HomeMy WebLinkAbout2023-cv-1797 - San Roman V. Nace, Et Al. - 013 - Proposed Scheduling OrderIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 23-cv-01797-CNS-SKC
ANGEL SAN ROMAN; and
CARLOS LOPEZ,
Plaintiffs,
v.
MINDY NACE, individually;
KYLE BENDZSA, individually;
KEVIN PARK, individually; and
CITY OF FORT COLLINS, a municipality,
Defendants.
______________________________________________________________________________
SCHEDULING ORDER
_____________________________________________________________________________
1. DATE OF CONFERENCE
The Scheduling/Planning Conference pursuant to Fed. R. Civ. P. 16(b) is scheduled for
November 6, 2023, at 11:00 a.m. by telephone before Magistrate Judge S. Kato Crews. Appearing
for the parties are:
Darold W. Killmer
Michael P. Fairhurst
KILLMER LANE, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
(303) 571-1001 fax
dkillmer@killmerlane.com
mfairhurst@killmerlane.com
Attorneys for Plaintiffs
Mark S. Ratner, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
Attorney for Defendants
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2. STATEMENT OF JURISDICTION
This Jurisdiction over Plaintiff’s claims is conferred upon this Court pursuant to 28
U.S.C. § 1331 and § 1343(a)(3), and this case is brought pursuant to 42 U.S.C. § 1983.
Jurisdiction supporting Plaintiff’s claim for attorney fees is conferred by and brought pursuant to
42 U.S.C. § 1988.
Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All of the
events described herein occurred within the State of Colorado, and all of the parties were
residents of the State of Colorado at all relevant times stated herein.
Defendants: The Defendants agree this Court has jurisdiction over the claims asserted by
the Plaintiffs, and the venue in this Court is proper. The Defendants disagree Plaintiffs are entitled
to attorneys’ fees.
3. STATEMENT OF CLAIMS AND DEFENSES
a. Plaintiffs’ statement:1
During the early morning hours of July 17, 2021, Plaintiffs Angel San Roman and Carlos
Lopez were peacefully walking back to their SUV that was legally parked on the side of the road
in Fort Collins, CO. Suddenly, several Fort Collins Police Services (“FCPS”) officers
aggressively ambushed them with blinding flashlights and firearms pointed right at them.
The officers identified themselves as the Fort Collins Police but unreasonably failed to
explain why they were seeking to arrest Mr. San Roman and Mr. Lopez while threatening them
with deadly force. Terrified and bewildered, Mr. San Roman and Lopez continued walking
1 The facts section of Plaintiffs’ Complaint and Jury Demand [Doc. 1] is hereby incorporated as
if set forth fully herein.
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peacefully down the road, in a reasonable effort to avoid an unexplained deadly threat. They then
both complied with officers’ commands to stop walking and show their hands. Neither Plaintiff
threatened any officer nor was armed.
Mr. San Roman clearly complied with the order to stop walking, repeatedly assured the
officers that he was unarmed, and held his hands in the air to demonstrate compliance and that he
was not dangerous. Shortly thereafter, however, Defendant Corporal Mindy Nace arbitrarily
tasered Mr. San Roman, as Defendant Sgt. Kyle Bendzsa had plainly and illegally instructed her
to do.
Foreseeably, Mr. San Roman plummeted backwards to the concrete sidewalk, unable to
brace himself against the jarring impact because his muscles were incapacitated by the powerful
electrical discharge from the taser. Mr. San Roman struck the back of his head so forcefully on
the sidewalk that he was knocked unconscious and lost a pulse. Mr. San Roman was later revived
by CPR.
For his part, Mr. Lopez peacefully sought to film his interaction with the police on his
cell phone camera to try to ensure that there was a truthful record of their encounter. In
retaliation, Defendant Park deployed pepper spray straight into Mr. Lopez’s eyes. Mr. Lopez’s
effort to film the police engaged in their public duties addressed a matter of substantial public
concern and it was clearly established at that time that such videoing of the police was protected
by the First Amendment to the United States Constitution.
The Defendants’ use of force against Mr. San Roman and Mr. Lopez was grossly
excessive in violation of the Fourth Amendment to the United States Constitution, and resulted
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from the deliberately indifferent customs, practices, training, supervision and/or discipline of the
City of Fort Collins.
