Free Response to Motion - District Court of Colorado - Colorado

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

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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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______________________________________________________________________________ COMBINED RESPONSE TO PLAINTIFF'S MOTION TO SUPPRESS; TO OBJECT; TO OPPOSE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE GROUNDS THAT DEFENDANTS' SUPPORTING BRIEF IS BASED ON INCOMPLETE, UNREVIEWED, UNSIGNED, UNCERTIFIED RECORD OF DEPOSITION IN VIOLATION OF FED.R.CIV.P. 30(e) AND 30(f) AND FEDERAL RULES OF EVIDENCE: 1001, 1002, 1003, 1004, 1005, 1006, 1007 ______________________________________________________________________________ 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 their Response to Plaintiff's Motion to Suppress; to Object; to Oppose Defendants' Motion for Partial Summary Judgment on the Grounds that Defendants' Supporting Brief is Based on Incomplete, Unreviewed, Unsigned, Uncertified Record of Deposition in Violation of Fed.R.Civ.P. 30(e) and 30(f) and Federal Rules of Evidence: 1001, 1002, 1003, 1004, 1005, 1006, 1007, hereby state as follows: 1. Plaintiff's motion is misplaced in that it attempts to strike a deposition properly

taken and administered by a certified officer under the Federal Rules of Civil Procedure. See, Fed.R.Civ.P. 28(a); see also, Certificate of Claudia R. Booten, RPR (Defendants' Exhibit 1, attached hereto). Where Plaintiff did not object and/or seek to suppress her deposition testimony at the time of her deposition, she has waived any objections as to any errors and/or irregularities at the oral examination as it relates to "the manner of taking the deposition, in the form of the

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questions or answers, and the oath or affirmation, or in the conduct of parties." Fed.R.Civ.P. 32(d)(3)(B). 2.

See,

Instead, as Plaintiff has captioned her motion as one to suppress, she appears to be

arguing that sufficient "errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31," exist to warrant the suppression of her deposition testimony from consideration. Toward this end, Plaintiff offers nothing more than her intention to review, modify, and change her testimony prior to the deadline for signature. Such justification and circumstances clearly do not warrant the relief requested.1 3. Moreover, Plaintiff is mistaken in her allegations that her unsigned deposition

testimony which was attached in support of Defendants' Motion for Partial Summary Judgment justifies the striking and/or denial of the relief requested therein.2 Indeed, Fed.R.Civ.P. 56(c) calls for the use of evidence, including deposition testimony, in a party's effort to establish nonexistence of any genuine issue of material fact precluding summary judgment.3 4. Where Plaintiff has chosen to couch her pleading as a response to Defendants'

Motion for Summary Judgment, her response is wholly insufficient to meet her burden of establishing the existence of genuine issues of fact that preclude summary judgment. In further support, Defendants hereby adopt by reference their Reply in Support of Motion for Partial Summary Judgment. Fed.R.Civ.P. 10(c).
If anything, any substantive changes that Plaintiff has made to her deposition testimony in the course of review and certification go only towards the weight to be applied to same. 2 As the dispositive motion deadline of August 15, 2005 preceded the full time period for review and signature, Defendants were required to submit Plaintiff's deposition transcript unsigned. 3 In addition, Fed.R.Civ.P. 56(a) recognizes that summary judgment may be appropriate even without the submission or supporting affidavits. Likewise, as outlined further herein, Plaintiff does not address the Defendants' use of affidavits and discovery responses in support of this motion.
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5.

In addition, Defendants' further support their Motion for Summary Judgment

through reference to exhibits other than Plaintiff's deposition transcript. However, to these references and the legal arguments contained in Defendants' Motion for Partial Summary Judgment and Brief in Support of Motion for Partial Summary Judgment, Plaintiff offers nothing to refute same. 6. Instead, Plaintiff inappropriately and unjustifiably seeks sanctions for the

Defendants' well founded motion for disposition of claims in this matter. Plaintiff's unjustified attempts in this instance, and others, to seek sanctions against Defendants are unsupported by fact, rule, or law and are a waste of valuable judicial resources. 7. Moreover, where Plaintiff has moved to suppress her deposition testimony, good

cause for such an extreme measure is not established simply because one has not yet formally signed his or her deposition and/or intends to change the testimony rendered therein.4 WHEREFORE, Defendants respectfully request this Court deny Plaintiff's requested relief, grant their Motion for Partial Summary Judgment (to the extent Plaintiff's Motion to Suppress is construed as a Response to same), and afford Defendants such other relief as this Court may deem appropriate in light of the above.

Finally, where Plaintiff has referenced various other Rules of Civil Procedure and Evidence, as well as interpretations of same in her Motion, such arguments and interpretations not otherwise addressed herein are unintelligible and/or irrelevant to the underlying matter, i.e., motion to suppress deposition testimony and request for denial of Defendants' Motion for Partial Summary Judgment.

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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 RESPONSE TO PLAINTIFF'S MOTION TO SUPPRESS; TO OBJECT; TO OPPOSE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE GROUNDS THAT DEFENDANTS' SUPPORTING BRIEF IS BASED ON INCOMPLETE, UNREVIEWED, UNSIGNED, UNCERTIFIED RECORD OF DEPOSITION IN VIOLATION OF FED.R.CIV.P. 30(e) AND 30(f) AND FEDERAL RULES OF EVIDENCE: 1001, 1002, 1003, 1004, 1005, 1006, 1007 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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