Montoya v. Newman et al
Filing
151
ORDER denying 149 Motion to Vacate and Reset Trial Date by Judge Robert E. Blackburn on 6/29/2015.(mlace, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-02362-REB-KLM
RAYMOND MONTOYA,
Plaintiff,
v.
BRUCE NEWMAN, in his official capacity as the Sheriff of Huerfano County Jail,
LARRY GARBISO,
DOE #1, 2 - detention center officer at Huerfano County Jail,
DOE #1-2, medical staff member at Huerfano County Jail, and
CHARLES NEECE, M.D.,
Defendants.
ORDER DENYING MOTION TO CONTINUE TRIAL
Blackburn, J.
This matter is before the court on the Motion To Vacate and Reset Trial Date
[#149]1 filed by defendants, Bruce Newman and Larry Garbiso, on June 23, 2015. The
plaintiff filed a response [#150].2 I deny the motion.
I. STANDARD OF REVIEW
The United States Court of Appeals for the Tenth Circuit has enunciated four
primary factors that should be considered to determine if a continuance of trial is
necessary. See, e.g., Morrison Knudsen Corp. v. Fireman's Fund Ins. Co.,175 F.3d
1
“[#149]” 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.
2
Because time is of the essence and because the issues raised by and inherent to the motion
are briefed adequately, I exercise my discretion under D.C.COLO.LCivR 7.1(d) to rule without the benefit
of a reply by the movants.
1221, 1230 (10th Cir. 1999) (citing U.S. v. West, 828 F.2d 1468, 1469 (10th Cir. 1987)
(listing factors)). Those quadripartite 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)).
II. BACKGROUND
This case is set for a ten day jury trial beginning July 27, 2015. Gordon Vaughn,
Esq., counsel for defendants, Bruce Newman and Larry Garbiso, reports in the motion
that he recently injured his knee and was diagnosed with a 90 percent complete
quadriceps tendon tear. On June 19, 2015, counsel underwent surgery to reattach the
tendon. Following surgery, counsel reports, the standard treatment for the affected
knee and leg is immobillization. Counsel expects immobilization of his knee and leg in a
long leg brace for about six weeks following surgery. During this time, counsel will be
“very limited in ambulation” and “sitting will be encumbered by the need to maintain a
straight leg.” Motion [#149], p. 2. In addition to these limitations, cousel reports that he
expects to begin physical therapy within one week folliwng surgery, with gradual
increase in therapy. Physical therapy is expected to accelerate and continue for several
weeks after the brace is removed. Physical therapy will take place in Colorado Springs,
counsel reports. In short, Mr. Vaughn says he “is unable to participate adequately in the
preparation for or attendantce at the scheduled trial of this matter due to his impaired
physical status and the need to be in Colorado Springs for ongoing treatment.” Motion
2
[#149], p. 3.
Since the inception of this case, Ann Smith has acted as co-counsel to Mr.
Vaughn on behalf of Mr. Newman and Mr. Garbiso. Ms. Smith is part of the law firm of
Mr. Vaughn. Mr. Vaughn reports, however, that he was hired as primary counsel for Mr.
Newman and Mr. Garbiso and is responsible for all major trial decisions.
In his response [#150] to the motion, the plaintiff notes that the six week period
during which Mr. Vaughn anticipates wearing a leg brace will end on or about July 31,
2015. The trial of this case is set to begin on July 27, and this case will be tried Monday
through Thursday during each week of trial. No trial proceedings are scheduled on
Fridays. Thus, if trial proceeds as scheduled, Mr. Vaughn may need to wear a leg
brace during the first four days of trial.
The plaintiff notes also that this case is more than three years old. For various
reasons, four earlier trial settings were vacated and continued. The current trial date is
the fifth trial date set in this case. Given this history of continuances, substantial trial
preparations already are in place. For example, witness lists, exhibit lists, objections to
exhibits, jury instructions, verdict forms, and a proposed pre-trial order all were prepared
in anticipation of the most recent previous trial setting, which trial was set to begin April
6, 2015. The plaintiff notes also that he has several witnesses who are prepared to
testify during a trial beginning July 27, including physicians and other experts. A
continuance would necessitate a renewed effort to schedule and coordinate these
witnesses. The plaintiff argues that the risk that witnesses will lose memory of the
relevant events and the risk that the plaintiff will lose contact with relevant witnesses will
be enhanced if the trial of this case is continued for a fifth time. The primary events
relevant to the claims of the plaintiff took place in March 2011.
