Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

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

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

P AN IFSMOTION PURSUANT TO Fed.R.Civ.P. 15(b) and 16(e) TO AMEND L ITF ' PRETRIAL ORDER TO CONFORM TO THE EVIDENCE AND/OR PREVENT MANIFEST INJUSTICE

Plaintiff William R. Cadorna hereby moves pursuant to Fed.R.Civ.P. 15(b) and 16(e) to amend the Pretrial Order to conform to the evidence and/or to prevent manifest injustice by an Order declaring that the Pretrial Order shall be treated for all purposes as having included explicit claims for liquidated damages and front pay in lieu of ri ttme t n e teA eDsr n t ni E l me t c ( D A) . As grounds e s e n u d rh g i i ai n mp y n A t" E " na c mi o o A for this motion, Plaintiff states: 1. In its August 7, 2006 R s o s t Pa t 'Moi fr e p n e o lnis t n o Entry of Partial if f o

Judgment for Back Pay and Liquidated Damages and R s o s t Pa t 'Moi fr e p n e o lnis t n o if f o Entry of Partial Judgment for Front Pay in Lieu of Reinstatement, Defendant City and C u t o D n e'( ee d n"" e v ro " i"contended that Plaintiff may not be o ny f e v r " fn a t D n e" rCt ) s D , y

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awarded liquidated damages or front pay because he allegedly did not intone the magic w rs liquidated damages"or explicitly request front pay as an alternative to od " , reinstatement, in the Pretrial Order. 2. On August 25, 2006, Pa t rpe t D fn a t rs o s s i s u d lni e ld o ee d n' e p n e wt o n if f i s h

reasoning and authority leaving no doubt that: (1) Fed.R.Civ.P. 54(c) requires that this Court grant Plaintiff all relief to which he is entitled, including liquidated damages and front pay in lieu of reinstatement; (2) Pa t 'p a i s i l i tePer l re, lnis l d g , c d g h rta O d r if e n nun f i were more than sufficient to preserve claims for liquidated damages and front pay in lieu of reinstatement; (3) Defendant in any event waived its objection(s) to those claims for relief; (4) Defendant impliedly consented at trial to amendment of the Pretrial Order to include those claims. 3. Plaintiff incorporates herein by reference, as if fully set forth herein, all

fc a a dl a ag me t h ofrdi h A g s 2 , 0 6R pe t D fn a t a t l n e l ru ns e f e n i u u t 5 2 0 e ls o ee d n' u g e s i s R s o s t Pa t 'Moi fr e p n e o lnis t n o Entry of Partial Judgment for Back Pay and Liquidated if f o Damages and R s o s t Pa t 'Moi fr e p n e o lnis t n o Entry of Partial Judgment for Front Pay if f o in Lieu of Reinstatement. 4. Out of an abundance of caution, Plaintiff wishes to hammer the final nail in

tec f i w i D fn a t o p si t Pa t 'c i for liquidated damages h of n h h ee d n' p o i n o lnis lms i n c s t o if a f and front pay must be buried by seeking post-trial amendment, or construction by this Court, of the Pretrial Order to include claims for liquidated damages and front pay. 5. Fed.R.Civ.P. 15(b) states:

(b) Amendments to Conform to the Evidence.

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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 result 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 such evidence. 6. Fed.R.Civ.P. 16(e) states:

(e) Pretrial Orders. After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice. 7. Defendant has been aware from the inception of this action that Plaintiff

sought liquidated damages for willful violation of the ADEA. Indeed, Plaintiff has never failed to claim willful age discrimination in any pleadings he has filed, including the Pretrial Order. 8. Paragraphs 0 a d1 5o Pa t 'it l y 5 2 0 C mp i , n 1 1 n 0 f lnisn i, i f i Ma 2 , 0 4 o ln a d f a at

o Pa t 'J l8 2 0 Frt me d dC mp i , x rslae e wl l g f lnis u , 0 4 i A n e o ln e pe s lg d iu a e if f y s at y l l f d ci n t n P rga h 1 5 1 4 1 7a d1 8o Pa t 'S c n A n e i r ai . aa rp s 2 , 3 , 3 n 3 f lnis e o d me d d s mi o if f Complaint expressly alleged willful age discrimination. Each complaint included an e pe s e n fri i tdd ma e i tePa e fr ee.Pa t 'D c mb r , x rs d ma d o lu ae a g sn h ry ro R lf lnis e e e 9 qd i if f

