Free Motion to Continue - District Court of Colorado - Colorado

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

Document 59

Filed 04/05/2006

Page 1 of 5

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 IFSMO I NF RC N I U N EP R U N T FRCP 5( L I TF ' T O O O T N A C U S A T O ....6f ) Plaintiff, Nicolas Medrano, moves the Court pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, for a continuance of these proceedings to permit Plaintiff to obtain affidavits, take certain limited depositions, and utilize other discovery procedures to obtain the following ei neo uen onco wt D f dn s t n o S m a Jdm n v ec fr s i cnet n i e nat Mo o fr u m r ug et d i h e ' i y : a. the shooting; b. shooting; and c. The circumstances relating to an earlier shooting by Defendant of an unarmed The statements made by Defendant to Detective Amy Alonzo on the day of the The contents of the audiotape of the 911 call made by the Defendant on the day of

person, where Defendant also claimed that the victim had a weapon.

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

Document 59

Filed 04/05/2006

Page 2 of 5

In support of this Motion, Plaintiff states as follows: 1. Pursuant to the Scheduling Order in this matter, discovery closed on January 30,

2006, with the dispositive motion deadline set for February 28, 2006. 2. 3. On February 28, 2006, Plaintiff filed his Motion for Summary Judgment. Subsequent to the filing of that Motion, counsel for Plaintiff conferred with

counsel for Defendant pursuant to D.C.COLO.LCivR 7.1(A) to resolve evidentiary issues r an t Pa tf r pnet D f dn s o o.T og anm e o spli s e e t g o ln fs e os o e nat m t n huh u br f t u t n w r li i i' s e ' i i ao e reached, the parties were unable to reach stipulation concerning the three items which are the subject of this Motion. 4. With respect to items a and c, above: a. E i necne i t s f t sfc n frt proe o Pa tf v ec ocr n h e a s uf i t o h upss f ln fs d ng e c , ie e i i' pni Mo o, scn i d i t D ne Dsi At nysO f eR pr ( eot , ed g t n i otn n h evr ir t t re' fc eot " pr ) n i ae e tc o i R " admitted at the hearing before the Court on September 26, 2005. See E h iA t Pa tf xi t o ln fs b i i' Response to Motion for Summary Judgment, p. 18, l. 15-25. This Court may utilize evidentiary materials admitted in a prior proceeding in determining a motion for summary judgment. See Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1415 n. 12 (5th Cir. 1993). Such materials may include those admitted by the court pursuant to judicial notice. See E. H. Marhoefer, Jr., Co. v. Mount Sinai, Inc., 190 F. Supp. 355, 359 (E.D. Wis. 1961). Accordingly, Plaintiff submits that the Court can consider, for the purposes of the pending motion for summary judgment, the descriptions contained in the Report concerning the contents of the audiotape of the 911 and the circumstances relating to an earlier shooting by Defendant.

2

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

Document 59

Filed 04/05/2006

Page 3 of 5

b. In the event that the Court determines that it cannot consider such evidence, then Plaintiff requests a continuance of the proceedings to conduct the discovery necessary to submit evidence on these issues in a form contemplated by Rule 56. This discovery will include: i. With respect to the 911 audiotape, Plaintiff anticipates that Defendant will produce a copy, and stipulate that it is authentic and is admissible for the purposes of the motion for summary judgment. ii. With respect to the earlier shooting, Plaintiff requests leave of Court to depose Plaintiff solely to establish those facts set forth in the second full paragraph of p. 11 of the Report. Plaintiff recognizes that the Court has ruled that Plaintiff may not depose Defendant, and Plaintiff does not generally contest that ruling. However, the particular circumstances related t t ss e cul wt t D f dn s n ii ns t sple osc f t poi a o h i u, op d i h e nat uwln es o t u t t uh a s rv e n i s e h e e ' lg i a c, d appropriate basis for limited relief from the ruling for the purposes set forth above. Alternatively, Plaintiff requests a 30 day continuance, and permission to locate and depose other witnesses to that prior shooting. 5. With respect to item b, Defendant made statements to Detective Amy Alonzo at

the scene of the shooting that were inconsistent with his later statements concerning those events. See E h i C p1, . ,n E . t Pa tf R sos t Mo o fr u m r Jdm n xi t , .1 n 9 ad x D o ln fs epneo t n o S m a ug et bs i i' i y . Plaintiff has requested a copy of a videotaped statement made by Detective Alonzo, and may reach some stipulation with Defendant concerning that videotape. Plaintiff accordingly requests a 30 day continuance, and provisional permission to conduct the discovery necessary to obtain evidence from Detective Alonzo on these issues if no stipulation is reached regarding her videotaped statement.

3

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

Document 59

Filed 04/05/2006

Page 4 of 5

6.

Plaintiff acknowledges that the deadline for discovery has passed. However, the

pending motion for summary judgment was not filed until one month after the discovery deadline. Plaintiff had no reason to utilize discovery to obtain these facts during the discovery pr d s c ( h d nt nw t ths i us ol b r sdi D f dn s o o,n e o,i e a e i o ko h t e s e w u e a e n e nat m t n ad i n ) d a e s d i e ' i (b) this evidence has been thoroughly investigated by the Denver District Att nysO f e o e' fc, r i making duplicative discovery by Plaintiff unnecessary for trial preparation purposes. Rule 56(f) contemplates such a situation, and permits the Court to grant a continuance to allow a party to obtain discovery or otherwise submit evidence in the form required by Rule 56. 7. 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: April 5, 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

4

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

Document 59

Filed 04/05/2006

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on the 5th day of April, 2006, I electronically filed the foregoing P A N IFSMO I N F R C N I U N E P R U N T FRCP 5( with the L I TF ' TO O O T N A C U S A T O .... 6f ) 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]

5