HomeMy WebLinkAbout2023CV30993 - Smith-Acree v. City, et al. - 07 - City Unopp Mot Set Aside Clerks Entry of DefaultDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Ave., Ste. 100
Fort Collins, CO 80521
(970) 494-3500
COURT USE ONLY
Plaintiff: MARGARET SMITH-ACREE
v.
Defendant: CITY OF FORT COLLINS, and
TRANSFORT BUS SERVICES
Attorneys for Defendant
Andrew W. Callahan, #52421 – acallahan@wicklaw.com
Cassie L. Williams, #58279 – cwilliams@wicklaw.com
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3
Fort Collins, CO 80522
Phone: (970) 482-4011
Case No.: 2023 CV 30993
Division: 4A
UNOPPOSED MOTION TO SET ASIDE CLERK’S ENTRY OF DEFAULT
COMES NOW Defendant City of Fort Collins (the “City”), by and through its attorneys,
Wick & Trautwein, LLC, and in support Defendant states as follows:
Rule 121 Certification: Undersigned counsel has conferred with counsel for the Plaintiff
regarding this motion and counsel is authorized to state that plaintiff’s counsel does not oppose
the relief sought herein.
This personal injury lawsuit against the City of Fort Collins (and improperly named
Transfort Bus Services) was initiated via a complaint filed December 6, 2023. Defendant City of
Fort Collins was served on January 31, 2024, and the return of service was filed on February 25,
2024. Following service of the Complaint, undersigned counsel reached out to counsel for the
Plaintiff to identify several defects in the Complaint. As a result of those conversations, Plaintiff’s
counsel agreed to file an amended complaint. Plaintiff filed her amended complaint on February
20, 2024.
DATE FILED: March 5, 2024 5:03 PM
FILING ID: 66524722B8698
CASE NUMBER: 2023CV30993
C.R.C.P. 15(a) sets forth the time limits for responding to an amended complaint. It states:
“A party shall plead in response to an amended pleading within the time remaining for response
to the original pleading or within 14 days after service of the amended pleading, whichever period
may be longer, unless the court otherwise orders.” Here, the amended complaint was filed on
February 20, 2024. Fourteen days from this date would be March 6, 2024. Thus, Defendant is not
in default at this time.
Additionally, there is no affidavit of service indicating that the Amended Complaint was
ever formally served on Defendant. Instead, Plaintiff’s counsel emailed a Word copy of the
amended complaint to the undersigned counsel. Moreover, in the email exchange between
counsel, plaintiff’s counsel agreed that a responsive pleading would be due on March 6, 2024.
(See email correspondence attached as Exhibit 2.) Accordingly, there was a valid agreement as to
the date upon which a responsive pleading would be filed, and that agreement complies with the
requirements of C.R.C.P. 15(a). The Clerk’s Entry of Default was in error.
C.R.C.P. 55(c) provides “For good cause shown, the court may set aside an entry of
default.” Here, there is ample good cause for setting aside the entry of default. First, the entry
was in error, as the time limit for Defendant’s answer to the amended complaint has not yet run.
Additionally, there was an agreement between the parties as to the proper date for the Defendant’s
answer in this case, and that date is March 6, 2024. Accordingly, there is good cause to set aside
the entry of default.
WHEREFORE, Defendant City of Fort Collins requests that this Court enter an Order
setting aside the entry of default and directing an Answer be filed on or before March 6, 2024 and
for such other relief as is just and reasonable.
Respectfully submitted this 5th day of March, 2024.
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Cassie L. Williams, #58279
Attorneys for Defendant City of Fort Collins
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing UNOPPOSED
MOTION TO SET ASIDE CLERK’S ENTRY OF DEFAULT was filed with the court via
Colorado Courts E-filing System (CCES) this 5TH day of March, 2024, and served on the
following:
Geoffrey S. Gulinson
Geoffrey S. Gulinson & Associates, P.C.
4155 East Jewell Ave., Ste. 402
Denver, CO 80222
/s/ Jody L. Minch