HomeMy WebLinkAbout2023-cv-2187 - Kulas V. City Of Fort Collins, Et Al. - 015 - Proposed Scheduling Order
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-02187-KAS
ANDRU KULAS,
Plaintiff,
v.
CITY OF FORT COLLINS,
KEVIN PARK, Fort Collins Police Officer, in his individual capacity, and
AVERY HANZLICEK, Fort Collins Police Officer, in his individual capacity,
Defendants.
SCHEDULING ORDER
1. DATE OF CONFERENCE
AND APPEARANCES OF COUNSEL AND PRO SE PARTIES
The Scheduling Conference was held on October 25, 2023 at 10:30 am. Present
at the Scheduling Conference were the following counsel of record:
Sarah Schielke, Esq.
The Life & Liberty Law Office
1209 Cleveland Avenue
Loveland, CO 80537
P: (970) 493-1980
Attorney for Plaintiff
Mark S. Ratner, Esq.
1001 17th Street, Suite 300
Denver, CO 80202
P: (303) 628-3300
Attorneys for City of Fort Collins, Kevin Park
and Avery Hanzlicek
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2. STATEMENT OF JURISDICTION
This Court has jurisdiction of the subject matter pursuant to 28 U.S.C. § 1331 and 28
U.S.C. § 1343 this being an action to redress the alleged deprivation, under color of state
law, of rights secured by the Constitution of the United States. No party has currently
raised objections to the jurisdiction of this Court.
The Defendants admit the Court has jurisdiction over the matter as set forth in
Plaintiff’s Complaint, but deny Plaintiff’s characterization of the issues as set forth above.
3. STATEMENT OF CLAIMS AND DEFENSES
a. Plaintiff: Mr. Kulas brings federal claims pursuant to 42 U.S.C. § 1983 against all three
Defendants – Defendant Park in individual capacity (personally participated),
Defendant Hanzlicek in individual capacity (personally participated) and Defendant
City of Fort Collins (Monell) for violations of his Fourth Amendment rights to be free of
unreasonable seizure (false arrest claim) and not subjected to excessive force
(excessive force claim). Plaintiff Mr. Kulas also brings state claims pursuant to § 13 -
21-131, C.R.S. against Defendants Park and Hanzlicek for their violations of his state
constitutional right to be free of unreasonable seizure and not subjected to excessive
force. Mr. Kulas brings an additional federal claim against Defendant Park pursuant
to 42 U.S.C. § 1983 for violating his First Amendment right to criticize law enforcement
(First Amendment retaliation claim).
b. Defendants: The Defendants have not yet filed a response to the Complaint. If
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an answer is filed, it is anticipated the Defendants will deny the substantive allegations,
and may also assert defenses and affirmative defenses, including but not limited to the
following:
1. The Complaint fails to state a claim upon which relief may be granted.
2. Plaintiff is not entitled to any relief being sought or claimed in the Complaint
under any of the legal theories asserted therein.
3. Plaintiff relies substantially on their own investigations and not upon the
representations, if any, of the Defendant.
4. Plaintiff has unclean hands, which preclude any recovery from the
Defendant.
5. Plaintiff failed to mitigate their damages, if any, as required by law.
6. All or part of Plaintiff’s claims never achieved the level of any constitutional
violation sufficient to state a claim under 42 U.S.C. § 1983.
7. Plaintiffs’ claims are barred by the doctrine of estoppel, equitable and
otherwise.
8. Plaintiff’s claims are barred by the applicable statute of limitations or statute
of repose.
4. UNDISPUTED FACTS
The following facts are undisputed:
1. Plaintiff Andru Kulas is a citizen of the United States and at all times relevant hereto
were residents of and domiciled in the State of Colorado.
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2. At the time of the events described in the Complaint, Kevin Park was a citizen of the
United States, a resident of the State of Colorado, and was employed as an officer
with Fort Collins Police Services.
