A.B. et al v. Adams-Arapahoe School District 28J et al

Filing 187

ORDER denying 101 Defendant Trowbridges Motion for Sanctions; striking 123 Defendant Trowbridges Second Motion for Summary Judgment; granting 126 Plaintiffs Motion to Strike Trowbridge's Second Motion for Summary Judgment ; Denying as moot 128 Plaintiffs Unopposed Motion for Extension of Time to Respond to Defendant Trowbridges Second Motion for Summary Judgment ; striking 165 Plaintiffs Motion to Exclude Testimony of Dr. Thomas Reiley; granting 168 Defendants Motion to Strike Plaintiffs Motion to Exclude Testimony of Dr. Thomas Reiley Motion to Strike by Judge William J. Martinez on 4/29/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-00715-WJM-MJW
A.B. a minor, through her parent and next friend, B.S., and
B.S., individually,
Plaintiffs,
v.
ADAMS-ARAPAHOE 28J SCHOOL DISTRICT;
AURORA PUBLIC SCHOOLS BOARD OF EDUCATION;
JOHN L. BARRY, Superintendent, in his individual and official capacity;
LAURA MUNRO, Director, Exceptional Student Services, in her individual and official
capacity;
BARBARA RICE, Elementary/Preschool Consultant in her individual and official
capacity;
JEAN BURKE, Principal, in her individual and official capacity;
VICKI MICHAELS, Special Education Teacher, in her individual and official capacity;
JANE DOES #1 AND #2, Paraprofessionals, in their individual and official capacities,
Defendants.

ORDER

This case is before the Court on the following six motions: (1) Defendant
Trowbridge’s Motion for Sanctions Pursuant to Rule 11;1(2) Trowbridge’s Second
Motion for Summary Judgment;2(3) Plaintiffs’ Motion to Strike Trowbridge’s Second
Motion for Summary Judgment;3(4) Plaintiffs’ Unopposed Motion for Extension of Time

1

(ECF No. 101.)

2

(ECF No. 123.)

3

(ECF No. 126.)

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to Respond to Trowbridge’s Second Motion for Summary Judgment;4(5) Plaintiffs’
Motion to Exclude Testimony of Dr. Thomas Reiley;5 and (6) Defendants’ Motion to
Strike Plaintiffs’ Motion to Exclude Testimony of Dr. Thomas Reiley.6 The Court
considers each in turn.
I. DISCUSSION
A.

Defendant Trowbridge’s Motion for Sanctions Pursuant to Rule 11
In the first motion, Defendant Trowbridge moves for sanctions against Plaintiffs

under FED. R. CIV. P. 11(c)(2). She seeks an award of attorneys’ fees and costs
because, as she states,
In this case, Plaintiffs made no specific factual contentions against
Defendant Trowbridge. Additionally, Plaintiffs have developed no specific
factual contentions against Defendant Trowbridge, despite having
conducted considerable investigation and discovery. And yet, in spite of
that complete absence of any factual contentions of wrongdoing against
Defendant Trowbridge, Plaintiffs stubbornly refuse to dismiss their claims
against her.7
The Court is not persuaded. Based on these assertions—heavy on accusation
but light on citation—the Court is not convinced it should impose sanctions against
Plaintiffs. Accordingly, the Court denies this motion.
B.

Trowbridge’s Second Motion for Summary Judgment, Plaintiffs’ Motion to
Strike Trowbridge's Second Motion for Summary Judgment, and Plaintiffs’
Unopposed Motion for Extension of Time to Respond to Trowbridge’s
Second Motion for Summary Judgment

4

(ECF No. 128.)

5

(ECF No. 165.)

6

(ECF No. 168.)

7

(ECF No. 101.)

