Stine v. Fetterhoff et al

Filing 163

ORDER granting 146 Motion for Reconsideration re 142 Order on Motion to Compel, Order on Motion for Sanctions, Order on Motion for Leave, Order on Motion to Strike, Although Defendants neglect contributed to my ruling on Plaintiffs Motion to Comp el, I find that such neglect was excusable. Furthermore, because the Court now has all of the information available to it, I find that Defendants timely responded to Plaintiffs propounded discovery and that deeming Plaintiffs Requests for Admissions to be admitted would be a manifestly unjust result. To the extent that Plaintiff claims that he has not received the discovery responses because of delays or problems with receiving mail at ADX, IT IS FURTHER ORDERED that the Clerk shall mail a copy of Docket No. 146-3 to Plaintiff in conjunction with this Order. To the extent that Plaintiff argues that the discovery responses he did receive are improper because they are not signed by the responding party, IT IS FURTHER ORDERED that Defendants shall provide copies of properly executed responses to Plaintiffs discovery requests on or before January 30, 2009. IT IS FURTHER ORDERED that my Order dated December 4, 2008 142 is amended as follows: (1) Plaintiffs Motion to Compel 131 is DENIE D; (2) Defendants objections to Plaintiffs discovery requests, if any, are not deemed to be waived; and (3) Plaintiffs Requests for Admissions are not deemed to be admitted. Signed by Magistrate Judge Kristen L. Mix on 1/12/09.(erv, ) (Modified on 1/20/2009 corrected file date to 1/12/09)(erv, ).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 07-cv-02203-WYD-KLM MIKEAL GLENN STINE, Plaintiff, v. MR. STEVEN NAFZIGER, Clinical Director; RON WILEY, Warden, ADX, Defendants. ________________________________________________________________________ ORDER GRANTING DEFENDANTS' MOTION FOR RECONSIDERATION ________________________________________________________________________ ORDER ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX This matter is before the Court on Defendants' Motion for the Court to Reconsider Order on Motions No. 131 & 133 (Doc. 142) [Docket No. 146; Filed December 12, 2008] (the "Motion"). On December 4, 2008, I granted Plaintiff's Motion to Compel Defendants to respond to discovery and to deem his Requests for Admissions to be admitted [Docket Nos. 131 & 142]. My Order was based primarily on Defendants' failure to respond to the Motion to Compel and offer any justification for, or rebuttal to, Plaintiff's contention that Defendants failed to timely respond to his outstanding discovery requests. Order [#142] at 2-3. In the present Motion, Defendants inform the Court that their failure to respond to the Motion to Compel was inadvertent and was partly caused by the leave of absence taken by counsel for Defendants due to a death in his family. Motion [#146] at 2. Defendants also inform the Court that, contrary to allegations contained in Plaintiff's Motion to Compel, Defendants timely responded to Plaintiff's outstanding discovery requests. Id.

Defendants attached to the Motion their discovery responses and certificates of service, which were timely mailed to Plaintiff on October 22, 2008 [Docket No. 146-3]. As such, Defendants seek reconsideration of my prior Order. Plaintiff responded in opposition ot the Motion on December 22, 2008 [Docket No. 149], and Defendants did not file a reply. The Motion has been fully briefed and is ripe for resolution. A motion for reconsideration "is an extreme remedy to be granted in rare circumstances." Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995). It is well established in the Tenth Circuit that grounds for a motion to reconsider include: "(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark, 57 F.3d at 948). Therefore, a motion for reconsideration is "appropriate [only] where the court has misapprehended the facts, a party's position, or the controlling law." Id. IT IS HEREBY ORDERED that the Motion is GRANTED. Although Defendants' neglect contributed to my ruling on Plaintiff's Motion to Compel, I find that such neglect was excusable. Furthermore, because the Court now has all of the information available to it, I find that Defendants timely responded to Plaintiff's propounded discovery and that deeming Plaintiff's Requests for Admissions to be admitted would be a manifestly unjust result. To the extent that Plaintiff claims that he has not received the discovery responses because of delays or problems with receiving mail at ADX, IT IS FURTHER ORDERED that the Clerk shall mail a copy of Docket No. 146-3 to Plaintiff in conjunction with this Order. To the extent that Plaintiff argues that the discovery responses he did receive are improper because they are not signed by the responding 2

party, IT IS FURTHER ORDERED that Defendants shall provide copies of properly executed responses to Plaintiff's discovery requests on or before January 30, 2009. IT IS FURTHER ORDERED that my Order dated December 4, 2008 [Docket No. 142] is amended as follows: (1) Plaintiff's Motion to Compel [Docket No. 131] is DENIED; (2) Defendants' objections to Plaintiff's discovery requests, if any, are not deemed to be waived; and (3) Plaintiff's Requests for Admissions are not deemed to be admitted. Dated: January 12, 2009 s/ Kristen L. Mix Kristen L. Mix United States Magistrate Judge

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