Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02328-RPM-CBS

Document 79

Filed 01/18/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2328-RPM-OES GREG JOSEPH GONZALES, by and through his next friend, JUNE BRAVO Plaintiff, v. OFFICER BRETT C. TITUS, in his official and personal capacity, and CITY AND COUNTY OF DENVER Defendants. ______________________________________________________________________________ DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE SURREBUTTAL ______________________________________________________________________________ Defendant, OFFICER BRETT C. TITUS, by his attorneys, ERIC M. ZIPORIN and ELLIOT J. SCOTT of the law firm of SENTER GOLDFARB & RICE, L.L.C., and DAVID BRUNO of the law firm of BRUNO BRUNO & COLIN, P.C., hereby responds to Plaintiff's Motion for Leave to File Surrebuttal ("Plaintiff's Motion") as follows: 1. Plaintiff has failed to assert any valid reason for filing a Surrebuttal in the instant

case, which has been thoroughly briefed by both parties. Although the federal and local rules in this district are silent on the matter, the accepted standard for granting a leave to file a surrebuttal is whether the party making the motion would be unable to contest matters presented to the court for the first time in the opposing party's reply. See, Harrnett v. Parris, 925 F. Supp. 1496, 1500 (D. Kan. 1996); Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.C. Cir. 2001); Moore's Federal Practice 3d § 56.10[4][b]. Furthermore, Plaintiff should have filed his Surrebuttal

contemporaneously with his Motion for Leave. If the Court were to grant Plaintiff's Motion

Case 1:03-cv-02328-RPM-CBS

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now, Plaintiff will have enjoyed nearly thirty days during which to prepare a Surrebuttal (which itself would be a response to Defendant's Reply, which was filed only a mere 15 days after receipt of Plaintiff's Response to Defendant's Motion for Summary Judgment under the Rules). 2. Plaintiff's Motion for Leave suggests a number of reasons that the Court should

grant his Motion, though none of them are that Defendant raised any new legal issues in his Reply Brief. Plaintiff believes the Court should grant him leave because this case has

"complexities" and "nuances" and because Defendant's Reply contained "a number of questions of law" that were allegedly not "fully stated or...accurately explained." [Plaintiff's at ¶ 4]. Though it is not indicated in Plaintiff's Motion, Defendant believes that Plaintiff would like another chance to address the arguments under Heck v. Humphrey, 512 U.S. 477 (1994). Defendant made the Heck argument in his original Motion for Summary Judgment; and in his Reply, Defendant addressed Plaintiff's Response's erroneous suggestion that a diversion program cannot trigger the rule in Heck. The case law on which Defendant relied, which is the leading body of jurisprudence on the issue, was readily available to Plaintiff at the time Plaintiff filed his Response. Simply stated, there is no new ground to cover on Heck or any other issue. Both parties have had ample notice of, and opportunity to respond to, all the legal arguments implicated by this case. 3. As Plaintiff's own Motion makes clear, the pleadings in this case are already quite

thorough. Defendant's Reply, detailed as it was, did not raise any new legal arguments and thus a Surrebuttal would unnecessarily restate arguments that have already been made. The Court should therefore reject Plaintiff's Motion for Leave to File Surrebuttal.

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Case 1:03-cv-02328-RPM-CBS

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(A)

WHEREFORE, Defendant respectfully requests that the Court enter an Order denying Plaintiff's Motion for Leave to File Surrebuttal.

Respectfully submitted,

s/ Eric M. Ziporin Eric M. Ziporin

s/ Elliot J. Scott Elliot J. Scott SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: [email protected] E-mail: [email protected] Attorneys for Defendant -andDavid Bruno, Esq. BRUNO, BRUNO & COLIN, P.C. Attorney for Defendant Titus 1560 Broadway, Ste. 1099 Denver, CO 80202-5143 Telephone: 303-831-1099

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 18th day of January, 2006, I electronically filed a true and correct copy of the above and foregoing DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE SURREBUTTAL with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Brian DeBauche, Esq. [email protected] Thomas Bigler, Esq. [email protected]

s/ Barbara Ortell E-mail: [email protected] Secretary for Attorney Eric M. Ziporin

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