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The next set of motions the Court considers also involve Defendant Trowbridge.
On May 7, 2010, Trowbridge filed a Motion for Summary Judgment.8 Over five months
later, on October 14, 2010, Trowbridge filed her Second Motion for Summary
Judgment.9 Plaintiffs responded with two motions: a Motion to Strike Trowbridge’s
Second Motion for Summary Judgment10 and an Unopposed Motion for Extension of
Time to Respond to the Trowbridge’s Second Motion for Summary Judgment.11
In their Motion to Strike, Plaintiffs argue, among other things, that Trowbridge’s
Second Motion for Summary Judgment was filed after the deadline in the Scheduling
Order and, thus, should be stricken.12 The Court agrees. Pursuant to the Court’s
Scheduling Order, the deadline to file dispositive motions was May 17, 2010.13
Trowbridge’s Second Motion for Summary Judgement was filed almost five months after
this deadline. Moreover, Trowbridge did not seek leave of Court to file this motion late.
Accordingly, because this motion was filed in violation of the dispositive motion deadline
and without leave of Court, the Court grants Plaintiffs’ Motion to Strike and, thus, strikes
Trowbridge’s Second Motion for Summary Judgment. The Court denies Plaintiffs’
Unopposed Motion for Extension of Time as moot.

8

(ECF No. 74.)

9

(ECF No. 123.)

10

(ECF No. 126.)

11

(ECF No. 128.)

12

(ECF No. 126 ¶¶ 4-5.)

13

(ECF No. 40 at 14.)

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C.

Plaintiffs’ Motion to Exclude Testimony of Dr. Thomas Reiley and
Defendants’ Motion to Strike Plaintiffs’ Motion to Exclude Testimony of Dr.
Thomas Reiley
Finally, the Court considers Plaintiffs’ Motion to Exclude Testimony of Dr.

Thomas Reiley14 and Defendants’ Motion to Strike Plaintiffs’ Motion to Exclude
Testimony of Dr. Thomas Reiley.15
On February 24, 2011, the Court ordered, among other things, that the parties
file Rule 702 motions by March 18, 2011.16 On March 11, 2011, Defendants timely filed
a Rule 702 motion to exclude the testimony of Plaintiffs’ proposed expert, Dr. Helena
Huckabee.17 Plaintiffs did not file a timely Rule 702 motion. Instead, two weeks after
the Court’s deadline, on April 1, 2011, Plaintiffs filed their Rule 702 motion to exclude
the testimony of Defendants’ proposed expert, Dr. Thomas Reiley. Plaintiffs did not
seek leave of court to file this motion late, nor did they file a motion seeking clarification
of the Court’s deadline.
Plaintiffs’ late filing prompted Defendants’ Motion to Strike. The Court agrees
with Defendants and concludes that, because Plaintiffs’ Motion to Exclude Testimony of
Dr. Thomas Reiley was filed in violation of the Court’s Order and without leave of Court,
it must be stricken. Accordingly, the Court grants Defendants’ Motion to Strike and,

14

(ECF No. 165.)

15

(ECF No. 168.)

16

(ECF No. 160.)

17

Two defendants, Trowbridge and Michaels, timely joined this motion. (See ECF Nos.
162-163.) This motion is not addressed by this Order and remains under consideration

by the Court.
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thus, strikes Plaintiffs’ Motion to Exclude Testimony of Dr. Thomas Reiley.
II. CONCLUSION
Accordingly, the Court ORDERS:
•

That Defendant Trowbridge’s Motion for Sanctions Pursuant to Rule 11 (ECF No.
101) is DENIED.

•

That Plaintiffs’ Motion to Strike Trowbridge's Second Motion for Summary
Judgment (ECF No. 126) is GRANTED and, thus, that Defendant Trowbridge’s
Second Motion for Summary Judgment (ECF No. 123) is STRICKEN.

•

That Plaintiffs’ Unopposed Motion for Extension of Time to Respond to
Defendant Trowbridge’s Second Motion for Summary Judgment (ECF No. 128) is
DENIED AS MOOT.

•

That Defendants’ Motion to Strike Plaintiffs’ Motion to Exclude Testimony of Dr.
Thomas Reiley (ECF No. 168) is GRANTED and, thus, that Plaintiffs’ Motion to
Exclude Testimony of Dr. Thomas Reiley (ECF No. 165) is STRICKEN.

Dated this 29th day of April, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

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