Equal Employment Opportunity Commission v. JBS USA, LLC

Filing 501

ORDER. ORDERED that Defendant's Motion to Dismiss Plaintiffs Phase I Failure to Accommodate Claim Pursuant to Fed. R. Civ. P. 12(b)(6) 494 is DENIED. ORDERED that plaintiff's Motion to Strike on Procedural Grounds Defendant's "Motion to Dismiss" and for Expedited Handling [Docket No. 496] is DENIED as moot. Signed by Judge Philip A. Brimmer on 04/17/17. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-02103-PAB-KLM
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
IRAQ ABADE, et al.,
Plaintiffs-Intervenors,
and
MARYAN ABDULLE, et al.,
Plaintiffs-Intervenors,
v.
JBS USA, LLC,
d/b/a JBS Swift & Company,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s
Phase I Failure to Accommodate Claim Pursuant to Fed. R. Civ. P. 12(b)(6) [Docket No.
494] filed on April 5, 2017 and plaintiff’s Motion to Strike on Procedural Grounds
Defendant’s “Motion to Dismiss” and for Expedited Handling [Docket No. 496].
The deadline for dispositive motions in this case passed more than three years
before defendant filed its motion to dismiss. Docket No. 314 at 4. Defendant has not
moved to modify this deadline and does not argue in its motion that there is good cause

to do so. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good
cause and with the judge’s consent.”). Although defendant asserts that its motion is
timely, Docket No. 494 at 3 n.1, it does not explain why. Finally, defendant states that
E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), “recently
confirmed” the legal principle on which it bases its motion, id. at 4, suggesting there has
been a change in law. But Abercrombie simply restates and interprets the preexisting
statutory provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)
and does not alter the pleading requirements for such claims in a way relevant to this
case. 135 S. Ct. at 2031-32. Even if Abercrombie did make material changes to the
law, defendant would nonetheless need to seek permission to file a belated Rule
12(b)(6) motion, which it did not do. Fed. R. Civ. P. 16(b)(4). Accordingly, the Court will
deny defendant’s motion to dismiss as untimely and deny plaintiff’s related motion as
moot.
Accordingly, it is
ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Phase I Failure to
Accommodate Claim Pursuant to Fed. R. Civ. P. 12(b)(6) [Docket No. 494] is DENIED.
It is further
ORDERED that plaintiff’s Motion to Strike on Procedural Grounds Defendant’s
“Motion to Dismiss” and for Expedited Handling [Docket No. 496] is DENIED as moot.

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DATED April 17, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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