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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. Case 1:19-cv-00901-WJM-NRN Document 182 Filed 07/15/22 USDC Colorado Page 1 of 10 2 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 Case 1:19-cv-00901-WJM-NRN Document 182 Filed 07/15/22 USDC Colorado Page 2 of 10 3 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 Case 1:19-cv-00901-WJM-NRN Document 182 Filed 07/15/22 USDC Colorado Page 3 of 10 4 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 Case 1:19-cv-00901-WJM-NRN Document 182 Filed 07/15/22 USDC Colorado Page 4 of 10 5 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). Case 1:19-cv-00901-WJM-NRN Document 182 Filed 07/15/22 USDC Colorado Page 5 of 10 6 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. Case 1:19-cv-00901-WJM-NRN Document 182 Filed 07/15/22 USDC Colorado Page 6 of 10 7 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 Case 1:19-cv-00901-WJM-NRN Document 182 Filed 07/15/22 USDC Colorado Page 7 of 10 8 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. Case 1:19-cv-00901-WJM-NRN Document 182 Filed 07/15/22 USDC Colorado Page 8 of 10 9 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 Case 1:19-cv-00901-WJM-NRN Document 182 Filed 07/15/22 USDC Colorado Page 9 of 10 10 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 Case 1:19-cv-00901-WJM-NRN Document 182 Filed 07/15/22 USDC Colorado Page 10 of 10