Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02528-WDM-OES

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2528-WDM-OES DANNY O. DANIELS, Plaintiff, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant. RESPONSE TO MOTION FOR STATUS/SCHEDULING CONFERENCE AND TO RESET DISCOVERY DEADLINES

Defendant, City and County of Denver (hereinafter "City"), a municipal corporation, by and through counsel, hereby responds to Plaintiff's Motion for Status/Scheduling Conference and to Reset Discovery Deadlines, and in support thereof states as follows: 1. Plaintiff's motion for a status conference, which was not opposed by the City, has

been effectively granted and is now moot. The City opposes Plaintiff's motion to reset discovery deadlines for the reasons set forth herein. 2. Pursuant to the terms of the Scheduling Order entered in this matter on or about

April 20, 2004, the deadline for either party to submit interrogatories and requests for production of documents expired on July 30, 2004, and the deadline for conducting discovery expired on October 29, 2004.

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3.

The City timely submitted to Plaintiff its initial set of interrogatories, requests for

production of documents and requests for admissions on April 22, 2004, and a set of supplemental interrogatories on July 8, 2004. 4. To date, Plaintiff has never responded to the City's supplemental interrogatories

and has failed and refused to execute the medical and other releases submitted to him with the City's initial set of interrogatories, and thereafter on two separate occasions.1 5. Plaintiff has further never properly responded to the City's initial set of

interrogatories. Plaintiff purported to respond to those interrogatories on or about May 21, 2004, however, his "responses" were actually nothing more than a request for additional time to respond to discovery. (See Recommendation for Dismissal, pp. 3-5; Order on Recommendations of Magistrate Judge, p. 2) Some nine (9) months later, on February 10, 2005, after securing legal counsel to represent him, Plaintiff filed an Objection to the Magistrate Judge's Order Denying Plaintiff's Motion for Reconsideration, and attached thereto as Exhibit A the Affidavit of Danny O. Daniels. In paragraph five (5) of his Affidavit, Plaintiff incorrectly and misleadingly asserts that he "provided Defendants with the discovery responses attached as Exhibits 1, 2 and 3." Exhibit A-2 of the Affidavit consists of Plaintiff's initial "response" to interrogatories dated May 21, 2004, as well as an undated twelve (12) page handwritten document entitled "Answer to Defendant's Interrogatories," which was placed behind the initial "response" to interrogatories. Those answers to interrogatories are not signed by either Plaintiff or his attorney, were not given

1

These releases were included with the City's initial discovery requests on April 22, 2004, and were resubmitted to Plaintiff on May 11, 2004, and again during his deposition on May 24, 2004.

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under oath, do not contain a certificate of service,2 and were never separately served on the City, in direct violation of Fed.R.Civ.P. 5(d), 26(g)(2) and 33(b)(1)-(3). 6. The only discovery requests that Plaintiff submitted to the City were a set of

handwritten Requests for Production of Documents which, according to the certificate of service, were not served on counsel for the City until October 29, 2004 -- three months after the deadline imposed by the Scheduling Order for propounding interrogatories, and the same date that the deadline for conducting discovery expired. (See Exhibit A - "Request for Production Pursuant to Colorado Civil Rules of Procedure Rule 26") Therefore, those requests were not timely served, and were not responded to by the City.3 7. Plaintiff did not take any depositions, or even attempt to schedule depositions,

while the period for discovery was open, despite having indicated in the Scheduling Order his intention to depose five (5) different witnesses. (Scheduling Order, p. 7) 8. Plaintiff asserts as an excuse for his failure to conduct any discovery the fact that

he was incarcerated from July 14, 2004 to October 29, 2004. However, as the Court indicated in its Order Granting Defendants' Motion to Compel Discovery and Warning to Plaintiff dated October 14, 2004, "... [Plaintiff's] incarceration is not an excuse for his failure to cooperate with discovery, and is not an excuse for his failure to prosecute his case with diligence." (Order dated Oct. 14, 2004, p. 2) Moreover, Plaintiff's only set of discovery requests belie his contention that he could not conduct any discovery while incarcerated ­ his handwritten requests for production of documents reflect that they were signed and dated by him on October 21, 2004 (more than a
Notably, Plaintiff's earlier discovery responses that were received by the City through its legal counsel did properly contain certificates of service reflecting the dates and manner of service. 3 The parties agreed to bring the issue of the validity of those discovery requests before the Court as one of the issues
2

