Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:03-cv-01959-MSK-PAC

Document 190

Filed 05/15/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number 03-cv-01959-MSK-PAC AHMED M. AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER and J.C. ZUERCHER Defendants.

JOINT MOTION FOR RECONSIDERATION OF ORDER DENYING JOINT MOTION TO VACATE AND RE-SET TRIAL DATE AND REQUEST FOR SCHEDULING HEARING

Plaintiff Ahmad M. Ajaj ("Plaintiff"), by and through his counsel Carmen Reilly, and Defendants United States of America, Robert Hood, James Burrell, David Duncan, C. Chester, and J.C. Zuercher ("Defendants"), by and through their counsel, William J. Leone, United States Attorney, and Amanda Rocque, Assistant United States Attorney, respectfully move this Court pursuant to Fed. R. Civ. P. 60 for reconsideration of its Order dated May 12, 2006 (Document 189) denying the parties' Joint Motion to Vacate and Re-Set Trial Date and Request for a Scheduling Hearing. Reconsideration is

appropriate under Rule 60 because discovery has been stayed from February 1, 2005 through May 12, 2006, no party has taken any discovery yet, and Plaintiff' counsel has a s trial conflict that will prevent Plaintiff from undertaking significant discovery in June and the first week of July, 2006. Under these circumstances, all parties will be severely

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prejudiced if they proceed to trial on July 11, 2006. In support of this motion, the parties jointly state as follows: 1. 2. 3. This matter is currently set for trial on July 11, 2006. No party has taken any discovery in this case. On May 9, 2006, the parties filed a joint motion to vacate the trial date

because discovery in this action had been stayed since February 1, 2005 pending a determination by the Court on the Defendants' motions to dismiss. (Document 185). 4. On May 11, 2006, the Court ruled on the Defendants' motions to dismiss.

The Court denied the United States' motion to dismiss, and the Court granted in part and denied in part the Federal Officers' motion to dismiss. (Document 186). 5. On May 12, 2006, the Court denied the parties' Joint Motion to Vacate

and Re-Set Trial Date stating the parties should be able to complete discovery prior to trial set for July 11, 2006. The Court also lifted the stay of discovery at this time. (Document 189). 6. The parties respectfully request the court reconsider this May 12, 2006

Order for the following reasons. 7. Counsel for Plaintiff has a three-week trial beginning June 19, 2006 in

Federal Court, captioned Hill v. Western Door et al, Civil Action No. 04-CV-0332-REBCBS, in front of the Honorable Judge Blackburn. Counsel for Plaintiff, although not lead counsel in the case, will be assisting at trial and attending the trial every day. The trial ends on July 7, 2006. Taking depositions or engaging in other types of discovery will be impossible during the three-week trial.

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8.

In order for Plaintiff to determine the individuals necessary for him to

depose, he will need to serve written discovery upon Defendants. Under the Federal Rules of Procedure, Defendants will have 30 days to respond to the written discovery. 9. The earliest Plaintiff can serve written discovery is May 15, 2006. This

would require Defendants to respond no later than June 15, 2006. At this point, Plaintiff would hopefully have necessary documents and know the individuals he needs to depose in order to prove his claims. 10. Once the trial ends, counsel for Plaintiff will only have one day before

Plaintiff' trial beginning on July 11, 2006 to schedule necessary depositions or engage in s other types of discovery. It will not be possible for Plaintiff to complete the necessary discovery and be prepared for trial on July 11, 2006 in this amount of time. 11. At a minimum, Plaintiff will likely depose the five Federal Officer

Defendants. Plaintiff believes that at least two of these Defendants reside out of state. Plaintiff will attempt to schedule these depositions as soon as possible; however, he does not know their availability over the next several weeks before the trial beginning on June 19, 2006. Again, during these three weeks, counsel for Plaintiff will be unable to schedule depositions or engage in any discovery. 12. In order for Plaintiff to have a fair opportunity to present and prove his tort

claim and constitutional claims, he respectfully requests this court reconsider its decision denying the parties' motion to vacate the trial in this case. 13. In order for Defendants to have a fair opportunity to defend against

Plaintiff' tort claim and constitutional claims, they respectfully request this Court s

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reconsider its May 12, 2006 Order denying the parties' motion to vacate the trial in this case. 14. Defendants intend to take written discovery prior to deposing Plaintiff.

The earliest that counsel for Defendants can serve such discovery requests is May 15, 2006. As stated above, Plaintiff will have until June 15, 2006 (i.e., 30 days under the Federal Rules of Civil Procedure) to respond to the written discovery. However, given that counsel for Plaintiff will be in trial for three weeks beginning on June 19, 2006, there will only be a four-day window in which Plaintiff' deposition may be scheduled. It will s be extremely difficult for counsel for Defendants to review Plaintiff' discovery s responses prior to a deposition that is conducted sometime between June 15 and June 19, 2006. 15. Defendants had also intended to depose any expert physician endorsed by

Plaintiff and obtain rebuttal testimony on the issue as to whether Plaintiff has suffered any injuries from placement at the ADX, and if so, the extent of those injuries. 16. Defendants had intended, if appropriate, to move for summary judgment

following the close of discovery. Given the 60-day window before trial, Defendants do not feel that they can conduct the necessary discovery and have time to submit and fully brief a dispositive motion. 17. The parties may also need to designate expert witnesses. Defendants are

considering designating an expert on environmental tobacco smoke and an expert on security levels for prisoners. The parties will not be able to obtain and designate the experts, provide reports and designate rebuttal experts in the less than two months that remains before trial.

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18.

Finally, the parties respectfully request a Scheduling Hearing with the

Court to discuss these issues further. WHEREFORE, Plaintiff Ahmed M. Ajaj and Defendants United States of America, Robert Hood, James Burrell, David Duncan, C. Chester, and J.C. Zuercher, respectfully request this Court grant their Motion for Reconsideration of this Court' s Order denying the Joint Motion to Vacate and Re-Set Trial Date and request this Court vacate the trial date set for July 11, 2006 and re-set it to allow the parties to engage in necessary discovery to prepare this case for trial. The parties also request a Scheduling Hearing as soon as is possible for the Court. Dated: May 15, 2006.

Respectfully submitted, COUNSEL FOR PLAINTIFF AJAJ

s/ Carmen N. Reilly____________ Carmen N. Reilly Montgomery Little Soran Murray & Kuhn, PC 5445 DTC Parkway, Suite 800 Greenwood Village, CO Telephone: (303) 773-8100 Facsimile: (303) 220-0412 E-mail: [email protected] COUNSEL FOR DEFENDANTS

WILLIAM J. LEONE UNITED STATES ATTORNEY s/Amanda Rocque______________ Amanda Rocque Assistant United States Attorney 1225 17th Street, Suite 700

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Denver, CO 80202 Telephone: (303) 454-0109 Facsimile: (303) 454-0404 E-mail: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on the 15th day of May, 2006, the foregoing JOINT MOTION FOR RECONSIDERATION OF ORDER DENYING JOINT MOTION TO VACATE AND RE-SET TRIAL DATE AND REQUEST FOR SCHEDULING HEARING was properly electronically filed with the Clerk of Court using the CM.ECF system which will send notification of such filing to the following e-mail addresses: Amanda Rocque, Esq. 1225 17th Street, Suite 700 Denver, Colorado 80202 United States District Judge Honorable Marcia S. Krieger United States Magistrate Judge Patricia A. Coan United States District Court 901 19th Street Denver, Colorado 80294

I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants via U.S. mail, postage prepaid, indicated by the nonparticipant' name, addressed to: s Ahmed M. Ajaj #40637-053 U.S. Penitentiary Max P.O. Box 8500 Florence, Colorado 81266-8500

s/Deborah Harant___________________________ Deborah J. Harant

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