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, vs. 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.

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______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE OF COURT TO AMEND AND SUPPLEMENT PLAINTIFF'S MOTION TO COMPEL FILED 7/15/05, PURSUANT TO FED.R.CIV.P. 15(a)(b) AND TO RESCHEDULE/VACATE COURT ORDERED HEARING SET FOR 8/31/05 REGARDING SAID MOTION TO ALLOW DEFENDANTS TO RESPOND TO PLAINTIFF'S AMENDED/SUPPLEMENTAL MOTION TO COMPEL ______________________________________________________________________________ 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 Leave of Court to Amend and Supplement Plaintiff's Motion to Compel Filed 7/15/05, Pursuant to Fed.R.Civ.P. 15(a)(b) and to Reschedule/Vacate Court Ordered Hearing Set for 8/31/05 Regarding Said Motion to Allow Defendants to Respond to Plaintiff's Amended/Supplemental Motion to Compel, as follows: 1. Plaintiff's Motion for Leave of Court to Amend and Supplement Plaintiff's

Motion to Compel Filed 7/15/05, is without merit and has been filed without stating any reasonable basis. Although unclear, Plaintiff appears to argue that Plaintiff's Motion to Compel, based upon Defendants' refusal to comply with numerous requests for admissions that exceed the 25 set forth by the Scheduling Order is with some surprise and provides some reasonable basis for her amendment and supplementation. Such an argument is without merit, as

Defendants advised Plaintiff by letters dated July 5, 2005, July 8, 2005 and July 19, 2005, that 2

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

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she had exceeded the amount of Requests for Admissions permitted under the Scheduling Order, which prohibits her from submitting additional requests to various Defendants under the Rules of Procedure. [See, letters dated July 5, 2005, July 8, 2005 and July 14, 2005 to Plaintiff appended hereto as Attachments A, B and C.] Accordingly, no just cause or reasonable basis exists for the amendment and/or supplementation to her Motion to Compel filed July 15, 2005. 2. Further, since Plaintiff's Motion to Compel has been fully briefed at this time,

Defendants object to the rescheduling/vacating of the hearing set for August 31, 2005 and wish to proceed at this time. Plaintiff's dental appointment does not constitute good cause for the rescheduling of said hearing. 3. Finally, since Plaintiff has been fully advised that the filing of frivolous motions

would result in the award of attorney's fees, Defendants request that they be awarded their attorney fees for responding to such a frivolous motion.

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WHEREFORE, Plaintiff's Leave of Court to Amend and Supplement Plaintiff's Motion to Compel Filed 7/15/05, must be denied and Defendants should be awarded their reasonable attorney's fees for having to respond to such a frivolous motion. 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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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 LEAVE OF COURT TO AMEND AND SUPPLEMENT PLAINTIFF'S MOTION TO COMPEL FILED 7/15/05, PURSUANT TO FED.R.CIV.P. 15(a)(b) AND TO RESCHEDULE/VACATE COURT ORDERED HEARING SET FOR 8/31/05 REGARDING SAID MOTION TO ALLOW DEFENDANTS TO RESPOND TO PLAINTIFF'S AMENDED/SUPPLEMENTAL MOTION TO COMPEL 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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