3. At the time of the events described in the Complaint, Avery Hanzlicek was a citizen
of the United States, a resident of the State of Colorado, and employed as an officer
with Fort Collins Police Services.
5. COMPUTATION OF DAMAGES
Plaintiff: Plaintiff claims compensatory damages, including damages for emotional
distress, stress, anxiety, humiliation, physical impairment and other pain and suffering, as
well as economic losses on all claims allowed by law, punitive damages on all claims
allowed by law, in amounts to be determined by a jury at trial.
Defendants: The Defendants do not seek damages at this time, but reserve the right
to do so pursuant to any applicable Rules and case law.
6. REPORT OF PRECONFERENCE DISCOVERY AND
MEETING UNDER FED. R. CIV. P. 26(f)
a. Date of Rule 26(f) meeting: October 11, 2023
b. Names of each participant and party he/she represented.
Sarah Schielke representing Plaintiff Andru Kulas.
Mark S. Ratner representing Defendants City of Fort Collin , Kevin Park, and Avery
Hanzlicek.
c. Statement as to when Rule 26(a)(1) disclosures were made or will be made.
The parties intend to make their Rule 26(a)(1) disclosures in this case by October 18,
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2023.
d. Proposed changes, if any, in timing or requirement of disclosures under Fed.
R.Civ. P. 26(a)(1). None.
e. Statement concerning any agreements to conduct informal discovery:
The parties do not have any specific agreement at this time to conduct informal discovery.
f. Statement concerning any other agreements or procedures to reduce
discovery and other litigation costs, including the use of a unified exhibit
numbering system.
The parties agree to utilize a unified exhibit numbering system for deposition exhibits.
g. Statement as to whether the parties anticipate that their claims or
defenses will involve extensive electronically stored information, or that a
substantial amount of disclosure or discovery will involve information or
records maintained in electronic form.
The parties do not anticipate having extensive electronically stored information to
produce.
h. Statement summarizing the parties’ discussions regarding the possibilities
for promptly settling or resolving the case.
The parties have not discussed possibilities for prompt settlement or resolution of the
case.
7. CONSENT
All parties do not consent to the exercise of jurisdiction of a magistrate judge.
8. DISCOVERY LIMITATIONS
a. Modifications which any party proposes to the presumptive
numbers of depositions or interrogatories contained in the
Federal Rules.
Depositions.
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Plaintiff: The parties propose 8 depositions per side exclusive of experts.
Interrogatories.
Plaintiff: Plaintiff proposes 30 interrogatories permitted per side, with Plaintiff being
permitted 10 additional interrogatories (for a possible total of 40 interrogatories, if all are
used) that may be directed to City of Fort Collins specifically as needed for the Monell
claims.
Defendants: The Defendants object to a request for an additional 10 interrogatories
addressed to the City. Otherwise, 30 interrogatories per side is acceptable to the
Defendants.
b. Limitations which any party proposes on the length of depositions.
The parties propose that each deposition should be limited to one (1) day of seven (7)
hours, as stated by FRCP 30(d).
c. Limitations which any party proposes on the number of requests for production and/or
requests for admission.
Requests for Production.
Plaintiff: Plaintiff requests 30 RPDs be permitted per side, with Plaintiff being permitted
10 additional RPDs that may be directed to City of Fort Collins specifically (for a possible
total of 40 interrogatories, if all are used) as needed for the Monell claims.
Defendants: The Defendants object to a request for an additional 10 requests for
production addressed to the City. Otherwise, 30 requests for production per side is
acceptable to the Defendants.
Requests for Admission.
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Plaintiff and Defendants: 30 RFAs per side without limitation as to how allocated.
d. Deadline for service of Interrogatories, Requests for Production of
Documents and/or Admissions:
Deadline for Interrogatories: 35 days before the cutoff for discovery.
Deadline for Requests for Production of Documents and/or Admissions:
35 days before the cutoff for discovery.
e. Other Planning or Discovery Orders
The parties anticipate submitting to the Court a proposed protective order or
orders to facilitate the exchange of confidential documents like personnel records and
medical records during the discovery process.