As a result of Defendants’ conduct, Plaintiffs bring the following legal claims:
1. Excessive Force in violation of the 4th Amendment and pursuant to 42 U.S.C. § 1983
– Plaintiffs against all Defendants.
2. Retaliation in violation of the First Amendment and pursuant to 42 U.S.C. § 1983 –
Plaintiff Lopez against Plaintiff Park.
b. Defendants: On September 18, 2023, the Defendants filed an Answer to Plaintiffs’
Complaint, denying the substantive allegations, and setting forth certain affirmative defenses.
These Defendant deny Plaintiffs’ version of the facts, including but not limited to the notion the
actions of the Defendants were somehow unreasonable or excessive, based on observations made
the Defendants, the reports of bystanders, and the actions and inactions of the Plaintiffs.
4. UNDISPUTED FACTS
The following facts are undisputed:
1. At all times relevant to this Complaint, Plaintiff Angel San Roman was a citizen
of the United States of America and a resident of the State of Colorado.
2. At all times relevant to this Complaint, Plaintiff Carlos Lopez was a citizen of the
United States of America and a resident of the State of Colorado.
3. At all times relevant to this Complaint, Defendant Mindy Nace was a citizen of
the United States and a resident of the State of Colorado and was acting under color of state law
in her capacity as a law enforcement officer employed by Fort Collins Police Services.
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4. At all times relevant to this Complaint, Defendant Kyle Bendzsa was a citizen of
the United States and a resident of the State of Colorado and was acting under color of state law
in his capacity as a law enforcement officer with the rank of Sergeant, employed by Fort Collins
Police Services.
5. At all times relevant to this Complaint, Defendant Kevin Park was a citizen of the
United States and a resident of the State of Colorado and was acting under color of state law in
his capacity as a law enforcement officer employed by Fort Collins Police Services.
5. COMPUTATION OF DAMAGES
Plaintiffs claim the following:
(a) Declaratory, equitable, and injunctive relief, as appropriate;
(b) Economic losses on all claims in an amount to be determined at trial;
(c) Compensatory and consequential damages, including, but not limited to, damages
for emotional distress, humiliation, loss of enjoyment of life, and other pain and suffering on all
claims allowed by law in an amount to be determined at trial;
(d) Punitive damages on all claims in an amount to be determined at trial;
(e) Attorneys’ fees and the costs associated with this action, including expert witness
fees, on all claims allowed by law;
(f) Pre- and post-judgment interest at the lawful rate;
(g) Any further relief that justice requires.
Angel San Roman Medical Expenses2:
Date Location Expense
7/17/2021 Poudre Valley ER $6,958.98
2 These are the medical expenses as of September 2023, but they are expected to increase.
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7/17/2021 Poudre Valley EMS $2,118.59
10/26/2022 Cherry Creek Neurology $395.00
10/31/2022 Cherry Creek Neurology $92.00
11/2/2022 Cherry Creek Neurology $184.00
11/7/2022 Cherry Creek Neurology $158.00
12/21/2022 Cherry Creek Neurology $285.00
12/21/2022 Cherry Creek Neurology $185.00
4/21/2023 Cherry Creek Neurology $185.00
TOTAL $10,561.57
Carlos Lopez Medical Expense3s:
Date Location Expense
7/17/2021 Poudre Valley ER $587.47
A more precise computation of Plaintiffs’ damages, to the extent Plaintiffs’ damages are
subject to such computation, will be provided during the normal course of discovery, and will be
determined by a jury in its sound discretion following a presentation of the evidence at trial in
this matter. Damages for emotional distress, in particular, are not susceptible to the type of
calculation contemplated by Rule 26(a)(1). “[C]ompensatory damages for emotional distress are
necessarily vague and are generally considered a fact issue for the jury.” Williams v. Trader Pub.
Co., 218 F.3d 481, 487 n.3 (5th Cir. 2000).
Punitive/Exemplary damages are sought based upon the egregious nature of the conduct
of the defendants as set forth in the Complaint. Calculation of these damages and entitlements is
premature and not susceptible to the type of calculation contemplated by Rule 26(a)(1).
