Free Response to Motion - District Court of Colorado - Colorado

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

Document 248

Filed 10/23/2007

Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, a Municipal Corporation, Defendant. DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO CERTIFY INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b) OF ORDER GRANTING DEFENDANT NEW TRIAL Defendant, City and County of Denver, Colorado, a Municipal Corporation (hereinafter "Denver"), by and through its attorneys, Christopher M.A. Lujan and Franklin A. Nachman, Assistant City Attorneys, for its Response to Plaintiff's Motion to Certify Interlocutory Appeal under 28 U.S.C. § 1292(b) of Order Granting Defendant New Trial (ECF No. 241), states as follows: INTRODUCTION The federal statute governing interlocutory appeals compels the Plaintiff to file his application "within ten days after the entry of the order..." 28 U.S.C. § 1292 (b). A party's failure to comply with the ten day deadline is fatal to establishing a court's jurisdiction and a court should dismiss a motion for certification when there is a failure to meet this jurisdictional requirement. The Plaintiff, in relying on an inapplicable rule, filed

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

Document 248

Filed 10/23/2007

Page 2 of 16

his motion for certification (hereafter "certification motion") two days after the deadline for filing had expired. Plaintiff's failure to comply with this simple procedural deadline deprives this Court of the jurisdiction to rule on the "merits" of his pleading and this Court should deny the certification motion with prejudice. Plaintiff's certification motion is based on the simple premise that his attorney's mere disagreement equates to a certification for an interlocutory appeal. After spending the first fourteen pages of the fifteen page certification motion attacking the Court, Defendant, Defendant's counsel, and unsuccessfully attempting to justify his deplorable and unprofessional antics that lead to the Court's 27 September Order, Plaintiff finally addresses the requirements for certification but cites no law whatsoever to support his application for certification of his interlocutory appeal. Certification requires the Plaintiff to show that the appeal involves a controlling question in law, involves a "substantial grounds for difference of opinion," and that the Court must believe that "immediate appeal from the order may materially advance the ultimate determination of the litigation." If this Court and the Tenth Circuit Court of Appeals were to grant the Plaintiff's application for interlocutory appeal, this would not materially advance the ultimate determination of the litigation because the Court would be forced to rule on the Defendant's Motions to Alter or Amend Judgment; Judgment as a Matter of Law; a Stay of Execution of Judgment; and Motion for Relief From Judgment of Reinstatement and Renewed Motion for Stay of Judgment of Reinstatement. The Court would also have to rule on the Plaintiff's petition for attorney's fees and costs. The Court denied as moot all of these motions after granting the motion for a new trial.

2

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

Document 248

Filed 10/23/2007

Page 3 of 16

The standard for certification requires the Plaintiff to articulate more than a mere disagreement with the Court as to whether or not his attorney's misconduct was grounds for a new trial. Because the Plaintiff cannot meet his burden for certification of an interlocutory appeal, his motion should be denied with prejudice. Finally, the remedy of an interlocutory appeal is limited to cases involving exceptional circumstances and is discouraged when piecemeal litigation will result. The United States Supreme Court has held that piecemeal litigation is not favored and certification under §1292(b) is limited to cases involving exceptional circumstances. Coopers & Lybrand v Livesay, 437 U.S. 463, 475 (1978). The Tenth Circuit Court of Appeals has held that relief should be limited to "extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate final decision of controlling questions encountered early in the action." State of Utah v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994). Because the granting of an interlocutory appeal will only result in the very piecemeal litigation that is frowned upon by the United States Supreme Court, the Plaintiff's certification motion should be denied with prejudice. LEGAL ARGUMENT A. Plaintiff's Failure to File His Motion to Certify Interlocutory Appeal Within the Mandatory Ten-Day Limit Deprives this Court of Jurisdiction and Should Result in the Dismissal of his Motion

Plaintiff's Motion pursuant to 28 U.S.C. §1292 (b) requires the motion to be filed "within ten days after the entry of the order..." Because the ten-day deadline is required to establish jurisdiction, it is crucial that Plaintiff file his certification motion within this time limit. 19 Moore's Federal Practice, §203.32 [2][b][i] (Matthew Bender 3d ed.) ("This 3

