HomeMy WebLinkAbout2023-cv-1342 - Cunningham V. City Of Fort Collins, Et Al. - 009 - Dfs Mot Extension Respond To ComplaintIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-1342-REB
Jesse Cunningham,
Plaintiff.
v.
City of Fort Collins;
Jason Haferman;
Sergeant Allen Heaton; and
Corporal Redacted.
Defendants.
DEFENDANTS CITY OF FORT COLLINS AND SERGEANT ALLEN HEATON’S
UNOPPOSED MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF’S
COMPLAINT AND JURY DEMAND
Defendants City of Fort Collins and Sergeant Allen Heaton, by and through their
undersigned counsel, Hall & Evans, LLC, hereby submit the following Unopposed Motion
for Extension of Time to Respond to Plaintiff’s Complaint and Jury Demand as follows:
CERTIFICATE OF CONFERRAL
Counsel for Defendant conferred with Plaintiff’s Counsel, Sarah Schielke, Esq.
prior to filing this motion. Plaintiff does not oppose the relief requested herein.
STATEMENT PURSUANT TO D.C.Colo.LCivR 6.1(b)
Defendants are seeking an additional 60-days, from when Defendant Haferman
waives service, for the filing of a response to Plaintiff’s Complaint.
1. Plaintiff Jesse Cunningham (“Plaintiff”) initiated this lawsuit on May 3, 2023,
against the Defendants, in the Larimer County District Court, State of Colorado, captioned
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Jesse Cunningham v. City of Fort Collins, Jason Haferman, Sergeant Allen Heaton, and
Corporal Redacted. The matter was subsequently removed to this Court on May 26, 2023
(See ECF 1).
2. According to the allegations of the Complaint, Plaintiff claims he was
wrongfully arrested on July 29, 2021, by former Fort Collins Police Officer, Defendant
Jason Haferman. The Complaint also alleges the City of Fort Collins and Sergeant
Heaton failed to supervise and train Mr. Haferman. In particular, Plaintiff’s Complaint
alleges the following claims: Against Defendant Haferman: violation of C.R.S. § 13-21-
131 – Arrest without Probable Cause; violation of C.R.S. § 13-21-131 – Violation of Due
Process Malicious Prosecution; violation of 42.U.S.C. § 1983 – Malicious Prosecution;
Against all Defendants: violation of 42 U.S.C. § 1983 - Unlawful Arrest without Probable
Cause – Individual, Failure-to- Supervise/Train, Unconstitutional Pattern/Practice under
Monell, Violation of Fourth Amendment Due Process.
3. In addition to this matter, there are four other lawsuits against the City of
Fort Collins, Sergeant Heaton, and Jason Haferman, arising out of alleged wrongful
arrests made by Mr. Haferman. (See Notice of Related Cases, ECF 2). Each of the
following matters were also removed on May 26, 2023, and are currently pending in the
United States District Court, District of Colorado:
• Derrick Groves v. City of Fort Collins; Jason Haferman; Sergeant
Allen Heaton; and Corporal Redacted; 1:23-cv-01339-RM-STV.
• Cody Erbacher v. City of Fort Collins; Jason Haferman; Sergeant
Allen Heaton; and Corporal Redacted; 1:23-cv-01341-CNS-NRN.
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• Harris Elias v. City of Fort Collins; Jason Haferman; Sergeant Allen
Heaton; and Corporal Redacted, 1:23-cv-01343-GPG, and;
• Carl Sever v. City of Fort Collins; Jason Haferman; Sergeant Allen
Heaton; and Corporal Redacted; 1:23-cv-01344-REB.
4. On or about May 12, 2023, the City of Fort Collins and Sergeant Heaton
waived service of the Complaint in this, and the other matters listed above. According to
the applicable State Court Rules, responses to the Complaints are due on or before June
2, 2023.
5. Undersigned Counsel does not represent Mr. Haferman, and Mr.
Haferman’s Counsel has not yet appeared in any of the above matters. It is anticipated,
however, Mr. Haferman will waive service.
6. Once Mr. Haferman waives service, and pursuant to the applicable Rules,
his response to the Complaint will be due 60-days thereafter (See Fed. R. Civ. P. 4(d)(3)).
7. Each of the Complaints referenced above are approximately 45-pages long,
with approximately 230 paragraphs of factual allegations. Although many of the
allegations are the same between the Complaints, Counsel requires additional time to
sort through each of the matters to develop an appropriate response. Furthermore, the
general timespan contemplated by the Complaints, is approximately four-years. Review
of all the material encompassing the allegations throughout the four-year timeframe, is
necessary to develop a proper response.
8. Counsel for the City of Fort Collins and Sergeant Heaton is requesting an
extension of time, from 60-days after Mr. Haferman’s waiver of service, to file a response
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to Plaintiff’s Complaint. The additional time will allow for a review of the matters, drafting
of a proper response, and promote consistency for both the Court and the parties, as this
matter cannot proceed without each Defendant appearing and filing the appropriate
pleadings.
9. Pursuant to D.C.Colo.LCiv.R. 6.1(c), the undersigned counsel as served his
clients with this Motion, as reflected on the accompanying Certificate of Service.
WHEREFORE, Defendants City of Fort Collins and Sergeant Allen Heaton
respectfully request this Court grant them an extension of time for 60-days from when Mr.
Haferman waives service of the Complaint, to respond to Plaintiff’s Complaint and Jury
Demand, and for all other and further relief as this Court deems just and appropriate.
Respectfully submitted this 31st day of May 2023.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Robert A. Weiner, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300, Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
weinerr@hallevans.com
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 31st day of May 2023, a true and correct copy of the
foregoing DEFENDANTS CITY OF FORT COLLINS AND SERGEANT ALLEN
HEATON’S UNOPPOSED MOTION FOR EXTENSION OF TIME TO RESPOND TO
PLAINTIFF’S COMPLAINT AND JURY DEMAND was filed with the Court via CM/ECF
and served on the below-listed party by email:
Sarah Schielke, Esq.
sarah@lifeandlibertylaw.com
and served on the following via e-mail:
City of Fort Collins
c/o John Duval, Esq.
Sergeant Allen Heaton
s/ Sarah Stefanick
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