Free 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 OBJECTION TO MOTION FOR CONTINUANCE OF TRIAL AND TO RE-OPEN DISCOVERY Defendant, (hereafter "Denver"), by undersigned counsel, objects to Plaintiff's Motion for a Continuance of Trial and to Re-Open Discovery. Plaintiff's motion attempts to resurrect race claims and claims against individually named defendants that were dismissed pursuant to his own Motion for Leave to File Second Amended Complaint filed on February 28, 2006. Magistrate Judge Shaffer granted Plaintiff's Motion specifically to narrow the claims asserted, to eliminate individually named Defendants, and to clarify the basis of the claims against the only remaining defendant in the case ­ the City and County of Denver. Order Granting Unopposed Motion by Plaintiff For Leave to File Second Amended Complaint, March 1, 2006. Plaintiff asserts that manifest injustice will occur if his motion is not granted. However, a review of the record demonstrates that Plaintiff had ample time to conduct the discovery he now seeks, that

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he is estopped from resurrecting claims he abandoned by filing a Second Amended Complaint, and that Plaintiff has not met the legal standards to support a continuance or re-opening discovery. STATEMENT OF FACTS 1. On July 8, 2004, Plaintiff filed his First Amended Complaint against

Denver and four individuals, James Sestrich, Kelley S. Caldwell, Joseph R. Hart, and Frank J. Hoffman in their individual capacities asserting various claims against the Defendants - race, color, national origin discrimination and retaliation in violation of 42 U.S.C. §§1981 and 1983, Title VII, the ADEA, and the ADA and due process claims under 42 U.S.C. § 1983. 2. Discovery opened on December 22, 2004, the day the Scheduling Order

was entered, and ended more than one year later on the extended cut-off date of February 6, 2006. 3. On February 28, 2006, one day before the deadline to file dispositive

motions, Plaintiff filed his "Unopposed Motion by Plaintiff for Leave to File Second Amended Complaint," articulating with specificity his reasons for seeking leave to file that Second Amended Complaint - to "narrow claims asserted, to eliminate the individual Defendants in this action...and to clarify the basis of his claims against the remaining Defendant, the City and County of Denver." Unopposed Motion by Plaintiff For Leave to File Second Amended Complaint, p. 1. 4. For these reasons Magistrate Judge Shaffer granted the Plaintiff's Motion

on March 1, 2006, citing the Plaintiff's rationale (i.e. narrowing of claims, elimination of

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individually named Defendants, and the desire to clarify claims against Denver) as the basis for granting the motion. Order Granting Unopposed Motion by Plaintiff for Leave to File Second Amended Complaint, p.1. 5. Plaintiff filed his Second Amended Complaint on February 28, 2006

naming only Denver as a Defendant and making only three claims ­ 1) due process violations pursuant to 42 U.S.C. § 1983, 2) violation of the ADEA, and 3) violation of the ADA. Plaintiff's Second Amended Complaint ­ Jury Trial Demanded, pp. 1-2. The individuals named in the earlier complaint are conspicuously absent, Id. and the complaint makes no race or national origin claims against Denver. 6. Denver filed its Motion and Brief in Support of Summary Judgment on

March 8, 2006 and Plaintiff filed for summary judgment on his age and disability claims on March 1, 2006. Neither party addressed any issues connected to race or national origin discrimination or with respect to any claims against individuals. 7. The Final Pretrial Order was signed by Magistrate Judge Shaffer on April

17, 2006. In the section reserved for Plaintiff's articulation of claims, he asserts only age, disability and due process claims against Denver, and specifically advises that "he eliminated individual Defendant[s] and his race claims." Final Pretrial Order, p.3. Denver asserted its defenses to these claims. Id. at pp. 10-15. The Order made clear to the parties that "it will control the subsequent course of this action and the trial." Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (issues and defenses not included in the final pretrial order are waived.)

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I.

LEGAL STANDARDS

A motion to continue is directed to the sound discretion of the court. Robinson v. United States, 718 F.2d 336, 338 n.1 (10th Cir. 1983). In exercising its discretion the Court considers four factors ­ 1) the diligence of the party requesting the continuance, 2) the likelihood that the continuance, if granted, would accomplish the purpose underlying the movant's expressed need for the continuance, 3) the inconvenience to the opposing party, its witnesses and the Court resulting from the continuance, and 4) the need asserted for the continuance and the harm to the movant if denied. United States v. West, 828 F.2d 1468, 1469-70 (10th Cir. 1987); Matthews v. C.E.C. Indus. Corp., 1999 U.S. App. LEXIS 33396 (10th Cir, Case No. 98-4184 n.4) (applying West's standards to a civil case). Similarly, the Court has discretion to re-open discovery, and factors to consider include: "1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence." Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987) (citations omitted). The Court should exercise its discretion to deny Plaintiff's motion. II. Plaintiff Voluntarily Dismissed His Race Claims and Claims Against Individual Defendants

