Lopez et al v. Del Monte Fresh Produce, N.A., Inc.

Filing 60

ORDER approving and adopting 59 Recommendation of United States Magistrate Judge. The parties' 56 Joint Motion for Extension of Case Schedule and To Continue Trial Date is GRANTED on the terms stated in the recommendation and this order, by Judge Robert E. Blackburn on 12/28/2011.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-01138-REB-BNB
ROBERT LOPEZ, and
KELLI LOPEZ, individually, and as Guardians ad litem for SIERRA WINDHOLZ, a
minor,
Plaintiffs,
v.
DEL MONTE FRESH PRODUCE, N.A., INC., a foreign corporation,
PRODUCTS AGRICOLAS DE ORIENTE, S.A. a Guatemalan corporation,
COSTCO WHOLESALE CORPORATION, a foreign corporation, and
JOHN DOES 1-10,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the parties’ Joint Motion for
Extension of Case Schedule and To Continue Trial Date [#56]1 filed December 6,
2011; and 2) the Recommendation of United States Magistrate Judge [#59] filed
December 7, 2011. I approve and adopt the recommendation of the magistrate judge
and grant the parties’ joint motion.
None of the parties filed objections to the recommendation. Thus, I review the
recommendation only for plain error. See Morales-Fernandez v. Immigration &
Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). I have considered

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“[#56]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

carefully the recommendation, the record, and the applicable caselaw.
The United States Court of Appeals for the Tenth Circuit has prescribed four
primary factors that should be considered to determine if a continuance is necessary.
See, e.g., Morrison Knudsen Corp. v. Fireman's Fund Ins. Co.,175 F.3d 1221, 1230
(10th Cir. 1999) (citing U.S. v. West, 828 F.2d 1468, 1469 (10th Cir. 1987) (listing
factors)). The key relevant factors are:
(1) the diligence of the party requesting the continuance; (2) the likelihood
that the continuance, if granted, would accomplish the purpose underlying
the party’s expressed need for the continuance; (3) the inconvenience to
the opposing party, its witnesses, and the court resulting from the
continuance; [and] (4) the need asserted for the continuance and the harm
that [movant] might suffer as result of the district court’s denial of the
continuance.
United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (quoting United States
v. West, 828 F.2d 1468, 1470 (10th Cir. 1987)).
For reasons described in the motion, the plaintiffs have not been able to serve
defendant Productos Agricolas de Oriente, S.A., a Guatemalan corporation. Service of
this defendant has taken some time, despite the plaintiffs’ reasonably diligent efforts to
serve this defendant. Applying the West factors, I conclude as follows. All parties to
this case have proceeded with reasonable diligence. Given the difficulty of serving
defendant Productos Agricolas de Oriente, S.A., a Guatemalan corporation, adjustment
of the discovery schedule and continuance of the trial date will serve the purpose of
achieving a fair and efficient resolution of the claims at issue in this case.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#59] filed
December 7, 2011, is APPROVED and ADOPTED as an order of this court;
2. That the parties’ Joint Motion for Extension of Case Schedule and To
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Continue Trial Date [#56] filed December 6, 2011, is GRANTED on the terms stated in
the recommendation and this order;
3. That the Trial Preparation Conference currently set for May 18, 2012, and the
trial set to commence on June 4, 2012, both are VACATED and CONTINUED, pending
further order of court;
4. That counsel SHALL CONTACT the court’s administrative assistant, Susan
Schmitz, at [phone] on January 23, 2012, at 9:30 a.m., to reschedule the Trial
Preparation Conference and trial;
5. That the magistrate judge SHALL ISSUE a revised scheduling order
specifying new deadlines for discovery, dispositive motions, and expert disclosures,
consistent with the revised schedule outlined in the recommendation [#59]; and
6. That the Trial Preparation Conference Order [#25] filed June 22, 2011, is
AMENDED to the extent necessary to facilitate and implement these orders, but is
ratified otherwise.
Dated December 28, 2011, at Denver, Colorado.
BY THE COURT:

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