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

Document 248

Filed 10/23/2007

Page 4 of 16

10-day time limit is jurisdictional, and the circuit court may not forgive a party's failure to comply." citing Baldwin Co. Welcome Ctr. v. Brown, 466 U.S. 147 (1984)). Plaintiff's filing of his motion ­ two days after the expiration of the deadline ­ should result in a dismissal of this motion. Fed.R.Civ.P. 6(a) requires the exclusion of weekends and holidays from the computation of time for deadlines less than eleven (11) days. Because the parties received this Court's Order Granting [the Defendant's] Motion for [a] New Trial Because of Attorney Misconduct (ECF. No. 241) on 28 September 2007, the countdown for Plaintiff's ten days to file for certification started on Monday 01 October 2007. The exclusion of Monday 08 October for Columbus Day and the weekends between the Court's Order and the expiration of ten days makes the deadline for the certification motion Monday 15 October 2007. The Plaintiff filed his motion on Wednesday 17

October 2007 (ECF No. 246) ­ two days after the expiration of the deadline. In a motion for an extension of time to file for certification, Plaintiff relied on Fed.R.Civ.P. 6(e) to argue that he is entitled to an additional three days in which to file his certification motion. Brief of Plaintiff at p. 2, Cadorna v. City and County of Denver, No. 04-CV-1067-REB-CBS (Oct. 17, 2007 (ECF No. 244)). Plaintiff offers no legal

authority to support his position that Rule 6(e) allows additional time to file his motion for certification. Although the Tenth Circuit Court of Appeals has never ruled if Rule 6(e) applies to certification motions for interlocutory appeals, it has ruled that Rule 6(e) does not apply to extend the ten-day period by which to file a motion to alter or amend a

4

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

Document 248

Filed 10/23/2007

Page 5 of 16

judgment under Fed.R.Civ.P. 59(e). Parker v. Bd. of Public Util. of Kansas City, 77 F.3d 1289, 1291 (10th Cir. 1996). The Parker Court reasoned that the three days permitted under Rule 6(e) "are only available `whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail." Id. The Parker Court further reasoned that, "[h]owever, the ten-day period

specified in Rule 59(e) is triggered by entry of the judgment, not by service of notice or other paper as contemplated by Rule 6(e)." Id. (Emphasis added). Like a motion to alter or amend a judgment under Rule 59(e) requiring a filing to invoke this remedy to be made within ten days after the court's entry of judgment, a motion for certification under 28 U.S.C. §1292(b) also requires a party to move for certification within ten days after the entry of an order by a court. Both actions require a court to enter either a judgment or an order to trigger the commencement of the ten days for parties to request these remedies. Because the Tenth Circuit has held that Rule 6(e) does not apply to a Rule 59(e) motion, it is reasonable to conclude that Rule 6(e) does not apply to extend the deadline for certification of an interlocutory appeal by three days. The Plaintiff relied on an inapplicable rule when filing his certification motion after the expiration of the ten-day rule enumerated in 28 U.S.C. §1292 (b). Because the Plaintiff failed to timely file his certification motion, his motion should be denied.

5

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

Document 248

Filed 10/23/2007

Page 6 of 16

B.

The Plaintiff Fails to Meet the Legal Standard for Certification of an Interlocutory Appeal

Whether certification of an interlocutory order is appropriate is within the discretion of the trial court. Alioto v. Hoiles, 2007 U.S. Dist. LEXIS 48857 (D. Colo. 7/5/07), citing Am. Nat'l Fire Ins. Co. v. Mirasco, Inc., 265 F. Supp. 2d 240, 249 (S.D.N.Y. 2003) (decision attached as Exhibit 1). The statute governing certification imposes four criteria before an issue may be certified for appeal: 1) the action must be a "civil action"; 2) the court must conclude that the order from which the appeal is taken involves a "controlling question of law"; 3) upon which there exists "substantial grounds for difference of opinion"; and 4) the court must believe that "immediate appeal from the order may materially advance the ultimate determination of the litigation." See United Fire and Casualty Co. v. McCrerey & Roberts Constr. Co., Inc., 2007 U.S. Dist. LEXIS 59391 (D. Colo. 8/14/07) (quoting In re Grand Jury Proceedings June, 1991, 767 F. Supp. 222, 223 (D. Colo. 1991) (decision attached as Exhibit 2). This case satisfies only the first requirement: it is a civil action. Plaintiff's motion otherwise fails to meet the other three required criteria and his motion should be dismissed as a result. C. Opposing Counsel's Misconduct Does Not Involve a Controlling Issue of Law