9. CASE PLAN AND SCHEDULE
a. Deadline for Joinder of Parties and Amendment of Pleadings:
December 18, 2023.
b. Discovery Cut-off: June 18, 2024
c. Dispositive Motion Deadline (including 702 and 704 motions): August 2,
2024 (45 days after the discovery cut-off date).
d. Expert Witness Disclosures
1. The parties shall identify anticipated fields of expert testimony,
if any.
Plaintiff: Plaintiff may retain experts in the subject areas of use of
force, police practice/training, optometrist/ophthalmologists,
psychiatrist.
Defendants: The Defendants anticipate retaining those experts
necessary to address and rebut Plaintiff’s experts as set forth above.
The need for affirmative experts has not yet been determined.
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2. Limitations which the parties propose on the use or
number of expert witnesses.
The parties propose a limit of three (3) retained experts per side
plus rebuttal experts, if necessary.
3. Plaintiff shall designate all experts and provide opposing
counsel and any pro se parties with all information specified in
Fed. R. Civ. P. 26(a)(2) on or before March 18, 2024
4. Defendants’ shall disclose their affirmative and rebuttal
experts by April 18, 2024;
5. Plaintiff’s Rebuttal experts shall be disclosed by May 20,
2024
e. Identification of Persons to Be Deposed:
Plaintiffs:
1. Kevin Park
2. Avery Hanzlicek
3. Kim Cochran
4. Sara Lynd
5. Jeff Swoboda
6. Mark Partridge
7. Melissa Rosa
8. Elizabeth Grant
9. Shamera Loose
10. Any other FCPS personnel or other witnesses named in the internal affairs
investigative report into Kevin Park related to this incident (unable to be named at
this time due to FCPS redacting all such names from the report)
11. Any other scene or supervisory witnesses identified during discovery
Defendants:
1. Andru Kulas
2. Nicholas Byers
3. Nicholas Alexander Muellerleile
4. Any as yet identified individuals with Mr. Kulas on the night of the incident.
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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
_____m. 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 MATTERS
a. Identify those discovery or scheduling issues, if any, on which counsel after a
good faith effort, were unable to reach an agreement.
None.
b. Anticipated length of trial and whether trial is to the court or jury.
Trial will be to jury and is anticipated to last 1 week (5 days).
c. Identify pretrial proceedings, if any, that the parties believe may be more efficiently
or economically conducted in the District Court’s facilities at 212 N. Wahsatch
Street, Colorado Springs, Colorado 80903-3476; Wayne Aspinall U.S.
Courthouse/Federal Building, 402 Rood Avenue, Grand Junction, Colorado 81501 -
2520; or the U.S. Courthouse/Federal Building, La Plata County Courthouse, 1060
E. 2nd Avenue, Suite 150, Durango, Colorado 81301.
None.
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 serving the motion contemporaneously upon the
moving attorney's client.
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
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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 SCHEDULING ORDER
The scheduling order may only be amended or altered upon a showing
of good cause.
DATED at Denver, Colorado, this day of , 2023.
BY THE COURT:
United States Magistrate Judge
APPROVED:
The Life & Liberty Law Office, LLC
/s/ Sarah Schielke
Sarah Schielke
The Life & Liberty Law Office
1209 Cleveland Avenue
Loveland, CO 80537
P: (970) 493-1980
E: sarah@lifeandlibertylaw.com
Attorney for Plaintiff
/s/ Mark S. Ratner______________
Mark S. Ratner, Esq.
1001 17th Street, Suite 300
Denver, CO 80202
Email: ratnerm@hallevans.com
Attorneys for City of Fort Collins, Kevin
Park and Avery Hanzlicek
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CERTIFICATE OF SERVICE
I hereby certify that on October 18, 2023, I electronically filed PROPOSED
SCHEDULING ORDER with the Clerk of Court using the CM/ECF system with service on
all parties of record.
s/ Madie Baskin _
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