HomeMy WebLinkAbout2023-cv-1342 - Cunningham V. City Of Fort Collins, Et Al. - 033 - Proposed Scheduling Order
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-01342-CNS-SBP
JESSE CUNNINGHAM,
Plaintiff,
v.
CITY OF FORT COLLINS,
JASON HAFERMAN,
SERGEANT ALLEN HEATON, and
SERGEANT JASON BOGOSIAN.
Defendants.
SCHEDULING ORDER
1. DATE OF CONFERENCE
AND APPEARANCES OF COUNSEL AND PRO SE PARTIES
The Scheduling Conference will be held on November 15, 2023 9:00 am. Present
at the Scheduling Conference were the following counsel of record:
Sarah Schielke
The Life & Liberty Law Office
1209 Cleveland Avenue
Loveland, CO 80537
P: (970) 493-1980
Attorney for Plaintiff
Yulia Nikolaevskaya, Esq.
Jonathan Abramson, Esq.
3773 Cherry Creek North Drive, Suite 900
Denver, CO 80209
P: (303) 320-6100
Attorneys for Defendant Jason Haferman
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Mark S. Ratner, Esq.
Robert Weiner, Esq.
Katherine Hoffman, Esq.
1001 17th Street, Suite 300
Denver, CO 80202
P: (303) 628-3300
Attorneys for City of Fort Collins, Sergeant
Allen Heaton, and Sergeant Jason Bogosian
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.
Defendants City of Fort Collins (“City”), Sergeant Heaton and, Sergeant Jason
Bogosian: These 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: Plaintiff Jesse Cunningham brings claims against Defendant Fort Collins
Police Officers Jason Haferman, Allen Heaton, and Corporal Redacted in their
individual capacities pursuant to 42 U.S.C. § 1983 for their violation of his right to be
free of unreasonable search and seizure pursuant to the Fourth Amendment to the
U.S. Constitution, and pursuant to § 13-21-131, C.R.S. for their violation of his right to
be free of unreasonable search and seizure pursuant to his Article II, section 7 of the
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Colorado state constitution. He also brings a Monell claim against the City of Fort
Collins for its failure to train and supervise Defendant Haferman and for its
unconstitutional customs and practices related to DUI arrests, both of which were
substantial and significant contributing proximate causes and mo ving forces behind
the constitutional violations in this case. That same claim is also brought against
Defendant Sergeant Heaton for his knowing failure to supervise/train Haferman
despite being personally aware of his ongoing propensity for making wrongful DUI
arrests. Plaintiff Jesse Cunningham also brings malicious prosecution claims against
Defendant Haferman for violation of his rights to due process under both the state and
federal constitutions.
b. Defendants:
Defendant City, Sergeant Heaton, and Sergeant Bogosian : On August 21,
2023, the City and Sergeant Heaton filed a Motion to Dismiss Plaintiff’s Complaint
pursuant to Fed. R. Civ. P. 12(b)(6). (See ECF 19). Sergeant Bogosian is not part of the
pending Motion to Dismiss as he had not been identified or served at the time of filing.
The Motion argues Plaintiff’s Complaint fails to comply with applicable pleading
standards, including the failure to allege anything other than liability under a theory of
respondeat superior, which is improper, and the failure to identify and custom, practice,
policy, or procedure of the City of Fort Collins. In addition, Sergeant Heaton argues he is
entitled to qualified immunity.
On October 25, 2023, this Court entered a Minute Order granting Plaintiff’s Motion
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to file an Amended Complaint (ECF 26). The Minute Order also indicated the Court would
consider the pending Motion to Dismiss as addressing the Amended Complaint, because
the substantive allegations had not changed. It is anticipated Sergeant Bogosian wi ll file
a similar Motion to Dismiss.
Should an Answer on behalf of the City, Sergeant Heaton, and/or Sergeant
Bogosian be filed in this matter it is anticipated the substantive allegations will be denied
and affirmative defenses which may include but are not limited to the following, may be
set forth:
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.
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Defendant Haferman: Defendant Haferman denies that he violated Plaintiff's
constitutional rights under the Fourth Amendment or Colorado constitution. Plaintiff’s
Complaint fails to state a viable claim for Unlawful Arrest or Malicious Prosecution.
