Free Response to Motion - District Court of Colorado - Colorado

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

Document 197

Filed 10/10/2006

Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant.

RESPONSE OF CITY AND COUNTY OF DENVER TO PLAINTIFF'S MOTION PURSUANT TO FED R. CIV. P. 15(b) AND 16(e) TO AMEND PRETRIAL ORDER

Defendant, City and County of Denver, Colorado ("Denver"), through counsel, submits the following response to Plaintiff's Motion Pursuant to Fed. R. Civ. P. 15(b) and 16(e) to Amend Pretrial Order to Conform to the Evidence and/or Prevent Manifest Judgment (the "Motion to Amend"). INTRODUCTION On July 10, 2006, Plaintiff, William R. Cadorna ("Cadorna") filed a motion with this Court asking it to enter judgment in the amount of $610,571.00 as liquidated damages on his claim of age discrimination and $213,104.76 in front pay to which Plaintiff believes he is entitled ("Liquidated Damages"). In its response, Denver showed Cadorna was not entitled to an award of Liquidated Damages for several reasons, including that he had not requested Liquidated Damages in the Parties' Final Pretrial Order, in violation of this Court's Practice Standards and the Local Rules governing practice in this District. See D.C.COLO.LCivR 16.3, Appendix G (mandating parties to

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

Document 197

Filed 10/10/2006

Page 2 of 14

"[i]dentify the specific relief" sought); see also REB Civ. Practice Standard IV.A.2 (incorporating the Local Rule 16.3). Recognizing that his violation of the Local Rules and Practice Standards bars an award of Liquidated Damages, Cardona has now filed a Motion to Amend (a motion that is itself in violation of the Local Rules and thus should not be considered by this Court, see D.C.COLO.LCivR 7.1A). In the Motion to Amend, Cardona makes a belated

attempt to avoid the consequences of his decision not to seek Liquidated Damages in the Final Pretrial Order by asking the Court to allow Cardona to cure the deficiency after the fact by amending the Final Pretrial Order. As shown below, however, Cardona has not shown that he meets the rigorous standard for amending the Final Pretrial Order. Accordingly, the Court should deny the Motion to Amend. ARGUMENT I. THE COURT SHOULD NOT CONSIDER CARDONA'S MOTION TO AMEND THE FINAL PRETRIAL ORDER BECAUSE HE DID NOT COMPLY WITH LOCAL RULE 7.1A. Cardona's Motion to Amend asks this Court to excuse Cardona from the consequences of his violation of the Local Rules and Practice Standards applicable to pretrial orders. Ironically, Cardona's Motion to Amend itself violates the Local Rules and Practice Standards directing an attorney to confer with opposing counsel prior to filing a motion. D.C.COLO.LCivR 7.1A states: The court will not consider any motion, other than a motion under Fed. R. Civ. P. 12 or 56, unless counsel for the moving party or a pro se party, before filing the motion, has conferred or made reasonable, good-faith efforts to confer with opposing counsel or a pro se party to resolve the disputed matter. The moving party shall state in the motion, or in a certificate attached to the motion, the specific efforts to comply with this rule.

2

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

Document 197

Filed 10/10/2006

Page 3 of 14

Similarly, this Court, through the adoption of its Practice Standards, notifies parties that a motion "filed without a certification pursuant to D.C.COLO.LCivR. 7.1A will be denied without prejudice sua sponte." REB Civ. Practice Standard V B. 1. Here, current and former counsel for Denver represent to the Court that counsel for Cardona did not confer with any of them prior to filing the Motion to Amend. Further, the certification required by Local Rule 7.1A is conspicuous only in its absence. Accordingly, because the Motion to Amend was filed in violation of Local Rule 7.1A and Practice Standard V.B.1, the Motion should be denied summarily. II. RULE 15(b) DOES NOT APPLY TO CARDONA'S MOTION TO AMEND THE FINAL PRETRIAL ORDER. As the title to the Motion to Amend indicates, Cardona purports to bring his Motion to Amend under Rules 15(b) and 16(e) of the Federal Rules of Civil Procedure. (Mot. to Amend at 1, 2-3.) Cardona's reliance on Rule 15 is misplaced; that Rule applies only to pleadings.1 Rule 7(a) identifies the filings that constitute "pleadings."