The definition of what constitutes a "controlling issue" of law is a very narrow one. A useful discussion of this requirement is Judge Posner's decision in Ahrenholz v. Bd. of Tr. of the Univ. of Illinois, 219 F. 3d 674 (7th Cir. 2000). In reviewing a certification order from the district court, the Seventh Circuit Court of Appeals held that the meaning of "question of law" as used in § 1292(b) has reference to a question of the meaning of

6

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

Document 248

Filed 10/23/2007

Page 7 of 16

a statutory or constitutional provision, regulation, or common law doctrine, rather than a question involving factual issues. It went on to state that the idea for certification was that if a case turned on a pure question of law, something the Court of Appeals could decide quickly and cleanly without having to study the record, the Court should be able to do so without having to wait until the end of the case, 219 F. 3d at 677. See also, Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. 426 F. Supp. 2d 125, 129 (S.D.N.Y. 2005) ("question of law" must refer to a "pure question of law"). Plaintiff's motion, on its face, demonstrates that the Court's Order granting a new trial is not a controlling issue of law as required by § 1292(b). An appeal would involve extensive review of the record to determine whether the trial court abused its discretion by ordering a new trial. Moreover, an issue of law is "controlling" when "the correct answer to the question will end the matter pending," thereby "substantially accelerating disposition of the litigation." Alioto v. Hoiles, supra, quoting In re Grand Jury Proceedings, June, 1991, supra at 225. In Alioto, the district court noted that even a reversal by the Tenth Circuit on all three issues would not conclude the litigation, as several issues would remain to be decided by both the court and a jury. In this case, in addition to attorney misconduct, there remain several unresolved issues, as noted in the extensive list of the pending post trial motions rendered moot by the Court's 27 September Order. See also United Fire & Casualty Co.v. McCrerey & Roberts Const. Co., Inc., supra. (finding that correct answer to question would not end the pending matters).

7

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

Document 248

Filed 10/23/2007

Page 8 of 16

D.

There is No Substantial Ground for Difference of Opinion.

The vast majority of Plaintiff's motion consists of venting his displeasure with the Court's ruling and trying to justify his misconduct by unconvincingly attempting to place an innocent construction on that conduct. In considering whether there exists a "substantial ground for difference of opinion" with respect to a controlling question of law, courts have held that a mere claim that a district court's decision was incorrect does not suffice to establish a substantial ground for difference of opinion, Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co., supra at 129. Similarly, a motion should not be granted merely because a party disagrees with the ruling of the district judge. Kapossy v. McGraw-Hill, Inc., 942 F. Supp. 996, 1001 (D. N. J. 1996). Plaintiff's motion essentially previews arguments he may some day raise on appeal. These arguments amount to little more than disagreement with the judge's correct decision. The

difference of opinion must arise out of a genuine doubt as to the correct legal standard. Kapossy v. McGraw Hill, supra. In United Fire & Casualty Co., v. McCrerey & Roberts Const. Co., Inc, supra, Judge Daniel analyzed his previous Order on the issue of the duty to defend, and found that the law supported his determination that plaintiff owed the defendant a duty to defend. Therefore, he found no basis for plaintiff's contention that there was substantial ground for difference of opinion. Likewise, in this case, there is ample evidence in the record for the Court's Order granting a new trial on the basis of attorney misconduct. Several cases have granted motions for a new trial under Fed. R. Civ. P. 59(a), for attorney misconduct and none of those cases involved conduct so egregious that the

8

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

Document 248

Filed 10/23/2007

Page 9 of 16

trial court was required to cite the offending counsel with contempt during the course of the proceedings. In the recent case of Moody v. Ford Motor Co., 2007 U.S. Dist. LEXIS 44495 (N. D. Okl. 2007), the court found that plaintiff's counsel's conduct created a substantial likelihood that the jury was motivated by a desire to punish the defendant for perceived wrongdoing. In that case, the jury's decision, as well as the inappropriately large award of damages, demonstrated that plaintiff's counsel's misconduct did affect the jury's decision and defendant's right to a fair trial. In this case, the decision of the jury, as well as damages awarded far in excess of those legally recoverable under the Age Discrimination in Employment Act, supported this Court's decision that Plaintiff's counsel's conduct impermissibly tainted the jury's deliberations and deprived Denver of a fair trial. In Tierney v. The Black Brothers Co., 852 F. Supp. 994 (N. D. Fla. 1994), the district court ordered a new trial, holding defendant's counsel's conduct was improper and prejudicial. Like Plaintiff's counsel in this case, defense counsel argued that the court's curative and cautionary constructions, including sustaining objections to improper remarks, resulted in a fair trial. The district court disagreed, stating "such curative instructions, however, are of dubious value in light of the incessant, pervasive nature of defense counsel's misconduct." See also O'Rear v. Fruehauf Corp., 554 F. 2d 1304, 1309 (5th Cir. 1977). This Court also aptly noted that the extreme nature of Plaintiff's counsel's unprofessional conduct could not be cured by standard jury instructions.

