of an issue; and 4) bad faith by the party seeking to modify the order. Roberts v. Roadway Express, Inc., 149 F. 3d 1098, 1108 (10th Cir.1998); Smith v. Ford Motor Co., 626 F. 2d 784, 797 (10th Cir. 1980). In this case, modification of the Final Pretrial Order is essential to the orderly and efficient trial of this case. It is imperative to focus the case on the sole remaining issues in this litigation, and to preserve the presentation of an orderly and efficient trial to the jury. Amending the Final Pretrial Order can help ensure that the jury only hears evidence pertaining to Plaintiff's remaining ADEA, and not claims dismissed from this action more than two years ago.

WHEREFORE, Defendant City and County of Denver requests this Honorable Court enter an Order requiring the parties to submit an amended Final Pretrial Order at the Court's direction. Dated: August _5th, 2008 Respectfully submitted,

__s/ Franklin A. Nachman________________ Christopher M.A. Lujan Franklin A. Nachman Assistant City Attorney 5

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Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, Colorado 80202 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 E-mail: [email protected] Attorney for Defendant City and County of Denver CERTIFICATE OF SERVICE I hereby certify that on this _5th_ day of August, 2008, I electronically filed the foregoing DEFENDANT'S MOTION TO AMEND FINAL PRETRIAL ORDER with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark E. Brennan, Esq. [email protected] Richard Barkley, Esq. Brownstein Hyatt Farber & Schreck P.C. [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: e-mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety Chief Nick Nuanes Department of Safety Denver Fire Department _s/ Kelly O'Dea____________________ Kelly O'Dea, Legal Secretary Denver City Attorney's Office

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