3
II. ANALYSIS
Addressing the four relevant factors, I find and conclude as follows. First, there
is little if any indication that the parties and counsel have not been diligent in preparing
this case for trial. The fact that Mr. Vaughn may be in a leg brace for the first few days
of trial and his need for continued physical therapy, as described in the motion, are not
circumstances which are likely to prevent Mr. Vaughn and his co-counsel from
continuing their diligence. This court often makes courtroom accommodations for
physical impairments of litigants and lawyers. Nothing in the motion indicates that the
physical therapy required by Mr. Vaughn cannot be had in Denver during the course of
the trial and/or cannot be coordinated around the four day trial weeks currently
scheduled in this case. Undoubtedly, Mr. Vaughn faces some difficulties as a result of
his injury and surgery. As described in the motion, however, those difficulties do not
make continued and reasonably diligent trial preparation, and presentation of a defense
at trial, unduly difficult. Thus, the first factor weighs against a continuance.
Second, as compared to going to trial as scheduled, a continuance, if granted,
likely would serve the purpose expressed in the motion. The purpose primary purpose
asserted by Mr. Vaughn is to make it somewhat easier for Mr. Vaughn to deal with his
leg brace and obtain physical therapy. Mr. Vaughn does not assert that he will be
unable to work for six months or that his injury or treatment have caused him any sort of
mental impairment. However, given the circumstances described in the motion, there is
no indication that Mr. Vaughn cannot participate in four days of trial while wearing a leg
brace and cannot obtain the physical therapy he needs in coordination with a trial of this
case. The second factor weighs in favor of a continuance – but only slightly.
Third, a continuance would cause substantial inconvenience to the plaintiff. The
4
plaintiff has scheduled and coordinated witnesses for a trial set to begin in four weeks.
A continuance would require the plaintiff to repeat these efforts beginning anew. As a
result of four previous continuances, the plaintiff has, to some extent, engaged in
repeated trial preparations. A fifth continuance would increase the expenditure of
concomitant resources – time and money. In addition, over four years have passed
since the key events on which the claims of the plaintiff are based. Loss of witness
memory of these key events already is a risk, which would be exacerbated by yet
another continuance.
A continuance also would work significant prejudice on the court. As noted, this
case is more than three years old. In addition, rescheduling a ten day trial for a fifth
time presents significant difficulty, and likely significant delay, given the rather crowded
calendar of the court. I take judicial notice of my calendar. The first unencumbered ten
day period of time available on my calendar does not occur until the week of August 8,
2016 – over a year away. A trial setting before then will inconvenience other parties,
attorneys, and witnesses whose cases will be continued to facilitate a delayed trial in
this case.
If I grant the continuance, then I would have a ten day working-day hiatus in my
docket, which because of the relatively short notice, is not likely to be useable by worthy
litigants who are prepared to proceed in their own matters. Thus, this third factor weighs
heavily against a continuance.
Fourth, the need asserted for the continuance is considered as part of the first
factor, above. As part of the fourth factor, I must consider also the harm Mr. Vaughn
and his clients, Bruce Newman and Larry Garbiso, would suffer if I deny a continuance.
As noted by Mr. Vaughn in his motion, Mr. Vaughn has more than 30 years of
5
experience defending government entities against claims of constitutional violations
arising from jail and prison conditions. This case is just such a case. Nothing in the
motion demonstrates how or why wearing a leg brace during the first few days of a ten
day trial would impair significantly the ability of Mr. Vaughn to present a vigorous
defense on behalf of Mr. Newman and Mr. Garbiso. Nothing in the motion
demonstrates how or why coordinating physical therapy with a Monday through
Thursday trial schedule would impair significantly the ability of Mr. Vaughn to present a
vigorous defense on behalf of Mr. Newman and Mr. Garbiso. This is particularly true in
light of the “very able and extensive work provided by attorney Ann Smith,” who has
acted as co-counsel for Mr. Vaughn from the inception of this case. Motion [#149], p. 3.
No doubt, denial of a continuance will cause some inconvenience to Mr. Vaughn.
However, nothing in the record indicates the this inconvenience will impair significantly
the ability of Mr. Vaughn to present a vigorous defense on behalf of his clients. Thus,
there is no indication that denial of a continuance is likely to cause significant prejudice
– let alone irreparable prejudice – to Mr. Newman or Mr. Garbiso. Thus, the fourth
factor weighs against a continuance.
III. CONCLUSION & ORDER
The second relevant factor weighs in favor of a continuance, but only slightly.
The other three factors weigh against a continuance. On balance, the relevant factors
weigh heavily against a continuance of the trial. Thus, the motion to continue must be
denied.
THEREFORE, IT IS ORDERED as follows:
1. That the Motion To Vacate and Reset Trial Date [#149] filed June 23, 2015,
is denied; and
6
2. That to accommodate Mr. Vaughn, he may participate in the combined Final
Pretrial Conference and Trial Preparation Conference by telephone.
Dated June 29, 2015, at Denver, Colorado.
BY THE COURT:
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?