9

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

Document 248

Filed 10/23/2007

Page 10 of 16

Another useful case is Polansky v. CNA Insurance Co., 852 F. 2d 626 (1st Cir. 1988). In affirming granting a new trial, the Court of Appeals said the misconduct of plaintiff's counsel was sufficiently numerous and collectively prejudicial to require a new trial. It sternly reminded the parties: In closing, we remind counsel that we do not view favorably any attempt "to play fast and loose" with our judicial system. [Citations omitted.] Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide "a zealous advocacy" for his client's cause, we encourage this only as a means of achieving the court's ultimate goal, which is finding the truth. Deceptions, misrepresentations, or falsities can only frustrate that goal and will not be tolerated within our judicial system. 852 F. 2d at 632. Likewise, the Court in Steinle v. Warren, 765 F. 2d 95, 101 (7th Cir. 1985), remarked that as "officer of the court... [lawyer's] duty to the court is paramount, even to the interests of his client." The admonition in Polansky applies equally well to this case. Plaintiff's motion proves this Court was fully justified in ordering a new trial on the basis of his misconduct. While it would serve little good purpose to reiterate some of the most extreme misconduct in this litigation, Denver cannot in good conscience ignore some of the numerous rationalizations offered by Plaintiff's counsel for his deplorable conduct. Plaintiff's counsel attempts to justify his sarcastic and unnecessary editorializing regarding Assistant Chief Hart's uniform by trying to inject a theme of heroism of firefighters into the case, thereby justifying insulting a witness under the guise of being "genial". Even more incredible (at least as it appears to Denver) is Plaintiff's counsel's attempt to justify, rather than disavow, what he characterizes as a "quip" regarding the physical appearance of one of Defendant's witnesses. Plaintiff's counsel cites no

10

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

Document 248

Filed 10/23/2007

Page 11 of 16

authority that insulting the physical appearance of a witness to provoke an angry outburst is a justified trial tactic. If one were to accept Plaintiff's counsel's faulty logic, there would be no reason to stop at insulting physical appearance to evoke an outburst: Race, sex, age national origin, disability, as well as any other protected categories would also be fair and legitimate grounds for insulting witnesses provided they provoked an angry response. Such tactics are indeed "playing fast and loose the judicial system", which the Polansky Court appropriately deplored and condemned. In the guise of attempting to demonstrate substantial difference of opinion, Plaintiff's motion often misstated the law. In Fonten Corp. v. Ocean Spray Cranberry, Inc., 469 F. 3d 18, 21-22 (1st Cir. 2006), the First Circuit Court of Appeals noted that failure to move for a mistrial before the jury was excused did not waive the right of a party to seek a new trial where the conduct in question was extensive and pervasive. Plaintiff further attempts to cloud the issues by arguing that the Federal Rules of Civil Procedure do not allow for a new trial to be granted for attorney misconduct. That assertion, again for which no citation of authority was offered, is contradicted by the language of Fed. R. Civ. P. 59(a) which provides a new trial may be granted ... "(1) in action in which there has been a trial by jury, for any reasons for which new trials have been heretofore been granted in actions at law in the courts of the United States." Courts have on several instances, and when appropriate, granted new trials for that very reason. See cases cited at pages 8-10, supra. Having failed to cite any authority to support his position, Plaintiff further attempts to cloud the issue by citing Fed. R. Civ.