1

Rule 15(b) states: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the results of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet the evidence.

Fed. R. Civ. P. 15(b) (emphasis added). 3

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

Document 197

Filed 10/10/2006

Page 4 of 14

See, e.g., Medina v. Horseshoe Entertainment, No. 05-0097, 2006 WL 2038057, at *1 (W.D. La. July 19, 2006) (Ex. A); Trujillo v. Bd. of Educ of Albuquerque Pub. Schs., 230 F.R.D. 657, 660 (D.N.M. 2005). Pleadings are "a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served." Fed. R. Civ. P. 7(a). A pretrial order is not a pleading.

Accordingly, Rule 15 does not apply to the Final Pretrial Order.2 See, e.g., Roane v. Koch Indus., Inc., No. 85-1636-SAC, 2000 WL 1863480 at *1 n.1 (D. Kan. 2000) (Rule 15(a) "govern[s] 'pleadings,' and the pretrial order is not a 'pleading' enumerated in Rule 7(a).") (Ex. B).3 III. RULE 16(e) DOES NOT AUTHORIZE CARDONA'S BELATED ATTEMPT TO AMEND THE FINAL PRETRIAL ORDER. In his Motion to Amend, Cardona makes no attempt to explain or excuse his failure to request Liquidated Damages in the Final Pretrial Order. Cardona does not ­ and cannot ­ contest in any way that he was required to identify precisely the relief he was seeking in the case, but failed to do so. Nor does he dispute the importance of that requirement, or the significance of his failure to comply with it. A Final Pretrial Order "'measures the dimensions of the lawsuit'" and "controls the subsequent course of

2

Further, Denver did not explicitly or implicitly consent to the relief of Liquidated Damages, for it did not sign any document setting forth Liquidated Damages as available relief, it did not introduce evidence of Liquidated Damages, and it objected to Plaintiff's introduction of such evidence in Exhibit 57.
3

Cardona also relies on Rule 54(c). That Rule applies to judgments. The Final Pretrial Order is not a judgment. Rule 54(c), therefore, does not apply to Cardona's Motion to Amend the Final Pretrial Order. 4

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

Document 197

Filed 10/10/2006

Page 5 of 14

litigation." Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997) (citation omitted). Its "laudable purpose is to avoid surprise, not foment it." Wilson v. Muckala, 303 F.3d 1207, 1216 (10th Cir. 2002); see also Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208 (10th Cir. 2002) (purpose of Rule 16 is to "'insure the economical and efficient trial of every case on its merits without chance or surprise.'") (citation omitted). Accordingly, it is important that the pretrial order accurately reflect the claims and defenses of the parties. Thus, "[t]he burden rests on counsel . . . to assure that the pretrial order accurately reflects counsel's respective positions regarding . . . matters included in the order." 3 JAMES W M. MOORE
ET AL.,

MOORE'S FEDERAL PRACTICE

¶ 16.78[3], (3d ed. 2006). The Tenth Circuit has admonished attorneys to "meticulously examine" the Final Pretrial Order. Wilson v. Muckala, 303 F.3d 1207, 1216 (10th Cir. 2002). Because of the pretrial order's central role in trial and post-trial proceeding, it "may be modified 'only to prevent manifest injustice.'" Davey, 301 F.3d at 1208 (quoting Fed. R. Civ. P. 16(e)). "The party moving to amend the order bears the burden to prove the manifest injustice that would otherwise occur." Id. "Where a party fails to show any circumstances other than its own neglect to warrant relief from a pretrial order, no reason for reversal exists." Dunlap v. City of Okla. City, No. 99-6412, 12 Fed. Appx. 831, 835 (10th Cir. June 7, 2001) (Ex. C). Here, Cadorna has not identified any reason, other than neglect, for his failure to specify in the Final Pretrial Order the specific relief he now claims he was seeking at trial ­ Liquidated Damages. He does not contend that he was unaware of the Rule requiring him to include Liquidated Damages as part of the "specific relief sought." He

5

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

Document 197

Filed 10/10/2006

Page 6 of 14

does not assert that he was mislead about the need to specify Liquidated Damages in the Final Pretrial Order. Indeed, he provides no explanation at all for his failure.

