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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 041 - Motion To StrikeIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:21-CV-02306-RM-KLM ROBERT LAWRENCE PERRY, Plaintiff, v. THE STATE OF COLORADO, THE CITY OF FORT COLLINS, CSU BOARD OF GOVERNORS FOR CSU, COLORADO STATE UNIVERSITY and STEVEN VASCONSELLOS, Judicial Administrator; Defendant. DEFENDANT THE CITY OF FORT COLLINS’ MOTION TO STRIKE PLAINTIFF’S MOTION FOR LEAVE TO AMEND (ECF 39) Mark S. Ratner, Esq. and Katherine N. Hoffman, Esq., of the law firm Hall & Evans, LLC, on behalf of Defendant, the City of Fort Collins (“City”), submit the following as their Motion to Strike Plaintiff’s Motion for Leave to Amend (ECF 39). CONFERRAL Undersigned Counsel conferred with Pro Se Plaintiff regarding the relief requested in this Motion. Pro Se Plaintiff objects to any such relief. I. INTRODUCTION Pro Se Plaintiff seeks leave for a second time, to amend his Complaint by purportedly adding a significant number of additional allegations (ECF 39). The Motion, however, fails to Case 1:21-cv-02306-RM-KLM Document 41 Filed 03/11/22 USDC Colorado Page 1 of 5 2 comply in any manner with the applicable Rules, making a response to the request very difficult at best. The City requests that Plaintiff’s Motion for Leave to Amend (ECF 39) be stricken. II. ARGUMENT On August 26, 2021, Plaintiff filed a Complaint against the City as well as additional Defendants (ECF 1). With respect to the City, Plaintiff claimed certain municipal ordinances were unconstitutional (See e.g. ECF 1, at 30 (Third Claim for Relief); ECF 1, at 32 (Fourth Claim for Relief). On September 24, 2021, Plaintiff filed an Amended Complaint, termed “Amended Petition for Relief.” (ECF 24). The Amended Complaint grew in size from 42-pages to 66-pages, and from approximately 85 paragraphs to 280 paragraphs (c.f. ECF 1 and 24). On October 8, 2021, the City filed a Motion to Dismiss Plaintiff’s Amended Complaint (ECF 30). Plaintiff filed a Response to the City’s Motion on October 25, 2021 (ECF 33), and the City filed a Reply in Support on November 15, 2021 (ECF 38). The matter, at least with respect to the City, is now fully briefed. On February 23, 2022, Plaintiff filed a Motion for Leave to Amend his Complaint (ECF 39). The proposed complaint now consists of 77-pages and over 340-paragaphs (See ECF 39, at 13-91). Pursuant to D.C.COLO.LCivR 15.1(b), a party seeking to file a proposed amended pleading, “shall attach as an exhibit a copy of the proposed amended or supplemental pleading which strikes through (e.g., strikes through) the text to be deleted and underlines (e.g., underlines) the text to be added.” Plaintiff fails to comply with this Local Rule in any fashion. Although his proposed pleading contains underlines, much of it appears to be the same underlined material set Case 1:21-cv-02306-RM-KLM Document 41 Filed 03/11/22 USDC Colorado Page 2 of 5 3 forth in the present Complaint (c.f. ECF 24, ¶ 24 & ECF 39, ¶ 10; ECF 24, ¶ 11 & ECF 39, ¶ 11).1 In addition, it also appears Plaintiff moved some paragraphs and combined others, but did not indicate as much in the new, proposed pleading (c.f. ECF 24, ¶ 163 & ECF 39, ¶ 22; ECF 24, ¶ 189 & ECF 39, ¶ 22; ECF 24, ¶ 190 & ECF 39, ¶ 23). Coupled with the fact the proposed complaint ballooned by adding an additional 11-pages (an additional 25-pages from the initial Complaint), and 60-paragraphs (an additional 255-paragraphs from the initial Complaint), without any indication as to what was changed, added, or deleted, it is extremely difficult to address Plaintiff’s request for leave to amend or any reasons proffered for the proposed amendments. Giving the Pro Se Plaintiff the benefit of the doubt, at the very least a failure to comply with the Rules circumvents even the most remote notion of efficient litigation, by requiring not only the parties but the Court as well, to weed through a convoluted and repetitive pleading. On the other end of the spectrum, Pro Se Plaintiff is engaging in gamesmanship which is improper. Plaintiff’s Motion should, therefore, be stricken on this basis. In addition, the exaggerated pleading fails to comply with the brevity requirement of Fed. R. Civ. P. 8(a)(2), which states in pertinent part, “A pleading that states a claim for relief must contain…a short and plain statement of the claim showing that the pleader is entitled to relief.” Plaintiff’s proposed pleading fails to identify his claims in a “short and plain statement,” and instead provides the parties and the Court with an expanded series of repetitive, rambling, and 1 The City provides the preceding as an example. There are many more paragraphs with the same issue, which are not addressed here. Case 1:21-cv-02306-RM-KLM Document 41 Filed 03/11/22 USDC Colorado Page 3 of 5 4 incoherent allegations. Plaintiff fails to comply with Rule 8, and therefore his Motion should be stricken on this basis as well. III. CONCLUSION WHEREFORE, the City of Fort Collins respectfully requests the Court grants its Motion, strike Plaintiff’s Motion for Leave (ECF 39), and for entry of any other relief deemed just. Respectfully submitted this 11th day of March, 2022. s/Mark S. Ratner Mark S. Ratner, Esq. Katherine N. Hoffman, Esq. Hall & Evans, L.L.C. 1001 17th Street, Suite 300 Denver, CO 80202 Phone: 303-628-3300 Fax: 303-628-3368 ratnerm@hallevans.com hoffmank@hallevans.com ATTORNEYS FOR DEFENDANT THE CITY OF FORT COLLINS Case 1:21-cv-02306-RM-KLM Document 41 Filed 03/11/22 USDC Colorado Page 4 of 5 5 ` CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 11th day of March 2022, a true and correct copy of the foregoing was filed with the Court via CM/ECF and served on all parties of record, as well as the below- listed party by email: Robert Lawrence Perry fort_scout@yahoo.com Pro se Plaintiff s/ Sarah M. Stefanick, Legal Assistant to Mark S. Ratner, Esq. Katherine N. Hoffman, Esq. Hall & Evans, L.L.C. 1001 17th Street, Suite 300 Denver, CO 80202 Phone: 303-628-3300 Fax: 303-628-3368 ratnerm@hallevans.com hoffmank@hallevans.com ATTORNEYS FOR DEFENDANT THE CITY OF FORT COLLINS Case 1:21-cv-02306-RM-KLM Document 41 Filed 03/11/22 USDC Colorado Page 5 of 5