HomeMy WebLinkAbout2019-cv-901 - Surat v. City of Fort Collins, et al. - 103A - Discovery Dispute Statement 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 19-cv-00901-WJM-NRN
MICHAELLA LYNN SURAT,
Plaintiff,
v.
RANDALL KLAMSER, in his individual capacity,
Defendant.
DISCOVERY DISPUTE STATEMENT
Overview:
Plaintiff’s counsel sought to depose the City of Fort Collins. In service of this
discovery, Plaintiff’s counsel sent a 30(b)(6) notice on May 7, 2020 to counsel for the
City of Fort Collins (who are also counsel for Defendant in this matter), asking the City
of Fort Collins to identify a representative that could testify competently as to the
following topics:
1. The circumstances relating to the use of force against Ms. Surat
including, but not limited to, whether the use of force was in
accordance with Fort Collins’ training, customs, practices, and
policies;
2. The facts and circumstances relating to the internal investigation into
the use of force against Ms. Surat including, but not limited to, any
internal affairs investigations that were conducted, any discipline that
was imposed, or any other aspect of any investigation that was
undertaken in the use of force;
3. Policies, training, and customs relating to the use of force, including,
but not limited to, policies, training, and customs related to the
rowing-arm takedown maneuver and policies, training, and customs
related to use of force against individuals who are resisting arrest;
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4. Supervision, including performance evaluations, early intervention,
and reviews of uses of force against citizens by supervisors or others
in the chain of command;
5. Inner- or inter- departmental internal investigations, including the
investigative process, discipline, and termination;
6. Training, implementation and enforcement, including academy
training requirements, remedial training requirements, and in-service
training requirements;
7. Other instances of City of Fort Collins law enforcement interactions
with people that resulted in a claim or complaint (formal or informal,
broadly defined) of excessive force, including but not limited to the
allegations of such claims or complaints outlined in Plaintiff’s
Complaint.
Exhibit 1. Counsel for Defendant did not respond to this letter until July 7, 2020. In that
response, counsel for Defendant objected to identifying a 30(b)(6) representative to
testify as to every topic outlined above, except as to topic number two: “[t]he facts and
circumstances relating to the internal investigation into the use of force against Ms. Surat
including, but not limited to, any internal affairs investigations that were conducted, any
discipline that was imposed, or any other aspect of any investigation that was undertaken
in the use of force.” Exhibit 2. Last week, counsel for both parties had a phone
conference and could not resolve this issue.
Plaintiff’s Position:
Plaintiff is entitled to discovery that is fully relevant to her claims against the City
of Fort Collins. While the claims against the City of Fort Collins were previously
dismissed, they were dismissed without prejudice, [Doc. #84], and Plaintiff has moved to
amend her Complaint to re-assert her claims in accordance with the Court’s dismissal
order. [Doc. #96]. Defendant did not object to Plaintiff’s motion to amend. [Doc. #97].
Courts have held that the topics that Plaintiff has outlined in her 30(b)(6)
deposition notice are “categories of information” that are “essential” to Monell claims.
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Detoy v. City & County of San Francisco, 196 F.R.D. 362, 365 (N.D. Cal. July 19, 2000);
see also White v. City of Cleveland, 417 F. Supp. 3d 896, 910 (N.D. Oh. 2019); Bishop v.
Cnty. of Suffolk, 248 F. Supp. 3d 381, 395 (E.D.N.Y. 2017); Buie v. District of Columbia,
327 F.R.D. 1, 12 (D.D.C. 2018). Given that Defendant did not object to Plaintiff
amending her Complaint to re-assert her Monell claim against the City of Fort Collins,
Plaintiff is entitled to discovery as to that claim. Therefore, Plaintiff asks that this Court
order that the City of Fort Collins, through Defendant’s counsel, identify a 30(b)(6)
representative that is knowledgeable as to each topic so that Plaintiff may move forward
with a 30(b)(6) deposition of the City of Fort Collins.
Defendant Randy Klamser and City of Fort Collins’ Position:
“While Rule 26 of the Federal Rules of Civil Procedure contemplates liberal
discovery of matters that may be reasonably calculated to lead to admissible evidence, a
party does not have an unfettered or absolute right to discovery.” White v. Deere & Co.,
2015 U.S. Dist. LEXIS 114598 at *15 (D. Colo., Aug. 28, 2015, Civil Action No. 13-cv-
02173-PAB-NYW) referring to Witt v. GC Servs. Ltd. P'ship, 307 F.R.D. 554, 559 (D.
Colo. 2014). Here, the City of Fort Collins (“City”) was dismissed pursuant to the
Court’s February 24, 2020 Order (See ECF 84). In dismissing the City, the Court
concluded, “Surat’s Monell-related allegations are essentially twofold: (1) a Fort Collins
internal affairs investigation concluded that Klamser ‘acted lawfully and in accordance
with [Fort Collins police] policy,’ creating a ‘reasonable inference that the city’s policy
and training lead officers to act unconstitutionally’ (¶ 47); and (2) five other allegedly
similar use-of-force incidents, some of them leading to six-figure civil settlements,
occurred in the timeframe between 2013 and 2018, thereby demonstrating that excessive
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force is a pattern among Fort Collins police officers and Fort Collins is doing nothing to
stop it (¶¶ 50–56).’” (ECF 84 at 16, citing to ECF 1, ¶¶ 47 & 50-56). In concluding the
Plaintiff failed to properly plead a Monell claim against the City, the Court properly
concluded that “Surat’s allegations are not tailored to the burden she faces in this case….