Defendant Haferman denies arresting Plaintiff without viable probable cause. Defendant
Haferman denies falsely prosecuting Plaintiff. Defendant Haferman is entitled to Qualified
Immunity under applicable federal law on Section 1983 claims. Defendant Haferman
reserves the right to assert any affirmative defenses which become ascertainable,
including, but not limited to the following:
1. Plaintiff’s Complaint, and each and every Claim for Relief against the Defendant
Haferman set forth therein, fails to state a valid claim upon which the relief prayed
for may be granted.
2. Officer Haferman, to the extent properly sued in his individual capacity, is entitled
to Qualified Immunity inasmuch as his actions did not violate the constitutional
rights of Plaintiff, did not violate clearly established law at the time of the events at
issue, and were undertaken with a good faith belief in the lawfulness of his actions.
The actions of Officer Haferman were objectively reasonable under the
circumstances with which Officer Haferman was confronted.
3. Officer Haferman was lawfully exercising his Public Duties in accordance with §
18-1-701, C.R.S. Further, Officer Haferman was properly exercising his police
powers and the authority vested in him by virtue of §§ 16 -3-101, 16-3-102, 16-3-
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103, 18-1-701, and 18-1-707, C.R.S., at all times pertinent to the incident
complained of.
4. Subject matter jurisdiction is lacking inasmuch as Plaintiff’s claims fail to rise to the
level of a deprivation of federal constitutional rights.
5. Plaintiff’s damages, if any, are not to the extent and nature as alleged by Plaintiff.
6. Plaintiff’s damages, if any, were not approximately caused by any act or omission
of Officer Haferman.
7. At all times material, Plaintiff was accorded all rights, privileges and immunities
guaranteed them by the Constitution and laws of the United States of America and
Colorado Constitution.
8. Plaintiff’s claims against Officer Haferman are substantially frivolous and
groundless, entitling Officer Haferman to recover his reasonable expenses,
including attorneys' fees, pursuant to 42 U.S.C. §1988 and Fed. R. Civ. P. Rule
11.
9. Officer Haferman is entitled to qualified immunity as to Section 1983 claims.
10. Plaintiff has failed to reasonably mitigate his damages, if any, and has failed to
exercise due diligence in an effort to mitigate his damages, and to the extent of
such failure to mitigate, any damages awarded to Plaintiff should be reduced
accordingly.
11. Officer Haferman reserves the right to assert any and all additional affirmative
defenses.
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4. UNDISPUTED FACTS
The following facts are undisputed:
1. Plaintiff Jesse Cunningham is a citizen of the United States and at all times relevant
hereto were residents of and domiciled in the State of Nebraska.
2. At the time of the events described in the Complaint, Jason Haferman 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, Allen Heaton was a citizen of
the United States, a resident of the State of Colorado, and employed as a sergeant
with Fort Collins Police Services.
5. COMPUTATION OF DAMAGES
Plaintiff: Plaintiff claims compensatory damages, including damages for emotional
distress, attorneys fees, veterinary bills, loss of enjoyment of life, 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 the jury at trial.
Defendants City, Sergeant Heaton , Sergeant Bogosian and Defendant Haferman:
These 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.
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On October 25, 2023 at 10:00 am, the parties held a 26(f) conference call between
counsel for the parties.
b. Names of each participant and party he/she represented.
Sarah Schielke representing Plaintiff Jesse Cunningham.
Jonathan Abramson and Julie Nikolaevskaya representing Defendant Jason Haferman.
Mark S. Ratner representing Defendants City of Fort Collins, Allen Heaton, and Jason
Bogoisan.
c. Statement as to when Rule 26(a)(1) disclosures were made or will be made.
The parties will make their Rule 26(a)(1) disclosures on or before fourteen (14) days
after the Scheduling Conference is held in this case.
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.
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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.
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.
Plaintiff: Plaintiff is requesting 7 depositions per side exclusive of experts.
Defendant City, Heaton, Bogosian and Defendant Haferman: Seven depositions per side
is acceptable, if defined as 1 deposition of each party, plus 3 others, exclusive of experts.
Interrogatories. As to interrogatories, the parties agree.
The parties propose 30 interrogatories permitted per side. Sides are defined as “Plaintiff”
and “Defendants.”
b. Limitations which any party proposes on the length of depositions.
