Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00687-PSF-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00687-PSF-BNB MARY JO LAIRD, Plaintiff, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GUNNISON, THE BOARD OF TRUSTEES FOR THE GUNNISON COUNTY PUBLIC LIBRARY, and PEGGY MARTIN, in her official capacity and individually, Defendants. ______________________________________________________________________________ DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT AND FILE PROPOSED THIRD AMENDED COMPLAINT ______________________________________________________________________________ Defendants, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GUNNISON, THE BOARD OF TRUSTEES FOR THE GUNNISON COUNTY PUBLIC LIBRARY, and PEGGY MARTIN, by their attorney, ERIC M. ZIPORIN, ESQ., hereby submit their Opposition to Plaintiff's Motion for Leave to Amend Complaint and File Proposed Third Amended Complaint as follows: 1. As is clear from the title of the Proposed Third Amended Complaint and Jury

Demand, Plaintiff is now attempting for the second time, again after much delay and at the eleventh hour in the face of deadline, to amend her allegations in this case. For the reasons outlined below, both Rule 15(a) of the Federal Rules of Civil Procedure and equitable considerations warrant the denial of Plaintiff's motion.

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2.

A brief description of the tortured procedural history of this case is necessary to

understand Defendants' opposition to Plaintiff's current motion to amend. Plaintiff filed her original Complaint on April 7, 2004, some eighteen (18) months ago. Defendants' filed their first Motion for Summary Judgment and supporting memorandum brief on May 24, 2004, a motion which sought the dismissal of the entirety of Plaintiff's claims for relief as a matter of law. On March 4, 2005, since there had yet to be a ruling on Defendants' Motion for Summary Judgment, the Court signed the Scheduling Order which included the agreement between the parties that discovery would be stayed pending the resolution of that motion. The Court entered a separate order to that effect on March 14, 2005. 3. On March 11, 2005, some ten months after Defendants' filed their Motion for

Summary Judgment, Plaintiff filed a motion seeking to amend her Complaint and filed her Verified Second Amended Complaint.1 It is of note that Plaintiff did not file any motion at that time to set aside the parties' agreement to stay discovery. On April 13, 2005, the Court granted Plaintiff's motion and accepted the Second Verified Complaint. As a result of that order, on April 29, 2005 Defendants again filed a Motion for Summary Judgment seeking the dismissal of all claims for relief alleged within the Second Amended Complaint. 4. On May 16, 2005, in addition to responding to Defendants' Motion for Summary

Judgment as well as seeking to strike that motion, Plaintiff filed a motion for an extension of time to respond to the motion in order to conduct discovery. Defendants filed an opposition to that request, and following a hearing, the Court entered an order on June 15, 2005 granting Plaintiff's request to conduct discovery. That order provided Plaintiff a deadline of October 14,
As correctly pointed out by Plaintiff in her most recent motion to amend, this was actually the first amendment to the original Complaint.
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2005 in which to conduct discovery and respond to Defendants' Motion for Summary Judgment. To put things in perspective, this deadline was over seventeen (17) months after Defendants filed their first Motion for Summary Judgment. 5. Following the Court's order on June 15, 2005, Defendants did not hear from

Plaintiff about any discovery until August 23, 2005 when written discovery was received along with subpoenas for depositions. Plaintiff and Defendants agreed to schedule the depositions of County Manager John DeVore, Personnel Director Debbie Moore, and Library Director Peggy Martin on September 15 ­ 16, 2005. At no time during these discussions did Plaintiff indicate that she intended to amend her Verified Second Amended Complaint. 6. On September 9, 2005, over seventeen (17) months after the original complaint

was filed, Nathan Davidovich, Esq. entered his appearance on behalf of Plaintiff. Due to conflicts on Mr. Davidovich's schedule, the depositions were rescheduled to and did occur on September 20 ­ 21, 2005. Upon entering his appearance, Mr. Davidovich did indicate that he intended to amend the Verified Second Amended Complaint; however, such did not occur until after the depositions took place and, more significantly, until eleven (11) days prior to Plaintiff's deadline to respond to the pending motion. 7. Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may

amend a pleading once as a matter of course at any time prior to the filing of a responsive pleading. The rule also states that any additional amendment can only occur by leave of the Court. See, FED.R.CIV.P. 15(a). According to Fed.R.Civ.P. 15(a), "[r]efusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or

