Case 1:13-cv WJM-BNB Document 190 Filed 12/15/14 USDC Colorado Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:13-cv WJM-BNB Document 190 Filed 12/15/14 USDC Colorado Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number 1:13-CV WJM-BNB KEIFER JOHNSON, Plaintiff, v. WESTERN STATE COLORADO UNIVERSITY; BRAD BACA, individually and in his official capacity as President of Western State Colorado University; GARY PIERSON, individually and in his official Capacity as Vice President For Student Affairs & Dean of Students; SARA PHILLIPS, individually and in her official capacity as Title IX Coordinator; CHRIS LUEKENGA, individually and in his official capacity as Associate Vice President For Student Affairs; and SUSAN COYKENDALL, individually and in her official Capacity as an employee of Western State, Defendants DEFENDANT SUSAN COYKENDALL S RESPONSE IN OPPOSITION TO PLAINTIFF S MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT (ECF NO.181) Defendant, Susan Coykendall, by and through her Attorneys, Hall & Evans, LLC, hereby submits her Response in Opposition to Plaintiff s Motion For Leave To File Fourth Amended Complaint as follows: 1

WESTERN STATE COLORADO UNIVERSITY; BRAD BACA, individually and in his official capacity as President of Western State Colorado University; GARY PIERSON, individually and in his official Capacity as

2 Case 1:13-cv WJM-BNB Document 190 Filed 12/15/14 USDC Colorado Page 2 of 6 I. ARGUMENT Plaintiff argues he should be allowed to amend his Complaint, for the Fourth time, under the liberal rules that allow for such amendments. He bases the request on the notion that he made a typographical error. (ECF No.181 at 4). The request should be denied as although Plaintiff admittedly identified the purported error, he made a conscious decision to proceed through the briefing of two Motions to Dismiss, without bringing the alleged error to the parties or the Court s attention. Plaintiff specifically sets forth in his Motion that he erroneously failed to plead individual liability in his Fifth Claim for Relief. Despite the alleged discovery, his error was not brought to either the parties or the Court s attention until after dismissal of a majority of his claims. Rather, according to Plaintiff the claim for monetary damages against the official capacity Defendants was withdrawn only for the sake of expediency (ECF No.181 at 4). Only now, faced with dismissal of the remaining claim, does Plaintiff reverse direction and argue that the withdrawal of such claims was done in error. Plaintiff s reference to his own footnote belies any notion that withdrawal of the monetary claims against the official capacity Defendants, was an error. In particular, Plaintiff specifically withdrew his claim for monetary damages in the Fifth claim for relief. In other words, Plaintiff reviewed the claim, noted his error, and took steps to correct it. Steps that he acknowledges in his Motion: (P)laintiff withdraws that request for monetary damages as concerns the Fifth Claim for Relief, found at paragraph 294 of the Complaint. There is no error, confusion, notion, or idea that such a withdrawal was ever in the 2

He bases the request on the notion that he made a typographical error. (ECF No.181 at 4).

3 Case 1:13-cv WJM-BNB Document 190 Filed 12/15/14 USDC Colorado Page 3 of 6 interest of expediency 1. Rather, Plaintiff chose for whatever reason, to proceed with only official capacity claims in his Fifth Claim for Relief. Now, faced with dismissal, Plaintiff is again requesting yet another reset of the litigation. Such an approach is far from being expedient. Further evidence that Plaintiff s omission of any individual capacity claims in the Fifth Claim for Relief was purposeful, is set forth in a conferral with Counsel for Professor Coykendall, pertaining to the Professor s Motion to Dismiss. I recall that in the response to the first mtn to dismiss plaintiff withdrew a claim for monetary damages inadvertently pleaded against official capacity defendants To the extent you seek dismissal as to that claim(s), you can state that plaintiff confesses that part of your motion to the extent consistent with that footnote. August 1, correspondence from Plaintiff s Counsel, Gregory Stross, attached hereto as Exhibit A. This footnote is the same footnote referenced in Plaintiff s Motion. The statement is understood to waive monetary damages against official capacity Defendants for multiple claim(s). In other words, Plaintiff s clear intent was to withdraw the monetary damages for all claims against official capacity Defendants, realizing that he was not entitled to any such damages, in all of the claims pled in the Third Amended Complaint that contained such an error. Further, Plaintiff has repeatedly admitted inadvertently seeking monetary damages against the official capacity Defendants. The relief sought in the Fifth Claim pertaining to 1 Any argument pertaining to expediency is diluted by the fact that Plaintiff has, on four previous occasions, prosecuted a 80+ page, 300+ paragraph Complaint. 3

Now, faced with dismissal, Plaintiff is again requesting yet another reset of the litigation. Such an approach is far from being expedient.