(t)o avoid violating Heck, it must be taken as given that Klamser was attempting to effect
Surat’s arrest through a lawful use of lesser force, and that Surat’s resistance amounted to
physical force or violence against Klamser and/or threatened him with substantial bodily
harm.” (ECF 84 at 16-17). Consistent with Plaintiff’s attempt to allege a claim of Monell
liability against the City, and as recognized by the Court, “Surat does not explain why an
internal affairs investigation clearing Klamser under those circumstances could plausibly
suggest unconstitutional policies, and Surat has not alleged any prior use-of-force by a
Fort Collins police officer that comes close to this factual scenario.” (ECF 84 at 17).
Applying the Court’s reasoning to the request for a 30(b)(6), the topics presented are the
exact type of “unfettered discovery” to which Plaintiff is not entitled.
Furthermore, Plaintiff’s argument with respect to Officer Klamser’s position on
an amendment of the Complaint, is taken out of context. In particular, in granting the
City’s Motion to Dismiss, the Court concluded that it “is skeptical that Surat could amend
to state a viable claim, but the Court cannot say with certainty that Surat could never
allege additional facts which would plausibly suggest Monell liability.” (ECF 84 at 17).
Given the differing (a lesser) standard for amending a complaint versus dismissal of the
claim, no objection by Officer Klamser (or the City), was lodged. Nonetheless, any such
position does not waive the right to challenge any new allegations against the City,
should Plaintiff’s Motion be granted.
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Plaintiff’s request for a 30(b)(6) designee, should be precluded.
Dated this 23rd day of July, 2020.
KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty
David A. Lane
Andy McNulty
1543 Champa Street, Suite 400
Denver, Colorado 80202
Phone: (303) 571-1000
Facsimile: (303) 571-1001
dlane@kln-law.com
amcnulty@kln-law.com
Counsel for Plaintiff
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EXHIBIT 1
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KILLMER, LANE & NEWMAN, LLP ATTORNEYS AT LAW
1543 CHAMPA ST. SUITE 400 THE ODD FELLOWS HALL DENVER, CO 80202
303.571.1000 FAX: 303.571.1001 www.KLN-law.com
Darold W. Killmer
David A. Lane*+
Mari Newman*
Michael Fairhurst
Thomas Kelley°
Andrew McNultyˆ
Liana Gerstle Orshan
Reid Allison+
________________________________________
*Also admitted to practice in California
+Also admitted to practice in New York
ˆAlso admitted to practice in Missouri
°Of Counsel
May 7, 2020
VIA EMAIL
Mark Ratner
Brenden Desmond
Hall & Evans, LLC
1001 Seventeenth Street, Ste 300
Denver, CO 80202
303-628-3492
ratnerm@hallevans.com
desmondb@hallevans.com
RE: Surat v. Klamser, et al.
Dear Mark and Brenden:
I am writing to request identification of the individual(s) best qualified to provide Rule
30(b)(6) deposition testimony pertaining to the City of Fort Collins’ customs, policies,
procedures, and actual practices for law enforcement patrol officers in the following areas:
1. The circumstances relating to the use of force against Ms. Surat including, but not
limited to, whether the use of force was in accordance with Fort Collins’ training,
customs, practices, and policies;
2. The facts and circumstances relating to the internal investigation into the use of
force against Ms. Surat including, but not limited to, any internal affairs investigations
that were conducted, any discipline that was imposed, or any other aspect of any
investigation that was undertaken in the use of force;
3. Policies, training, and customs relating to the use of force, including, but not
limited to, policies, training, and customs related to the rowing-arm takedown maneuver
and policies, training, and customs related to use of force against individuals who are
resisting arrest;
4. Supervision, including performance evaluations, early intervention, and reviews
of uses of force against citizens by supervisors or others in the chain of command;
5. Inner- or inter- departmental internal investigations, including the investigative
process, discipline, and termination;
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Peter Morales, Isabelle Evans
September 9, 2019
Page (2)
6. Training, implementation and enforcement, including academy training
requirements, remedial training requirements, and in-service training requirements;
7. Other instances of City of Fort Collins law enforcement interactions with people
that resulted in a claim or complaint (formal or informal, broadly defined) of excessive
force, including but not limited to the allegations of such claims or complaints outlined in
Plaintiff’s Complaint.
Please contact us at your earliest convenience with the identity of the individual(s) best
suited to provide such testimony and the dates of their availability. We would like to take these
depositions during the month of May in accordance with the scheduling order in this matter.
Thank you for your prompt attention to this matter.
Sincerely,
Andy McNulty
AM/ja
cc: Michaella Surat
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EXHIBIT 2
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1001 Seventeenth Street
Suite 300
Denver, CO 80202
P 303-628-3300
F 303-628-3368
www.hallevans.com
Mark S. Ratner
ratnerm@hallevans.com
(303) 628-3337
Admitted in Colorado, Arizona, Illinois, Michigan, Kansas and U.S. Virgin Islands
File No. 6139-82
July 6, 2020
Andy McNulty, Esq.
Killmer, Lane & Newman, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
RE: Surat v. Klamser
Dear Mr. McNulty:
We are in receipt of your correspondence dated May 7, 2020, and email containing said
correspondence dated June 11, 2020, which purports to set forth 30(b)(6) topics directed to the
City of Fort Collins.
As you know the claims against the City in the Surat matter were dismissed. The only remaining
claim is, therefore, brought pursuant to the Fourth Amendment and is against Officer Klamser.
With that in mind, most of the topics proposed in your May 7th correspondence address issues
which are irrelevant to the only remaining claim against Officer Klamser, and which include
training, customs, practices, and policies of the City. The exception is, perhaps, topic number 2.
However, although an internal investigation was conducted, as you know there was no discipline
imposed. The City will, therefore, provide a representative to address topic number 2 to the extent
possible, but will object to any of the other topics identified.
Please let me know if you would like to discuss further.
Sincerely,
Mark S. Ratner, Esq.
of Hall & Evans, L.L.C.
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