Free Response - District Court of Colorado - Colorado

Case 1:04-cv-00685-EWN-OES

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Filed 08/19/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-N-0685-EWN-OES JASON STEINBACH, Plaintiff, v. OMNI PROPERTIES, INC., Defendant. _____________________________________________________________________________ RESPONSE TO PLAINTIFF'S "SUBMISSION" OF SUPPLEMENTAL INFORMATION RELEVANT TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT _____________________________________________________________________________ Defendant Omni Properties, Inc. ("Omni"), objects to Plaintiff's "Submission" of Supplemental Information Relevant to Defendant's Motion for Summary Judgment,1 and accompanying supplemental Psychological Report of Dr. Mead (cumulatively "Submission"), moves to strike the Submission, and responds as follows: 1. Submission. Neither the federal rules nor any local rules authorize Plaintiff to file the Fed.R.Civ.P. 56; D.C.Colo.LCivR 7.1.C; Practice Standards - Civil, Judge

Nottingham, Special Instructions Concerning Motions for Summary Judgment. 2. Plaintiff has also improperly filed the Submission without first seeking or

obtaining leave from the Court to do so. Id.

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Omni also objects to Plaintiff's Disclosure of Supplemental Expert Report, submitted August 11, 2005, which accompanied the Submission.

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3.

Plaintiff previously filed an untimely Motion for Leave to File Sur-Reply to

Defendant's Motion for Summary Judgment, accompanied by a Sur-Reply to Defendant's Motion for Summary Judgment (cumulatively "Sur-Reply Motion"), on April 21, 2005. 4. Omni timely objected to the Sur-Reply Motion on May 11, 2005 ("Omni's

Objection"), and the Court has not granted the Sur-Reply Motion. 5. Now, over six months after Omni filed its Motion for Summary Judgment and

accompanying Brief (cumulatively "Motion"), on February 1, 2005, and almost five months after Omni filed its Reply in Support of Motion for Summary Judgment ("Reply"), on March 31, 2005, Plaintiff has unilaterally "submitted" an untimely, prejudicial and improper supplemental report of his expert witness, Dr. Mead, and supplemental argument in opposition to Omni's Motion and Reply. 6. The Submission is untimely, prejudicial and improper because: (a) it was filed

over eight months after the Court's deadline for filing expert witness reports; (b) it was filed over seven months after the dispositive motion deadline; (c) it was filed almost five months after Omni's Reply; (d) it violates and fails to comply with the requirements of Fed.R.Civ.P. 26(a)(2)(B); (e) it was filed over seven months after discovery closed and the record was established; and (f) it violates this Court's Preliminary Pretrial Order ("PTO"), filed November 17, 2004, and related Minute Order ("Order"), also filed November 17, 2004. 7. Pursuant to the PTO and Order, defense expert disclosures were due January 5,

2005, discovery closed on February 1, 2005, and dispositive motions were due on February 1, 2005. Plaintiff never sought leave to file a rebuttal expert report prior to the close of discovery

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or prior to the dispositive motion deadline and has no right to supplement his expert's report after the deadlines set by the Court. Fed.R.Civ.P. 26(a)(2)(B) & (C); PTO; Order. 8. Only the Court may grant a party and his expert leave to supplement or file a

rebuttal expert report. PTO; Fed.R.Civ.P. 26(a)(2)(C). Plaintiff's expert cannot unilaterally extend the Court's deadlines for discovery or expert witness disclosures simply making a unilateral assertion in his expert report that he "reserves" the right to do so. 9. Moreover, the local federal rules require that any reply be filed within 15 days.

