HomeMy WebLinkAbout2019-cv-901 - Surat v. City of Fort Collins, et al. - 182 - Pl's Response to Motion to VacateIN 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, and
CITY OF FORT COLLINS, a municipality,
Defendants.
______________________________________________________________________________
RESPONSE TO DEFENDANTS RANDALL KLAMSER AND CITY OF FORT
COLLINS MOTION TO VACATE THE SEPTEMBER 12, 2022 TRIAL AND STAY THE
MATTER OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL [Doc. #179]
______________________________________________________________________________
Plaintiff, by and through counsel, responds to Defendants Randall Klamser and City of
Fort Collins’ Motion to Vacate the September 12, 2022 Trial and Stay the Matter or, in the
Alternative, to Continue Trial, and as grounds therefore states as follows:
1. INTRODUCTION
Defendants seek to continue the trial in this matter and deny Plaintiff her day in court
based solely on their interlocutory appeal in this matter, despite the fact that this Court has
certified that very appeal as frivolous. [Doc. #175]. “As is often said, justice delayed is justice
denied, and in this case, the denial of justice looms.” Montoya v. City & Cty. Of Denver, Civil
Action No. 16-cv-01457-JLK, 2021 U.S. Dist. LEXIS 257197, at *12 (D. Colo. July 27, 2021).
This Court should abide by its previous ruling and allow Plaintiff her day in court she has been
awaiting for over three years.
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The essence of Defendants’ argument is simply that if the case is tried and Plaintiff
achieves victory, there is a chance it could be reversed in the course of the currently pending
interlocutory frivolous appeal and, therefore, the trial date should be vacated and the case should
be stayed pending the outcome of the frivolous interlocutory appeal. Every single solitary case in
every federal district court in the United States could be tried and possibly be reversed on appeal
after the trial. That is how civil procedure works. As such, there is no case law that Plaintiff
could find supporting Defendants’ position in their recently filed motion to vacate and continue.
The entire reason the law permits this Court to retain jurisdiction while Defendants pursue their
frivolous appeal is to move the case forward, and ultimately, advance it to trial. The fact that the
Tenth Circuit has now set an oral argument date for Defendants’ appeal is not an intervening
reason to stay the case or vacate the trial date. Defendants, Plaintiff, and this Court have all
understood that would occur the day the frivolous appeal was filed in the Tenth Circuit. It was
also understood by everyone that the Tenth Circuit could possibly reverse this Court as to
Defendant Klamser’s claims. In other words, what is presently occurring was expected to occur
and is not grounds to further delay this case. If Defendants had wished to stay the case and
vacate the trial date because of the ongoing frivolous appeal, they should have done so when the
trial date was set almost a year ago, [Doc. #178] and not waited until the 11th hour. Defendants’
motion should be denied.
2. LEGAL STANDARD
Defendants effectively are asking this Court to stay the case pending resolution of the
appeal in this matter, therefore the applicable legal test is whether they are entitled to a stay. See
[Doc. #179]. A motion to stay invokes “the power inherent in every court to control the
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disposition of the causes on its docket[.]” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). “In
the context of ruling on a motion to stay, the Tenth Circuit Court of Appeals stated almost thirty
years ago that the right to proceed in court should not be denied except under the most extreme
circumstances.” JTS Choice Enters. v. E.I. Dupont De Nemours & C., 2012 U.S. Dist. LEXIS
25858, at *2-3 (D. Colo. Feb. 29, 2012) (Martinez, J.) (internal citation and quotation marks
omitted). For this reason, “stays are generally disfavored in this district.” Id. at *3.
3. ARGUMENT
Although the Tenth Circuit has not prescribed such, courts in this District have
reflexively applied the test outlined by Magistrate Judge Coan in String Cheese Incident, LLC v.
Stylus Shows, Inc. (“String Cheese”), in determining whether to stay a case. 2006 U.S. Dist.
LEXIS 97388, at *4 (D. Colo. Mar. 30, 2006). The String Cheese test, which is not binding
precedent, requires Defendants to establish that the balance of the following five interests tips in
their favor: (1) Plaintiff’s interests in proceeding expeditiously with the civil action and the
potential prejudice to Plaintiff of a delay; (2) the burden on Defendants in going forward; (3) the
convenience to the Court; (4) the interests of persons not parties to the litigation; and (5) the
public interest. Id. at *4. The weight of these factors, as outlined more extensively below, in the
present case militates that the case should proceed to trial and not be stayed pending the frivolous
appeal filed by Defendants.
That result is even more apparent when the court includes in its analysis an important
consideration that was not addressed in String Cheese: likelihood of success (of the appeal).1 A
1 The benefits of the preliminary peek approach are that is that it “allows judges to refine their
balancing in a way that allows them to minimize the risk of unnecessary costs and burdens in any
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vast swath of jurisdictions 2 employ this “preliminary peek” approach, and this Court should
follow these courts in holding that (prior to granting a stay) the court should consider the
likelihood of success (of the appeal). Importantly, courts in this District have begun adopting this
approach and this Court should follow this lead. See, e.g., Love v. Grashorn, Civil Action No.
21-cv-02502-RM-NRN, 2022 U.S. Dist. LEXIS 93199 (D. Colo. May 24, 2022); Warden v.
Sulzer, Civil Action No. 22-cv-00271-WJM-NRN, 2022 U.S. Dist. LEXIS 85146, at *12 (D.
Colo. May 11, 2022); Bacote v. Fed. Bureau of Prisons, Civil Action No. 17-cv-03111-RM-
NRN, 2019 U.S. Dist. LEXIS 196621 (D. Colo. Nov. 13, 2019). 3
particular case[.]” Kevin J. Lynch, When Staying Discovery Stays Justice: Analyzing Motions to
Stay Discovery When a Motion to Dismiss is Pending, 47 Wake Forest L. Rev. 71, 88 (2012).
2 See, e.g., Simpson v. Specialty Retail Concepts, Inc., 121 F.R.D. 261, 263 (M.D.N.C. 1988);
Feldman, 176 F.R.D. at 652; GTE Wireless, Inc. v. Qualcomm, Inc., 192 F.R.D. 284, 286 (S.D.
Cal. 2000); Ameris Bank v. Russack, 2014 U.S. Dist. LEXIS 73460, 2014 WL 2465203 at *1
(S.D. Ga. 2014); Arriaga-Zacarias v. Lewis Taylor Farms, Inc., 2008 U.S. Dist. LEXIS 80216,
2008 WL 4544470 at *1 (M.D. Ga. 2008); Great W. Cas. Co. v. Firstfleet, Inc., No. CA 12-
00623-KD-N, 2013 U.S. Dist. LEXIS 92465, at *5 (S.D. Ala. July 2, 2013); DRK Photo v.
McGraw-Hill Cos., Inc., No. CV 12-8093-PCT-PGR, 2012 U.S. Dist. LEXIS 168101, at *4 (D.
Ariz. Nov. 27, 2012); Ceglia v. Zuckerberg, No. 10-CV-569A(F), 2012 U.S. Dist. LEXIS 85633,
at *5 (W.D.N.Y. June 20, 2012); Money v. Health, No. 3:11-cv-00800-LRH-WGC, 2012 U.S.
Dist. LEXIS 49922, at *14-15 (D. Nev. Apr. 9, 2012); Mlejnecky v. Olympus Imaging America,
Inc., No. 10-2630 2011 U.S. Dist. LEXIS 16128, 2011 WL 489743 at *6 (E.D. Cal. Feb. 7,
2011); SP Frederica, LLC v. Glynn Cty., No. 2:15-cv-73, 2015 U.S. Dist. LEXIS 119310, at *7
(S.D. Ga. Sep. 8, 2015); Suarez v. Beard, No. 15-cv-05756-HSG, 2016 U.S. Dist. LEXIS
161222, at *3 (N.D. Cal. Nov. 21, 2016); Bennett v. Fastenal Co., Civil Action No. 7:15-cv-
00543, 2016 U.S. Dist. LEXIS 194431, at *2 (W.D. Va. Mar. 8, 2016); Barber v. Remington
Arms Co., No. CV 12-43-BU-DLC, 2012 U.S. Dist. LEXIS 146938, at *2 (D. Mont. Oct. 11,
2012); United States ex rel. Jacobs v. CDS, P.A., No. 4:14-cv-00301-BLW, 2015 U.S. Dist.
LEXIS 117915, at *4 (D. Idaho Sep. 3, 2015); Sams v. Ga W. Gate, LLC, No. CV415-282, 2016
U.S. Dist. LEXIS 75974, at *15 (S.D. Ga. June 10, 2016); MAO-MSO Recovery II, LLC v. USAA
Cas. Ins. Co., No. 17-21289-Civ-WILLIAMS/TORRES, 2017 U.S. Dist. LEXIS 205650, at *7
(S.D. Fla. Dec. 14, 2017); Minton v. Jenkins, No. 5:10cv61/RH/EMT, 2011 U.S. Dist. LEXIS
55695, at *3 (N.D. Fla. May 24, 2011); Heinzl v. Cracker Barrel Old Country Store, Inc., Civil
Action No. 2:14-cv-1455, 2015 U.S. Dist. LEXIS 132958, at *3 (W.D. Pa. Sep. 30, 2015).
3 It is important to note that at least three courts in this District have utilized the preliminary peek
framework without naming it as such. See Waisanen v. Terracon Consultants, Inc., Civil Action
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3.1 Applying the modified String Cheese factors, while using the preliminary peek
approach, confirms that the trial date should not be vacated in this matter.
