Free Response - District Court of Colorado - Colorado

Case 1:03-cv-02339-RPM

Document 201

Filed 12/07/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2339-RPM-MJW JOHN HIMMLER and JACOB HIMMLER, Plaintiffs. v. ELODE BRODBECK, RICHARD MANGEN, DAVID KEIFFER PATRICIA ANN PHILLIPS, CHILD AND FAMILY CENTER, INC., and BEHAVIORAL ASSOCIATES, INC., Defendants.

DEFENDANT DAVID KIEFFER AND BEHAVIORAL ASSOCIATES, INC.'S RESPONSE TO: PLAINTIFFS' MEMORANDUM IN OPPOSITION TO THE DEFENDANTS' ACTION TO MULTIPLY PROCEEDINGS BY CREATING CONFLICT BETWEEN THE ADMINISTRATIVE AND JUDICIAL FUNCTIONS OF THE COURT

Defendants David Kieffer and Behavioral Associates, Inc., ("Dr. Kieffer") by and through counsel, Treece, Alfrey, Musat & Bosworth, P.C., file their response to Plaintiffs' Memorandum in Opposition to the Defendants' Action to Multiply Proceedings by Creating Conflict Between the Administrative and Judicial Functions of the Court. In support thereof: 1. In their Memorandum, the Plaintiffs raise the same arguments previously rejected

by this Court. First, Plaintiffs argue that the "Kieffer Defendants" cannot produce "admissible evidence of a full and final adjudication of the above-captioned matter." This mirrors their previous argument that the Court's prior Orders should be stricken because they bore "no seal, signature, or authentication." This Court has already rejected this argument in its Order for

Case 1:03-cv-02339-RPM

Document 201

Filed 12/07/2005

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Entry of Final Judgment, and Order Denying Motion to Strike. See also, D.C.Colo.L.CivR. 5.6 ("Pursuant to Fed. R. Civ. P. 5(e), the court will permit materials to be filed, signed, and verified by electronic means.") 2. Next, Plaintiffs accuse "Counsel for the respective Defendants'" of unilaterally

setting hearings on various Bills of Costs filed in this case. Defendants' various counsel have filed Certificates of Compliance pursuant to D.C.Colo.L.CivR. 54.1, advising the Court and Clerk of efforts to set these hearings. Further, as the undersigned stated in Defendant David Kieffer and Behavioral Associates, Inc.'s Certificate of Compliance with D.C.Colo.L.CivR. 54.1, three letters were sent to the plaintiffs advising them of the hearings and requesting conference prior to those hearings. The undersigned also attempted to call the plaintiffs, but received no answer. Plaintiffs did not object to the hearing regarding Defendants David Kieffer and Behavioral Associates, Inc. until after the hearing occurred--a full six days after receiving notice of the hearing. The counsel for Dr. Kieffer fully complied with the "reasonable efforts" requirement of D.C.Colo.L.CivR. 54.1. 3. Finally, Plaintiffs' attack the Clerk of the Court's "Jurisdiction" in this matter.

While not attempting to respond on behalf of the Clerk of the Court, D.C.Colo.L.CivR. 54.1 states, in pertinent part "Each judgment or final order shall indicate which party or parties are entitled to costs. A bill of costs must be filed on the form provided by the court within ten days after entry of the judgment or final order. Costs will be taxed by the clerk." [Emphasis added]. Accordingly, plaintiffs' contention the Clerk of this Court is without "Jurisdiction" is without merit. WHEREFORE, Defendants David Kieffer and Behavioral Associates, Inc. respectfully request this Court deny the relief requested in Plaintiffs' Memorandum in Opposition to the

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Case 1:03-cv-02339-RPM

Document 201

Filed 12/07/2005

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Defendants' Action to Multiply Proceedings by Creating Conflict Between the Administrative and Judicial Functions of the Court. Respectfully submitted this 7th day of December, 2005. s/ David E. Wilson David E. Wilson TREECE, ALFREY, MUSAT & BOSWORTH, P.C. 999 Eighteenth Street, Suite 1600 Denver, Colorado 80202 Telephone: (303) 292-2700 Telecopier: (303) 295-0414 E-Mail: [email protected] Attorneys for Defendants David Kieffer and Behavioral Associates, Inc.

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Case 1:03-cv-02339-RPM

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Filed 12/07/2005

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CERTIFICATE OF SERVICE I hereby certify that on this 7th day of December, 2005, I electronically filed the foregoing DEFENDANT DAVID KIEFFER AND BEHAVIORAL ASSOCIATES, INC.'S RESPONSE TO: PLAINTIFFS' MEMORANDUM IN OPPOSITION TO THE DEFENDANTS' ACTION TO MULTIPLY PROCEEDINGS BY CREATING CONFLICT BETWEEN THE ADMINISTRATIVE AND JUDICIAL FUNCTIONS OF THE COURT with the Clerk of the United States District Court for the District of Colorado using the CM/ECF system which will send notification of such filing to the following: Mr. John Himmler, pro se Mr. Jacob Himmler, pro se 825 9th Street Berthoud, Colorado 80203 Peter S. Ely, Esq. 1600 Stout Street, Suite 1100 Denver, Colorado 80202 [email protected] Miles M. Dewhirst, Esq. Trevor L. Cofer, Esq. Dewhirst & Dolven, LLP 102 South Tejon, Suite 500 Colorado Springs, Colorado 80903 [email protected] David H. Yun, Esq. Jaudon & Avery, LLP 1660 Wynkoop Street, Suite 1010 Denver, Colorado 80202 [email protected]

s/ David E. Wilson

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