11

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

Document 248

Filed 10/23/2007

Page 12 of 16

P. 60(b) (3) to imply that only fraud, bribery or tampering will allow overturning of a jury verdict. Those cases have no relevance to Rule 59(a) or to this case. Plaintiff also attempts to create a non-existent constitutional issue by raising, without analyzing, a Seventh Amendment claim. The United States Supreme Court has held that a Court of Appeals may order entry of judgment as a matter of law on sufficiency of the evidence grounds without violating the Seventh Amendment's jury guarantee. Weisgram v. Marley Co., 528 U. S. 440 (2000). The Tenth Circuit has held that appellate review for abuse of discretion does not violate the parties' Seventh Amendment right to a trial by jury. Frank v. Bloom, 634 F. 2cd 1245, 1254-55 (10th Cir.1980). Further misstatements of law appear in Plaintiff's discussion of Evans v. Forgarty No. 05-6106 (10th Cir. 8/22/07), where the Tenth Circuit addressed the issue of sufficiency of evidence, not misconduct of counsel. Even more misleading is Plaintiff's discussion of "bias" and whether that issue is a legal, as opposed to a factual issue. The cases cited on page 14 of the certification motion concerned "bias" of jurors. Those cases are totally inapplicable to the issues of this case. Plaintiff's failure to meet his burden on the threshold issue of "controlling issue of law" makes this discussion unnecessary. Nevertheless, without pointing out every

misstatement of fact or misapplication of law in plaintiff's motion, Denver submits that Plaintiff has failed to meet his burden on this element as well.

12

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

Document 248

Filed 10/23/2007

Page 13 of 16

E.

The Granting of Certification of an Interlocutory Order Will Not Materially Advance the Termination of this Litigation

As previously noted, still pending are post trial motions to alter and amend verdict, for judgment as a matter of law, and a motion for relief from judgment of reinstatement. Therefore, even if the Court were to certify its Order, and the Tenth Circuit were somehow to reverse that Order, judgment would not automatically enter for Plaintiff. There would be additional proceedings in this Court, which would materially affect the outcome of this litigation. Granting this piecemeal appeal would not materially advance the termination of this litigation. In Alioto v. Hoiles, supra, the district court declined to certify the issue sought by plaintiff for immediate appeal, finding that given the history of the case and the limited number of issues left to be decided, an interlocutory appeal would delay rather than aid the conclusion of the litigation. The same can be said about this case. In United Fire & Casualty Co., v. McCrerey & Roberts Const., Co., supra, the district court also concluded that resolution of the issue sought by the defendant would not materially advance the ultimate termination of litigation. See also Coopers & Lybrand v Livesay, 437 U.S. 463, 475 (1978) (certification of interlocutory appeal under 28 U.S C. §1292 (b) is discouraged if it will lead to piecemeal litigation). In Carolina Indus. Products, Inc., v. Learjet, Inc., 194 F. Supp. 2d 1170 (D. Kan. 2002), the district court declined to allow an interlocutory appeal. It noted that a trial would be necessary on remaining counts unrelated to the question for which the plaintiff sought an interlocutory appeal. The ultimate resolution of the case would not be

advanced by giving plaintiffs a head start on an appeal of one of the claims brought in 13

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

Document 248

Filed 10/23/2007

Page 14 of 16

the suit. Citing Wright, Miller and Cooper, 16 Federal Practice and Procedure 3930, the Court noted "§ 1292(b) is designed to permit interlocutory appeals only for the purpose of minimizing the total burdens of litigation on parties in the judicial system by accelerating or at least simplifying trial court proceedings". See also Fretz v. Keltner, 109 F. R. D. 303 (D. Kan. 1986), concluding that granting an interlocutory appeal would delay litigation, rather than accelerate it. Notwithstanding Plaintiff's self-serving final footnote, an appeal of the 27 September 2007 order will not succeed. An appeal will only extend the time of this already protracted litigation. Plaintiff's Motion fails to satisfy the condition that certification for appeal of one of the many issues in the case would clearly advance the termination of this litigation.

14

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

Document 248

Filed 10/23/2007

Page 15 of 16

CONCLUSION Plaintiff's Motion is untimely, and can be denied without reaching its purported merits. Certification should be granted only in exceptional cases. This case is not one of them. Plaintiff's motion failed to satisfy all three conditions for relief, which is not surprising because the motion was more concerned in excoriating perceived enemies rather than addressing the issues. For these reasons, Defendant respectfully requests the Plaintiff's Motion be denied. Dated this 23rd day of October 2007. Respectfully submitted, s/ Christopher M.A. Lujan__________ Christopher M.A. Lujan Franklin A. Nachman Assistant City Attorney Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 E-mail: [email protected] Attorneys for Defendant City and County of Denver

15

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

Document 248

Filed 10/23/2007

Page 16 of 16

CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of October, 2007 , I electronically filed the foregoing DEFENDANTS RESPONSE TO PLAINTIFF'S MOTION TO CERTIFY INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b) OF ORDER GRANTING DEFENDANT NEW TRIAL 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 [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 Jim Sestrich Department of Safety Denver Fire Department

s/ Raquel R. Trujillo Denver City Attorney's Office

16