Opinion
Civil Action No. 10-cv-00722-MSK-MJW
10-31-2012
ALLEN GRIDER, GLENN BELCHER, and VALERIE PILTZ, on behalf of all others so similarly situated, Plaintiff(s), v. CITY AND COUNTY OF DENVER, and DOUG KELLEY, as an individual and in his official capacity, and CITY OF AURORA, Defendant(s).
ORDER REGARDING
(1) DEFENDANT CITY AND COUNTY OF DENVER'S MOTION TO STRIKE
"STIPULATION FOR INTERIM ORDER" AND PROPOSED ORDER
(DOCKET NO. 117)
AND
(2) DEFENDANT CITY OF AURORA'S JOINDER IN CITY AND COUNTY OF
DENVER'S MOTION TO STRIKE "STIPULATION FOR INTERIM ORDER."
(DOCKET NO. 118)
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Defendant City and County of Denver's Motion to Strike "Stipulation for Interim Order" and Proposed Order (docket no. 117) and Defendant City of Aurora's Joinder in City and County of Denver's Motion to Strike "Stipulation for Interim Order" (docket no. 118). The court has reviewed both of the subject motions (docket nos. 117 and 118) and the response (docket no. 124). In addition, the court has taken judicial notice of the court's file and has considered applicable Federal Rules of Civil Procedure and case law. The court now being fully informed makes the following findings of fact, conclusions of law and order
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1. That I have jurisdiction over the subject matter and over the parties to this lawsuit;
2. That venue is proper in the state and District of Colorado;
3. That each party has been given a fair and adequate opportunity to be heard;
4. That the parties signed a written Stipulation for Interim Order ["hereinafter Stipulation"] (docket no. 112) back on March 11, 2010. Nevertheless, this written Stipulation (docket no. 112) was not filed with this court by Plaintiffs until September 14, 2012. Moreover, Plaintiffs did not confer with Defendants before filing this Stipulation (docket no. 112) with this court. When Plaintiffs finally filed this written Stipulation (docket no. 112) with the court, they attached a proposed written order which was never signed by Magistrate Judge Watanabe. Instead, Defendant City and County of Denver filed a Response and Objection to "Stipulation for Interim Order " (docket no. 113) on September 16, 2012. Thereafter, the subject motions (docket nos. 117 and 118) were filed. Subject motion (docket no. 117) was filed with the court on October 3, 2012 and
subject motion (docket no. 118) was filed with the court on October 5, 2012;
5. That On May 11, 2010, sixty days after the Stipulation was signed, Defendant City of Aurora received an e-mail from Plaintiffs' counsel stating "our stipulation is set to expire" and asked if Defendant City of Aurora would agree to continue it. See docket no. 118, exhibit 1, p.3, May 11, 2010 (11:35 a.m.) e-mail from Jennifer Reba Edwards to Peter Morales, Assistant City Attorney for the City of Aurora. The Defendant City of Aurora agreed and Plaintiffs' counsel drafted an extension. See docket no. 118, exhibit 1, pp. 2-3, May 11, 2010 (11:41 a.m. and 12:07 p.m.) e-mails between Jennifer Reba Edwards and Peter Morales;
6. The extension to the Stipulation (docket no. 112) ["May 2010 extension] states, in pertinent part, that the "Parties [ ] agree to 90-day extension of this Stipulation for Interim Order." See docket no. 118, exhibit 2, ¶ 3.;
7. That Peter Morales signed the "May 2010 extension" and returned his signature page to Plaintiffs' counsel indicating the Defendant City of Aurora's agreement to the extension. See docket no. 118, exhibit 1, p. 2, May 11, 2010 (5:07 p.m.) e-mail from Peter Morales to Jennifer Reba Edwards; See also docket no. 118, exhibit 2, p. 2 (Peter Morales' signature);
8. That on May 11, 2010, Assistant City Attorney for Defendant City
and County of Denver Wendy J. Shea, received an e-mail from Plaintiffs' counsel confirming that Plaintiffs believed an extension of the Stipulation was necessary. See docket no. 117, exhibit 2, May 11, 2010 (11:29 a.m.) e-mail from Plaintiffs' counsel Jennifer Reba Edwards to Wendy J. Shea. The Defendant City and County of Denver, agreed to the 90-day extension of the Stipulation just like the Defendant the City of Aurora did and signed the extension and return the same to Plaintiffs' counsel. See docket no. 118, exhibit 4;
9. That both Defendants City and County of Denver and the City of Aurora were never provided a copy of the fully executed extension of the Stipulation and Plaintiffs did not file such an extension with this court. See court docket;
10. That per the terms of the May 2010 extension of the Stipulation, such Stipulation expired on August 9, 2010;
11. That the parties have not produced any other documents that suggest a further extension of the May 2010 extension of the Stipulation; and
12. That based upon the totality of the evidence, I find that there was no meeting of the minds to extend further the May 2010 extension of the Stipulation. Accordingly, I find that the subject motions (docket nos. 117 and 118) should be granted.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this court ORDERS:
1. That Defendant City and County of Denver's Motion to Strike "Stipulation for Interim Order" and Proposed Order (docket no. 117) is GRANTED;
2. That Defendant City of Aurora's Joinder in City and County of Denver's Motion to Strike "Stipulation for Interim Order." (docket no. 118) is GRANTED;
3. That the Stipulation for Interim Order (docket no. 112) shall be STRICKEN; and,
4. That each party shall pay their own attorney fees and costs for this motion.
BY THE COURT
_____________
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE