Harper et al v. Montezuma County Board of Commissioners et al

Filing 22

MINUTE ORDER granting 19 Motion to Vacate Scheduling Conference and vacating the 1/15/13 Scheduling Conference. 14 Letter is denied as moot without prejudice. By Magistrate Judge Kristen L. Mix on 1/6/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02429-CMA-KLM
MARION HARPER, and
MONTGOMERY COYOTE,
Plaintiffs,
v.
MONTEZUMA COUNTY BOARD OF COMMISSIONERS,
SHERIFF DEPARTMENT,
CITY OF CORTEZ,
CORTEZ POLICE DEPT.,
22ND JUDICIAL DISTRICT and
OFFICER ANGELO MARTINEZ,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Motion to Vacate Scheduling Conference
or in the Alternative Convert Scheduling Conference to Status Conference [Docket
No. 19; Filed January 3, 2013] (the “Motion to Vacate”) submitted by Defendants City of
Cortez, Cortez Police and Officer Angelo Martinez (the “Cortez Defendants”). Also before
the Court is Plaintiff Marion Harper’s Letter Re: Leave to Appear Telephonically [#14;
Filed November 29, 2012] (the “Letter”).
In the Motion to Vacate, the Cortez Defendants ask the Court to vacate the
Scheduling Conference set for January 15, 2013 pending the resolution of their Motion to
Dismiss [#44], the granting of which would result in their dismissal from this action.1
Counsel for the Cortez Defendants has contacted counsel for the Montezuma County
Defendants and the Montezuma County Defendants do not oppose the Motion to Vacate.

1

On January 4, 2013, attorneys for Defendants Board of County Commissioners of
Montezuma County and Montezuma County Sheriff Dennis Spruell (the “Montezuma County
Defendants”) filed an Entry of Appearance [#21]. The Montezuma County Defendants have not
yet filed an answer or other responsive pleading. Regarding Defendant 22nd Judicial District, no
appearance has been entered, nor has any proof of service as to this defendant been filed.

1

Additionally, counsel for the Cortez Defendants “had limited contact” with Plaintiff Marion
Harper via e-mail and explained the reasons for filing the Motion to Vacate. Plaintiff
Harper, however, did not provide his position on the Motion to Vacate.2
Under these circumstances, the Court finds that vacating the Scheduling Conference
is appropriate. It would be a waste of the Cortez Defendants’ time and money to proceed
with a Scheduling Conference when a decision on their pending Motion to Dismiss may
result in their dismissal from this action. Moreover, because the Montezuma County
Defendants have just recently appeared in this action, it is unclear whether they too intend
to seek dismissal of this action. For these reasons,
IT IS HEREBY ORDERED that the Motion to Vacate [#19] is GRANTED. The
Scheduling Conference set for January 15, 2013 is VACATED. The Court will reset a
Scheduling Conference, if necessary, after resolution of the Motion to Dismiss [#44].
IT IS FURTHER ORDERED that in light of the Court’s ruling on the Motion to
Vacate, Plaintiff Harper’s Letter [#14], in which he seeks leave to appear telephonically at
the Scheduling Conference, is DENIED AS MOOT. This denial is WITHOUT PREJUDICE
such that Plaintiff may resubmit a motion to appear telephonically if the Scheduling
Conference is reset.
Dated: January 6, 2013

2

Although neither Plaintiff has made his position known as of the date of this Order, the
Court may rule on a motion at any time after it is filed. See D.C.COLO.LCivR 7.1C.

2