Bacote Jr v. Federal Bureau of Prisons et al

Filing 187

ORDER. Defendant's Motion for Leave to File Answer (ECF No. 186 ) out of time, with the answer due by April 19, 2021, is GRANTED. By Judge Raymond P. Moore on February 25, 2021. (rvill, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 17-cv-03111-RM-NRN
MICHAEL BACOTE, JR.,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on Defendant’s Motion for Leave to File Answer (the
“Motion”) (ECF No. 186) to Plaintiff’s complaint out of time, with the answer date of April 19,
2021. The Court finds no response is required before ruling. See D.C.COLO.LCivR 7.1(d)
(“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it is
filed.”).
In this case, after the Court accepted the Magistrate Judge’s recommendation on
Defendant’s Motion to Dismiss, Defendant’s answer to Plaintiff’s one remaining claim was due
by February 9, 2021. Defendant, however, failed to answer or move for an extension of time to
do so until February 24, 2021. Plaintiff opposes the Motion.
Rule 6(b) of the Federal Rules of Civil Procedure provides “[w]hen an act may or must
be done within a specified time, the court may, for good cause, extend the time:…on motion
made after the time has expired if the party failed to act because of excusable neglect.” “[W]hat
sorts of neglect will be considered ‘excusable,’ … is at bottom an equitable [determination],

taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). This “include[s]…the
danger of prejudice to the [opposing party], the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.” Id. See also Perez v. El
Tequila, LLC, 847 F.3d 1247, 1253 (10th Cir. 2017) (same).
Under the facts and circumstances in this case, after examining the Motion, and the court
record, the Court finds relief should be granted. First, the Court finds no undue prejudice to
Plaintiff by any delay in requesting an extension of time or based the length of time requested in
which to answer. Defense counsel represents that he conferred with Plaintiff’s counsel as soon as
he was made aware of the failure to answer and the parties have filed a joint motion for a 60-day
stay of discovery in order to allow Defendant to address Plaintiff’s mental health diagnoses and
transfer him to a different institution. Defendant requests an answer date to correspond to the
requested stay period.
Next, the Court finds the length of the requested extension will not adversely affect the
judicial proceedings in this action. The Court recognizes the case was filed in 2017 but, in light
of the joint requested stay and the anticipated actions to be taken on behalf of Plaintiff, it finds
the request to be within the realm of what is reasonable.
Third, the Court finds the reason for the delay and whether it was within the reasonable
control of the movant weighs both ways. Meeting the deadline was certainly within the control of
Defendant’s counsel but he provides some acceptable excuse – the parties were in the midst of
determining how best to handle Plaintiff’s most recent diagnosis. Nonetheless, “[a] court may
take into account whether the mistake was a single unintentional incident (as opposed to a

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pattern of deliberate dilatoriness and delay), and whether the attorney attempted to correct his
action promptly after discovering the mistake….A mistake could occur in any attorney’s office,
no matter how well run.” Jennings v. Rivers, 394 F.3d 850, 857 (10th Cir. 2005) (quotation
marks, alterations, and citations omitted). Although the delay here was not merely arriving late
for a hearing or the like, the Court nonetheless takes into consideration that this is an isolated
incident, the record is not replete with requests for extensions of time by Defendant, and defense
counsel acted promptly to address his error.
Finally, the Court finds nothing to show Defendant acted in good faith. Instead, counsel
acted promptly.
Accordingly, it is ORDERED that Defendant’s Motion for Leave to File Answer (ECF
No. 186) out of time, with the answer due by April 19, 2021, is GRANTED.
DATED this 25th day of February, 2021.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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