Considering the relevant interests involved and “[t]he strong presumption against stays,”
Pandaw Am., Inc. v. Pandaw Cruises India Pvt. Ltd., Civil Action No. 10-cv-02593-WJM-KLM,
2012 U.S. Dist. LEXIS 704, at *6 (D. Colo. Jan. 4, 2012), Defendants have not met their heavy
burden to show that the filing of a motion to dismiss constitutes “extreme circumstances” so as to
justify a stay. Robert W. Thomas & Anne McDonald Thomas Tr. v. First W. Tr. Bank, Civil
Action No. 11-cv-03333-WYD-KLM, 2012 U.S. Dist. LEXIS 114092, at *6-7 (D. Colo. Aug.
14, 2012)
3.1.1 Plaintiff’s interest in proceeding expeditiously militates in favor of
allowing the trial date to stand.
Plaintiff is substantially prejudiced by a stay because granting Defendants’ motion “could
delay the proceedings for an unknown period of time until there is a ruling on [the frivolous
appeal] and . . . the delay would significantly impact and prejudice [Plaintiff’s] right to pursue
[her] case and vindicate [her] claim[s] expeditiously.” See String Cheese, 2006 U.S. Dist. LEXIS
97388, at *6 (citation omitted). This Court should fully consider the prejudice that would be
inflicted upon Plaintiff by delay if a stay is granted and the trial date is vacated. See Estate of
McClain v. City of Aurora, Civil Action No. 20-cv-02389-DDD-NRN, 2021 U.S. Dist. LEXIS
17099, at *12 (D. Colo. Jan. 29, 2021). Ms. Surat was brutalized on April 6, 2017 by Defendant
Klamser. She filed her lawsuit on March 26, 2019. After over five years, Ms. Surat deserves her
day in court.
No. 09-cv-01104-MSK-KMT, 2009 U.S. Dist. LEXIS 123427, at *3 (D. Colo. Dec. 22, 2009);
Sanaah v. Howell, Civil Action No. 08-cv-02117-REB-KLM, 2009 U.S. Dist. LEXIS 35260, at
*2 (D. Colo. Apr. 9, 2009).
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3.1.2 Allowing trial to proceed does not unfairly burden Defendants.
Defendants have shown no particularized facts that demonstrate they will suffer a clearly
defined and serious harm associated with moving forward with the trial. “[W]here a movant
seeks relief that would delay court proceedings by other litigants [it] must make a strong
showing of necessity because the relief would severely affect the rights of others.” Commodity
Futures Trading Com. v. Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983).
The only burden that Defendants raise is the burden of being subjected to a trial, which it will be
subjected to no matter what the Tenth Circuit rules. Even if the Tenth Circuit holds that
Defendant Klamser is entitled to qualified immunity, which is a very dubious proposition for the
reasons outlined in this Court’s order certifying the appeal in this matter as frivolous, [Doc.
#175], Plaintiff would still be entitled to a trial for her Monell claims against Defendant Fort
Collins. That trial would involve the exact same witnesses, testimony, and counsel as the
currently scheduled trial. Simply put, “[t]he ordinary burdens with litigating a case do not
constitute undue burden.” Lester v. Gene Express, Inc., Civil Action No. 09-cv-02648-REB-
KLM, 2010 U.S. Dist. LEXIS 25379, at *3 (D. Colo. Mar. 2, 2010). Ultimately, at best, “[t]he
first two factors cancel each other out as any burden on Defendants is countered by Plaintiff’s
interest in proceeding with this litigation.” Bitco Gen. Ins. Corp. v. Genex Constr. LLC, Civil
Action No. 16-cv-1084-WJM-NYW, 2016 U.S. Dist. LEXIS 185941, at *4 (D. Colo. Sep. 13,
2016); Yeiser v. DG Retail, LLC, Civil Action No. 18-cv-0320-WJM-STV, 2019 U.S. Dist.
LEXIS 129554 (D. Colo. Aug. 2, 2019); JTS Choice Enters., 2012 U.S. Dist. LEXIS 25858, at
*3.
3.1.3 Convenience to the Court, the public interest, and the interests of third
parties are all served by allowing the trial to proceed.
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The “convenience to the Court weighs against granting the stay as cases that linger on the
Court’s docket are more difficult to manage.” Bitco Gen. Ins. Corp., 2016 U.S. Dist. LEXIS
185941, at *4; Yeiser, 2019 U.S. Dist. LEXIS 129554, at *15; JTS Choice Enters., 2012 U.S.
Dist. LEXIS 25858, at *3; Estate of Bailey v. City of Colo. Springs, Civil Action No. 20-cv-
1600-WJM-KMT, 2020 U.S. Dist. LEXIS 214552, at *4 (D. Colo. Nov. 17, 2020). Simply put, a
stay is not an efficient use of judicial resources because of the impact it has on a court’s
management of its docket. A.A. v. Martinez, No. 12-cv-00732-WYD-KMT, 2012 WL 2872045,
at *9-10 (D. Colo., July 12, 2012).
