Free Brief in Support of Motion - District Court of Colorado - Colorado

Case 1:04-cv-00053-WYD-MJW

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Filed 12/20/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-53-WYD-MJW BONNIE WINCHESTER, Plaintiff, v. BRIAN COUSINEAU, THOMAS BEACH, JAMES COLE, TROY NICHOLSON, RANDALL PICKREL, DAN ALLEY, MILES KUBLY, and GAIL CONNER, Defendants. ______________________________________________________________________________ DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTIONS IN LIMINE ______________________________________________________________________________ Defendants, BRIAN COUSINEAU, THOMAS BEACH, JAMES COLE, TROY NICHOLSON, RANDALL PICKREL, DAN ALLEY, MILES KUBLY, and GAIL CONNER, by their attorney, ERIC M. ZIPORIN, ESQ., hereby submit their Reply Brief in Support of Motions in Limine as follows: I. A. ARGUMENT

PLAINTIFF'S CLAIM THAT DEFENDANTS' MOTION IS PREMATURE IS WITHOUT MERIT.

Plaintiff asserts that Defendants' motions in limine are premature since the Court has yet to rule on Defendants' Motion for Summary Judgment. However, Defendants' contention that the evidence and/or testimony sought to be excluded, that being Defendants' employment

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history, disciplinary history (to include citizen complaints), and prior lawsuits, is based primarily upon the fact that the City of Englewood is not a named party in this case rendering the challenged evidence inadmissible. The Court's ruling on Defendants' Motion for Summary Judgment will have no impact on whether or not the proposed evidence and/or testimony will be admissible under the analysis in Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Plaintiff has made no showing as to how the Court's ruling on Defendants' Motion for Summary Judgment will have an effect on the admissibility of this evidence and/or testimony, nor has she made any showing as to how the proposed evidence and/or testimony would satisfy the elements of the Huddleston analysis. Accordingly, Plaintiff's lack of a response should be treated as a concession and the proposed evidence and/or testimony should be excluded at trial. B. PLAINTIFF'S CLAIM THAT THE INFORMATION SOUGHT TO BE EXCLUDED MAY BE RELEVANT IS WITHOUT MERIT.

Without any legal authority provided in support of her position, Plaintiff claims that "[t]he evidence that defendants seek to exclude may be relevant in terms of impeachment or rebuttal of witnesses during the trial." [See, Plaintiff's Response to Defendants' Motions in Limine (hereinafter "Plaintiff's Response") at ¶ 3]. Plaintiff also claims that she is unable to "make that determination at this stage of the proceedings." [See, Plaintiff's Response at ¶ 3]. Again, Plaintiff has failed to meet her burden, in the face of Defendants' motion, as to how the proposed evidence and/or testimony may be admissible at trial as either impeachment or rebuttal evidence. As noted within Defendants' motion, the evidence sought to be excluded is improper impeachment evidence under Fed.R.Evid. 404(b). Defendants also cannot foresee how this evidence could be used as rebuttal evidence since Defendants do not intend to open the door

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on these issues which would allow for rebuttal evidence. Plaintiff claims that she cannot make a determination as to admissibility of this evidence at this stage in the proceedings. The parties are roughly a month away from trial, and as noted above, the pending Motion for Summary Judgment will have no impact on the admissibility of the evidence and testimony sought to be excluded. The time is now for Plaintiff to establish the admissibility of this evidence, and her failure to do so should result in the exclusion of same. C. DEFENDANTS' MOTION IS THE PROPER VEHICLE IN WHICH TO DETERMINE THE ADMISSIBILITY OF THE PROPOSED EVIDENCE AND/OR TESTIMONY.

Plaintiff contends that the issues raised in Defendants' motion should be addressed at trial. Rule 104 of the Federal Rules of Evidence specifically provides the Court with the ability to determine preliminary questions of admissibility. A determination at this time, and in advance of trial, will allow the parties to more properly fashion their witness and exhibit lists for trial, and will result in a more efficient use of trial time. In light of Plaintiff's complete failure to meet her burden of showing the admissibility of the challenged evidence, Defendants respectfully request a Court order in advance of trial excluding same. II. CONCLUSION For the reasons stated herein, as well as in Defendants' Motions in Limine, Defendants respectfully request that the Court enter an order excluding any testimony or evidence relating to Defendants' employment disciplinary records, citizen complaints, and other lawsuits.

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Respectfully submitted,

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

CERTIFICATE OF MAILING I HEREBY CERTIFY that on this 20th day of December, 2005, I electronically filed a true and correct copy of the above and foregoing Defendants' Reply Brief in Support of Motions in Limine with the clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Daniel J. Schendzielos, Esq. [email protected]

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

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