Accordingly, Cadorna's failure to notify Denver and the Court in the Final Pretrial Order that he was seeking Liquidated Damages can only be attributed to neglect. In fact, with respect to front pay, Cadorna's failure to include it in the Final Pretrial Order appears to have been due to a deliberate, strategic decision rather than neglect. To generate jury sympathy, Cadorna repeatedly emphasized at trial that he filed his lawsuit to get his job as a firefighter back with the Denver Fire Department. He

unabashedly testified that (a) he "took a lot of pride in being a firefighter,"4 (b) becoming a Denver firefighter was "every boy's dream,"5 (c) being a firefighter was "probably one of the most rewarding careers that you could ever have,"6 (d) "being a fireman was the best thing that I could ever do,"7 and (e) "all I ever wanted to do in the last 25 years is be a fireman."8 Cadorna also testified that he filed his lawsuit because of his dissatisfaction with the decision made by the Civil Service Commission, stating he "didn't receive a fair judgment, because if I had, I would be back to being a Denver fireman."9 Cadorna

4

(See R. Trans. p. 745, Cadorna v. City and County of Denver, 04-CV-1067 (REBCBS).) (The pages of the Record that are cited in this Response are attached as Ex. D)
5

Id. Id. Id., p. 749. Id., p. 750. Id., p. 839. 6

6 7

8

9

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

Document 197

Filed 10/10/2006

Page 7 of 14

declared: "I want to be made whole again. I want to be Bill Cadorna, the fireman. I want to retire on my time, not be forced to retire."10 If Cadorna had included in his Final Pretrial Order a claim for front pay in lieu of reinstatement, Denver could have effectively cross-examined Cadorna on his supposed desire to be "Bill Cadorna, the fireman." Denver would have been able to ameliorate the sympathy Cadorna aroused by showing that (a) Cadorna was not even seeking reinstatement, but was simply asking for even more money; and (b) the case was not about whether Cadorna could go "back to being a Denver fireman," but was only about how much money Cadorna would receive from Denver's coffers. To avoid this

potentially devastating line of cross examination, Cadorna made the strategic decision not to include a request for front pay in the Final Pretrial Order. It would be manifestly unjust if he were permitted now to amend the Final Pretrial Order to obtain a monetary benefit he repeatedly denied at trial that he wanted. IV. THE FACTORS SET OUT IN KOCH FAVOR DENIAL OF THE MOTION TO AMEND. In Koch v. Koch Industries, 203 F.3d 1202 (10th Cir. 2000), the Tenth Circuit identified the following four factors to be considered in determining whether manifest injustice will result from a denial of a motion to amend a pretrial order: "(1) prejudice or surprise to the party opposing [the amendment]; (2) the ability of that party to cure any prejudice; (3) disruption of the orderly and efficient trial of the case . . . ; and (4) bad faith by the party seeking to modify the order." Id. at 1222. Consideration of the Koch

10

Id. 7

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

Document 197

Filed 10/10/2006

Page 8 of 14

factors here demonstrate that Cadorna will suffer no manifest injustice if the Motion to Amend is denied. First, Denver will be substantially prejudiced by Cadorna's proposed amendment. As shown previously (see supra p.7), with respect to the issue of front pay, if Cadorna is allowed, despite his testimony, to amend the Final Pretrial Order to request an unspecified amount of front pay for an unspecified period of time based on unidentified hostility that supposedly precludes reinstatement, Denver will have been denied the opportunity to show that Cadorna's lawsuit was not driven by a desire to "be back to being a Denver fireman," as Cadorna testified, but by a desire to be paid not to work. The significance of such a showing to the jury could have easily changed the jury's entire conclusion. Similarly, granting the Motion to Amend to allow Cadorna to seek to recover Liquidated Damages will also significantly prejudice Denver. Because Cadorna did not request the "specific relief" of Liquidated Damages in the Final Pretrial Order, the damages available at trial were the same regardless of whether Denver willfully discriminated, or unintentionally discriminated, against Plaintiff. As a result, Denver did not focus its evidentiary presentation on refuting that the alleged discrimination was willful, but focused its attention on whether discrimination had occurred. Had Denver received notice from the Final Pretrial Order that Cadorna was seeking Liquidated Damages, it could have presented additional or different evidence showing that if discrimination had occurred, it was not willful. For example, Denver would have argued in its closing that if the jury were to find discrimination that it should find such discrimination was not willful ­ an argument not made in closing. Likewise, Denver

