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HomeMy WebLinkAbout2023-cv-1342 - Cunningham V. City Of Fort Collins, Et Al. - 037 - Scheduling Order1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:23-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 was held on November 15, 2023 at 9:00 a.m. 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 Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 1 of 15 2 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 Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 2 of 15 3 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 moving 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 Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 3 of 15 4 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 will 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. Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 4 of 15 5 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- Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 5 of 15 6 103, 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. Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 6 of 15 7 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. Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 7 of 15 8 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 November 29, 2023. 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. Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 8 of 15 9 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. 7 depositions per side, exclusive of experts. Interrogatories. As to interrogatories, the parties agree. The parties propose 30 interrogatories permitted per side, including discrete subparts. 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. Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 9 of 15 10 The parties propose Each side shall be limited to 30 requests for production. 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. 30 requests for admission per side, excluding requests for admission as to authenticity. d. Deadline for service of Interrogatories, Requests for Production of Documents and/or Admissions: Deadline for Interrogatories: 35 days before the cutoff for discovery, June 10, 2024. Deadline for Requests for Production of Documents and/or Admissions: 35 days before the cutoff for discovery, June 10, 2024. 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 Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 10 of 15 11 conference) c. Dispositive Motion Deadline (including 702 and 704 motions): (45 days after the discovery cut-off date). August 29, 2024 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. 5 total experts per side. 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 Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 11 of 15 12 before May 15, 2024. 5. Plaintiff’s rebuttal experts shall be disclosed by June 14, 2024. e. Identification of Persons to Be Deposed: 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 Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 12 of 15 13 a. Status conferences will be held in this case at the following dates and times: A telephonic status conference is set for May 29, 2024 at 1:30 p.m. The parties shall attend by calling 571-353-2301, Guest meeting ID- 868150043. All attendees shall please mute their phone when not speaking and not use speaker phone. b. Counsel shall contact Judge Sweeney’s chambers by email (Sweeney_Chambers@cod.uscourts.gov) within twenty-four hours of the Scheduling Conference to obtain dates for a Final Pretrial Conference. A Trial Preparation Conference and trial date(s) will be given to the parties at 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. Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 13 of 15 14 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 The scheduling order may only be amended or altered upon a showing of good cause. DATED at Denver, Colorado, this 15th day of November, 2023. BY THE COURT: Susan Prose United States Magistrate Judge Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 14 of 15 15 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 weinerr@hallevans.com hoffmank@hallevans.com Attorneys for City of Fort Collins, Sergeant Allen Heaton, and Sergeant Bogosian Case No. 1:23-cv-01342-CNS-SBP Document 37 filed 11/15/23 USDC Colorado pg 15 of 15