Free Order on Motion to Supplement - District Court of Colorado - Colorado

Case 1:03-cv-02474-WYD-PAC

Document 141

Filed 12/30/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Civil Action No. 03-cv-02474-WYD-PAC CHARLOTTE SCHNEIDER and DEAN WYMER, Plaintiffs, v. LANDVEST CORPORATION, a Kansas corporation, and DAVID MASON, individually, Defendants. __________________________________________________________________ ORDER __________________________________________________________________ THIS MATTER comes before the Court on several pending motions. First, Plaintiffs filed a Motion to Supplement Findings of Fact Concerning the Doctrine of Judicial Estoppel and to Supplement Record with Correspondence from Social Security Administration [" SSA" on October 28, 2005. The portion of the motion that sought to ] supplement the findings of fact concerning the doctrine of judicial estoppel was granted by Minute Order dated October 31, 2005. The portion of Plaintiffs' motion that seeks to supplement the record with correspondence from the SSA is still pending, and Defendants filed a response to this motion on November 7, 2005. In that same pleading filed November 7, 2005, Defendants filed a Motion to Supplement Findings of Fact and Conclusions of Law Concerning Plaintiffs' References to Social Security. Defendants also filed a Motion for Order for Production of Records or, alternatively, a Motion to Supplement Record with Social Security Records.

Case 1:03-cv-02474-WYD-PAC

Document 141

Filed 12/30/2005

Page 2 of 3

I first address both parties' motions to supplement the record with records or correspondence from the SSA. These motions are denied. I note that Defendants' reliance on the doctrine of judicial estoppel to foreclose Plaintiff Charlotte Schneider' s claim for wages based on representations she made to the SSA appears to be untimely as it was not raised before trial in either the Answer to the Amended Complaint or the Pretrial Order. In fact, this defense was raised for the first time only in connection with proposed Findings of Fact and Conclusions of Trial filed after the close of trial. However, if I decide this defense will be addressed on the merits, I find that the defense will be based on trial testimony only. It is far too late in the proceedings, after the trial has concluded and the evidence has been received, for either party to file supplements to the record. Accordingly, Plaintiffs' Motion to Supplement Record with Correspondence from Social Security Administration and Defendants' Motion to Supplement Record with Social Security Records are denied. Defendants' Motion for Order of Production of Records, which seeks production of Plaintiffs' social security file, is denied for the same reason. I do grant, however, Defendants' Motion to Supplement Findings of Fact and Conclusions of Law Concerning Plaintiffs' References to Social Security. While I allow this supplement to be filed, I will decide when I issue my Findings of Fact and Conclusions of law to which extent both parties' supplements to their Findings of Fact and Conclusions of Law on the doctrine of judicial estoppel are applicable in this case. In conclusion, it is

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Case 1:03-cv-02474-WYD-PAC

Document 141

Filed 12/30/2005

Page 3 of 3

ORDERED that Plaintiffs' Motion to Supplement Record with Correspondence from Social Security Administration filed October 28, 2005, is DENIED. It is FURTHER ORDERED that Defendants' Motion to Supplement Record with Social Security Records filed November 7, 2005, is DENIED. It is FURTHER ORDERED that Defendants' Motion for Order of Production of Records filed November 7, 2005, is DENIED. Finally, it is ORDERED that Defendants' Motion to Supplement Findings of Fact and Conclusions of Law Concerning Plaintiffs' References to Social Security filed November 7, 2005, is GRANTED. Dated: December 29, 2005 BY THE COURT:

s/ Wiley Y. Daniel Wiley Y. Daniel U. S. District Judge

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