8

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

Document 197

Filed 10/10/2006

Page 9 of 14

would have presented evidence from an expert or an administrator of Cadorna's pension plan to demonstrate that the "safe harbor" provisions of the ADEA applied to the plan and thus any discrimination by the plan was inadvertent. Further, Denver would have presented testimony or evidence regarding details of Plaintiff's pension accruals and potential future pay (e.g., raises and cost of living adjustments) that were projected through Plaintiff's normal retirement to show he was not harmed by the fact that he was not reinstated. Still further, Denver would have asked witnesses, such as former Chief Juniel, Deputy Chief Sestrich, and Assistant Chief Hart, what their reactions would be if Plaintiff were reinstated. Finally, Denver would have highlighted the fact that Plaintiff's damages expert did not, and could not, opine upon Plaintiff's future pay. All of this evidence ­ and more ­ could have been presented to the jury to demonstrate Denver did not discriminate willfully against Plaintiff and that Liquidated Damages were improper.11 The second Koch factor ­ the ability to cure the prejudice to it ­ also demonstrates that Denver will suffer manifest injustice if the Motion to Amend is denied. Simply put, because the trial is over, the bell cannot be un-rung. Accordingly, Denver cannot cure the prejudice to it unless a new trial is granted.12 The third Koch factor is whether the amendment will cause disruption of the orderly and efficient trial of the case, is tied to the second factor. This factor does not apply in the context of a post-trial motion under Rule 16 because no post-trial motions
11

Further, as shown below (see infra p.11), Cadorna will not suffer prejudice if the Motion to Amend is denied.
12

Denver intends to move for a new trial. If the Court grants Denver a new trial, Cadorna can, of course, seek to amend the Final Pretrial Order in the new proceedings.

9

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

Document 197

Filed 10/10/2006

Page 10 of 14

will ever cause disruption of a trial that has already been completed. Indeed, if a motion to amend were granted because it would not disrupt the completed trial, a plaintiff would be rewarded improperly for his or her delay. The final Koch factor is whether Cadorna has acted in bad faith in seeking to modify the order. Denver has been dismayed by the degree of hostility that has

permeated this case, and is unwilling to exacerbate tensions by making accusations of bad faith. Accordingly, Denver wishes to make the following clear: Although Denver believes that Cadorna and his counsel are not entitled to amend the Final Pretrial Order, and that Cadorna was negligent in failing to include Liquidated Damages in the Final Pretrial Order, Denver does not accuse Cadorna or his counsel of bad faith in filing the Motion to Amend. V. CARDONA'S CLAIM OF MANIFEST INJUSTICE LACKS MERIT. Finally, Cardona has failed to meet his burden of establishing that he will suffer manifest injustice if his Motion to Amend is denied because he will not be able to recover Liquidated Damages. "It would be manifestly unjust, Cadorna contends, "to deprive Plaintiff of all relief to which he is entitled when Defendant cannot claim lack of notice or unfair prejudice." (Mot. to Amend at 6, 15). In truth, however, Cadorna

misstates the facts and misapplies the applicable law. First, Cadorna's assertion that because he requested Liquidated Damages in his complaints, Denver had notice that he was continuing to seek Liquidated Damages after the Final Pretrial Order was filed, is erroneous. As the Final Pretrial Order itself states, it controls the subsequent course of the trial, and supersedes the prior pleadings. (Final Pretrial Order at 65.); Wilson, 303 F.3d at 1216. Accordingly, Cadorna's pleading of Liquidated Damages in his

