MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

DISTRICT COURT, PITKIN COUNTY, COLORADO

Pitkin County Courthouse

506 E. Main, Suite 300

Aspen, Colorado 81611

 

Plaintiff(s):

MARILYN MARKS

v.

Defendant(s):

KATHRYN KOCH

 

? COURT USE ONLY ?

 

Attorney for Plaintiff: Case Number: 2009CV294

Robert A. McGuire

Robert A. McGuire, Attorney at Law, LLC

1624 Market Street, Suite 202

Denver, Colorado 80202

Phone Number: 303-734-7175 Div.: 3 Ctrm.:

FAX Number: 303-734-7166

E-mail: ram@lawram.com

Atty. Reg. #: 37134

 

MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

 

Plaintiff Marilyn Marks, by and through her undersigned counsel, respectfully requests

leave to file the attached Surreply in Opposition to Defendant’s Motion to Dismiss in order to

respond to incorrect statements, new factual references and new legal arguments made and raised

for the first time by the Defendant in the Defendant’s Reply Memorandum in Support of Motion

to Dismiss. Alternately, the Plaintiff requests that the Court strike all incorrect statements, new

factual references and new legal arguments set out in the Defendant’s Reply Memorandum in

Support of Motion to Dismiss.

 

AS GROUNDS THEREFOR, the Plaintiff states:

 

1. On December 8, 2009, the Defendant filed her Reply Memorandum in Support of

Motion to Dismiss (the “Reply”).

 

2. The Reply makes at least five incorrect statements mischaracterizing the Plaintiff’s

position that the Plaintiff should be permitted to rebut and correct on the record, including the

following (emphasis added):

 

a) Page 2: “…the Plaintiff acknowledges that much of Plaintiff’s factual allegations

contained in her Complaint are immaterial to the issues in the case at bar…”

b) Page 15: “However, Plaintiff acknowledges here that certain ballots have identifying

information in the form of write-in votes.”

c) Page 17, note 6: “Notwithstanding the Plaintiff’s continuing claims of an

unconstitutional election….”

d) Page 18: “Plaintiff points out that if some voters at the last municipal election marked

their ballots in such a way that makes those ballots personally identifiable, they voted illegally.”

e) Page 19: “…if Plaintiff is correct that all ballots with distinguishing marks are to be

considered as illegal ballots and not counted.”

3. The Reply also presents an extensive discussion of four individual TIFF files that the

Defendant has referenced for the first time in her Reply. This discussion is intended by the

Defendant to “reveal[] how absurd Plaintiff’s argument really is.” (Def.’s Repl. Mem. Supp.

Mot. Dismiss at 18-21, Ex. B-E.) The Plaintiff should be permitted to respond on the record to

this extensive discussion by the Defendant of previously unreferenced facts in the form of TIFF

file images.

 

4. The Reply also presents an extensive discussion of legal authorities that the

Defendant has referenced for the first time in her Reply. This discussion is intended by the

Defendant to persuade the Court to rely upon legislative facts asserted by motion as a substitute

for facts submitted by affidavit or alleged in any responsive pleading. (Def.’s Repl. Mem. Supp.

Mot. Dismiss at 21-26.) The Plaintiff should be permitted to respond on the record to this

extensive discussion by the Defendant of previously unreferenced legal authority supporting the

Court’s use of legislative facts.

 

5. The undersigned counsel for the Plaintiff conferred on December 11, 2009, with the

Defendant’s counsel in advance of filing this motion as required by C.R.C.P. 121 § 1-15(9). The

Defendant’s counsel stated that the Defendant reserves the right to oppose this motion.

 

RECITATION OF LEGAL AUTHORITY

 

 The Colorado Rules of Civil Procedure provide for a motion, a response and a reply. See

C.R.C.P. 121 § 1-15(1). However, it is within the discretion of a trial court to permit a party

defending against a motion to file a surreply in order “to respond to new evidence and new legal

arguments raised for the first time in the moving party's reply brief.” Olson v. State Farm

Mutual Auto. Ins. Co., 174 P.3d 849, 860 (Colo. App. 2007) (citing Green v. New Mexico, 420

F.3d 1189, 1197 (10th Cir. 2005) and Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th

Cir. 1998)). A court cannot rely on new materials submitted in a reply unless it permits the non-

moving party to respond to those materials. See Pippin v. Burlington Resources Oil & Gas Co.,

440 F.3d 1186, 1192 (10th Cir. 2006). Indeed, where new arguments or facts have been raised in

a reply brief, the non-moving party’s ability to address those points on appeal may be prejudiced

if the party neither moves to strike the new material nor seeks leave to respond via a surreply.

See Giguere v. SJS Family Enterprises, Ltd., 155 P.3d 462, 467 (Colo. App. 2006).

 

The Defendant in the Reply has raised new legal arguments and has referred to facts and

legal authorities that were not referenced in her previous pleadings. She has also made incorrect

statements that the Plaintiff cannot allow to stand unrebutted on the record of the case. The legal

authorities cited here, which address the discretion of a trial court to permit a surreply in the

context of motions for summary judgment (Beaird, Olson and Pippin) and dissolution of an

injunction (Giguere), should apply with equal force in the present context of a motion to dismiss.

The Plaintiff should accordingly be given an opportunity to respond by filing the attached

Surreply in Opposition to Defendant’s Motion to Dismiss.

 

WHEREFORE, the Plaintiff respectfully requests that the Court grant the Plaintiff leave to

file the attached Surreply in Opposition to Defendant’s Motion to Dismiss or, alternately, strike

all incorrect statements, new factual references and new legal arguments made in the Reply.

Respectfully submitted this 11th day of December, 2009.

 

 By: S/ Robert A. McGuire_______________

 Robert A. McGuire, Reg. No. 37134

1624 Market Street, Suite 202

Denver, Colorado 80202

(303) 734-7175

(303) 734-7166 Fax

ram@lawram.com

 Attorney for Plaintiff Marilyn Marks

 

CERTIFICATE OF SERVICE

 

I hereby certify that on this 11th day of December, 2009, I served a true and correct copy of

the foregoing MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS by the method indicated below to each of the

following:

Attorney Firm And/Or Address: Method

John Worcester City Attorney Lexis Nexis File & Serve

 City of Aspen, Colorado

130 S Galena

Aspen, Colorado 81611

James R. True Special Counsel Lexis Nexis File & Serve

 City of Aspen, Colorado

130 S Galena

Aspen, Colorado 81611

 

 S/ Robert A. McGuire_______________

 Robert A. McGuire, Reg. No. 37134

1624 Market Street, Suite 202

Denver, Colorado 80202

(303) 734-7175

(303) 734-7166 Fax

ram@lawram.com

 Attorney for Plaintiff Marilyn Marks