Free Motion for Leave - District Court of Colorado - Colorado

Case 1:04-cv-00701-LTB-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-00701 LPB-MJW NICOLAS MEDRANO, Plaintiff, v. KARL SCHERCK, Defendant.

P A N IFSR Q E TF RL A ET FL S C N A N E C MP A N L I T F ' E U S O E V O I E E O D ME D D O L I T Plaintiff, Nicolas Medrano, requests leave of Court pursuant to F.R.C.P. 15(a) to amend his Complaint in this matter, in the form of the tendered Second Amended Complaint. In support of this Motion, Plaintiff states as follows: 1. Plaintiff initiated this action as a wrongful death action pursuant to Colorado law,

for the death of his son, Sergio Alejandro Medrano. 2. Defendant moved to dismiss, asserting that that he was immune from any claim

pursuant to the Colorado Governmental Immunity Act (CGIA), §24-10-106(1). 3. Based on this assertion, Plaintiff thereafter filed a First Amended Complaint,

adding a claim pursuant to 42 U.S.C. §1983.

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4.

The action was thereafter removed to this Court. After an evidentiary hearing, the

Court on September 26, 2005, granted the motion to dismiss, and dismissed the wrongful death claim. 5. Defendant on February 28, 2006, filed his Motion for Summary Judgment. In that

Motion, Defendant argued, inter alia, that since no estate had been opened for Sergio Alejandro Medrano, Plaintiff lacked capacity to bring this action, relying upon Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990) and Hill v. Martinez, 87 F.Supp. 2d 1115 (D. Colo. 2000). This defense o l k faai w s orsdn e nat A s e fa o cpcy a nta e iD f dn s nw r c t i e ' . 6. Plaintiff thereafter began the process of opening an estate. As shown by the attached

Letters, on May 1, 2006, Plaintiff was appointed as the personal representative of the Estate of Sergio Alejandro Medrano. 7. Pa tf t dr Scn A edd o p i seso m n t cpo ad 1 lnfse e d eod m ne C m ln ek t a ed h atn n ¶ ii' n e at e i

to reflect that Plaintiff brings this action both in his individual capacity and as personal representative of the Estate of Sergio Alejandro Medrano. No other amendments are proposed. 8. Paragraph 4a of the Scheduling Order in this matter set the deadline for joinder of

parties and the amendment of pleadings for December 20, 2004. That Order further provided that it may be altered or amended only upon a showing of good cause. However, F.R.C.P. 15(a) provides t t ae forta ed sa b f e g e w e j te o eu e. h l v o cut m n "hl er l i n hnu i s r is ae o l ey v sc qr " 9. Plaintiff submits that justice requires that leave be given to amend in this instance.

The instant Request does not seek to add or amend any factual averments or legal theories. Instead, the Request simply seeks to address the issue of capacity raised by Defendant in connection with the motion for summary judgment.

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10.

The capacity issue was not raised by the Defendant in his answer. Though Plaintiff

submits that Berry incorrectly applies federal law, and that the law should be as outlined in the Eeet Cr is oe eet eio i Carringer v. Rodgers, 331 F.3d 884 (11th Cir. 2003), l n iu' m r r n dc i n v h ct c sn when Defendant raised the capacity issue, Plaintiff proceeded to open an Estate to meet that contention. The proposed amendment simply seeks to chne h p ai sor l t lnfs ag t l d g t ee Pa tf e e n fc ii'

appointment as the personal representative of that Estate. See Hill, 87 F.Supp. 2d at 1129. 11. This amendment will not require any additional discovery or delay the trial,

presently scheduled for August 27, 2007. Plaintiff is seeking no additional damages, beyond those previously disclosed. Discovery is complete, and the case can proceed to trial as scheduled. 12. Counsel for Plaintiff certifies that he has conferred with counsel for Defendant

pursuant to D.C.COLO.LCivR 7.1(A), and that Defendant opposes this Motion. Dated: May 8, 2006 Respectfully submitted, HUTCHINSON BLACK AND COOK, LLC

By:

s/ William D. Meyer William D. Meyer, No. 6562 921 Walnut Street, Suite 200 Boulder, CO 80302 Phone: (303) 442-6514 Fax: (303) 442-6593 [email protected] ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE I hereby certify that on the 8th day of May, 2006, I electronically filed the foregoing P A N IFSR Q E T F R L A E T FL S C N A N E C MP A N L I TF ' E U S O E V O I E E O D ME D D O L I T with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected] [email protected]

s/ William D. Meyer William D. Meyer Attorneys for Plaintiffs Hutchinson Black and Cook, LLC 921 Walnut Street, Suite 200 Boulder, CO 80302 Phone: (303) 442-6514 Fax: (303) 442-6593 [email protected]

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