Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01049-EWN-KLM

Document 111

Filed 09/16/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-OES MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFF'S THIRD MOTION TO COMPEL

The individual defendants, through the undersigned counsel, respond as follows to plaintiff's third motion to compel discovery (Doc. 102): 1. Plaintiff asserts that defendants have failed to provide full responses to

certain discovery requests. 2. Plaintiff's second motion to compel regarding this same matter was denied

on August 16, 2005, for failure to comply with Fed. R. Civ. P. 37(a)(2)(A) and D.C.COLO.LCivR 7.1(A). 3. In his third motion, plaintiff asserts that he has complied with Rule 37. The

undersigned, however, has not received any communication with respect to the discovery issues addressed in the motion to compel since the second motion to compel was denied. Plaintiff only makes a conclusory assertion that he has done so.

Case 1:04-cv-01049-EWN-KLM

Document 111

Filed 09/16/2005

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4.

Because plaintiff has failed to make any effort to resolve the dispute before

filing his motion to compel, the motion should again be denied pursuant to Fed. R. Civ. P. 37(a)(2)(A), which requires that the movant certify that he has made a good faith effort to confer with the undersigned counsel about the matter before resorting to court intervention. 5. The defendants also request that the Court permit the defendants to file this

response one day out of time. Defendants' response was due on September 15, 2005, but due to an oversight of counsel, it was not noticed until September 16, 2005. Plaintiff is not harmed by the late filing as his motion is without merit. DATED this 16th day of September, 2005. Respectfully submitted, WILLIAM J. LEONE UNITED STATES ATTORNEY

s/Mark S. Pestal Mark S. Pestal Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0408 [email protected]

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Case 1:04-cv-01049-EWN-KLM

Document 111

Filed 09/16/2005

Page 3 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 16, 2005 foregoing with the Clerk of Court using the ECF system. I electronically filed the

In addition, I hereby certify that I have mailed the document to the following non CM/ECF participants: Mitchell Thephilus Garraway #39096-066 Florence-USP P.O. Box 7000 Florence, CO 81226 And emailed it to: Benjamin J. Brieschke Chris Synsvoll Attorney-Advisor Legal Services Department Florence Correctional Complex P.O. Box 8500 Florence, CO 81226 [email protected] s/Mark S. Pestal Office of the United States Attorney 1225 17th Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0404

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