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2 0 Ii l u 2 () ) i l ue i l e a e t t o "D AL u ae 0 4 n i R l 6a( Ds o rsn u d n smae fA E i i td t a e 1 cs cd i qd D ma e "(. 0. a g s.p 1 ) 9. The December 20, 2004 Proposed Scheduling Order signed by Asst. City

At J c A We o y p 1 )n l e a e t t o "D AL u ae D ma e "p t . a k . s k (. 9 i u d n smae fA E i i td a g s (. y cd i qd 12), as did the December 27, 2004 Scheduling Order entered by Magistrate Judge Shaffer. (Scheduling Order, p. 1 )Pa t '"e aaeE u rt no Ca "nte 2 lnis S p rt n meai f lms i h if f o i A r 1 , 0 6Fn l rta O d r e i :" ) pi 7 2 0 i Per l re b g s ( ADEA: Willful violation of the Age l a i n 1 Discrimination in Employment Act, 29 U.S.C. §612, et seq., by terminating Plaintiff and refusing to reinstate him, or otherwise grant him full relief in lieu of reinstatement, for pee ta ra o s a di e pe s ea c u o h a e.(i l rta O d rp 3. rtx le s n , n n x rs rln e p n i g " Fn Per l re, . ) u i s a i 10. Likewise, Plaintiff has never failed to claim reinstatement or front pay in

any pleadings he has filed, including the Pretrial Order. 11. Pa t 'it l y 5 2 0 C mp i , u 8 2 0 Frt me d d lnisn i, i f i Ma 2 , 0 4 o ln J l , 0 4 i A n e f a at y s

Complaint, and February 28, 2006 Second Amended Complaint all expressly demanded reinstatement, or front pay in lieu of reinstatement, in the Prayer for Relief. Pa t 'D c mb r , 0 4Ii l u 2 () ) i l ue i l e a e t t o lnis e e e 9 2 0 n i R l 6a( Ds o rsn u d n smae f if f t a e 1 cs cd i d ma e tru hPa t 'n r lei me t g o 6 . T eD c mb r 0 2 0 a g s ho g lnis oma rte n a e f 5 h e e e 2 , 0 4 if f r Proposed Scheduling Order signed by Asst. City Atty. Jack A. Wesoky included an e t t o d ma e tru hPa t 'n r lei me t g o 6 , s i te smae f a g s ho g lnis oma rte n a e f 5 a d h i if f r d December 27, 2004 Scheduling Order entered by Magistrate Judge Shaffer. (c e un O d rp 1 ) Pa t '"e aaeE u rt no Ca "nteA r 1 , S h d lg re, . 1. lnis S p rt n meai f lms i h pi 7 i if f o i l 2006 Fn l rta O d r e i :" ) i Per l re b g s ( ADEA: Willful violation of the Age Discrimination a i n 1

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in Employment Act, 29 U.S.C. §612, et seq., by terminating Plaintiff and refusing to reinstate him, or otherwise grant him full relief in lieu of reinstatement, for pretextual ra o s a di e pe s ea c u o h a e.(i l rta O d rp 3(mp a i e s n , n n x rs rln e p n i g " Fn Per l re, . ) i s a i e hs s added). 12. D fn a t R s o s oPa t 'Moi fr ee d n' e p n et lnis t n o Entry of Partial Judgment s if f o

for Back Pay and Liquidated Damages and Response to Pa t 'Moi fr lnis t n o Entry of if f o Partial Judgment for Front Pay in Lieu of Reinstatement represent the first time that D fn a t a e e a s r dta Pa t 'ae ai s in his pleadings or in the Pretrial ee d n h s v r set h t lnis lg t n e if l o f Order were insufficient to support Pa t 'claims for statutorily-mandated liquidated lnis if f damages or front pay in lieu of reinstatement. 13. Therefore, under Fed.R.Civ.P. 16(e), and the precedents cited by