In paragraph three of his motion, Plaintiff states that he "must be permitted to reinstate race and §1983 claims that he previously withdrew . . . . " Plaintiff did not

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merely withdraw his claims - he affirmatively moved to file an amended complaint to eliminate his race claims and any claims against individually-named Defendants and to proceed only against Denver. Although Plaintiff did not frame his motion to amend his complaint in terms of "dismissal," the semantics are not controlling. When an amended complaint is filed it controls the subsequent litigation. Davis v. TXO Production Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (amended complaint "supersedes the original and renders it of no legal effect"). This rule establishes to which complaint the opposing party should direct any subsequent motion Id. That is precisely what happened here ­ Defendant directed its summary judgment motion to the Second Amended Complaint and the three claims made therein and Plaintiff sought partial summary judgment on his age and disability claims. Indeed the parties captioned all pleadings filed after the Second Amended Complaint as Cadorna v. City and County of Denver, only, not et. al and with no other defendants. Perhaps Plaintiff is now having "buyer's remorse" for his action in filing the Second Amended Complaint and eliminating his race claim and claims against individuals, but that is not an appropriate basis to support his motion. In its Reply Brief in Support of Summary Judgment, Denver argued that the Plaintiff's §1983 were against the municipality only and Plaintiff's reliance on cases involving individual defendants were inapposite.1

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Denver noted that Plaintiff's reliance on Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004) and Blasio v. Novello, 344 F.3d 292 (2d Cir. 2003) was misplaced because they supported actions against government officials in their individual capacities which is irrelevant in this case as Plaintiff dismissed the individually named Defendants. See Defendant's Reply in Support of Motion for Summary Judgment, p.3.

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Plaintiff's suggestion that the viability of his Second Amended Complaint was somehow predicated on settlement discussions between the parties that allegedly "failed" is not supported by the record. Although Plaintiff referenced settlement documents in his motion to amend his complaint, he never indicated that his motion to amend his complaint was contingent upon finalizing those settlement documents. And indeed, the reason those settlement documents have not been finalized is because of time constraints on counsel ­ not because of a "failure" between the parties. See Exhibit 1, e-mail communications between counsel, particularly p. 12. Simply put, after careful consideration and research, Plaintiff voluntarily abandoned his race claims and claims against individual defendants and elected to proceed against Denver only and only on due process, ADEA and ADA claims. See Exhibit 1, p. 6. His claim of "manifest injustice" if discovery were not re-opened and the trial postponed is specious. III. The Criminal Case Against Stan Ford is Irrelevant to this Lawsuit and Does Not Support Plaintiff's Motion

Plaintiff's reliance on the criminal case against Stan Ford does not support a finding sufficient to continue the trial and re-open discovery. Plaintiff's assertion that Denver firefighters are active in a white supremacist organization and that these alleged white supremacists played a role in Plaintiff's dismissal from the Department are quite simply untrue. (See Exhibit 2, affidavit of Fire Chief Trujillo). Plaintiff makes this bold statement with no specificity in McCarthy-like fashion hoping it will gain him some advantage in this litigation. Plaintiff's allegation that Denver has "issued an [unlawful order] to all Denver Firefighters (even those below the executive ranks that might be in 6

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a position to bind the City by their statements) that they are not to speak with Plaintiff or his counsel, on pain of serious discipline" is false. Id.2 And another example of the lengths to which Plaintiff will go to castigate Denver and those who he seeks to blame for his circumstances. Plaintiff argues that Denver's decision to suspend Mr. Ford without pay (pursuant to Denver City Charter §9.4.17) who is 36 years old and white, while a felony charge is pending, while dismissing the older Plaintiff of Filipino descent for an alleged lesser offense, is evidence of disparate treatment that demands a re-opening of discovery. Plaintiff presumably seeks a re-opening of discovery to resurrect claims based on race and national origin discrimination. Note that he makes no allegation that any decision potential decision maker be it the Chief of the Fire Department, the Manager of Safety or the Civil Service Commission Hearing Officer or Commissioners, are among the "white supremacists." Also, because Plaintiff dismissed his race claims when he filed his Second Amended Complaint, any evidence in connection with white supremacist groups that arose in the Ford trial would be irrelevant to the Plaintiff's existing age discrimination and substantive due process claims. Finally, Plaintiff's counsel claims that he was "completely unaware until late last week" of the Ford criminal proceedings as he points to his wife as the source of his epiphany. See Plaintiff's Motion, ¶5. As this Court is aware, the Ford case was not conducted in a vacuum. It was a highly publicized matter that has been in the public

Plaintiff could have sought to take depositions regarding the Stan Ford matter if he believed it relevant to the lawsuit. To suggest that but for the "unlawful order" that Denver made (which it categorically denies), Plaintiff's counsel could have talked to anyone disregards the rules of discovery.

