Medina et al v. Werner Enterprises, Inc.
ORDER granting 12 Motion for Leave; granting 13 Motion for Leave; denying as moot 15 Motion for Hearing/Conference. By Judge Christine M. Arguello on 07/14/2014. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-01188-CMA-KMT
ANN MARIE JULIE MEDINA, and
SAMUEL MEDINA, JR.,
WERNER ENTERPRISES, INC.,
ORDER ON MOTIONS
This matter is before the Court on Defendant’s Motion for Leave to File Motion
to Dismiss and Supporting Brief Out of Time (Doc. # 12), Motion to Set Aside Clerk’s
Entry of Default (Doc. # 13), and Motion for Hearing (Doc. # 15).
This Court has discretion to allow Defendant to file its Motion to Dismiss and
Brief Out-of-Time. See Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1494 (10th Cir.
1995). The Court exercises this discretion here: the failure to file was the result of an
inadvertent error by a legal secretary—one which has caused no prejudice to the Court
or any party and which counsel for Defendant has promptly sought to correct. Further,
as noted by Defendant, Plaintiffs failed to confer with Defendant prior to filing the Motion
for Default and, in light of the nature of the clerical error here, such a conferral would
have caused Defendant to file immediately the motion to dismiss. Indeed, not only does
Local Rule 7.1(a) require conferral under such circumstances, this Court also considers
that as a matter of professional courtesy, Plaintiffs’ counsel should have called counsel
for Defendant and inquired as to why he had failed to adhere to a stipulated deadline,
rather than springing a surprise motion for default judgment.
Accordingly, this Court GRANTS Defendant’s Motion for Leave to File Motion to
Dismiss and Supporting Brief Out of Time (Doc. # 12). It is
FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc. # 12-1) and
Defendant’s Brief In Support of Defendant’s Motion to Dismiss (Doc. # 12-2) are hereby
accepted for filing and shall each be filed by the Clerk’s Office as a separate document.
FURTHER ORDERED that Defendant’s Motion to Set Aside Clerk’s Entry of
Default (Doc. # 13) is GRANTED, and the Clerk’s Entry of Default is set aside and
VACATED. It is
FURTHER ORDERED that Defendant’s Motion for a Hearing (Doc. # 15) is
DENIED AS MOOT.
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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