Fortner et al v. USA et al

Filing 574

ORDER: The Motion re Attorneys Fees 568 is STRICKEN; The Motion to Vacate Trial 569 is DENIED; The Motion to Reinstate Colorado Springs as Defendant 570 is DENIED; and The Motion to Strike Exhibits 571 is DENIED. by Magistrate Judge Boyd N. Boland on 6/3/13.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Case No. 06-cv-02148-BNB-MEH
DARRELL FORTNER, and
JENNIFER FORTNER, d/b/a/ Diamond/Dundee Tree Service,
Plaintiffs,
v.
KATHRYN YOUNG, individually and in her official capacity as City Clerk of Colorado
Springs, CO,
DARRELL PEARSON, individually and in his official capacity as City Forrester of Colorado
Springs, CO,
JAMES E. MCGANNON, individually and in his official capacity as City Forrester for the City
of Colorado Springs, CO,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
The parties appeared this morning for a trial preparation conference in anticipation of a
five day trial to the court to begin in one week, on June 10, 2013. Immediately before the
conference, the plaintiffs filed the following:
(1)

In re: Attorneys’ fees or Motion to Consider Attorneys fees [Doc. # 568, filed

6/3/2013] (the “Motion re Attorneys Fees”);
(2)

Plaintiffs’ Motion to Vacate Trial Date and Reset trial [Doc. # 569, filed

6/3/2013] (the “Motion to Vacate Trial”);
(3)

Motion for Leave of Court to File; and Motion to Reinstate City of Colorado

Springs as a Defendant [Doc. # 570, filed 6/3/2013] (the “Motion to Reinstate Colorado
Springs as Defendant”); and

(4)

Plaintiffs’ Motion for Leave of Court to File the Attached Motion to Strike

Defendants’ Exhibits [Doc. # 571, filed 6/3/2013] (the “Motion to Strike Exhibits”).
The Motion re Attorneys Fees concerns the Motion for Enforcement of Contingent Fee
Agreement for Attorneys Fees [Doc. # 544] filed by Erhard Fitzsimmons, PC (the “Fitzsimmons
Motion”), the Fortners’ former lawyer. I received briefing on the Fitzsimmons Motion, see Doc.
## 544 and 546, and held a hearing on it. See Transcript of Proceedings [Doc. # 566]. The
matter has been fully presented, and further briefing at this late date is not warranted.
Consequently, the Motion re Attorneys Fees [Doc. # 568] is STRICKEN.
In the Motion to Vacate Trial [Doc. # 569], Mr. Fortner alleges that he is scheduled to
have eye surgery tomorrow. There is no evidence, beyond Mr. Fortner’s statement, supporting
the assertion, nor is there any evidence that the surgery is of an emergency nature and could not
be postponed until after the trial. Finally, there is no evidence of the recovery period associated
with the surgery or evidence that Mr. Fortner will not be entirely healed by the date of the trial.
This is a very old case. A trial scheduled for January of this year was vacated due to the
plaintiffs’ conduct in hiring and firing Mr. Fitzsimmons as their lawyer and the dispute about
whether the plaintiffs had settled their claims against the County defendants. Order [Doc. # 521]
at ¶4. On the record now before me, it does not appear that another last minute continuance of
the trial is warranted, and the Motion to Vacate Trial [Doc. # 569] is DENIED.
In an Order [Doc. # 498] entered on September 4, 2012, I dismissed the City of Colorado
Springs as a defendant stating:
The plaintiffs’ claim against the City of Colorado Springs cannot
be sustained. In Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978), the Supreme Court held that “a
local government may not be sued under § 1983 for an injury
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inflicted solely by its employees or agents. Instead, it is when
execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official polity, inflicts the injury that the government as
an entity is responsible under § 1983.” Id. at 694. . . .
The plaintiffs have not articulated any facts or evidence showing
that any custom or policy is responsible for the deprivation of their
constitutional rights. To the contrary, the plaintiffs complain of
the alleged wrongdoings of several individual City employees.
The City of Colorado Springs is dismissed from this action.
Order [Doc. # 498] at p. 13. Nothing contained in the Motion to Reinstate Colorado Springs as
Defendant [Doc. # 570] convinces me that my prior ruling was erroneous and requires
reconsideration, and that motion is DENIED.
The Motion to Strike Exhibits [Doc. # 571] is an attempt to file another motion in limine
concerning an alleged failure by the City defendants to fully disclose their trial exhibits. I
previously allowed the plaintiffs an opportunity to present these arguments. Specifically, in my
Order [Doc. # 548] entered on March 14, 2013, I allowed the plaintiffs “leave to file one motion
in limine on the issue of the disclosure of the City Defendants’ trial exhibits.” Id. at ¶3. I
expressed reluctance to allow the motion, partly because the trial is to the court and most issues
can be handled during the trial, and partly because the plaintiffs tend to unnecessarily burden the
court with irrelevant arguments and materials. See Order [Doc. # 563] at pp. 1-2.
The plaintiffs filed the motion in limine [Doc. # 561] and, as I feared, it generally did not
address the alleged failure to disclose trial exhibits. Order [Doc. # 563] at p. 3. Consequently,
the motion in limine was denied. Id. The plaintiffs orally sought leave to file another motion in
limine, which was denied. Trans. of Proceedings [Doc. # 566] at p. 11 line 2 through p. 12 line
22. This latest motion to raise an issue previously briefed and decided is also DENIED.

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IT IS ORDERED:
(1)

The Motion re Attorneys Fees [Doc. # 568] is STRICKEN;

(2)

The Motion to Vacate Trial [Doc. # 569] is DENIED;

(3)

The Motion to Reinstate Colorado Springs as Defendant [Doc. # 570] is

DENIED; and
(4)

The Motion to Strike Exhibits [Doc. # 571] is DENIED.

Dated June 3, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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