Defendant in its Response, Defendant waived its right to challenge an award of liquidated damages or front pay to Plaintiff. Youren v. Tintic School District, 343 F.3d 1296, 1304-05 (10th Cir. 2003). See, also, McGinnis v. Ingram Equipment Co., 918 F.2d 1491,1494 (11th Cr1 9 ) ee s b s do p i is auet s t ac i w s i 9 1( fn e a e n ln f fir o t e lm a . d a t' l f a a waived on appeal, in part because it was not raised in pretrial order); Canal Insurance Co. v. First General Insurance Co., 889 F.2d 604,609 (5th Cir. 1989)(trial court did not abuse discretion when it refused to consider a defense based on insurance policy exclusion because it was not raised in the pretrial order); Hotel Emp., et al., Health Trust v. Elks Lodge 1450, 827 F.2d 1324,1328-29 (9th Cir. 1987)(trial court properly refused to consider equitable defenses not raised in pretrial order).

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14.

Defendant did not object at trial t Pa t ' o teC ut, rf rdj y o lnis rh o rs pof e u if, f ' e r

instruction on willfulness on the ground that Plaintiff had waived his claim for liquidated d ma e .D fn a t i n t b c t tea ta i t co o tej y n" iu a g s ee d n d o o j to h c l s u t n fh u o wl l d e u nr i r l" f violation of the ADEA on the ground that Plaintiff had waived his claim for liquidated damages. Defendant did not object to the jury verdict form prepared by the Court on the basis that Plaintiff had waived any claim for liquidated damages. Defendant never asserted until after trial that Plaintiff had waived his claim for liquidated damages or front pay in lieu of reinstatement. 15. D fn a t c mp t fir t o j t i n t s w i i r h t o j t ee d n' o l e aue o b c d o j t a e t i to b c s e l e d u v sg e

to an award of liquidated damages or front pay to Plaintiff; it also constituted express or implied consent to amendment of the Final Pretrial Order (to the extent it did not expressly state a claim for liquidated damages or front pay) to include claims for liquidated damages and front pay. It would be manifestly unjust to deprive Plaintiff of all relief to which he is entitled when defendant cannot claim lack of notice or unfair prejudice. Hence, Fed.R.Civ.P. 15(b), 16(e), and 54(c) require that the Pretrial Order be treated for all purposes by this Court as amended to include claims for liquidated damages and front pay in lieu of reinstatement. Green Country Food Market v. Bottling Group, 371 F.3d 1275, 1280-81 (10th Cir. 2004); Portis v. First National Bank, 34 F.3d 325, 331-32 (5th Cir. 1994); Frank Music v. MGM, 772 F.2d 505, 515 (9th Cir. 1985); Sauers v. Alaska Barge and Transport, 600 F.2d 238, 244 (9th Cir. 1979); Stewart v. Shelby Tissue, 189 F.R.D. 357, 360-61 (W.D.Tenn. 1999).

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WHEREFORE, Plaintiff respectfully requests that this Honorable Court order that the Pretrial Order be treated for all purposes as having been amended to include explicit claims for liquidated damages and front pay in lieu of reinstatement, and ga t lnis rn Pa t ' if f Motion for Entry of Partial Judgment for Back Pay and Liquidated Damages forthwith. DATED this 15th day of September, 2006. Respectfully submitted,

/s/

Mark E. Brennan

Mark E. Brennan, P.C., #14012 P.O. Box 2556 Centennial, CO. 80161 Phone: (303) 552-9394 or 797-7687 Email: [email protected] ATTORNEY FOR PLAINTIFF

Certificate of Service The undersigned hereby certifies that on this 15th day of September, 2006, he sent a copy of this Pa t 'Motion to Amend Pretrial Order to Conform to the Evidence lnis if f and/or Prevent Manifest Injustice via electronic mail to the following person(s): Jack M. Wesoky, Esq. Christopher J. Lujan, Esq. Asst. City Attorney, Employment Div. 201 W. Colfax, Dept. 1108 Denver, CO. 80202

/s/

Mark E. Brennan

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