Free Reply to Response to Motion - District Court of Colorado - Colorado

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

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Filed 02/20/2006

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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, CHARLES ABBOTT, KIM DEMPEWOLF, RYAN BRADLEY, MARYE DEMING, MONIQUE M. MARTEL, SANDRA CANNON-GRANT, AND JASON COLLIDGE Defendants.

REPLY IN SUPPORT OF DEFENDANT MARTEL'S MOTION TO DISMISS ______________________________________________________________________________ Defendant, MONIQUE M. MARTEL, by her attorneys, JENNIFER M. PALMER and BILLY-GEORGE HERTZKE of the firm SENTER GOLDFARB & RICE, L.L.C., submits this Reply in Support of Defendant Martel's Motion to Dismiss. Plaintiff's Response to Defendant Martel's Motion to Dismiss confirms that Ms. Martel was not properly served in accordance with Fed.R.Civ.P. 4. The Court should, therefore, dismiss Ms. Martel from this action pursuant to Fed.R.Civ.P. 12(b). Plaintiff states that, on December 12, 2004, an Amended Prisoner Complaint was filed. (Plaintiff's Response, at ¶ 3). Defendant Martel does not dispute this fact. However, Ms. Martel was not served with a copy of this pleading. Instead, Ms. Martel was served with the original

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

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Prisoner Complaint and Proposed Amended Complaint and Jury Trial Demand. Neither of these pleadings identifies Ms. Martel as a defendant in this action. Further, as explained in Ms. Martel's Motion to Dismiss, the Summons served with the Prisoner Complaint, does not meet the requirements of Fed.R.Civ.P. 4. For these reasons, the Court should dismiss Ms. Martel from this action. Plaintiff does not claim that Ms. Martel was properly served. Rather, Plaintiff argues that, by virtue of attaching the Amended Prisoner Complaint to his Response, Ms. Martel has now been served. To the contrary, Ms. Martel has never been properly served. Due process and the Federal Rules of Civil Procedure require that Ms. Martel be personally served with a copy of the summons and operative complaint by a non-interested party over the age of 18 or a U.S. Marshal. See Fed.R.Civ.P. 4(c)(2). Further, the summons and complaint must provide Ms. Martel with fair notice of what Plaintiff's claim is and the grounds upon which it rests. Leatherman v. Tarrant County Narcotics Intelligence and Coord. Unit, 507 U.S. 163, 168, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993). Rule 8(a)(2) requires a short and plain statement of the claim showing that the plaintiff is entitled to relief. See Fed.R.Civ.P. 8(2). Neither the Prisoner Complaint nor the Proposed Amended Complaint served upon Ms. Martel state a claim against Ms. Martel. Therefore, Ms. Martel's Motion to Dismiss should be granted, pursuant to

Fed.R.Civ.P. 12(b), because Plaintiff has not complied with Rules 4(c)(2) and 8(2). WHEREFORE, Defendant Monique Martel respectfully requests the Court dismiss her from this case pursuant to Fed.R.Civ.P. 4 and 12, award her reasonable attorney's fees and costs, and such other relief as the Court deems just and proper.

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Respectfully submitted,

By s/ Jennifer M. Palmer Jennifer M. Palmer

By s/ Billy-George Hertzke Billy-George Hertzke SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: (303) 320-0509 Facsimile: (303) 320-0210 E-mail: [email protected] [email protected] Attorneys for Defendant Martel

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of February, 2006, I electronically filed a true and exact copy of the above and foregoing REPLY IN SUPPORT OF DEFENDANT MARTEL'S MOTION TO DISMISS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Steven J. Wienczkowski ­ [email protected] Daniel M. Hubbard ­ [email protected] Scott S. Nixon ­ [email protected] PRYOR JOHNSON CARNEY KARR & NIXON, P.C. Attorneys for Defendants CMI, Abbott, Dempewolf, Bradley, Deming, Coolidge, and CannonGrant Via U.S. Mail Oloyea D. Wallin AVCF, Prisoner #111389 P.O. Box 1000 Crowley, CO 81034 Plaintiff, Pro Se

/s Rita Sinks

00212396