Free Motion to Strike - District Court of Colorado - Colorado

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

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Filed 07/28/2005

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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-CV-319-PSF-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 AND MOTION TO STRIKE PLAINTIFF'S OBJECTIONS AND REQUEST TO DISTRICT COURT JUDGE FIGA TO SET ASIDE MAGISTRATE JUDGE COAN'S JUNE 22, 2005 ORDER IN DENIAL OF PLAINTIFF'S MOTION OF MARCH 24, 2005 REGARDING REQUEST FOR RELIEF FROM ORDER/JUDGMENT ISSUED ON JANUARY 25, 2005 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 attorney, SETH A. RIDER, ESQ. of the law firm of SENTER GOLDFARB & RICE, L.L.C., hereby respond to and move to strike Plaintiff's Objections and Request to District Court Judge Figa to Set Aside Magistrate Judge Coan's June 22, 2005 Order and Denial of Plaintiff's Motion of March 24, 2005 Regarding Request for Relief from Order/Judgment issued on January 25, 2005 as follows: 1. Although unclear, Plaintiff appears to be arguing that an alleged fraud on the

Court occurred based upon the alleged filing of unsigned, uncertified, wrongly submitted Interrogatories and Requests for Production of Documents related to the Defendants' Motion to Compel. Such allegations are frivolous and not supported by the facts in this record. 2. Since Defendants' Motion to Compel related solely to Plaintiff's failure to

comply with Defendants' Request for Production of Documents and repeated failure to execute the authorizations for the release of medical and tax information, her allegations related to invalid, unsigned and fraudulent interrogatories and requests for documents is misguided. The Magistrate Judge properly ordered Defendants' Motion to Compel and awarded attorney's fees and costs related to the filing of said motion, following an evidentiary hearing, where it was 2

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determined that Plaintiff was solely responsible for the ongoing discovery dispute related to her failure to execute authorizations for the release of Plaintiff's medical and tax information. As such, the Court properly awarded sanctions to Defendant and against Plaintiff for attorney's fees and costs related to said motion. Accordingly, the Court properly denied Plaintiff's Motion for Relief on grounds that any fraud on the Court occurred on June 22, 2005. 3. Plaintiff's second objection regarding the District Court's denial of Plaintiff's

Motion for Relief dated June 22, 2005, on the grounds that it lacked jurisdiction is in error as Plaintiff, while represented by counsel, filed a letter to the District Court and Clerk for Submission to Magistrate Judge Coan on September 20, 2004, alleging misconduct which occurred in her relationship with her attorney. The Magistrate Judge properly denied such motion for lack of jurisdiction and referred Plaintiff to the Colorado Attorney Regulation Counsel. As such, Plaintiff's Motion for Relief dated June 22, 2005 was properly denied by the Magistrate Judge. 4. Plaintiff's allegations regarding alleged due process of law violations are

completely without merit as Plaintiff's rights were represented by counsel at the September 25, 2004 Motion to Compel hearing and the Court conducted a full evidentiary hearing on January 25, 2005, where Plaintiff was given a full and fair opportunity to both present evidence and cross-examine all witnesses with regard to the award of sanctions related to the successful Motion to Compel Discovery. As such, Plaintiff has failed to identify any due process violation in the discovery process. 5. Though not stated, Plaintiff appears to be moving the Court pursuant to

Fed.R.Civ.P. 72 for relief from discovery orders entered by Magistrate Judge Coan. Under this Rule, Plaintiff must establish that the Magistrate Judge's Orders were found to be clearly

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erroneous or contrary to law. Since Plaintiff has failed to establish any evidence supporting such a standard, Plaintiff's objections and request to set aside Magistrate Judge Coan's Orders must be denied. 6. Plaintiff's Motion to Set Aside frivolously alleges misconduct on the part of Such

undersigned counsel, Plaintiff's former counsel, as well as Magistrate Judge Coan.

allegations are severe in nature and rise to the level of immaterial impertinent and scandalous, pursuant to Fed.R.Civ.P. 12(f). Accordingly, Defendants move to strike Plaintiff's Objections and Request to District Court Judge Figa to set aside Magistrate Judge Coan's June 22, 2005 Order in denial of Plaintiff's Motion of March 24, 2005, regarding request for relief from Order/Judgment issued on January 25, 2005. 7. On June 22, 2005, Plaintiff was advised by the Court to "not file frivolous

motions." Said advisement is set forth in the Court's June 22, 2005 Minute Order. Since the motion before the Court is completely frivolous and lacking in merit, Defendants respectfully request their attorney's fees and costs related to the filing of this Response and Motion to Strike. WHEREFORE, Defendants respectfully request that the Court grant relief as follows: A. DENY Plaintiff's Objections and Request to District Court Judge Figa to set aside Magistrate Judge Coan's June 22, 2005 Order in denial of Plaintiff's Motion of March 24, 2005 regarding Request for Relief from Order/Judgment issued on January 25, 2005; B. STRIKE Plaintiff's Objections and Request to District Court Judge Figa to set aside Magistrate Judge Coan's June 22, 2005 Order in its entirety;

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C.

Enter judgment in favor of Defendants and against Plaintiff for attorneys fees and costs related to responding to said frivolous motion; and

D.

Other and further relief as the Court deems just and proper. Respectfully submitted,

/s/Seth A. Rider Seth A. Rider SENTER GOLDFARB & RICE, L.L.C. 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 1700 Broadway, Ste. 1700 Denver, Colorado 80290 Telephone: (303) 320-0509 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 28th day of July, 2005, I placed a true and exact copy of the above and foregoing DEFENDANTS' RESPONSE TO AND MOTION TO STRIKE PLAINTIFF'S OBJECTIONS AND REQUEST TO DISTRICT COURT JUDGE FIGA TO SET ASIDE MAGISTRATE JUDGE COAN'S JUNE 22, 2005 ORDER IN DENIAL OF PLAINTIFF'S MOTION OF MARCH 24, 2005 REGARDING REQUEST FOR RELIEF FROM ORDER/JUDGMENT ISSUED ON JANUARY 25, 2005 was filed electronically with the Court via PACER and served via the U.S. mail, first class postage prepaid, addressed as follows: Lillian Barton 97 Soda Creek Road Evergreen, Colorado 80439

_/s/Marie S. DeSanto____ Marie S. DeSanto Legal Secretary to Seth A. Rider [email protected]

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