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focus for some time. As shown by an article on DenverPost.com, (See Exhibit 3), Mr. Ford was initially charged with two counts of illegally selling a firearm on November 22, 2005, and that article specifically referenced the fact that Mr. Ford was suspended without pay. The discovery deadline in this case, after several extensions, was

February 6, 2006. January 24, 2006 Minute Order. Because criminal charges are a matter of public record and the Plaintiff had at least two months to seek discovery from the Denver Fire Department on matters related to the Ford investigation, he cannot now claim unfair surprise and he should not now be able to claim manifest injustice because of his distaste for the local news services. IV. Allegations of Misconduct by Civil Service Chairman Chris Olson Do Not Support Plaintiff's Motion

For his motion Plaintiff also relies on a May 19, 2006 article about Denver Civil Service Commission Chairman Chris Olson reporting that "the State Division of Civil Rights found that Olson had retaliated against [Englewood Police] Officer Deidre Scott after she filed a complaint for unequal treatment." (See Exhibit 3). The article continues that Englewood fired the officer because she is a female. Id. Plaintiff argues that Olson's vote against him at the appeal stage should serve as grounds for a continuance of trial and additional discovery in this matter. The finding of probable cause that the City of Englewood discriminated against Officer Scott because of her gender is irrelevant to the Plaintiff's age and substantive due process claims. Assuming discovery were permitted on this issue, the information pertains to gender discrimination and does not go to Plaintiff's existing claims.

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Finally, Plaintiff's counsel had ample time to seek to depose Mr. Olson during the discovery period (assuming without conceding such would be proper). See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1139 (10th Cir. 1999).3 Although this article was dated on May 19, the underlying lawsuit was filed many months ago and Plaintiff's counsel had ample time to inquire about these affairs and his failure to do so before the close of discovery should not now afford him a second bite at this apple.4 V. Denver will be Prejudiced if Plaintiff's Motion is Granted

In addition to Plaintiff's failure to establish the need for more discovery and why he failed to previously pursue such discovery, if Plaintiff's motion is granted Denver will be prejudiced. Denver has spent substantial time preparing for the trial scheduled to being on 19 June 2006 ­ the legal staff and various members of the Fire Department has focused on preparing for trial. Plaintiff filed his motion at almost midnight on 07 June 2006, a mere seven business days before trial is to begin. Moreover, if the Court allows Plaintiff to continue the trial and re-open discovery, it will create further resource burdens on Denver. And if the Court allows this because of Plaintiff's ultimate objective to re-assert claims against individual defendants, it will have a significant negative

Indeed, Plaintiff's counsel apparently is under the impression he can contact Olson directly and without Court permission, as he did in the e-mail attached as Exhibit D to his motion, in which he taunts Olson that cross-examining him is going to be "FUN." Indeed, Denver had intended to file a motion for sanctions based on this and other inappropriate behavior, but since Plaintiff's counsel attached it himself, Denver would simply request that the Court admonish Plaintiff's Counsel to engage in appropriate and professional communication for the duration of this case. 4 The final paragraphs of the Plaintiff's motion are devoted to arguing for disqualification of the City Attorney's Office from further representation in this case. See Plaintiff's Motion, ¶29. This past weekend, Plaintiff filed a separate motion to disqualify the City Attorney's Office from representing Denver in this action. Denver will be filing a separate response to the motion and therefore will not address the merits of that motion here. As to the instant motion, however, none of the arguments in support of the motion to disqualify support Plaintiff's motion for a continuance of trial and a re-opening of discovery as further delay will not lead to relevant evidence relating to the claims at issue.

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impact on individuals against whom claims previously were dismissed. Yet Plaintiff offers no reason for his eleventh-hour delay other than his counsel does not read the newspapers. This is unfair to Denver, and should not be countenanced by the Court. CONCLUSION The Plaintiff's allegations of white supremacy groups, "exotic human-hunting weaponry," improper conduct by a Civil Service Commissioner, and improper communications between the City Attorney's Office and a client are a last-ditch effort to continue the trial and re-open discovery in the hopes of resurrecting race claims and previously dismissed defendants. These allegations are not the stuff of good cause. Plaintiff has not satisfied the legal standards to support this very belated motion. WHEREFORE, Plaintiff's Motion should be denied and Denver awarded its attorney's fees in responding to the Motion. Respectfully submitted this 13th day of June 2006. By: 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]

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 13, 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 P. Helm Cristina P. Helm, Paralegal Office of the Denver City Attorney

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