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week before his release) but that his wife, Katrina Daniels, failed to serve those requests on the City until October 29, 2004. (See Exh. A) 9. The City further opposes Plaintiff's request to reopen discovery on the basis that

the delay of nearly one year since the expiration of the discovery deadline will be prejudicial to the City. Plaintiff's Complaint, which was filed on or about December 11, 2003, arises out of Plaintiff's dismissal from employment with the Department of Public Works on December 4, 2001; his dismissal from employment with the Department of Aviation on January 16, 2003; and an alleged hostile work environment while employed by the Department of Aviation between September 16, 2002 and January 16, 2003. Needless to say, the recollections of the officials and employees of the City who have knowledge of the pertinent facts will have faded significantly in the interim; and the primary decisionmaker, Dan Brown, has since retired from his employment with the Department of Aviation. 10. Indeed this Court recognized that reopening discovery would significantly

prejudice the City in its Recommendation for Dismissal entered on December 14, 2004, stating that "allowing plaintiff to begin this case anew, the same as if the discovery process had not completely run its course as it did, would represent an extreme sanction against the City, a party that is completely blameless in these events." (Recommendation dated Dec. 14, 2004, p. 10) 11. The City has done everything possible to bring this case to a quick resolution, and

has been stymied at every turn by Plaintiff's failures and refusals to cooperate in discovery. Moreover, even though Plaintiff has now had legal representation since January 2005, he has made no effort since entry of the Order on Recommendations of Magistrate Judge on July 22,
to be decided at the hearing on this motion.

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2005 to rectify his discovery violations and, instead, has focused his efforts solely on reopening discovery. 12. It bears reminding that the mere fact that Plaintiff was proceeding in this matter

pro se during the time that discovery was ongoing did not relieve him of the obligation to comply with the same rules of procedure that govern other litigants. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Moreover, Plaintiff was notified of this fact by the Court on at least one occasion.4 13. There is nothing in the Court's Order on Recommendations of Magistrate Judge

which mandates or even implies that the fact that legal counsel have entered appearances on behalf of Plaintiff warrants the reopening of discovery, which has been closed for more than 10 months. The Court merely held that the drastic sanction of involuntary dismissal was not justified, and that some lesser sanction(s) would be appropriate. 14. The reopening of discovery would serve to reward Plaintiff for his contumacious

disregard of discovery deadlines and orders of this Court, while imposing an unreasonable burden on the City, and is not warranted under the circumstances. 15. In light of the foregoing, the City submits that the Court should: a. b. deny Plaintiff's motion to reset discovery deadlines in its entirety; conclude that Plaintiff's requests for production of documents dated

October 29, 2004 were not timely submitted and should be stricken;

The Court attached to its April 20, 2004 Order Striking Katrina Daniels' Letter to Chambers of April 6, 2004 a Notice to Parties Who Have No Lawyer (or Pro Se Parties). This Notice specifically states on the first page that "Pro se parties are held to the same rules of procedure as any other litigants or lawyers."

4

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c.

conclude that Plaintiff's purported "Answers to Interrogatories" that are

attached as part of Exhibit A-2 to Plaintiff's Objection to Order Denying Motion for Reconsideration are in violation of Fed.R.Civ.P. 5(d), 26(g)(2) and 33(b)(1)-(3) and should be stricken; d. compel Plaintiff to fully and properly respond to the City's initial set of

interrogatories and supplemental set of interrogatories, and to provide the City with signed medical and other releases submitted to him previously, within thirty (30) days from the date of the hearing; and e. set a deadline for the filing of dispositive motions that is not less than

ninety (90) days from the date that Plaintiff's discovery responses are due, in order to give the City sufficient time to obtain medical and other records pursuant to its signed releases. Respectfully submitted this 31st day of August, 2005. KARLA J. PIERCE Assistant City Attorney By: s/ Karla J. Pierce Karla J. Pierce Assistant City Attorney Denver City Attorney's Office Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202-5332 Telephone: (720) 913-3100 FAX: (720) 913-3190 E-mail: [email protected] Attorney for Defendant

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 31st day of August, 2005, I electronically filed the foregoing RESPONSE TO MOTION FOR STATUS/SCHEDULING CONFERENCE AND TO RESET DISCOVERY DEADLINES with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John Preston Baker [email protected] [email protected] Marci A. Gilligan [email protected] [email protected] John D. Phillips, Jr [email protected] [email protected] I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Via Interoffice Mail to: Vicki Braunagel Turner West Acting Co-Managers of the Department of Aviation Airport Office Building s/ Marilyn Barela Marilyn Barela, Legal Secretary Office of the Denver City Attorney

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