Dillard v. Servin et al
ORDER denying 43 Motion for Reconsideration. The plaintiff shall cease filing inappropriate and frivolous motions. Failure to comply with this order will result in sanctions, including dismissal of this action with prejudice by Magistrate Judge Boyd N. Boland on 05/29/12.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-01198-RBJ-BNB
JEFFREY D. SERVIN, ESQ., and
This matter arises on Plaintiff’s Response to the Court’s Order 3/19/20 [sic] Doc. 42
[Doc. #43, filed 03/27/2012]. I construe the “response” as a request to reconsider my order
issued on March 19, 2012 (the “Motion to Reconsider”). The Motion to Reconsider is frivolous
and is DENIED.
On March 19, 2012, I struck [Doc. #42] the plaintiff’s Motion for Summary Judgment
[Doc. #38]. In doing so, I stated:
The plaintiff filed her Motion on March 15, 2012. The deadline
for filing dispositive motions was January 31, 2012--44 days
before the plaintiff filed her Motion. When an enlargement of time
is sought after expiration of a specified deadline, the movant must
show that the failure to act was the result of excusable neglect.
Fed. R. Civ. P. 6(b)(1)(B). The plaintiff does not acknowledge that
the deadline has expired, nor does she establish excusable neglect.
The plaintiff asserts that she could not file her summary judgment motion any earlier
because she was preparing for a scheduling conference in Civil Action No. 11-cv-01928-RBJ
which was held on January 31, 2012, the same day as the dispositive motion deadline in this
case. The scheduling conference in Civil Action No. 11-cv-01928-RBJ was set on January 3,
2012. Thus, the plaintiff had a month to prepare for it. The dispositive motion deadline in this
case was set on September 2, 2011 [Doc. #18]. The plaintiff had notice of the dispositive motion
deadline five months in advance. It is not plausible that the plaintiff could not both attend the
scheduling conference in Civil Action No. 11-cv-01928-RBJ and file a timely dispositive motion
in this case. Moreover, the plaintiff did not file her summary judgment motion until March 15,
2012--two and one-half months after the scheduling conference in Civil Action No. 11-cv01928-RBJ and two and one-half months after the dispositive motion deadline in this case. She
does not explain the extended delay.
The plaintiff asserts that she “was also awaiting a good faith response from Defendants in
hopes to avoid further movement with the Court.” She does not explain what type of response
she was awaiting or why she waited months for that response.
The plaintiff further asserts that she “is pro se and endeavors to be even more cognizant
of protocol and procedures.” However, this is not the first time the plaintiff has sought an
extension of time after a deadline has passed. She was told on March 3, 2012 [Doc. #36], that
“[w]hen an extension of time is sought after a specified deadline, the movant must show that the
failure to act was the result of excusable neglect.” The plaintiff ignored this order and filed her
summary judgment motion out of time and without any explanation. The plaintiff pro se status
does not excuse her from following “the same rules of procedure that govern other litigants.”
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
The plaintiff argues that she has “acted with prudence throughout this case.” This
argument is particularly disingenuous given the fact that the plaintiff failed to appear for a final
pretrial conference on March 14, 2012, did not submit a proposed final pretrial order, and did not
contact the court. In her response [Doc. #41] to my Order to Show Cause [Doc. #37] why the
case should not be dismissed for this behavior, she stated that “she simply forgot to appear” and
“inadvertently spaced it.”
The plaintiff, although proceeding pro se, is an experienced litigant. My review of the
court’s electronic case management data base shows that she has been a plaintiff in at least six
cases in this court and a defendant in at least two cases. She has not shown excusable neglect for
filing her summary judgment motion out of time. Rather, she has wasted the court’s time and
resources with her Motion to Reconsider.
I find that the plaintiff is engaged in abusive litigation conduct. She was previously
cautioned against filing frivolous motions [Doc. #35]. As the Tenth Circuit Court of Appeals has
[T]he right of access to the courts is neither absolute nor
unconditional, and there is no constitutional right of access to the
courts to prosecute an action that is frivolous or malicious. No
one, rich or poor, is entitled to abuse the judicial system.
Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989).
The plaintiff is unnecessarily burdening the court. Consequently, the plaintiff shall cease
making inappropriate filings.
IT IS ORDERED:
(1) The Motion to Reconsider [Doc. # 43] is DENIED;
(2) The plaintiff shall cease filing inappropriate and frivolous motions; and
(3) Failure to comply with this order will result in sanctions, including dismissal of this
action with prejudice.
Dated May 29, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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