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futility of amendment." Frank v. U.S. West, Inc., 3 F.3d 1356, 1365 (10th Cir. 1993). Plaintiff cannot satisfy the requirements of this rule as a result of her undue delay, the undue prejudice which would be imposed upon Defendants, as well as the futility of the amendment as Plaintiff has not properly stated a claim within the Proposed Third Amended Complaint and Jury Demand (hereinafter "Third Complaint") which would entitle her to relief. 8. Initially, Plaintiff's undue delay in the attempted filing of the Third Complaint in

and of itself warrants a denial of her motion. Plaintiff filed her original Complaint on April 7, 2004. Any deficiencies in that Complaint, if not known to Plaintiff at the time, were made clear to her when Defendants filed their first Motion for Summary Judgment on May 24, 2004, and if not by then, certainly by the time Defendants filed their second Motion for Summary Judgment on April 29, 2005. For some unknown reason, Plaintiff waited roughly ten months to file her Verified Second Amended Complaint, and has now waited until eleven (11) days prior to her deadline to respond to Defendants' second Motion for Summary Judgment to again seek to amend her Complaint. If accepted by the Court, Defendants would have had to have waited over eighteen (18) months in this case to finally be working under an operative pleading. 9. Plaintiff's Third Complaint has two significant additions: (1) the adding of John

DeVore as a Defendant; and (2) the addition of a claim pursuant to 42 U.S.C. § 1985 against all Defendants. In her recent motion, Plaintiff claims that as a result of the recent depositions and further legal research, her counsel has determined that Mr. DeVore needs to be added as a Defendant and "that the Complaint in general needed to be amended to property set forth Plaintiff's claims for relief." [See, Plaintiff's Motion at ¶ 2].

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10.

In Pumpco, Inc., the Concrete Pumping Co. v. Schenker Int'l, Inc., 204 F.R.D.

667, 669 (D. Colo. 2001), this Court found that undue delay did not exist within the meaning of Rule 15(a) when the party postponed seeking leave to amend until the identities of the people involved became disclosed or known to the moving party. Here, it cannot be disputed that Plaintiff knew the identity of Mr. DeVore long before being laid off in September of 2002, and more specifically, knew that Mr. DeVore was the one who denied her request for an appeal since he was the one who sent her a letter to that effect on September 30, 2002. [See, correspondence from John DeVore to Mary Jo Laird dated September 30, 2002 appended hereto as Attachment A]. 11. With regard to the proposed claim pursuant to 42 U.S.C. § 1985, setting aside for

the moment that there was nothing developed in the record from the recent depositions which would support such a claim, even assuming a conspiracy existed, Plaintiff would have been aware of any facts supporting such a claim long before the filing of the Third Complaint. Assuming a conspiracy existed, Plaintiff would have known of Mr. DeVore's alleged involvement at the time she received the letter from him on September 30, 2002. As such, the circumstances here are distinguishable from those in Pumpco, Inc., and the unexplained undue delay warrants a denial of Plaintiff's motion. 12. Plaintiff claims that Defendants would not be prejudiced by the Court's

acceptance of the Third Complaint because the trial has not been set and since Defendants have yet to engage in discovery. Defendants would most certainly be prejudiced should the Court grant Plaintiff's motion. Defendants have had a dispositive motion pending in one form or another since May of 2004. Defendants still firmly believe that the motion has strong merit and

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will result in the dismissal of this lawsuit. Defendants have incurred significant fees and costs in briefing two dispositive motions and are entitled to a ruling on the merits of that motion after already having had to wait seventeen (17) months. Should the Court accept the Third Complaint, Defendants would be forced to incur additional and unnecessary expense in filing a third dispositive motion.2 While the Court is likely sympathetic to Plaintiff's right to have the merits of her case heard, it should equally be sympathetic to Defendants' right to a timely resolution of this lawsuit. 13. Finally, Plaintiff's request should be denied as her proposed amendments are

futile and still do not adequately state claims for which she would be entitled to relief. Within her Verified Second Amended Complaint, Plaintiff alleges the following claims for relief: (1) First Claim for Relief ­ denial of due her process property right in her employment against all Defendants; (2) Second Claim for Relief ­ denial of her due process rights under the Colorado Constitution; (3) Third Claim for Relief ­ breach of implied contract under the Gunnison County employment manual; (4) Fourth Claim for Relief ­ breach of implied contract under the Gunnison County employment manual by denying her a grievance hearing; and (5) Fifth Claim for Relief ­ breach of contract (willful and wanton). 14. Plaintiff's Third Complaint alleges the following: (1) First Claim for Relief ­ 42

