Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 12/27/2006

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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. DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW, MOTION TO ALTER OR AMEND JUDGMENT, AND MOTION FOR NEW TRIAL Defendant, City and County of Denver ("Denver"), through counsel, submits this Response in Opposition to "Motion by Plaintiff for Extension of Plaintiff's Responses to Defendant's Motion for Judgment as a Matter of Law, Motion to Alter or Amend Judgment, and Motion for New Trial (hereafter "Motion"). INTRODUCTION After eight days of testimony, a jury found in favor of the Plaintiff on 29 June 2006. Upon considering the motions, responses, and replies filed by both parties after the jury's verdict, this Court granted the Plaintiff's Motion for Entry of Partial Judgment for Back Pay and Liquidated Damages (ECF Doc. 202). Judgment was entered by the Chief Deputy Clerk of this Court on 28 November 2006. (ECF Doc. 203). To comply

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

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with the ten-day deadline specified in F.R.CIV.P. Rule 59 (b), Denver filed a Motion and Supporting Brief For New Trial Because of Attorney Misconduct, Motion to Alter or Amend Judgment and Supporting Brief, and Motion and Supporting Brief For Judgment as a Matter of Law (ECF Docs. 209-211 respectively) on 11 December 2006. Plaintiff moves for this Court to extend his deadline to respond to these motions from Tuesday 02 January 2007 to 09 March 2007.1 ARGUMENT The Plaintiff's Motion Should Fail as His Counsel's Grounds For Such a Request Does Not Constitute Good Cause Under This Court's Practice Standards and That a Continuance of These Issues Into March 2007 Will Prejudice the Defendant Although Plaintiff's Counsel devotes six pages and twenty-five paragraphs in trying to persuade this Court for an additional eight (8) weeks to respond to the Defendant's post-judgment motions, his attempts can be distilled into the categories of "inconvenience" and "press of business." Because these excuses "do not constitute good cause" as specified in this Court's own Practice Standards, Plaintiff's Motion should be denied. REB Civ. Practice Standard II. G. 1. Plaintiff's counsel attempts to use a trial scheduled in February 2007 (well after the 02 January 2007 deadline) as grounds for an extension of time. While undersigned counsel fully understands the time constraints involved a month prior to a one-week jury
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Plaintiff erroneously claims that the deadline for his Response Briefs is Friday 05 January 2007. As specified in D.C.COLO.LCivR 7.1 (C), Plaintiff has twenty days to respond to a motion. Excluding 31 December 2006 (a Sunday) and New Year's Day, the correct deadline is Tuesday 02 January 2007. Because service of Denver's motions were completed through electronic filing and not through the mail, Plaintiff does not get an additional three days to respond to these motions as afforded under F.R.Civ.P. Rules 6 (e) and 5 (b)(2)(B-D). 2

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trial, this excuse alone should not serve as good cause for an extension as Mr. Brennan is no different than any other litigator who handles cases in multiple jurisdictions who is under similar time restrictions. Furthermore, Plaintiff's counsel claims that "all but the first few days of January [are devoted] to completion of witness and exhibit list exchanges, preparation of the trial management order, motion practice, jury instruction preparation...and all of the other extremely time-consuming tasks that go into the best possible preparation for a lengthy jury trial." (See Plaintiff's Motion, ¶4). Plaintiff's counsel emphatically asserts that he "simply does not have available three or so weeks between the New Year and February 19, 2007 to devote to Plaintiff's case." (Id. at ¶15). All of these excuses associated with Plaintiff counsel's February 2007 trial fall squarely within the categories of "inconvenience to counsel" and "press of business" and should not be deemed as good cause by this Court in accordance with its' Practice Standards.2 Plaintiff's counsel also attempts to lobby for additional time by claiming that the Defendant "had the benefit of four to five months in which to formulate their postjudgment motions." (Id. at ¶10). What Mr. Brennan fails to mention is that this time period was created primarily by Plaintiff's motions for entry of back pay and front pay in lieu of reinstatement and all of the respective briefs filed by the parties on these issues. Both parties were afforded the same amount of time in which to formulate their
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Compare Mr. Brennan's cited grounds for good cause with the defense counsel in Lash v. Trujillo, 2006 U.S. Dist. LEXIS 44479, n.4 (D.Colo. 20 June 2006) (Krieger, J.) (Ex. A). Judge Krieger denied the defense counsel's motion for an extension of time finding that the unforeseen emergencies of another client, difficulties pertaining to counsel's child, and problems pertaining to electronic filing did not, "individually or collectively, constitute good cause to extend the filing deadline." Mr. Brennan's excuses fall well short of those asserted by defense counsel in Lash. 3

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respective strategies for dealing with post-judgment motions and subsequent replies. Because both parties had the benefit of the same amount of time, this argument should not constitute as good cause in which to gain an extension of time. Finally, Mr. Brennan cites to holiday travel plans and a need to "decompress" as additional grounds for more time. (See Plaintiff's Motion, ¶¶ 16, 18). In his motion, Plaintiff counsel claims that his request for an "unusually long" extension "will cause Defendant no prejudice whatever (sic)." (Id. at ¶¶22, 25). A longer delay in determining the issues in Defendant's post-judgment motions prejudices the Defendant in light of the post-judgment interest of 4.72% that was awarded to Plaintiff in the Judgment issued on 28 November 2006. (ECF No. 203, p. 4, ¶7). As clearly stated in the judgment, "the plaintiff is awarded post-judgment interest in the amount of 4.72% from the date of this judgment until the judgment is fully paid, pursuant to 28 U.S.C. §1961." (Id). (Emphasis added). Because the legal issues raised in the Defendant's post-judgment motions bear directly on whether or not the Plaintiff is entitled to an award ­ and when he is entitled to it ­ the Plaintiff stands to gain more in interest the longer that these issues are delayed by Plaintiff's counsel and this directly prejudices the Defendant.

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

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ACCORDINGLY, the Defendant respectfully requests this Court deny the Plaintiff's Motion for an Extension of Time to respond to Defendant's post judgment motions as he has not stated good cause for an extension of time and that an extension to 09 March 2007 will prejudice the Defendant. Respectfully submitted this 27th day of December 2006. 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] BROWNSTEIN HYATT & FARBER, P.C. Richard P. Barkley Hamid M. Khan 410 17th Street, 22nd Floor Denver, Colorado 80202 (303) 223-1100 ATTORNEYS FOR THE DEFENDANT

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

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Filed 12/27/2006

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on December 27, 2006, 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

/s/ Cristina Peña Helm Cristina Peña Helm

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