10

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

Document 197

Filed 10/10/2006

Page 11 of 14

complaints, and his exclusion of them from the Final Pretrial Order, led Denver to conclude just the opposite of what Cadorna claims: that Cadorna was abandoning those remedies.13 Further, it would not be manifestly unjust to deny Cadorna Liquidated Damages. To begin with, he is not even entitled to front pay. As Denver previously showed in its Response in Opposition to Plaintiff's Motion for Entry of Partial Judgment for Front Pay in Lieu of Reinstatement, reinstatement is the "preferred remedy" when the issue of equitable relief is appropriately before a court, James v. Sears, Roebuck & Co., 21 F.3d 989, 997 (10th Cir. 1994), and Cadorna has not demonstrated that reinstatement is inapplicable here. Thus, if Cadorna is entitled to any equitable remedy, it would not be manifestly unjust to award him the one remedy that is legally preferable. Similarly, denying Cadorna's Motion to Amend with respect to liquidated damages would not work a manifest injustice. Liquidated damages are not compensatory damages. Thus, if the Motion to Amend is denied and Cadorna cannot recover Liquidated Damages, he will still receive (assuming Denver's post-trial motions are not granted) the full panoply of damages awarded to him by the jury ­ in this case, more than half a million dollars. Denial of the Motion to Amend, therefore, will not create any manifest injustice. In Youren v. Tintic School District, 343 F.3d 1296 (10th Cir. 2003), the Tenth Circuit addressed a situation that is similar to the one presented here. There, the defendants initially pled a statute of limitations defense in their answer, and also filed a motion raising the defense at trial. The Tenth Circuit held that "[n]either of thse facts . . . overcomes the Pretrial Order Rule embodied in Rule 16(e) of the Federal Rules of Civil
13

As shown above (see supra pp.7-9), Denver will also suffer substantial prejudice if the Motion to Amend is granted. 11

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

Document 197

Filed 10/10/2006

Page 12 of 14

Procedure . . . ." Id. at 1304. As a result, the Court found that the defendants had waived the defense by not raising it in the pretrial order. The Court noted that the Eleventh Circuit, in McGinnis v. Ingram Equipment Co., 918 F.2d 1491 (11th Cir. 1990), had "considered facts similar to those present here" and had ruled: "'[I]n the pretrial order, which supersedes the pleadings . . ., [the defendant abandoned its 'failure to state a claim' defense . . . . Thus, the issue was not preserved in the district court.'" Id. at 1494 (quoted in Youren, 343 F.3d at 1304). This case presents the same situation that was before the Court in Youren; in both cases, the parties initially alleged matters in pleadings (a defense in Youren and remedies here) that were dropped from the pretrial order. Accordingly, the Tenth

Circuit's conclusion in Youren ­ that even though the matter was initially raised in a pleading, the failure to raise it in the pretrial was an abandonment or waiver, id. at 1305 ­ is equally applicable here. See also Gowan v. U.S. Dep't of Air Force, 148 F.3d 1182, 1192 (10th Cir. 1982) ("In assessing whether an issue was preserved where it was omitted from a pretrial order, we have held that because a party `did not include this issue in the pre-trial report,...it was not part of the case before the district court'"). Accordingly, because Cadorna has not shown that a manifest injustice will result from the denial of the Motion to Amend, under Rule 16(e), the Motion must be denied. CONCLUSION For the reasons set forth above, Denver requests the Court to deny Cadorna's Motion to Amend.

12

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

Document 197

Filed 10/10/2006

Page 13 of 14

Respectfully submitted this 10th day of October 2006. BROWNSTEIN HYATT & FARBER, P.C. s/ Richard P. Barkley_________________ Richard P. Barkley Jason B. Wesoky 410 17th Street, 22nd Floor Denver, Colorado 80202 (303) 223-1100 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

13

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

Document 197

Filed 10/10/2006

Page 14 of 14

CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 10TH day of October, 2006, a true and correct copy of the foregoing RESPONSE OF CITY AND COUNTY OF DENVER TO PLAINTIFF'S MOTION PURSUANT TO FED. R. CIV. P. 15(b) AND 16(e) TO AMEND PRETRIAL ORDER was served via the CM/ECF system to the following: Mark E. Brennan, Esq. Mark E. Brennan, P.C. P.O. Box 2556 Centennial, Colorado 80161 Email: [email protected]

_s/___________________________ Melissa Brenneman

14