Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02339-RPM

Document 193

Filed 11/18/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-M-2339(MJW) JOHN HIMMLER, individually and on behalf of his minor son, and JACOB HIMMLER, a minor Plaintiffs, vs. ELODE BRODBECK, an individual, RICHARD MANGEN, an individual, DAVID KIEFFER, an individual, PATRICIA ANN PHILLIPS, an individual, CHILD AND FAMILY CENTE,R INC., a Colorado Corporation, and BEHAVIORAL ASSOCIATES, INC., a Colorado Corporation, Defendants. ______________________________________________________________________________ DEFENDANT RICHAD MANGEN'S RESPONSE TO PLAINTIFFS' MOTION TO STRIKE "ORDER FOR ENTRY OF FINAL JUDGMENT" ______________________________________________________________________________ Defendant Richard Mangen, Psy.D., by his attorneys, responds to Plaintiffs' Motion to Strike "Order for Entry of Final Judgment" as follows: 1. In their Motion, Plaintiffs raise the same arguments previously rejected by this

Court. First, Plaintiffs argue that this Court's September 30, 2005 Order should be stricken because it bears "no seal, signature, or authentication." This Court already rejected this

argument in its Order of Entry of Final Judgment. See also D.C.Colo.L.Civ.R. 5.6 ("Pursuant to Fed.R.Civ.P. 5(e), the court will permit materials to be filed, signed, and verified by electronic means.").

Case 1:03-cv-02339-RPM

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Second, Plaintiffs argue that the Order for Entry of Final Judgment dated October

26, 2005 should be stricken because this Court did not decide the constitutionality of the Special Advocate Statute, because the award of costs is inappropriate where neither party has prevailed, and because the Order is not signed or authenticated. These arguments are without merit and should be rejected. 3. This Court decided Plaintiffs' constitutionality challenge in its prior Order. In its

September 30, 2005 Order, this Court ruled that "the Plaintiffs have asserted that the Colorado Statute is unconstitutional but have raised no persuasive argument in support of that assertion." Furthermore, this Court dismissed all of Plaintiffs' claims against Defendants. As such,

Defendants are the prevailing parties entitled to recover taxable costs pursuant to Fed.R.Civ.P. 54. No seal or handwritten signature need to be placed in the Order as discussed above. 4. Third, Plaintiffs state that their Motion to Vacate Hearing on Costs dated October

17, 2005 is still pending. To the contrary, this Court denied Plaintiffs' Motion to Vacate in its Order for Entry of Final Judgment dated October 26, 2005. In its Order, the Court specifically referred to Plaintiffs' Motion to Vacate and found no merit in the motion. Consequently, the hearing went forward on November 3, 2005 as allowed by D.C.Colo.L.Civ.R. 54.1. The clerk awarded Dr. Mangen $707.42 in costs and Dr. Broadbeck $74.00 in costs. WHEREFORE, Dr. Mangen requests that this Court deny Plaintiffs' Motion to Strike "Order for Entry of Final Judgment."

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Case 1:03-cv-02339-RPM

Document 193

Filed 11/18/2005

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Dated this 18th day of November, 2005. s/ David H. Yun David H. Yun JAUDON & AVERY LLP 1660 Wynkoop Street, Suite 1010 Denver, CO 80202 Phone: (303) 832-1122 Fax: (303) 832-1348 Email: [email protected] Attorneys for Defendant Richard Mangen CERTIFICATE OF SERVICE I hereby certify that on November 18, 2005, I electronically filed the foregoing DEFENDANT RICHAD MANGEN'S RESPONSE TO PLAINTIFFS' MOTION TO STRIKE "ORDER FOR ENTRY OF FINAL JUDGMENT" 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: Trevor L. Cofer, Esq. [email protected] Thomas N. Alfey, Esq. [email protected] Peter S. Ely, Esq. [email protected] John and Jacob Himmler, pro se 825 9th Street Berthoud, CO 80513 s/ Olivia Erkhart

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