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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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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number 1:13-CV-02747-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:

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2 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 Rather, according to Plaintiff the claim for monetary damages against the official capacity Defendants was withdrawn only “for the sake of expediency” (ECF No.181 at 4).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

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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, 2014 email 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,

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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.

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Respectfully submitted, s/ Mark S. Ratner Thomas J. Lyons, Esq. Mark S. Ratner, Esq. of HALL & EVANS, L.L.C.

1125 Seventeenth Street, Suite 600 Denver, Colorado 80202

Phone: (303) 628-3300 Fax: (303) 293-3238

lyonst@hallevans.com; ratnerm@hallevans.com

ATTORNEYS FOR DEFENDANT COYKENDALL

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CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on this 15th 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 e-mail addresses:

Gregory Robert Stross

Gregory R. Stross Attorney At Law 370 17th Street Republic Plaza Suite 3500 Denver, CO 80202 303-339-0647 Email: gstross@strosslegal.com

Attorney for Plaintiff

Sarah Anne Croog Garlin Driscoll, LLC 245 Century Circle #101 Louisville, CO 80027 330-926-4222 Fax: 303-926-4224 Email: 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 80203 720-508-6180 Fax: 720-508-6041 Email: kimberly.spiering@state.co.us Email: amy.colony@state.co.us Email: bernie.buescher@state.co.us Email: jon.fero@state.co.us Email: michelle.merz-hutchinson@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.

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