The parties agree that each deposition should be limited to 1 day of 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. As to RPDs, the parties agree.
The parties propose each side be limited to 30 requests for production.
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Requests for Admission. As to RFAs, the parties agree that whatever RFA quantity
limitation is imposed shall exclude requests for admission as to authenticity.
Plaintiff: Plaintiff requests 30 RFAs per side.
Defendants: Defendant City, Heaton, Bogsian and Defendant Haferman object to
excluding requests for admission as to authenticity. These Defendants propose limiting
the number of requests for admission to 30 per side.
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: Parties plan on filing a Motion for
Protective Order.
9. CASE PLAN AND SCHEDULE
a. Deadline for Joinder of Parties and Amendment of Pleadings:
Plaintiff and Defendant Haferman propose that amended and supplemental pleadings
will be made pursuant to Fed. R. Civ. P. 15. by no later than December 29, 2023. (45
days after the entry of the Scheduling Order).
b. Discovery Cut-off: July 15, 2024 (8 months after the scheduling
conference)
c. Dispositive Motion Deadline (including 702 and 704 motions): (45 days
after the discovery cut-off date). August 29, 2024
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d. Expert Witness Disclosures
1. The parties shall identify anticipated fields of expert
testimony, if any.
Plaintiff: Police procedure and training, SFST (Standardized Field
Sobriety Test) Training/DUI Investigation, and any expert necessary
for rebuttal or impeachment purposes in the fields set forth by
Defendants.
Defendants: Defendants City, Sergeant Heaton, and Sergeant
Bogosian: These 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.
Defendant Haferman anticipates calling experts in the fields of
police tactics, police procedure and training, DUI enforcement; and
any expert necessary for rebuttal and/or impeachment purposes in
the fields set forth by Plaintiff. Defendant Haferman may call experts
in other areas as well.
2. Limitations which the parties propose on the use or
number of expert witnesses.
The parties agree to a limit of three (3) experts per side plus
rebuttal experts, if necessary. Party groups shall be defined as:
(1) Plaintiff; (2) Defendant Haferman; (3) City, Sergeant
Heaton, and Sergeant Bogosian.
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 April 15, 2024.
4. Defendants shall designate all affirmative and rebuttal
experts and provide opposing counsel and any pro se party
with all information specified in Fed. R. Civ. P. 26(a)(2) on or
before May 15, 2024.
5. Plaintiff’s rebuttal experts shall be disclosed by June
14, 2024.
e. Identification of Persons to Be Deposed:
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Plaintiffs:
1. Jason Haferman
2. Allen Heaton
3. Corporal Redacted
4. Jeff Swobada
5. Kim Cochran
6. Any other FCPS personnel or other witnesses named in the internal affairs
investigative report into Haferman related to this incident (unable to be named at
this time due to FCPS redacting all such names from the report)
7. Any other scene or supervisory witnesses identified during discovery.
Defendants: Defendants City, Sergeant Heaton, Sergeant Bogosian and Defendant
Haferman:
1. Plaintiff
2. Shane Hasebroock
3. Sam Roth
4. Nicole Cunningham
5. Olivia Cunningham
6. Officer Tpellyk #400
7. Any witness called by Plaintiff or disclosed by Plaintiff in Plaintiff’s disclosures
8. Any additional scene witness identified during discovery.
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
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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
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
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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/ Yulia Nikolaevskaya_______________
Jonathan Abramson, Esq.
Yulia Nikolaevskaya, Esq.
Kissinger & Fellman, P.C.
3773 Cherry Creek North Drive, Suite 900
Denver, CO 80209
Email: jonathan@kandf.com
julie@kandf.com
Attorneys for Defendant Jason Haferman
/s/ Mark S. Ratner
Mark S. Ratner, Esq.
Robert Weiner, Esq.
Katherine Hoffman, Esq.
1001 17th Street, Suite 300
Denver, CO 80202
Email: ratnerm@hallevans.com
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weinerr@hallevans.com
hoffmank@hallevans.com
Attorneys for City of Fort Collins, Sergeant
Allen Heaton, and Sergeant Bogosian
CERTIFICATE OF SERVICE
I hereby certify that on November 8, 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/ Sarah Schielke _
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