Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 08/26/2005

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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 Case No 04-F-319 (PAC) LILLIAN BARTON, Plaintiff, vs. 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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______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR COURT TO DETERMINE THE SUFFICIENCY OF DEFENDANT RICHARD BLEA'S ANSWERS AND OBJECTIONS TO PLAINTIFF'S REQUEST FOR ADMISSIONS DATED JUNE 20, 2005, PURSUANT TO FED.R.CIV.P. 36(a) AND TO APPLY APPROPRIATE SANCTIONS PURSUANT TO FED.R.CIV.P. 37(a)(2) FOR PLAINTIFF'S HAVING TO PROVE THE GENUINENESS OF DOCUMENTS ENTITLED EXHIBIT E AND EXHIBIT G ______________________________________________________________________________ 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., hereby respond to Plaintiff's Motion for Court to Determine the Sufficiency of Defendant Richard Blea's Answers and Objections to Plaintiff's Request for Admissions Dated June 20, 2005 Pursuant to Fed.R.Civ.P. 37(a)(2) for Plaintiff's Having to Prove the Genuineness of Documents Entitled Exhibit E and Exhibit G, as follows: 1. Defendants initially object to Plaintiff's Motion for Court to Determine the

Sufficiency of Defendant Richard Blea's Answers and Objections to Plaintiff's Request for Admissions Dated June 20, 2005 Pursuant to Fed.R.Civ.P. 37(a)(2) for Plaintiff's Having to Prove the Genuineness of Documents Entitled Exhibit E and Exhibit G, as Plaintiff's motion does not appear to be supported by any rule of law or made pursuant to any valid procedural vehicle. Accordingly, Plaintiff's motion is without merit. However, to the extent Plaintiff's

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Motion seeks relief pursuant to Fed.R.Civ.P. 37(a)(2) as a Motion to Compel, Defendants refute these allegations as described below. 2. Plaintiff's objections to the sufficiency of Defendant Blea's Responses to Request

for Admissions Nos. 4, 8, 16, 18, 21 and 22 are invalid. In this regard, Plaintiff argues that Defendant Blea's responses are insufficient as he does not attest to the genuineness of various documents attached to Plaintiff's Request for Admissions. Since these documents were

produced as the City's responses to Plaintiff's Request for Production of Documents, Officer Blea does not have personal knowledge or information related to these documents. In fact, Officer Blea had not reviewed said documents prior to being served with Plaintiff's Request for Admissions, pursuant to Fed.R.Civ.P. 36. As such, Plaintiff incorrectly seeks to verify the authenticity of various documents to which this Defendant neither has personal knowledge nor access or control. Therefore, Plaintiff's request for the verification of both genuineness or authenticity of these documents by this Defendant is misguided. Accordingly, all objections made to these requests on these grounds is valid under the rules. That notwithstanding, to the extent Officer Blea was able to identify certain documents contained within these requests, said responses were provided in his response. 3. Further, Defendant Blea's objection to Plaintiff's Request for Admission No. 5 is

appropriate as he advised Plaintiff that he did not know what time she specifically arrived on scene, nor was he aware of the specific time her conversations took place. As such, a proper and complete response was given to this request. 4. Additionally, Officer Blea's response to Plaintiff's Request for Admission No. 10

specifically admitted those parts of her request that Officer Blea could admit and attest to.

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5.

Further, with regard to Officer Blea's response to Request for Admission No. 20,

Officer Blea provided a complete response to Plaintiff's request in that he denies the allegations set forth in this request. 6. Finally, although Plaintiff provided Defendants with correspondence on July 25,

2005, indicating that she would be filing a motion for sanctions in this matter, pursuant to Officer Blea's denial to the genuineness of documents numbers 24 and 21, Plaintiff failed to confer with Defendants with regard to the remaining allegations set forth in her Plaintiff's Motion for Court to Determine the Sufficiency of Defendant Richard Blea's Answers and Objections to Plaintiff's Request for Admissions Dated June 20, 2005 Pursuant to Fed.R.Civ.P. 37(a)(2) for Plaintiff's Having to Prove the Genuineness of Documents Entitled Exhibit E and Exhibit G. Accordingly, pursuant to D.C. Colo. 7.1, Plaintiff has failed to properly comply with the local rules and confer with Defendants, prior to her filing said Motion. As such, such Motion should be denied. WHEREFORE, since Defendant Blea fully answered Plaintiff's Request for Admissions in a complete and timely fashion, Plaintiff's Motion for Court to Determine the Sufficiency of Defendant Richard Blea's Answers and Objections to Plaintiff's Request for Admissions Dated June 20, 2005, Pursuant to Fed.R.Civ.P. 37(a)(2) for Plaintiff's Having to Prove the Genuineness of Documents Entitled Exhibit E and Exhibit G should be denied. Additionally, since Plaintiff was advised by the Court to refrain from filing further frivolous motions, Defendants should be awarded his attorney fees for having to respond to such a frivolous motion.

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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, Colorado 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: [email protected]; [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 MAILING I HEREBY CERTIFY that on this 26th day of August, 2005, I electronically filed a true and correct copy of the above and foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR COURT TO DETERMINE THE SUFFICIENCY OF DEFENDANT RICHARD BLEA'S ANSWERS AND OBJECTIONS TO PLAINTIFF'S REQUEST FOR ADMISSIONS DATED JUNE 20, 2005, PURSUANT TO FED.R.CIV.P. 36(a) AND TO APPLY APPROPRIATE SANCTIONS PURSUANT TO FED.R.CIV.P. 37(a)(2) FOR PLAINTIFF'S HAVING TO PROVE THE GENUINENESS OF DOCUMENTS ENTITLED EXHIBIT E AND EXHIBIT G was filed electronically 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 Attorneys Thomas S. Rice and Brett A. McDaniel

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