HomeMy WebLinkAbout2017CV1177 - MCGRATH V. FCPS OFFICER NICK ROGERS - 030 - PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO PERMIT ADMISSIONS TO BE WITHDRAWN OR AMENDEDIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-CV-01177-LTB-NYW
DAKOTA TYLER MCGRATH,
Plaintiff,
v.
FORT COLLINS POLICE SERVICES OFFICER NICK RODGERS, in his individual
capacity,
Defendant.
PLAINTIFF DAKOTA McGRATH’S REPLY IN SUPPORT OF
MOTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE
36(b) TO PERMIT ADMISSIONS TO BE WITHDRAWN OR AMENDED
Plaintiff Dakota McGrath, by and through counsel, Anthony Viorst of the Viorst Law
Offices, P.C., hereby submits the following reply in support of his motion for permission to
withdraw or amend his admissions, as follows:
1. Defendant opposes Plaintiff’s motion to withdraw or amend his admissions,
which was made pursuant to F.R.C.P. 36(b). That Rule provides that a court may permit
withdrawal or amendment “if it would promote the presentation of the merits of the action and if
the court is not persuaded that it would prejudice the requesting party in maintaining or
defending the action on the merits.”
2. As to the first prong of this test, all of the requests for admission propounded by
the Defendant concern some aspect of Plaintiff’s conduct on the night of the baton strike that
Case 1:17-cv-01177-LTB-NYW Document 30 Filed 03/16/18 USDC Colorado Page 1 of 3
broke his leg. Indeed, every single request for admission starts with the same prefix: “Admit
that, on the night of the Incident . . .”
3. If the requests for admission are deemed admitted, the “presentation of the merits
of the action” will be hindered, because Mr. McGrath will be prevented from expressing, and the
jury will be prohibited from considering, his full and complete version of the events that
occurred on the night in question. Thus, Plaintiff has satisfied the first prong of the test for
permitting withdrawal or amendment of admissions.
4. Regarding the second prong of the test, the discovery deadline in the instant case
has been extended for 60 days, thereby providing the Defendant with sufficient time to fully
investigate the issues raised in the requests for admission, and to take a deposition of Mr.
McGrath, at which defense counsel can pose detailed questions regarding all of the issues raised
in the requests for admission.
5. Under these circumstances, there is absolutely no reason to believe that, as a
result of the 11-day delay in transmission of responses to the requests for admission, Defendant
will be prejudiced in defending this action on the merits. “The prejudice contemplated by Rule
36(b) is more than simply inconvenience to the party.” Dedmon v. Continental Airlines, Inc.,
2015 WL 4639737 (D. Colo. Aug. 5, 2015) (citing Raiser v. Utah County, 409 F.3d at 1246).
Instead, “the prejudice relates to the difficulty a party may have in proving its case.” Id.
6. Therefore, Plaintiff has satisfied the second prong of the test for permitting
withdrawal or amendment of admissions.
WHEREFORE, for the foregoing reasons, as well as those stated in his original motion,
Plaintiff Dakota McGrath moves for permission to withdraw or amend his admissions.
Case 1:17-cv-01177-LTB-NYW Document 30 Filed 03/16/18 USDC Colorado Page 2 of 3
Dated this 16 th day of March, 2018.
THE VIORST LAW OFFICES, P.C.
[Original signature on file at Viorst Law Offices, P.C.]
s/ Anthony Viorst
Anthony Viorst, #18508
Viorst Law Offices, PC
950 South Cherry Street, Suite 300
Denver, CO 80246
Telephone: (303) 759-3808
Facsimile: (303) 333-7127
E-mail: tony@hssspc.com
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on this 16 th day of March, 2018, I sent a true and correct copy of the
foregoing PLAINTIFF DAKOTA McGRATH’S REPLY IN SUPPORT OF MOTION
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 36(b) TO PERMIT
ADMISSIONS TO BE WITHDRAWN OR AMENDED to the following via e-mail:
Matthew J. Hegarty, Esq.
Thomas J. Lyons, Esq.
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
[Original signature on file at Viorst Law Offices, P.C.]
s/ Michelle Spadavecchia
Legal Assistant
Case 1:17-cv-01177-LTB-NYW Document 30 Filed 03/16/18 USDC Colorado Page 3 of 3