4 Case 1:13-cv WJM-BNB Document 190 Filed 12/15/14 USDC Colorado Page 4 of 6 monetary damages, is in actuality one of these inadvertent errors, which was withdrawn from the Complaint by Plaintiff (Exhibit A). Further, in the conferral on Defendant Coykendall s Motion to Dismiss, Plaintiff agreed to the language which unequivocally states that Plaintiff is agreeing to withdraw his request for monetary damages to the extent such damages are sought against Defendant Coykendall in her official capacity, and as set forth in Plaintiff s previous response to the remaining Defendants Motion to Dismiss. (See ftnt. 3 at 13, ECF No.157). Exhibit A. Plaintiff s representations leave Counsel, and the parties, with the understanding that Plaintiff s mistake is not failing to plead individual liability against Defendant Coykendall, but rather the inclusion of a claim for monetary damages against Defendant Coykendall in her official capacity. This error was already corrected. To allow such an amendment would prejudice Defendant Coykendall who already expended resources to address Plaintiff s 81 page, 379 paragraph Complaint with a Motion to Dismiss. Allowing an individual liability claim against Defendant Coykendall, will necessarily be addressed by yet another Motion to Dismiss and the expenditure of additional resources. II. CONCLUSION WHEREFORE, for the reasons set forth above, Defendant Coykendall requests that Plaintiff s Motion for Leave to File a Fourth Amended Complaint, be denied in its entirety. DATED this 15 th day of December

Further, in the conferral on Defendant Coykendall s Motion to Dismiss, Plaintiff agreed to the language which unequivocally states that Plaintiff is agreeing to withdraw his request for monetary

5 Case 1:13-cv WJM-BNB Document 190 Filed 12/15/14 USDC Colorado Page 5 of 6 Respectfully submitted, s/ Mark S. Ratner Thomas J. Lyons, Esq. Mark S. Ratner, Esq. of HALL & EVANS, L.L.C Seventeenth Street, Suite 600 Denver, Colorado Phone: (303) Fax: (303) lyonst@hallevans.com; ratnerm@hallevans.com ATTORNEYS FOR DEFENDANT COYKENDALL 5

6 Case 1:13-cv WJM-BNB Document 190 Filed 12/15/14 USDC Colorado Page 6 of 6 CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 15 th day of December, 2014, I electronically filed the foregoing DEFENDANT SUSAN COYKENDALL S RESPONSE IN OPPOSITION TO PLAINTIFF S MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT (ECF NO.181) with the Clerk of Court using the CM/EFC system which will send notification of such filing to the following addresses: Gregory Robert Stross Gregory R. Stross Attorney At Law th Street Republic Plaza Suite 3500 Denver, CO gstross@strosslegal.com Attorney for Plaintiff Sarah Anne Croog Garlin Driscoll, LLC 245 Century Circle #101 Louisville, CO Fax: scroog@gdhlaw.com Attorney for AG and OG Kimberly Cecilia Jones Spiering Amy Christine Colony Bernard A. Buescher Jonathan Patrick Fero Michell M. Merz-Hutchinson Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO Fax: kimberly.spiering@state.co.us amy.colony@state.co.us bernie.buescher@state.co.us jon.fero@state.co.us michelle.merzhutchinson@state.co.us Attorneys for Western State Colorado University, Brad Baca, Gary Pierson, Sara Phillips and Chuck Luekenga s/ Jessica A. Hinojosa, Secretary to Mark S. Ratner, Esq. of HALL & EVANS, L.L.C. 6

181) with the Clerk of Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: Gregory Robert Stross Gregory R.

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Case: 1:13-cv-00903-SSB-SKB Doc #: 9 Filed: 03/11/14 Page: 1 of 5 PAGEID #: 31

Case: 1:13-cv-00903-SSB-SKB Doc #: 9 Filed: 03/11/14 Page: 1 of 5 PAGEID #: 31 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI THOMAS E. PEREZ, Secretary