Free Reply to Response to Motion - District Court of Colorado - Colorado

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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, COLORADO, a Municipal Corporation, Defendant.

DENVER'S REPLY BRIEF IN SUPPORT OF MOTION FOR STAY OF EXECUTION OF JUDGMENT

Defendant, City and County of Denver ("Denver"), submits the following reply brief in support of its Motion for Stay of Execution of the Judgment ("Motion"). 1. Denver has moved pursuant to Rules 62(b) and 62(f) of the Federal Rules

of Civil Procedure for a stay of the judgment entered in this case during the pendency of Denver's post-trial motions without requiring Denver to post a supersedeas bond. In its Motion, Denver showed that Denver was entitled to a stay without the need to post a bond under Fed. R. Civ. P. 62(f). Denver also showed that a bond was completely unnecessary ­ serving no function other than to impose unnecessary costs on Denver's taxpayers ­ and thus the Court should exercise its discretion under Fed. R. Civ. P. 62(b) to stay execution on the judgment until the Court ruled on Denver's post-trial motions.

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2.

Plaintiff, William R. Cadorna's ("Cadorna") Response to Defendant's

Motion to Stay Execution ("Response") fails, in large part, to address the issues raised in the Motion. Indeed, only one page of Cadorna's nine-page Response even arguably addresses issues presented by the Motion. For example, Cadorna does not respond to ­ and thus implicitly concedes the accuracy of ­ Denver's showing that a bond is unnecessary during the pendency of the post-trial motions because Cadorna will be fully protected from any risk that the judgment will not be satisfied. (See Order, Schneider v. City & County of Denver, No. 99-Z-504 (June 27, 2001) (attached as Ex. E).) 3. Although Cadorna at one point complains that "Denver has presented no

evidence that it now has the funds available or would be able to raise the funds in a timely manner after any appeal is decided" (Resp. at 8), this is a red herring. As

discussed below, Denver is not currently seeking a stay during the pendency of the appeal. Rather, because of the strength of its post-judgment motions, Denver is only requesting a stay until the Court resolves the post-judgment motions. Denver's ability to pay a $1.2 million judgment a few months from now, if the Court should resolve the post-judgment motions against Denver, cannot seriously be disputed.1 4. Further, there can be no legitimate doubt that Denver can easily "raise the

funds in a timely manner." As shown in the attached affidavit, any judgment will be paid from the Denver Fire Department's budget, which is $93,211,000.00. (Affidavit of Mel

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So that Denver does not inadvertently mislead either the Court or Cadorna, Denver wants to make it clear that if the Court denies the post-trial motions, Denver reserves the right to seek a stay during appeal without being required to post a bond. Because one or more of the post-trial motions may be granted, obviating the need for an appeal, however, the Motion only requests a stay during the pendency of the post-trial motions. 2

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Thompson ("Thompson Aff.") ¶2, attached as Ex. F.) And if the judgment could not be satisfied from the Denver Fire Department's budget fund, the Department would obtain a supplemental appropriation from the Denver City Council. (Id. ¶3.) Because Denver is solvent, there is no question that the City Council will provide the funds through a supplemental appropriation, if necessary. (Id.) 5. The Denver Fire Department also can pay any judgment approximately 60

days after it is submitted. (Id. ¶4.) Every judgment ever affirmed against the Denver Fire Department or the City and County of Denver has been paid. (See Defendant's Motion to Modify Order Requiring Defendant to Post Supersedeas Bond for Stay of Judgment Pending Appeal ¶9, Schneider, No. 99-Z-504 (June 5, 2001) (Ex. G); Thompson Aff. ¶5 (Ex. F).) Accordingly, to require the Denver Fire Department to incur the cost of a supersedeas bond will be a completely unnecessary expenditure of the Department's resources. (Id. ¶6.) 6. Cadorna also challenges, briefly, Denver's argument that Fed. R. Civ. P.

62(f) precludes requiring Denver to post a bond. Cadorna contends that Rule 62(f) does not apply because under Colorado law a judgment is not "a lien upon the property of the judgment debtor." (See Resp. at 6 (quoting Fed. R. Civ. P. 62(f).) But Cadorna advances no analysis to support his assertion, and he makes no effort to rebut Denver's showing to the contrary. 7. Nor can he. As Denver showed in its Motion, a judgment is a lien on

property, and thus satisfies Rule 62(f), if no "steps beyond mere ministerial acts must be taken to transform the judgment into a lien." Cote Corp. v. Thom's Transp. Co., No. Civ.

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99-169-P, 2000 WL 1224757 (D. Me. Aug. 24, 2000) (Ex. C to Mot.). And in Colorado, the only step required to perfect a judgment lien is the ministerial act of "recording a 'transcript' of the judgment in the real property records of the clerk and recorder of the county in which the judgment debtor owns property." 1C Cathy Stricklin Krendl,

Colorado Methods of Practice § 40.2 (2006); see also Colo. Rev. Stat. §13-52-104.2 8. Further, Cadorna fails to address the decisions of other courts holding that

acts similar to Colorado's requirement of recording a 'transcript' of the judgment are nothing more than ministerial acts. See Cote Corp., 2000 WL 1224757 (D. Me. Aug. 24, 2000) (Ex. C to Mot.); Smith v. Village of Maywood, No. 84 2269, 1991 WL 277629 (N.D. Ill. Dec. 20, 1991) (Ex. B to Mot.). Thus, Cadorna has not disputed, and cannot dispute, that Cote Corp. and Village of Maywood strongly support the conclusion that in Colorado, just as in Maine and Illinois, the perfection of a judgment lien requires no more "mere ministerial acts . . . to transform the judgment into a lien." Cote Corp., 2000 WL 1224757 at *1. 9. Rather than address the issues presented by the Motion, Cadorna's

Response attempts to confuse the issues by making irrelevant and erroneous arguments that have no bearing on the Motion. For example, as noted earlier the Motion seeks a stay until this Court rules on the pending post-trial motions, pursuant to Rule 62(b). (See Mot. at 1 (first sentence).) Despite this, Cadorna pretends the motion seeks a stay during appeal pursuant to Fed. R. Civ. P. 62(d). (See Resp. at 1

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Thus, Cadorna's contention that Ms. Krendl's treatise "makes it plain that more than mere 'ministerial acts' are required" (Resp. at 6) is not correct.

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(incorrectly stating that Motion was filed "pursuant to Fed. R. Civ. P. 62(b), (d), and (f)").) Cadorna then attempts to argue ­ by citing to cases that apply Rule 62(d) rather than Rule 62(b) ­ that the Court should not grant a stay without requiring Denver to post a bond. (See Resp. at 2-5.) 10. But there is less need for a bond under Rule 62(b) than under Rule 62(d).

As one court explained: Unlike the stay pending appeal under Rule 62(d), a stay pending disposition of a motion for judgment n.o.v. and/or a new trial will generally be resolved in far less time than the lengthy process of briefing, argument and disposition which an appeal entails. Consequently, the risk of an adverse change in the status quo is less when comparing adequate security pending post-trial motions with adequate security pending appeal. It is also significant that prior to an appeal the district court has plenary power to alter, amend or reopen the judgment and grant a new trial or enter a directed verdict. Int'l Wood Processors v. Power Dry, Inc., 102 F.R.D. 212, 215 (D.S.C. 1984). Thus, the Rule 62(d) cases cited by Cadorna are inapposite to the issue raised by the Motion: Whether Denver should be required to post a bond during the pendency of the postjudgment motions. 11. Moreover, even under Rule 62(d), this Court has relieved Denver from the

requirement that they post a bond, finding that a bond is unnecessary. (See Order, Schneider v. City & County of Denver, No. 99-Z-504 (June 27, 2001) (Ex. E).) 12. Nor is Cadorna's attempt to confuse Rule 62(d) with 62(b) his only effort to

evade the issues raised by the Motion. For instance, Cadorna argues at length that a post-judgment stay is determined by federal law, not state law; and then argues that Colo. Rev. Stat. §30-35-501 and Colo. R. Civ. P. 62(e) ­ both of which provide that a

