K.B. v. Perez et al

Filing 21

ORDER DISCHARGING ORDER TO SHOW CAUSE by Magistrate Judge Nina Y. Wang on 7/16/15. The Order to Show Cause 16 is hereby DISCHARGED; Pursuant to the Stipulation 20 , Defendant Perez shall file an Answer or otherwise respond to the Complaint on or before 8/7/2015; and The Clerk of Court is instructed to amend the docket to reflect that Walter Vanni has been dismissed from this action. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03514-WPJ-NYW
K.B., by and through her next friend,
ANGELA BOURELLE,
Plaintiff,
v.
CHRISTOPHER J. PEREZ, in his personal capacity,
Defendant.

ORDER DISCHARGING ORDER TO SHOW CAUSE
Magistrate Judge Nina Y. Wang
On June 8, 2015, this court issued an Order to Show Cause on or before June 29, 2015
why this case should not be dismissed pursuant to D.C.COLO.LCivR 41.1 for lack of
prosecution and failure to comply with Rule 4(m) of the Federal Rules of Civil Procedure. [#16].
Plaintiff, through her counsel, responded to the Order to Show Cause on June 29, 2015.
[#18]. Plaintiff represents the following: Defendant Christopher Perez is the one remaining
Defendant in this matter; 1 Defendant Perez was sued in his personal capacity only and he waived

1

The case was originally assigned to District Judge Moore, who sua sponte entered an order on
January 8, 2015 dismissing Plaintiff’s claim against Mr. Vanni on the basis that it “…interferes
with the administration of a criminal case, affects its finality, and is not justiciable.” [#7]. Judge
Moore then recused himself as to the Second Claim because the underlying allegations of that
Claim are directed at Defendant Perez who is a supervising U.S. Probation Officer in the District
of Colorado. [Id.] The case was subsequently reassigned by Order of the U.S. Court of Appeals
for the Tenth Circuit to Judge Johnson of the District of New Mexico. On June 5, 2015, Judge
Johnson issued a Second Order of Reference [#15], specifically referring this matter to the
undersigned Magistrate Judge for “all matters, dispositive and nondispositive, in this case: to

service on January 30, 2015; following a disagreement between counsel regarding proper
service, Plaintiff effected service on the United States on May 22, 2015; and Defendant Perez
intends to Answer or otherwise respond to the Complaint by July 17, 2015. 2
On July 1, 2015, Defendant Perez filed a Reply to Plaintiff’s Response seeking only “to
clarify certain issues raised by Plaintiff’s Response,” and noting that “he takes no position on
whether the Court should dissolve its Order to Show Cause [ ] and permit this case to proceed.”
[#19].

The Parties subsequently filed a Stipulation pursuant to D.C.COLO.LCivR 6.1(a),

agreeing that Defendant Perez shall respond to the Complaint by August 7, 2015.
Federal Rule of Civil Procedure 4(m) instructs that if a defendant is not served within 120
days after the Complaint is filed, “the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that defendant or order that service
be made within a specified time.” However, the court must also extend the time for service for
an appropriate period if the plaintiff shows good cause for his failure to serve. Fed. R. Civ. P.
4(m). Plaintiff has demonstrated an intention to pursue this litigation and the Response is
considered sufficient for the purposes of the Order to Show Cause.
Accordingly, IT IS ORDERED:
1. The Order to Show Cause [#16] is hereby DISCHARGED;
2. Pursuant to the Stipulation [#20], Defendant Perez shall file an Answer or otherwise
respond to the Complaint on or before August 7, 2015; and
conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis
required to recommend to the Court, if appropriate, an ultimate disposition of this case.” [Id.]
2

Counsel for Plaintiff also represents that in April and May of 2015 she was addressing a
personal emergency and confirming that this lawsuit was in the best interest of her minor client,
and takes responsibility for not informing the court of the reasons for the lack of prosecution.
2

3. The Clerk of Court is instructed to amend the docket to reflect that Walter Vanni has
been dismissed from this action.

DATED: July 16, 2015

BY THE COURT:

s/Nina Y. Wang__________
United States Magistrate Judge

3