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

Case 1:03-cv-02633-PSF-PAC

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Filed 09/16/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2633-PSF-PAC LILLIAN BARTON , Plaintiff, v. CITY AND COUNTY OF DENVER OFFICER R. BLEY, Badge No. 99006 OFFICER N. SAGEN, Badge No. 96-021 OFFICER JOHN DOE MAYOR JOHN HICKENLOOPER, in his official capacity WELLINGTON WEBB, as former Mayor, in his official capacity GERALD R. WHITMAN, Chief of Police, City and County of Denver, in his office capacity only J. WALLACE WORTHAM, JR., former Denver City Attorney, in his official capacity only CHRIS RAMSEY, former Denver Deputy City Attorney, in his official capacity only Defendants. and Civil Action No. 04-cv-319-PSF-PAC LILLIAN BARTON, Plaintiff, v. CITY AND COUNTY OF DENVER RICHARD BLEA NICK SAGAN JOSH VASCONCELLOS MAYOR JOHN HICKENLOOPER WELLINGTON WEBB GERALD R. WHITMAN RUDY SANDOVAL J. WALLACE WORTHAM, JR. CHRIS RAMSEY, Defendants.

Case 1:03-cv-02633-PSF-PAC

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Filed 09/16/2005

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______________________________________________________________________________ REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT ______________________________________________________________________________ Defendants, the CITY AND COUNTY OF DENVER, OFFICER RICHARD BLEA (incorrectly designated as "Bley"), OFFICER NICK SAGAN (incorrectly designated as "Sagen"), OFFICER JOSH VASCONCELLOS, MAYOR JOHN HICKENLOOPER, WELLINGTON WEBB, GERALD R. WHITMAN, RUDY SANDOVAL, J. WALLACE WORTHAM, JR. and CHRIS RAMSEY (hereinafter "Defendants"), by their attorneys, THOMAS S. RICE and BRETT A. McDANIEL of the law firm of SENTER GOLDFARB & RICE, L.L.C., and in support of their Motion for Partial Summary Judgment ("Defendants' Motion") hereby Reply to Plaintiff Lillian Barton (sic) Response and Objections to Defendants' Motion for Partial Judgment Dated August 15th 2005 ("Plaintiff's Response"), and state as follows: INTRODUCTION In Response to Defendants' Motion and Memorandum Brief in Support of Motion for Partial Summary Judgment, Plaintiff simply avers Defendants' pleadings to be inappropriate in their citation to uncertified deposition testimony and the use of "four-to-a-page" deposition transcript materials as an exhibit. [Response at p. 1-2]1 Likewise, Plaintiff contends Defendants are in defiance of the Federal Rules of Evidence by submitting copies of her deposition transcript in lieu of the "original." [Response at p. 4] Finally, Plaintiff argues that "Defendants'

As the dispositive motion deadline of August 15, 2005 preceded the full time period for review and signature, Defendants were required to submit those relevant portions of Plaintiff's deposition transcript unsigned.

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Supporting Brief contains exhibits never verified by Plaintiff." Id. In accord, Plaintiff states that Defendants' Motion must be denied and sanctions assessed. ARGUMENT Fed.R.Civ.P. 56(c) provides that "summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Towards satisfying their burden of establishing the non-existence of genuine issues of material fact to preclude summary judgment, Defendants have clearly and appropriately cited to controlling precedent in accord with deposition testimony, answers to interrogatories, and affidavits in support of their request. See, Fed.R.Civ.P. 56(c). In response to Defendants' arguments, Plaintiff offers no refute. As such, her Response is wholly insufficient and in error. As noted by the Court in Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548 (1986), where the nonmoving party will bear the burden of proof at trial on a dispositive issue, she will be required to "go beyond the pleadings and `by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" See, e.g., id., citing Fed.R.Civ.P. 56(e). In this instance, Plaintiff not only concedes each of Defendants' arguments, but fails entirely to proffer any evidence "beyond the pleadings" to establish the existence of material fact precluding summary judgment. As such, summary adjudication in favor of Defendants is appropriate. Moreover, where Plaintiff contends Defendants' reference to her unsigned deposition testimony is not appropriate, Defendants state this argument is made moot through Plaintiff's

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Case 1:03-cv-02633-PSF-PAC

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own Response. Specifically, Plaintiff has failed to indicate or reference any citation(s) to her deposition which are not substantively accurate. Accordingly and assuming Defendants'

necessary submission of Plaintiff's uncertified deposition transcript to be erroneous, such error, in this instance, is harmless. In accord with Plaintiff's concessions outlined herein, controlling precedent, the discovery responses proffered, and the Affidavit of Chris Ramsey, Esq., partial summary judgment in this matter remains entirely proper. CONCLUSION For the reasons set forth herein, as well as in Defendants' Motion for Partial Summary Judgment and Memorandum Brief in Support of Motion for Partial Summary Judgment, this Court should grant Defendants' requested relief of partial summary judgment against Plaintiff pursuant to Fed.R.Civ.P. 56. Respectfully submitted,

s/ Thomas S. Rice Thomas S. Rice

s/ Brett A. McDaniel Brett A. McDaniel 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] Attorneys for Defendants Gerald Whitman, City and County of Denver, Officer Richard Blea, Officer Nick Sagan, Chris Ramsey, Mayor John Hickenlooper, Rudy Sandoval, Wellington Webb, J. Wallace Wortham, Jr. and Officer Josh Vasconsillas

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Case 1:03-cv-02633-PSF-PAC

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day of September, 2005, I electronically filed a true and correct copy of the above and foregoing REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT with the Court via CM/ECF system and served via the U.S. mail, first class postage prepaid, addressed as follows: Lillian Barton 97 Soda Creek Road Evergreen, CO 80439 s/ Stephanie Nelson Stephanie Nelson E-mail: [email protected] Secretary for Attorney Brett A. McDaniel

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