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county or municipality need not post a bond to obtain a stay ­ need not be considered by the Court. But Cardona again misses the point. Denver never argued in its Motion that the issue of a stay was governed by state law. It argued that in this case (a) Fed. R. Civ. P. 62(f) requires, with respect to a stay, the same treatment under federal law that exists under state law; and (b) state law ­ specifically Colo. Rev. Stat. §30-35-501 and Colo. R. Civ. P. 62(e) ­ relieve Denver of the obligation to post a bond to obtain a stay. Thus, Cadorna's arguments about whether the issue is procedural or substantive under Erie Railway Co. v. Tompkins, 304 U.S. 64 (1938), although an interesting primer on federal jurisdiction, have nothing to do with the issues before this Court. 13. A third irrelevant argument by Cadorna is his assertion that Denver "has

failed to meet its burden of proving adequate grounds for a reduction of bond." (Resp. at 7 (heading) (capitalization and emphasis omitted).) Because Denver has neither

asked nor argued for a reduction in the amount of a bond, this argument likewise has no bearing on the Motion. 14. Cadorna also makes one significant error in his Response. He asserts

that the Motion does not apply to his reinstatement. That is simply wrong. Indeed, because the Motion would preclude reinstatement of Cadorna until the post-judgment motions were decided, Denver offered (if the Motion were granted) "to pay Cadorna, from January 1, 2007, to the date on which the Court rules on the post-judgment hearings, the difference between the amount he is receiving from his pension payments

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and the amount he would be receiving if he were reinstated." (Mot. ¶14.) This offer would make no sense if Cadorna were to be reinstated immediately.3 15. Finally, in his Response Cadorna raises no objection to a stay if Denver

posts a supersedeas bond. (See Resp. at 9 ("This Court should stay enforcement of the judgment in this case only upon defendant's posting a supersedeas bond in the full amount of the judgment . . . .").) Accordingly, if the Court concludes that a bond should be posted, Denver's request that the Court issue a temporary 10-day stay to allow Denver to post a bond in the amount set by the Court is unopposed. ACCORDINGLY, for the reasons set forth above, Denver requests the Court to stay execution of the judgment until the Court has ruled on the post-judgment motions filed by Denver without requiring it to post a bond. Alternatively, Denver requests the Court to specify the amount of bond that must be posted by Denver, and to stay temporarily execution of the judgment for 10 days to allow Denver to post a bond in the amount specified by the Court.

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The reason why Denver wishes to stay Cadorna's reinstatement is not because of any hostility toward him. It is because reinstating an employee is a complex process, and it makes sense to wait until the post-judgment motions are decided before undertaking that process. . 7

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Respectfully submitted this 20th day of February, 2007. BROWNSTEIN HYATT FARBER SCHECK, P.C. By: _s/ Richard P. Barkley_________ Richard P. Barkley James S. Hardy 410 Seventeenth Street, Suite 2200 Denver, Colorado 80202-4437 (303) 223-1100 s/ Christopher M.A. Lujan____________ CHRISTOPHER M.A. LUJAN Assistant City Attorney Denver City Attorney's Office Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720.913.3100 Facsimile: 720.913.3190 E-mail: [email protected] ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on February 20, 2007, I electronically filed the foregoing 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: Interoffice mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee St. Denver, CO 80204 Chief Larry Trujillo Department of Safety Denver Fire Department 745 W. Colfax Denver, CO 80204 BROWNSTEIN HYATT FARBER SCHECK, P.C. By: _s/ Richard P. Barkley_________ Richard P. Barkley Hamid M. Khan 410 Seventeenth Street, Suite 2200 Denver, Colorado 80202-4437 (303) 223-1100

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