Free Reply to Response to Motion - District Court of Colorado - Colorado

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

Document 40

Filed 08/03/2005

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-0701-LTB-MJW NICOLAS MEDRANO, Plaintiff, v. KARL SCHERCK, Defendant.

REPLY TO SECOND SUPPLEMENTAL RESPONSE TO MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 37(d) AND 41(b)

Defendant, KARL SCHERCK, by his attorneys, THOMAS S. RICE and GILLIAN FLENER, of the law firm SENTER GOLDFARB & RICE, L.L.C., hereby submits the following Reply to Plaintiff's Second Supplemental Response to Motion to Dismiss Pursuant to Fed.R.Civ.P. 37(d) and 41(b) [Dkt. # 39]. 1. As a preliminary matter, Defendant hereby reasserts the arguments contained in

his Reply in Support of Motion to Dismiss Pursuant to Fed.R.Civ.P. 37(d) and 41(b) [Dkt. # 36]. 2. In his Second Supplemental Response to Motion to Dismiss Pursuant to

Fed.R.Civ.P. 37(d) and 41(b), Plaintiff seems to urge that because Defendant did not file a motion to compel with the Court, and the Court did not subsequently enter an order compelling discovery, that Defendant cannot seek sanctions for failing to comply with a Court order. However, Fed.R.Civ.P. 37(d) does not contain any requirement that a party must file a motion to compel discovery, or that the opposing party must then fail to comply with such an order.

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

Document 40

Filed 08/03/2005

Page 2 of 4

Rather, the only condition precedent to filing a motion pursuant to Fed.R.Civ.P. 37(d) is a conferral requirement, which the undersigned met prior to filing the Motion to Dismiss Pursuant to Fed.R.Civ.P. 37(d) and 41(b). [See, Motion to Dismiss Pursuant to Fed.R.Civ.P. 37(d) and 41(b) at ¶ 10.] 3. Plaintiff also seems to focus on his representation in his affidavit that there was no

willful misconduct on his part. This assertion is misleading as in the preceding paragraph, Plaintiff cites to advisory committee notes regarding the amendment to Rule 37(d), which state that "the requirement that the failure to appear or respond be `willful' is eliminated." 4. Plaintiff focuses much of his argument on the degree of actual prejudice to the

Defendant and asserts that Defendant Scherck has not been prejudiced by Plaintiff's failure to respond to written discovery and appear for his deposition. Plaintiff argues that he has not impeded Defendant from investigation and discovery and that Defendant has taken no other depositions or conducted any additional discovery. From a common sense standpoint, Defendant would not necessarily proceed with the factual development of a case when there has been absolutely no indication for almost 19 months that Plaintiff intended to proceed with this lawsuit. In fact, Plaintiff's counsels' Motions to Withdraw suggest the exact opposite. Accordingly, this argument lacks merit. 5. Plaintiff also asserts that the "public interest" should be considered in the

evaluation of whether or not to dismiss the case for failure to prosecute and cooperate in discovery. Again, this argument is wholly inconsistent with Plaintiff's actions in this case to date. Plaintiff has done essentially nothing to advance his case. Plaintiff's counsel asserts that he has participated in this case by submitting Plaintiff's Initial Disclosures and working with the

2

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

Document 40

Filed 08/03/2005

Page 3 of 4

undersigned to submit a Scheduling Order to the Court. However, that is the extent of Plaintiff's involvement in this case. 6. Significantly, Plaintiff has failed to appear for his own properly noticed

deposition scheduled to occur on April 1, 2005, he has failed to provide any documentation to Defendant in support of his claims, he has failed to submit written responses to properly served written discovery which were initially due over five months ago, and has wholly failed to participate in any Court proceedings as required by the Federal Rule of Civil Procedure. Furthermore, Plaintiff's lack of participation in this lawsuit has necessitated significant action by the Court. [See, Motion to Dismiss Pursuant to Fed.R.Civ.P. 37(d) and 41(b) at ¶¶ 6 and 7.] 7. Plaintiff suggests that he should only be required to attend a mutually convenient

deposition and respond to his written discovery and that there is plenty of time to proceed to trial in approximately four months and that Defendant would not be prejudiced by same. Plaintiff further suggests that Defendant has the burden of showing cause why additional time is needed for discovery or other trial preparation. However, it is the Plaintiff who has delayed this case for 19 months. The discovery deadline passed about three months ago and the deadline to file dispositive motions passed over a month ago. 8. Should this Court allow Plaintiff to proceed after such significant time has passed

and when not a scintilla of discovery has been conducted in this case, then it absolutely necessary that Defendant be afforded the opportunity to develop a complete factual record, conduct a complete investigation into Plaintiff's allegations, and complete discovery so that Defendant may prepare for and properly defend himself at trial.

3

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

Document 40

Filed 08/03/2005

Page 4 of 4

9.

Based on the foregoing, should the Court allow Plaintiff to proceed, Defendant

respectfully requests that a new Scheduling Order be entered in this case including a new deadline to complete discovery and a new dispositive motion deadline. Additionally, Defendant would ask that the currently scheduled trial date of December 5, 2005 be vacated and a new trial date be set to accommodate new discovery and dispositive motion deadlines. Respectfully submitted,

s/ Gillian Flener Gillian Flener Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: [email protected] Attorney for Defendant CERTIFICATE OF MAILING I HEREBY CERTIFY that on this 3rd day of August, 2005, a true and correct copy of the above and foregoing REPLY TO SECOND SUPPLEMENTAL RESPONSE TO MOTION TO DISMISSPURSUANT TO FED.R.CIV.P. 37(d) AND 41(b) with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following email addresses: William D. Meyer, Esq. Hutchinson Black and Cook, LLC 921 Walnut Street, Suite 200 Boulder, Colorado 80302 [email protected] David J. Bruno, Esq. Bruno, Bruno & Colin, P.C. 1560 Broadway, Suite 1099 Denver, Colorado 80202 [email protected]

s/ Stephanie Nelson Stephanie Nelson E-mail: [email protected] Secretary for Attorney Gillian Flener

00191409

4