3 These are the medical expenses as of September 2023, but they are expected to increase.
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Defendants: The Defendants do not seek damages at this time, but reserve the right to do
so pursuant to any applicable statute or Rule. Additionally, these Defendants deny Plaintiffs are
entitled to any damages whatsoever, including but not limited to punitive damages.
6. REPORT OF PRE-CONFERENCE DISCOVERY &
MEETING UNDER FED. R. CIV. P. 26(F)
a. Date of Rule 26(f) meeting: October 18, 2023.
b. Names of each participant and each party represented: Counsel for Plaintiff,
Darold Killmer and Michael P. Fairhurst met with Mark S. Ratner, counsel for Defendants, by
Zoom.
c. Proposed changes, if any, in timing or requirement of disclosures under
Fed. R. Civ. P. 26(a)(1): See (d), below.
d. Statement as to when Rule 26(a)(1) disclosures were made or will be
made: November 8, 2023.
e. The parties have not agreed to conduct informal discovery but will attempt to
cooperate with informal requests for discrete documents to the extent feasible as the case
unfolds.
f. The parties agree to take all reasonable steps to reduce discovery and reduce costs.
g. The parties anticipate that this case will involve a significant amount of
electronically stored information. The parties agree to produce all information in electronic form
in order to reduce litigation costs. The parties agree that, with the exception of video (which shall
be produced in an open-source format, such as any file extension accessible by VLC), electronic
documents will be produced in PDF format, including those from proprietary database systems,
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but that native format will be produced upon request, where possible. The parties further agree to
work cooperatively to avoid discovery disputes related to electronically stored information.
h. The parties agree to cooperate regarding taking remote depositions by telephone and
video conferencing where technically feasible and if necessary due to health restrictions. The
parties reserve the right to take party and key witness depositions in person if circumstances
permit.
i. Pursuant to Fed. R. Civ. P. 26(f), the parties have discussed the possibility for a
prompt settlement of the case. The parties will report the result of any future settlement
discussions to the Court as they deem necessary or useful.
7. CONSENT
All parties have not consented to the exercise of jurisdiction of a magistrate judge. [Doc.
12].
8. DISCOVERY LIMITATIONS
a. The parties agree to limit the number of depositions to 10, exclusive of parties and
experts. The parties agree to limit the length of depositions to one-day of 7 hours unless a longer
deposition is agreed to by the parties or ordered by the court.
b. Plaintiffs shall be limited to 5 interrogatories to each of the individual Defendants,
and 20 interrogatories to Defendant Fort Collins. Defendants collectively may serve a total of 20
interrogatories to each Plaintiff (for a total of 40 interrogatories). Defendants collectively shall be
limited to 20 requests for production to each Plaintiff (for a total of 40 requests for production).
Plaintiffs collectively shall be limited to 5 requests for production and 5 requests for admission
to each of the individual Defendants, and 20 requests for production and 25 requests for
Case No. 1:23-cv-01797-CNS-SKC Document 13 filed 10/30/23 USDC Colorado pg 8 of 13
admission each to Defendant Fort Collins. Defendants collectively may serve a total of 25
requests for production and 25 requests for admission to each Plaintiff (for a total of 50 requests
for production and 50 requests for admission).
c. Other Planning or Discovery Orders:
Plaintiffs propose that no one shall be permitted to carry any firearms during in-
person depositions in this matter.
Defendants object to this proposal.
9. CASE PLAN AND SCHEDULE
The plan and schedule must include the following items:
a. Deadline for Joinder of Parties and Amendment of Pleadings : The filing of
amended and supplemental pleadings will be made pursuant to Fed. R. Civ.
P. 15.
b. Discovery Cut-off: July 8, 2024.
c. Dispositive Motion Deadline: August 7, 2024.
d. Expert Witness Disclosure
(1) Statement regarding anticipated fields of expert testimony, if any:
a) Plaintiffs: Plaintiffs anticipate calling retained experts in the following
possible fields: police practices, physical damages, psychological
damages.
b) Defendants:
(2) The parties shall be limited to a total of three (3) retained expert
witnesses per side.
