Schwartz et al v. Booker et al

Filing 74

ORDER Discharging 67 Order to Show Cause, Plaintiffs 70 Motion for Leave to File Response Out of Time is GRANTED; Plaintiffs substantive Opposition to the Motion to Dismiss 13 shall be filed not later than May 25, 2011; and Defendants Reply (if any) shall be filed not later than June 8, 2011 by Judge William J. Martinez on 5/19/2011. (erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-00915-WJM-KMT
MELISSA R. SCHWARTZ, as Personal Representative and Administrator of the Estate
of CHANDLER GRAFNER, deceased;
CHRISTINA GRAFNER; and
JOSHUA NORRIS,
Plaintiffs,
v.
MARGARET BOOKER, in her Individual Capacity and
MARY PEAGLER, in her Individual Capacity,
Defendants.

ORDER DISCHARGING ORDER TO SHOW CAUSE AND GRANTING
PLAINTIFFS’ MOTION FOR LEAVE TO FILE AN OUT OF TIME
RESPONSE TO DEFENDANTS’ MOTION TO DISMISS

On May 21, 2009, Defendants Margaret Booker and Mary Peagler, in their
individual capacities, moved to dismiss Claims V and VI of the Complaint for failure to
state a claim upon which relief could be granted and/or based on their right to qualified
immunity (the “Motion to Dismiss”). (ECF No. 13.) On May 6, 2011, the Court ordered
Plaintiffs to show cause as to why the Motion to Dismiss should not be deemed
confessed and Claims V and VI dismissed with prejudice. (ECF No. 67.) Plaintiffs filed
their Response to the Order to Show Cause on May 13, 2011 arguing that their failure
to respond constitutes excusable neglect. (ECF No. 70.) At the same time, Plaintiffs
filed a Motion for Leave to File Response Out of Time asking the Court to allow them
additional time to file their substantive opposition to the Motion to Dismiss. (Id.)

The Court may extend the time for an action if the party failed to act because of
excusable neglect. Fed. R. Civ. P. 6(b)(1)(B). Having reviewed all of the relevant
factors, the Court finds that Plaintiffs’ failure to substantively oppose the Motion to
Dismiss in a timely manner constitutes excusable neglect. Quigley v. Rosenthal, 427
F.3d 1232, 1238 (10th Cir. 2005). Plaintiffs have provided a good faith reason for the
omission; there is no suggestion of bad faith in this case. This case has been stayed
pending resolution of two other motions to dismiss, so the Plaintiffs’ inaction did not
significantly delay these proceedings. Moreover, as a result of the stay, granting
Plaintiffs’ instant motion will not prejudice Defendants in any meaningful fashion.
Therefore, because Plaintiffs have shown excusable neglect, the Court GRANTS
Plaintiffs’ Motion for Leave to File Response Out of Time. Plaintiffs’ brief in opposition
to the Motion to Dismiss shall be filed not later than May 25, 2011. Any reply brief shall
be filed not later than June 8, 2011.
In addition, at the May 18, 2011 hearing, Plaintiffs’ counsel stated that, given
new information which apparently has become available since the filing of this action,
Plaintiffs are now in a position to file an amended complaint which alleges with greater
particularity the factual bases for the remaining claims against the remaining individual
defendants in this case. To the extent Plaintiffs elect to seek leave to file such an
amended complaint at this time, the Court directs the parties to meet and confer to
consider whether a proposed amended complaint would help move this case forward at
this time in a more expeditious manner and without further undue delay.1

1

The Court directs the parties to WJM Revised Practice Standard III.B.1 stating that
counsel “should confer prior to the filing of the motion [to dismiss pursuant to 12(b)(6)] to

2

For the reasons stated above, the Court ORDERS the following:
1.

The Court’s May 6, 2011 Order to Show Cause is DISCHARGED;

2.

Plaintiffs’ Motion for Leave to File Response Out of Time is GRANTED;

3.

Plaintiffs’ substantive Opposition to the Motion to Dismiss [ECF No. 13]
shall be filed not later than May 25, 2011; and

4.

Defendants’ Reply (if any) shall be filed not later than June 8, 2011.

Dated this 19th day of May, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

determine whether the deficiency can be corrected by amendment . . . and should exercise their
best efforts to stipulate to the appropriate amendments.”

3