Free Motion for Extension of Time - District Court of Colorado - Colorado

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

Document 244

Filed 10/12/2007

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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. THE CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant.

MOTION BY PLAINTIFF FOR EXTENSION OF PLAINTIFF'S MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL UNDER 28 U.S.C. §1292(b)

Plaintiff William R. Cadorna ("Plaintiff") hereby moves for a seven-day extension, from Wednesday, October 17, 2007, to, and including, Friday, October 26, 2007, of the deadline for filing his motion pursuant to 28 U.S.C. §1292(b) for certification by this Court of interlocutory appeal to the Tenth Circuit Court of Appeals of this Court's September 27, 2007 Order Granting New Trial. As grounds for this Motion, Plaintiff states: 1. In compliance with D.C. COLO.LCivR. 7.1(A), the undersigned certifies

that he attempted in good faith to consult with Defendant's inside and outside counsel concerning the subject of this motion, but that he was unable to speak with either, and did not hear from them, in time to comply with this Court's requirement that motions for extension be filed three days prior to the due date to be extended, i.e., tonight.

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2.

This Court signed and entered its Order Granting New Trial on September

27, 2007, but it was not sent by electronic mail until September 28, 2007. 3. Under 28 U.S.C. §1292(b), Plaintiff has ten days from entry of this Court's

Order in which to move for certification of an interlocutory appeal of questions of law raised by this Court's Order. 4. Under Fed.R.Civ.P. 6(a) and 6(e), the tenth day from September 27, 2007

is [because of the intervening Columbus Day holiday and the three additional days allowed for service of documents by electronic mail under Rule 5(b)(2)(D)] no earlier than Wednesday, October 17, 2007. 5. Plaintiff's counsel is not in the least experienced in appellate practice, but

has certainly learned a great deal more about it than he ever cared to know since returning from a church retreat1 in a beatific state on October 1, 2007, only to be greeted with this Court's concussion grenade of an Order. 6. Since recovering from his injuries, which truly incapacitated him with

profound outrage for many days, the undersigned has been struggling feverishly to determine how his memory of the trial, and the words in the official transcript, could differ so markedly from this Court's. 7. The undersigned is at a loss to reconcile his distinct recollection of this

Court as quite possibly the touchiest, most stringent taskmaster before whom he has ever appeared with this Court's perfervid plaint that it lost control of the trial to the undersigned.

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The undersigned likes to think of himself as an aspiring Christian, constantly in need of forgiveness.

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8.

As the undersigned's late father was fond of saying, "Oh wad some power

the giftie gie us, to see oursel's as others see us! It wad frae monie a blunder free us, And foolish notion." (Alas, his sage advice never completely overcame the combatively Celtic genetic heritage with which he blessed, and cursed, the undersigned.) 9. The undersigned has also been working feverishly to become less

inexpert in the principles governing review of orders concerning new trials. 10. Plaintiff needs much more time in which to carefully research, weigh, and

decide upon the best course of action. 11. Plaintiff is confident of success if forced to return to trial, and his counsel

relishes the opportunity to humiliate Defendant once again. 12. Yet, because Plaintiff differs most strenuously with this Court's

speculation concerning the reasons for the jury's verdict, and does not wish to accede willingly to forfeiture of his Constitutional right to a jury trial, Plaintiff must first satisfy himself that no reasonable option other than retrial in mid-2009, or so, followed by years more of post-trial motions and appeals to the Tenth Circuit, remains. 13. Plaintiff has with much difficulty located a federal appellate expert willing

and able to consult with Plaintiff's counsel concerning these issues in the near future. That expert has been preoccupied with other work, including completion of a brief in the Fifth Circuit, and will not be available to assist in thoroughly assessing Plaintiff's predicament and options until later next week.

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14.

Plaintiff is quite confident that, given its recent decision in Evans v.

Fogarty, ____ F.3d ____, 082207 FED10, 05-6106 (10th Cir. 8/22/07), the Tenth Circuit will ultimately reverse this Court's Order and reinstate the jury's verdict. 15. Nevertheless, it may be that Plaintiff will be forced to conclude that the

Supreme Court and lower courts have, through sophistic construction of (or indifference to) the Seventh Amendment, actively undermined the standing of the jury in our system of laws to such an extent that he must for now accept this Court's Order. 16. It may well be that the concept of judicial nullification of jury verdicts is

something to which Plaintiff and his counsel will have to become accustomed, for the time being2, until Plaintiff is finally permitted to appeal this Court's Order as a matter of right to the Tenth Circuit in accordance with 28 U.S.C. §1291. 17. It would be an exciting challenge to see if Plaintiff might double his

winnings, to $2.5 million or so, plus yet another $150,000 or so in attorney's fees. (Of course, the electro-shock therapy that would undoubtedly be required to render the undersigned sufficiently docile and complaisant to please this Court might also take the fighting spirit requisite to defeating the City right out of him.) 18. If Plaintiff so concludes, this Court and Defendant will be saved

considerable work that would otherwise result from Plaintiff being forced to file his §1292(b) motion to preserve his rights without having an adequate opportunity to determine whether it is futile, or worthwhile.

While interest accrues on Plaintiff's June 29, 2006 verdict, which is a virtual $1.22 million certificate of deposit earning 4.72% interest, now worth approximately $1,309,500.00.

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19.

The passage of more time will also afford the undersigned much-needed

additional time in which to find a way to advocate for his client while overcoming the almost irresistible compulsion to risk his license by denigrating this Court to the same degree this Court (protected by judicial immunity) so injudiciously and unjustly denigrated the undersigned. 20. extension. WHEREFORE, good cause having been shown, Plaintiff requests that this Court grant a seven-day extension, from Wednesday, October 17, 2007, to, and including, Friday, October 26, 2007, of the deadline for filing his motion pursuant to 28 U.S.C. §1292(b) for certification by this Court of interlocutory appeal to the Tenth Circuit Court of Appeals of this Court's September 27, 2007 Order Granting New Trial. DATED this 12th day of October, 2007. Respectfully submitted, Defendant will suffer no prejudice whatever from the requested seven-day

Mark E. Brennan /S/ Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO. 80161-2556 (303) 747-5805 (office) (303) 797-7687 (cell) [email protected]
Attorney for Plaintiff

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CERTIFICATE OF SERVICE In compliance with D.C.COLO.LCivR. 6.1(D), the undersigned hereby certifies that, on this 12th day of October, 2007, he served a copy of the foregoing Motion for Extension on the following person(s) via electronic mail:
Mr. William R. Cadorna 5503 S. Moore Street Littleton, CO. 80127 [email protected] Christopher Lujan, Esq. 210 W. Colfax, Dept 1108 Denver, CO. 80202 [email protected] Richard Barkley, Esq. 410 17th St., No. 2200 Denver, CO. 80202 [email protected]

/S/

Mark E. Brennan

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