For similar reasons, a delay in court proceedings harms the public interest and the
interests of other third parties who may be affected by this litigation. There is a “strong interest
held by the public in general regarding the prompt and efficient handling of all litigation.”
Lester, 2010 U.S. Dist. LEXIS 25379, at *5. Delay is “of social concern” because it “is cost
prohibitive and threatens the credibility of the justice system.” Chavez v. Young Am. Ins. Co.,
Civil Action No. 06-cv-02419-PSF-BNB, 2007 U.S. Dist. LEXIS 15054, at *4-5 (D. Colo. Mar.
2, 2007).
The relation between case disposition time and civil justice goals is straightforward.
. . . . Delays in the resolution of civil disputes erode public confidence in the civil
justice system, disappoint and frustrate those seeking compensation through the
legal system, and generate benefits for those with the financial ability to withstand
delays or otherwise benefit from them. Such factors, individually and collectively,
undermine public faith and confidence in the ability of our civil justice system to
operate efficiently and, more importantly, equitably.
Michael Heise Justice Delayed: An Empirical Analysis of Civil Case Disposition Time, 50 Cas.
W. Res. L. Rev. 813, 814 (2000). Without confidence in our justice system, those who need the
courts to vindicate their rights may not seek judicial remedies, thereby never receiving the relief
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to which they are entitled.
Other third-party individuals, as well as the public in general, plainly have a strong
interest “in learning as soon as possible whether [Plaintiff’s] allegations are true. “V.S.” v.
Muhammad, 2008 U.S. Dist. LEXIS 96099, at *10 (E.D.N.Y. Nov. 24, 2008). Resounding
authority holds that “the public [has] an interest in assuring that institutions” such as Defendant
Fort Collins and Defendant Randall Klamser “[were] operating within the bounds of the law.”
Morgan v. Clements, No. 12-cv-00936-REB-KMT, 2013 U.S. Dist. LEXIS 33935, at *12-13 (D.
Colo. Mar. 12, 2013). In other words, the public has the right to know whether Defendant Fort
Collins and Defendant Randall Klamser are violating citizens’ constitutional rights. See A.A.,
2012 U.S. Dist. LEXIS 96447, at *14 (“[T]he public interest is well served by prompt and
efficient handling of litigation, particularly where the litigation involves allegations against
public officials.”). Because Plaintiff’s allegations “call into question . . . the competence and
good faith” of public entities, the interests of third parties and the public in in quickly
discovering the veracity of Plaintiff’s allegations weigh against granting a stay and vacating the
trial date in this matter. See “V.S.”, 2008 U.S. Dist. LEXIS 96099, at *10.
3.1.4 A preliminary peek reveals that Defendants’ appeal is frivolous and
does not have a likelihood of success.
“In assessing the propriety of a stay, [the] court must consider: whether the movant is
likely to prevail in the related proceeding [and] whether, absent a stay, any party will suffer
substantial or irreparable harm.” Waisanen v. Terracon Consultants,. Inc., Civil Action No. 09-
cv-01104-MSK-KMT, 2009 U.S. Dist. LEXIS 123427, at *4 (D. Colo. Dec. 22, 2009) (citing
Landis, 299 U.S. at 254). Without a preliminary showing that the frivolous appeal is likely
meritorious, any policy reasons for not subjecting Defendants to the burdens of a trial disappear.
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As this Court is aware, looking at the merits of the appeal, it is clear that it is frivilous. See [Doc.
#175]; see also [Doc. #161]; [Doc. #170]. Given that the appeal on which this motion for stay is
premised has a minimal chance of succeeding, the motion for stay must be denied.
4. CONCLUSION
Defendants’ Motion, [Doc. #179], should be denied in its entirety.
Respectfully submitted this 15th day of July 2022.
KILLMER, LANE & NEWMAN, LLP
s/ David Lane _______
David Lane
Andy McNulty
Catherine Ordoñez
1543 Champa Street, Suite 400
Denver, Colorado 80202
Phone: (303) 571-1000
Facsimile: (303) 571-1001
dlane@kln-law.com
amcnulty@kln-law.com
cordonez@kln-law.com
Counsel for Plaintiff
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CERTIFICATE OF SERVICE
I certify that on this 15th day of July 2022, I filed a true and correct copy of the foregoing
RESPONSE TO MOTION TO VACATE TRIAL which will serve the following via E-Mail:
Mark Ratner
Hall & Evans, LLC
1001 Seventeenth Street, Ste 300
Denver, CO 80202
303-628-3492
ratnerm@hallevans.com
Counsel for Defendants
s/ Jamie Akard
Paralegal
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