Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00538-ZLW-CBS

Document 51

Filed 06/22/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-00538-ZLW-CBS MARK L. TEAGUE, Plaintiff, v. TOWN OF DEL NORTE, COLORADO, Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO THE COURT (sic) HOLD PLAINTIFF'S DEPOSITION BY TELEPHONE ______________________________________________________________________________ Defendant, the Town of Del Norte, by and through its attorneys, responds to Plaintiff's Motion to the Court (sic) Hold Plaintiff's Deposition by Telephone as follows: 1. Defendant objects to being compelled to take Plaintiff's deposition by telephone.

As the Court knows, telephonic depositions, while used occasionally for peripheral witnesses, are almost never used for a deposition of the Plaintiff. The opportunities to utilize various documents as exhibits, to have a face to face interchange and to observe the Plaintiff during deposition testimony are important. Plaintiff chose to bring this lawsuit and, as he has been previously advised by this Court, he bears certain burdens in being a Plaintiff in a civil lawsuit. Attending his own deposition is certainly one of them. 2. Plaintiff's motion is unclear. He asserts that he cannot travel because of his

health. Yet the medical reports attached to the motion seem to indicate that his doctors do not recommend that he give any sort of a deposition. Dr. Oliveri states ". . . the stress of going

Case 1:04-cv-00538-ZLW-CBS

Document 51

Filed 06/22/2005

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through some sort of deposition could cause him to have aggravation of his neck pain." Dr. Chelius states that, "stress, also, clearly aggravates his pain." It appears, therefore, that Plaintiff is asking for a significant postponement in the Scheduling Order dates since his doctors seem to indicate that he is not going to be in any position to give a deposition until late August. 3. Plaintiff asserts that he cannot financially afford to purchase a plane ticket on

short notice. Yet Plaintiff acknowledges that efforts to set his deposition have been ongoing for more than a month. 4. Plaintiff asserts that he has not received answers from the Defendant to his written

discovery "leaving little time in the event the Defendant's (sic) deny any admissions or requests for the Plaintiff to file a motion before the discovery deadline of July 1, 2005 . . ." The status of Defendant's response to Plaintiff's written discovery is irrelevant to the taking of Plaintiff's deposition or its timing and manner. Moreover, Plaintiff has in fact received Defendant's Responses to Written Discovery. 5. In summary, Plaintiff seeks to avail himself of the benefits of recourse to the

Courts, but declines to accept the burdens. Plaintiff's medical issues appear to restrict Plaintiff not only from traveling but also from even giving a deposition. To the extent the Court feels that Plaintiff has a legitimate reason for an extension of the Scheduling Order deadlines, the Court can grant appropriate relief. That relief should not, however, restrict Defendant from deposing Plaintiff in person in Denver where this lawsuit was brought.

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Case 1:04-cv-00538-ZLW-CBS

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Filed 06/22/2005

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WHEREFORE, Defendant requests that the Court deny Plaintiff's motion.

Dated this 22nd day of June, 2005.

Respectfully submitted,

s/ Marni Nathan Kloster Marni Nathan Kloster J. Andrew Nathan Nathan, Bremer, Dumm & Myers, P.C. 3900 E. Mexico Avenue, Suite 1000 Denver, CO 80210 Telephone: (303) 691-3737 FAX: (303) 757-5106 E-mail: [email protected] [email protected] Attorneys for Defendant

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Case 1:04-cv-00538-ZLW-CBS

Document 51

Filed 06/22/2005

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 22, 2005, I electronically filed the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO THE COURT (sic) HOLD PLAINTIFF'S DEPOSITION BY TELEPHONE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark Teague [email protected] and I hereby certify that I served the document or paper to the following non CM/ECF participants in the manner indicated by the non-participant's name: Mark Teague [U.S. Mail] 254 Schlouch Rd. Mohaton, PA 19540 s/_____________ Marni Nathan Kloster J. Andrew Nathan Attorneys for Defendant Nathan, Bremer, Dumm & Myers, P.C. 3900 E. Mexico Avenue, Suite 1000 Denver, CO 80210 Telephone: (303) 691-3737 FAX: (303) 757-5106 E-mail: [email protected] [email protected]

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