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e. Plaintiff proposes that the parties shall designate all affirmative experts and
provide opposing counsel with all information specified in Fed. R. Civ. P. 26(a)
(2) on or before April 15, 2024.
f. Plaintiff proposes that the parties shall designate all rebuttal experts and provide
opposing counsel with all information specified in Fed. R. Civ. P. 26(a) (2) on or
before May 24, 2024.
The Defendants propose the following expert disclosure schedule: 1. Plaintiff
shall designate all affirmative experts by April 8, 2024; Defendant shall disclose
all affirmative and rebuttal experts by May 8, 2024; Plaintiff shall disclose all
rebuttal experts by June 8, 2024.
e. Deposition Schedule:
Name of Deponent* Date of
Deposition
Time of
Deposition
Expected
Length of
Deposition Angel San Roman TBD TBD 7 hours
Carlos Lopez TBD TBD 7 hours
Sgt. Kyle Bendzsa
TBD TBD 7 hours
Mindy Nace TBD TBD 7 hours
Kevin Park TBD TBD 7 hours
Corey Donovan TBD TBD 2 hours
Jason Bogosian TBD TBD 2 hours
Sean Gavin TBD TBD 2 hours
Kevin Alexander TBD TBD 2 hours
Sgt. Michael Avrech TBD TBD 4 hours
Sgt. Mark Martinez TBD TBD 2 hours
Case No. 1:23-cv-01797-CNS-SKC Document 13 filed 10/30/23 USDC Colorado pg 10 of
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Chief Jeff Swoboda TBD TBD 7 hours
Rule 30(b)(6), F.R.C.P.
deposition(s) of FCPD on topics
TBD
TBD TBD 4-7 hours
Other individuals disclosed by
the parties in their disclosures
and discovery responses
TBD TBD __ hours
* The Parties reserve the right to take additional depositions of persons identified
in the Parties’ disclosures and through the course of discovery.
f. Deadline for Interrogatories: All interrogatories must be served at least 45 days
prior to the discovery cut-off.
g. Deadline for Requests for Production and Admission: All requests for production
and requests for admission must be served at least 45 days prior to the discovery cut-off.
10. DATES FOR FURTHER CONFERENCES
a. Status conferences will be held in this case at the following dates and times:
_________________________________________________________.
b. A final pretrial conference will be held in this case on ____________at o’clock
_____. A Final Pretrial Order shall be prepared by the parties and submitted to the court no
later than seven (7) days before the final pretrial conference.
11. OTHER SCHEDULING ISSUES
a. Statement of those discovery or scheduling issues, if any, on which counsel,
after a good faith effort, were unable to reach an agreement: None.
b. Statement of anticipated length of trial to the jury: Five (5) days.
c. The Parties do not anticipate conducting any pretrial proceedings at the
District Court’s facilities in Colorado Springs or Durango, unless set by this Court.
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12. NOTICE TO COUNSEL AND PRO SE PARTIES
The parties filing motions for extension of time or continuances must comply with
D.C.Colo.LCivR 6.1(c) by submitting proof that a copy of the motion has been served upon
the moving attorney’s client, all attorneys of record, and all pro se parties.
Counsel will be expected to be familiar and to comply with the Pretrial and Trial
Procedures or Practice Standards established by the judicial officer presiding over the trial of
this case.
With respect to discovery disputes, parties must comply with D.C.Colo.LCivR 7.1(a).
Counsel and unrepresented parties are reminded that any change of contact
information must be reported and filed with the Court pursuant to the applicable local rule.
13. AMENDMENTS TO DISCOVERY AND SCHEDULING ORDER
The Scheduling Order may be altered or amended only upon a showing of good cause.
DATED this ______ day of _____________ 2023.
BY THE COURT:
____________________________________
S. Kato Crews
United States Magistrate Judge
APPROVED:
s/ Michael Fairhurst s/ Mark S. Ratner
________________________ _________________________
Darold W. Killmer
Michael P. Fairhurst
KILLMER LANE, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
(303) 571-1001 fax
Mark S. Ratner, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
Case No. 1:23-cv-01797-CNS-SKC Document 13 filed 10/30/23 USDC Colorado pg 12 of
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dkillmer@killmerlane.com
mfairhurst@killmerlane.com
Attorneys for Plaintiffs
Attorney for Defendants
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