Escobar-Hernandez v. USA

Filing 52

MINUTE ORDER; 49 Plaintiff's Motion Rebutting the Defendants' Motion for Permission to File Motion to Dismiss Out of Time and This Court's Order Granting the Defendants' Motion is DENIED, by Magistrate Judge Michael J. Watanabe on 5/18/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02613-MJW
ESCOBAR-HERNANDEZ,
Plaintiff,
v.
UNITED STATES OF AMERICA, Etalibi,
DAVID ALLREAD, Clinical Director,
LISA MCDERMITT, Health Services Administrator,
UTILIZATION REVIEW COMMITTEE,
THOMPSON, PA,
NEHLS, Helth Services,
JOHN DOE, Officer #1,
Defendants.
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Plaintiff’s Motion Rebutting the Defendants’ Motion
for Permission to File Motion to Dismiss Out of Time and This Court’s Order Granting
the Defendants’ Motion (Docket No. 49) is DENIED.
The United States’ deadline to answer or respond to Plaintiff’s Amended
Complaint was March 16, 2015. The United States failed to do so, due to a clerical
oversight by the attorney assigned to the case. On April 6, 2015, the United States filed
a motion to dismiss along with a motion for leave to file the motion to dismiss out of
time. (See Docket No. 36.) Plaintiff had not moved for clerk’s entry of default. The
Court granted the motion and accepted the motion to dismiss for filing. (Docket No. 39.)
Plaintiff’s motion “rebutting” Defendants’ motion asks this Court to vacate that
order. The Court views the motion as one for reconsideration. “Grounds warranting a
motion to reconsider include (1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice. Thus, a motion for reconsideration is appropriate where the court has
misapprehended the facts, a party's position, or the controlling law.” Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000) (internal citation omitted).
None of these are present here. The law governing extensions of time has not
changed, nor have the facts; further, there is no indication that the Court
misapprehended either party’s position or the facts of the matter. Plaintiff’s only avenue

for relief is to argue that reconsideration is required to avoid manifest injustice. The
Court does not find, however, that Plaintiff can meet that standard.
Further, Plaintiff’s argument fails to take full account of the applicable legal
standards for excusable neglect. As the Tenth Circuit explained in United States v.
Torres:
The [Supreme] Court rejected the notion that excusable neglect
exists only when a delay in filing is the result of circumstances beyond a
party's control, stating that “by empowering the courts to accept late filings
where the failure to act was the result of excusable neglect, . . . Congress
plainly contemplated that the courts would be permitted, where
appropriate, to accept late filings caused by inadvertence, mistake, or
carelessness, as well as by intervening circumstances beyond the party's
control.” The Court held that the determination whether a party's neglect
is excusable “is at bottom an equitable one, taking account of all relevant
circumstances surrounding the party's omission. Such circumstances
include “[1] the danger of prejudice to the [nonmoving party], [2] the length
of the delay and its potential impact on judicial proceedings, [3] the reason
for the delay, including whether it was within the reasonable control of the
movant, and [4] whether the movant acted in good faith.” Id.
372 F.3d 1159, 1162 (10th Cir. 2004) (internal citations omitted). Here, as in Torres, the
first, second, and fourth factors all weigh in favor of finding excusable neglect. There is
no unfair prejudice to Plaintiff in having to defend a motion under Rule 12, there is no
negative impact to the Court, and there is no indication of bad faith by the United States.
As in Torres, it comes down to the third factor: the reason for the delay. There, the
neglectful party misread the rules of procedure. The Tenth Circuit found that the cause
was so insufficient that it outweighed the other three factors. This case is different.
Here, Defense counsel failed to correctly calendar response dates for different
defendants, in a case where Plaintiff has sued not only the government but also several
individuals in their individual capacities—requiring the government to determine whether
to provide a defense to those persons in their individual capacities—and has yet to
identify many defendants. Defense counsel was neglectful, but not as neglectful as the
attorney in Torres. Because the other three factors weigh in favor of relief, and the final
factor is not nearly as inadequate/inexcusable as was the case in Torres, the Court
finds the neglect excusable.

Date: May 18, 2015