D.C.Colo.LCivR 7.1.C. Plaintiff's Submission grossly violates this filing requirement. Further, a party must file a motion requesting an extension of a filing deadline and generally must file such motion before the deadline expires. Here, Plaintiff failed to do so. 10. The Court may consider only admissible evidence when ruling on a motion for

summary judgment. Fed.R.Civ.P. 56(e); Motion at p. 34; Reply at p. 27. Here, Plaintiff submitted inadmissible evidence in support of his Response to Defendant's Motion for Summary Judgment ("Response"), to which Omni objected in its Reply. See Reply at p.1. 11. As addressed in Omni's Objection, the issue of Plaintiff's memory incompetence

is not new. Plaintiff simply chose not to provide any rebuttal evidence on this issue in his Response, thereby establishing Omni's evidence of Plaintiff's memory incompetence as an undisputed fact, as a matter of law. In its Reply, Omni again relied upon Plaintiff's undisputed memory impairment as evidence of Plaintiff's memory incompetence. Plaintiff's effort to

submit untimely rebuttal evidence on this point---first by filing an untimely Sur-Reply Motion, and now by filing an untimely Submission---should not be permitted by the Court.

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12.

In his Sur-Reply Motion, Plaintiff did not object to the admissibility of the articles

defining sheltered employment (A82) attached to Omni's Reply, and did not file a Reply to Omni's Objection to his Sur-Reply Motion. Plaintiff's belated effort to reply (via the

Submission), over three months after Omni's Objection to his Sur-Reply Motion was filed, is untimely, improper and prejudicial. 13. Plaintiff's Submission is a grossly belated effort to bolster the information

contained in the untimely, prejudicial and inadmissible affidavit of Dr. Mead, which was appended to Plaintiff's Response. Dr. Mead opined, in January 2003, that Plaintiff is unable to perform any work (A9). In his sham affidavit (A60), attached to Plaintiff's Response, Dr. Mead sought to disagree with his own January 8, 2003, opinion that Plaintiff is unable to perform any work---an opinion that had not been disclosed and was not contained within his expert report in this case. See Reply at pp. 2 & 29-31. Plaintiff then further sought to "supplement" Dr. Mead's expert witness report in his Sur-Reply Motion and now, for a third time, seeks to supplement Dr. Mead's expert report in his Submission. Dr. Mead states in the Psychological Report appended to the Submission, which is dated July 17, 2005, that only as of that date had he "had the opportunity to review defense psychologist's rebuttal report of January 5, 2005." Dr. Mead's failure to review Dr. Pelc's January 2005 report until July 2005 does not constitute grounds for permitting Plaintiff to file an untimely and prejudicial supplemental expert report by Dr. Mead, long after the deadline for expert disclosures, the close of discovery, and the dispositive motion deadline has passed. 14. All of Plaintiff's "supplements," including his Sur-Reply Motion, the Submission

and Dr. Mead's sham affidavit (A60), constitute improper rebuttal that is untimely, improper and

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prejudicial and also inadmissible. PTO; Order; Fed.R.Civ.P. 26(a)(2)(B) & (C); Fed. R. Evid. 403. For the foregoing reasons, and the reasons stated in Omni's Objection, Omni respectfully renews its request that the Court deny Plaintiff's Sur-Reply Motion, in its entirety, as untimely, improper and prejudicial and, pursuant to Fed.R.Civ.P. 12(f) & 26(a)(2)(C), moves to strike Plaintiff's Submission, in its entirety, as untimely, improper and prejudicial. If the Court

decides to grant Plaintiff's Sur-Reply Motion or to accept Plaintiff's Submission, Omni seeks leave, as the moving party with regard to the Motion for Summary Judgment, to respond to Plaintiff's Sur-Reply Motion and Submission on the merits. Dated this 19th day of August, 2005. Respectfully submitted,

____________________________________ Colleen M. Rea, Esq. #24960 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 COUNSEL FOR DEFENDANT OMNI PROPERTIES, INC.

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CERTIFICATE OF SERVICE I hereby certify that on August 19, 2005, I electronically filed the foregoing RESPONSE TO PLAINTIFF'S "SUBMISSION" OF SUPPLEMENTAL INFORMATION RELEVANT TO DFENDANT'S MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addressee: Patricia S. Bangert, Esq.: [email protected]

s/ Colleen M. Rea Colleen M. Rea, (#024960) Ford & Harrison LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 E-mail: [email protected]
Denver:9810.1

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