U.S.C. § 1983, denial of due process, against all Defendants; (2) Second Claim for Relief ­ conspiracy to deprive Plaintiff of her due process rights pursuant to 42 U.S.C. § 1983; (3) Third Claim for Relief ­ violation of Colorado Constitution, Article II, Section 25; (4) Fourth Claim
Defendants had originally intended to not engage in any discovery in this case until the resolution of their first Motion for Summary Judgment. A stay of all discovery was agreed to by the parties and ordered by the Court. Subsequent to the Court's order of June 15, 2005, Defendants did not believe that discovery was necessary prior to the deadline of October 14, 2005, but fully intend to propound written discovery to Plaintiff and schedule Plaintiff's deposition prior to the discovery deadline of December 2, 2005.
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for Relief ­ Willful Breach of Contract/Express Covenant of Good Faith and Fair Dealing; and (5) Fifth Claim for Relief ­ Promissory Estoppel. 15. With regard to Plaintiff's proposed First and Second claims for relief, these

proposed amendments are futile in that Plaintiff cannot establish that she had a due process property right in her employment as she was an at-will employee. As was made clear during the recent round of depositions, Plaintiff was not entitled to the appeal procedure within the Personnel Policies since her separation was not the result of a "dismissal," but instead a layoff due to a reduction in work force. Plaintiff's lack of entitlement to an appeal is evident from a simple reading of the Third Complaint. Within ¶ 10 of the Third Complaint, at p. 5, under "13.1," the Personnel Policies make it clear that an employee may request a formal hearing "only after receiving ... a written notice of dismissal." On that same page, the term "Dismissal" is defined as "an involuntary separation for cause from County employment." (emphasis added). Plaintiff's separation of employment was not "for cause," but instead a "layoff" which includes within its definition the "abolishment of a position." [See, Third Complaint at p. 5]. 16. Plaintiff's proposed Third Claim for Relief is for an alleged violation of the

Colorado Constitution. An amendment in this regard would be futile as there does not exist a private right of action under the Colorado Constitution similar to that of under the United States Constitution by way of 42 U.S.C. § 1983. In Vanderhurst v. Colorado Mt. College Dist., 16 F.Supp.2d 1297, 1304 (D. Colo. 1998), the court held that "[n]o statutory equivalent [to 42 U.S.C. § 1983] exists under Colorado state law to enforce the state constitution." 17. Plaintiff's proposed Fourth Claim for Relief for Breach of Contract is futile since

she at no time had an employment contract with Defendants. Such is not even alleged in the

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Third Complaint. Instead, it is alleged that the Personnel Policies constituted an employment agreement. Again, as is clear from a reading of Plaintiff's own proposed Third Complaint, the Personnel Policies did not require Defendants to grant Plaintiff's request for a hearing. For these same reasons, Plaintiff's Fifth Claim for Relief for Promissory Estoppel is futile as the Personnel Policies cannot be reasonably interpreted to have "promised" Plaintiff with a post-separation hearing. 18. For these reasons, Defendants respectfully request that the Court exercise its

discretion under Fed.R.Civ.P. 15(a) and deny Plaintiff's motion to again amend her Complaint. The information purported to be relied upon in support of the amendments within the Third Complaint was available to Plaintiff at the time she filed her original Complaint. Defendants should not be forced to bear the delay and cost associated with Plaintiff's failure to timely assert these claims. WHEREFORE, Defendants respectfully request that the Court deny Plaintiff's Motion for Leave to Amend Complaint and File Proposed Third Amended Complaint.

Respectfully submitted,

s/ Eric M. Ziporin Eric M. Ziporin, Esq. SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: 303-320-0509 Facsimile: 303-320-0210 Attorney for Defendants

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 7th day of October, 2005, I electronically filed a true and correct copy of the above and foregoing DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT AND FILE PROPOSED THIRD AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Nathan Davidovich, Esq. [email protected] Ronald H. Nemirow, Esq. [email protected]

s/ Barbara A. Ortell Barbara A. Ortell E-mail: [email protected] Secretary for Eric M. Ziporin

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