Free Motion to Continue - District Court of Colorado - Colorado

Case 1:03-cv-02435-PSF-PAC

Document 251

Filed 09/15/2006

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-02435-PSF-PAC LILLIAN F. SANDLE, Plaintiff, v. ANTHONY J. PRINCIPI, Secretary, Department of Veterans Affairs, Defendant.

DEFENDANT'S MOTION TO CONTINUE PRETRIAL CONFERENCE, FINAL TRIAL PREPARATION CONFERENCE, AND TRIAL

Defendant Anthony J. Principi, Secretary, Department of Veterans Affairs, by and through undersigned counsel, hereby moves pursuant to Rule 7(b)(1) of the Federal Rules of Civil Procedure to continue the pretrial conference, the final trial preparation conference, and the trial in this case. Good cause exists to grant defendant's motion. 1. The pretrial conference is currently scheduled for October 2, 2006. See

Docket No. 229. The Final Trial Preparation Conference is set for October 27, 2006, and the trial is currently scheduled for November 6, 2006. See Docket No. 194. 2. In this case plaintiff Lillian Faye Sandle brings claims under the

Rehabilitation Act of 1973 and Title VII of the Civil Rights Act of 1964, as amended. All

Case 1:03-cv-02435-PSF-PAC

Document 251

Filed 09/15/2006

Page 2 of 6

of the actions about which plaintiff complains in her Second Amended Complaint occurred on or before June 29, 1991. See Docket No. 169. 3. Because the actions at issue here occurred on and before June 29, 1991,

plaintiff is not entitled to a jury trial. Any trial here will be a bench trial. Congress in the Civil Rights Act of 1991 ("the 1991 Act"), amended both Title VII and the Rehabilitation Act by providing for, among other things, recovery of compensatory damages and the right to a jury trial. See 42 U.S.C.A. § 1981a; Guillory-Wuertz v. Brady, 785 F.Supp. 889, 891 (D. Colo. 1992) (the 1991 Act extended compensatory damages and the right to a jury trial to plaintiffs who had brought actions under Title VII, the Americans With Disabilities Act of 1990 and the Rehabilitation Act of 1973). Prior to the Civil Rights Act of 1991, there was no provision for the right of a jury trial under the Rehabilitation Act of 1973 or the Civil Rights Act of 1964. Matthews v. Jefferson, 29 F. Supp.2d 525, 536 (W.D. Ark. 1998). See also Tomasello v. Rubin, 920 F. Supp. 4, 7 (D.D.C. 1996) (prior to enactment of the 1991 Act, Title VII did not provide for a jury trial). The effective date of the 1991 Act was November 21, 1991. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 311-13 (1994). The actions at issue here occurred prior to the 1991 Act's effective date. In Landgraf v. USI Film Prods., 511 U.S. 244, 286 (1994), the Supreme Court held that the amendments in the 1991 Act allowing for such things as a jury trial do not apply retroactively to causes of action arising before enactment of the 1991 Act.

-2-

Case 1:03-cv-02435-PSF-PAC

Document 251

Filed 09/15/2006

Page 3 of 6

4.

Plaintiff has brought literally dozens of claims in her Second Amended

Complaint. See Docket No. 169. Defendant has identified over 30 separate alleged adverse employment actions which plaintiff complains about in her Complaint. 5. The parties have each filed motions for summary judgment. See Docket

Nos. 243-245. Defendant has filed two motions, and plaintiff has filed her own motion. Defendant has addressed all of plaintiff's alleged adverse actions in defendant's motion. Under Local Rule 7.1, the oppositions to the motions are not due until September 21, 2006, and the replies are not due until October 6, 2006. 6. The Court has set a pretrial conference for October 2, 2006, a date prior to

the time the replies to the summary judgment motions are due. 7. Since the entry of plaintiff's counsel in this case in October 2005, no

settlement conference has transpired. The Court has indicated that a settlement conference will only be scheduled once the parties appear at the October 2, 2006 pretrial conference. See Docket No. 229. Because this is a pre-1991 Act case, only back pay damages are at issue here. For this reason, settlement of this case would appear more easily obtainable. 8. Because plaintiff's claims will be tried to the Court, in the interests of

judicial economy defendant proposes that the pretrial conference, the final trial preparation conference, and the trial all be reset to a time after the parties have had an

-3-

Case 1:03-cv-02435-PSF-PAC

Document 251

Filed 09/15/2006

Page 4 of 6

opportunity to attend a settlement conference, and the Court has had an opportunity to consider and rule on the parties' motions for summary judgment. At this juncture, the issues and claims have not been sufficiently narrowed to try the case in the most efficient and economical manner. The defendant does not want to burden the Court with a trial that has not been effectively streamlined. 9. Pursuant to D.C.COLO.L.Civ,R. 7.1, the undersigned has contacted counsel

for plaintiff regarding this motion and they have informed the undersigned that plaintiff opposes this motion. WHEREFORE, defendant respectfully requests that the pretrial conference, the final trial preparation conference, and the trial all be reset to a time after (1) the parties have had an opportunity to attend a settlement conference, and (2) the Court has had an opportunity to consider and rule on the parties' motions for summary judgment. /// ///

-4-

Case 1:03-cv-02435-PSF-PAC

Document 251

Filed 09/15/2006

Page 5 of 6

Dated this 15 th day of September, 2006. Respectfully submitted, TROY A. EID United States Attorney s/ Michael C. Johnson MICHAEL C. JOHNSON Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected] Counsel for Defendant

Case 1:03-cv-02435-PSF-PAC

Document 251

Filed 09/15/2006

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that on this 15 th day of September, 2006, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Counsel for Plaintiff: Dugan William Edward Bliss Email: [email protected] Sean Robert Gallagher Email: [email protected]

I hereby certify that on this 15 th day of September, 2006, I served the foregoing document via electronic mail on the following non-CM/ECF participant: Agency Counsel: Thomas Kennedy [email protected]

s/ Michael C. Johnson MICHAEL C. JOHNSON Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected]