Free Response to Objection to Appeal of Magistrate Judge Decision - District Court of Colorado - Colorado

Case 1:03-cv-02319-WDM-MJW

Document 253

Filed 03/29/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 03-CV-02319-WDM-MJW OLOYEA D. WALLIN, Plaintiff, vs. CMI, KIM DEMPEWOLF, RYAN BRADLEY, MARY, SANDRA, AARON, JASON and CHARLES Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO OBJECTION TO MAGISTRATE JUDGE ORDER DENYING PLAINTIFF'S MOTION TO COMPEL CMI DEFENDANTS TO RESPOND TO INTERROGATORIES ______________________________________________________________________________ COME NOW the Defendants, CMI, Kim Dempewolf, Marye Deming, and Jason Coolidge, by and through their attorneys, Pryor Johnson Carney Karr Nixon, P.C., and submit the following Response to Magistrate Judge Order Denying Plaintiff's Motion to Compel CMI Defendants to Respond to Interrogatories: 1. On March 2, 2006, the Court conducted a hearing regarding co-Defendant Martel

Medical's Motion to Dismiss, as well as Plaintiff's Motion to Compel. With respect to Plaintiff's Motion to Compel, the Court found that the Defendants appropriately responded to Plaintiff's discovery requests and that Plaintiff exceeded the number of interrogatories allowed by the Court.

Case 1:03-cv-02319-WDM-MJW

Document 253

Filed 03/29/2006

Page 2 of 5

Specifically, the Court found as follows: THE COURT: All right. The Court has taken up Mr. Wallin's motion to compel CMI defendants to fully and completely answer submitted interrogatories. I've reviewed the motion, the attachment to the motion which is a 60-page attachment. I've tried to outline what that includes but it does include the actual interrogatories the answers given by the CMI defendants in the case. There's other documents attached to that including defendants' motion for protective order, which is one of the attachments. There is the attachment that's captioned Corrective Disciplinary Action Matters. There are other attachments, attachments 4 and 5, dealing with the Court's order on protective order. And then attachment 5 dealing with the plaintiff's first set of interrogatories, requests for admissions for the defendant Marye Deming. Attachment 6 is defendant Marye Deming's responses to plaintiff's first set of interrogatories, requests for admission. And let me make sure I didn't miss the last attachment, which is -- attachment 7 is a letter from Mr. Wallin to counsel for the CMI defendants dated -- it does not have a date -- oh, yes, it does. February 1st, 2006. And then there is -- well, that's the last attachment, which is attachment 7. To make a long story short, those attachments that I tried to outline and summarize make up 60 pages -- well, the document. In reviewing the interrogatories, the Court will first note that Mr. Wallin exceeded the number as permitted by the court to serve. And those thereafter were not answered for that reason by the defendants -- and I'm speaking of the CMI defendants, which is appropriate. As to those interrogatories that were permitted as far as number, answers were provided by CMI defendants that adequately address those interrogatories, and I do not find that any further answers are needed based upon those responses.

See Hearing Transcript, p. 11, l. 7 - p. 12, l. 16, attached as Exhibit A.

-2-

Case 1:03-cv-02319-WDM-MJW

Document 253

Filed 03/29/2006

Page 3 of 5

2.

The thrust of Plaintiff's argument set forth in his objection is that Defendants, and

in particular Defendant Dempewolf and Defendant Deming, failed to adequately respond to several of Plaintiff's Interrogatories. See Plaintiff's Objection, ¶ 2. Plaintiff argues that many of his Interrogatories contained subparts which should have been answered by Defendants. 3. With respect to Plaintiff's Interrogatories propounded to Defendant Dempewolf,

several interrogatories were taken directly from the Colorado Rules of Civil Procedure Pattern Interrogatories. See Exhibit B, Defendant Dempewolf's Responses to Plaintiff's Interrogatories. Defendant Dempewolf did not object to the pattern interrogatories on the grounds that these interrogatories contained discreet subparts. Defendant Dempewolf appropriately objected to Interrogatories No. 2.2, No. 2.3 and No. 2.5, on the grounds that the information requested from a CMI employee is protected pursuant to the Court's Protective Order entered on June 15, 2005. 4. As to the remaining interrogatories propounded to Defendant Dempewolf, beginning

with Interrogatory No. 4 on page 7 of Exhibit B, Plaintiff propounded several non-pattern interrogatories. Beginning with Interrogatory No. 12.6 on page 11 of Exhibit B, Plaintiff exceeded the 25 interrogatories allowed pursuant to the Scheduling Order and Fed. R. Civ. P. 33. These interrogatories do not represent subparts of the other interrogatories, as Plaintiff claims. Plaintiff asks separate questions which should be viewed as separate interrogatories. Defendants submit that Magistrate Judge Watanabe appropriately found that the remaining interrogatories did not constitute subparts and that Plaintiff exceeded the number allowed under the rules. 5. Similarly, with respect to the interrogatory responses of Defendant Deming, attached

as Exhibit C, Defendant did not object to the pattern interrogatories on the grounds that the -3-

Case 1:03-cv-02319-WDM-MJW

Document 253

Filed 03/29/2006

Page 4 of 5

interrogatories contained "discreet subparts."

With respect to the remaining non-pattern

interrogatories, Defendant Deming responded to the best of her recollection from when she was an employee of CMI. Plaintiff propounded the same or similar interrogatories to the corporate Defendant, CMI, which provided the policies themselves about which Plaintiff asks in his interrogatories. See Exhibit D, Defendant CMI's Responses to Plaintiff's First Set of Interrogatories and Requests for Admission, and Exhibit E, Defendants' Responses to Requests for Production of Documents. Therefore, to the extent Plaintiff was prejudiced by Ms. Deming's failure to recall the specific details of CMI policies, it was harmless, as Plaintiff was provided all of the policies he asked for through Defendant CMI. 6. Defendants respectfully request that Magistrate Judge Watanabe's Order of March

2, 2006 be affirmed, as the Magistrate Judge appropriately found that Defendants appropriately and fully responded to Plaintiff's discovery requests and that Plaintiff exceeded the number of interrogatories allowed by the Court.

-4-

Case 1:03-cv-02319-WDM-MJW

Document 253

Filed 03/29/2006

Page 5 of 5

Respectfully submitted this 29th day of March, 2006.

s/Steven J. Wienczkowski Scott S. Nixon Steven J. Wienczkowski PRYOR JOHNSON CARNEY KARR NIXON P.C. 5619 DTC Parkway, Suite 1200 Greenwood Village, Colorado 80111 (303) 773-3500 ATTORNEYS FOR CMI, KIM DEMPEWOLF, MARYE DEMING AND JASON COOLIDGE

CERTIFICATE OF SERVICE I hereby certify that on the 29th day of March, 2006, a true and correct copy of the foregoing was served via electronic filing, addressed to: Oloyea D. Wallin Reg. No. 111389 AVCF Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, Colorado 81034 Billy-George Hertzke, Esq. SENTER , GOLDFARB & RICE , LLC 1700 Broadway, Suite 1700 Denver, Colorado 80290

s/Laura Buckingham Laura Buckingham on behalf of Pryor Johnson Carney Karr Nixon, P.C.

-5-