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.
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
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