Bradley v. Cruz et al
Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER ALLOWING 228 Emergency MOTION to Strike 224 MOTION for Summary Judgment Based on Qualified Immunity; DENYING 224 MOTION for Summary Judgment Based on Qualified Immunity and 241 MOTION for Summary Judgment Based on Qualified Immunity. See Attached Order. (DaSilva, Carolina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
TIMOTHY J. CRUZ, et al.,
Civil Action No. 1:13-cv-12927-IT
MEMORANDUM AND ORDER
July 31, 2017
Pending before the court is Plaintiff John Bradley’s Emergency Motion to Strike
Defendant [Frank Middleton]’s Motion for Summary Judgment as Untimely Filed [#228]. The
underlying motion filed by Middleton, together with another motion filed by Defendant Timothy
Cruz, seek summary judgment on grounds of qualified immunity.
The Emergency Motion to Strike necessitates review of the procedural history of this
almost four year old case. On November 15, 2013, Plaintiff filed this action against Defendants
Cruz, Middleton, the Plymouth County District Attorney’s Office, and Michael Horan for claims
arising out of Bradley’s employment, and termination of employment. Compl. [#1]. Defendants
did not raise qualified immunity in their Answer [#12] or renewed Motion to Dismiss [#35].
Discovery closed on October 1, 2015. Electronic Order [#89]. The court initially
bifurcated summary-judgment motion practice into issues of liability and damages, with motions
related to liability due no later than January 21, 2016, or 14 days after resolution of the last-filed
motion to impound. Order ¶ 3 [#107]. The final motion to impound, filed before a motion for
summary judgment was filed, was resolved on January 29, 2016. Order [#113]. Defendants’
Motion for Summary Judgment [#114] as to liability initially was filed February 11, 2016.
Following further motion practice on issues related to impoundment, Defendants renewed their
Motion for Summary Judgment [#131] on April 8, 2016. After resolution of additional motion
practice on impoundment issues, the court allowed the motion for summary judgment in part and
denied it in part on March 30, 2017. Mem. & Order [#207]. Thereafter, the court adopted a
schedule for expert discovery and motions in limine on damages, Electronic Order [#223], and
set a January 8, 2018, trial date. Electronic Clerk’s Notes [#220].
On May 16, 2017, Middleton filed a Motion for Summary Judgment Based on Qualified
Immunity [#224], and the following day, Bradley filed the Emergency Motion to Strike
Defendant [Middleton’s] Motion for Summary Judgment as Untimely Filed [#228] now before
the court. On June 20, 2017, Cruz filed a Motion for Summary Judgment Based on Qualified
Immunity [#241], which relies on Middleton’s motion for summary judgment “and the
documents submitted in support thereto.” Three days later, Bradley filed a Response to
Defendant Timothy Cruz’s Motion for Summary Judgment [#243], stating that Cruz’s motion
“should be stricken from the record for the same reasons set forth in” Bradley’s Emergency
Motion. The Emergency Motion is opposed by both Middleton and Cruz. Def. Frank J.
Middleton’s Opp. Pl.’s Mot. Strike Def.’s Mot. Summ. J. Based on Qualified Immunity [#235];
Def. Timothy J. Cruz’s Resp. “Pl.’s Resp. to Def. Timothy Cruz’s Mot. Summ. J.” [#244].
Rule 56(b) provides that, “[u]nless a different time is set by local rule[ 1] or the court
orders otherwise, a party may file a motion for summary judgment at any time until 30 days after
the close of all discovery.” Here, discovery closed on October 1, 2015, so that summary
judgment motions were due by Rule on November 1, 2015, and per the court’s scheduling
Local Rule 56.1 is silent with respect to the timing of a summary-judgment motion.
orders, February 12, 2016 (14 days after January 29, 2016, when the court resolved the first
round of motions to impound).
In Guzmán-Rivera v. Rivera-Cruz, 98 F.3d 664 (1st Cir. 1996), the First Circuit
explained that “defendants may raise a claim of qualified immunity at three distinct stages of the
litigation:” (1) in a motion to dismiss, (2) in a motion for summary judgment, or (3) at trial. Id. at
667. Failure to argue the defense at one stage does not necessarily foreclose the defendant from
arguing it in another. Id. at 669. 2
The First Circuit has held that “the defense of qualified immunity may be deemed to have
been waived [at the summary-judgment stage] if it is not raised in a diligent manner during the
post-discovery, pre-trial phase.” Id. at 668. It reasoned that, absent the application of waiver,
defendants may strategically use the defense as a delay tactic. Id.; see id. at 667 (“Witnesses may
become unavailable, memories may fade, attorneys[’] fees accumulate, and deserving plaintiffs’
recovery is delayed . . . Delay is also costly to the court system, demanding more time and
energy from the court and retarding the deposition of cases.”). Accordingly, the First Circuit held
that the district court has discretion to deny motions for summary judgment on the basis of
qualified immunity if not filed expeditiously. Id. at 668.
Here, fact discovery closed in this case on October 1, 2015, summary judgment motions
as to liability were due by February 12, 2016, and were resolved in March 2017, following
extensive motion practice during which no party raised a qualified-immunity defense. See, e,g,
Despite this broad language, “[q]ualified immunity is an affirmative defense . . . [that] is
generally lost unless it is raised in the pleadings.” Ringuette v. City of Fall River, 146 F.3d 1, 4
(1st Cir. 1998). Because Plaintiff does not raise Defendants’ failure to plead the affirmative
defense in their Answer, and because Defendants could try to meet Rule 15 standards in a motion
to amend their Answer, see id., the court assumes for purposes of this motion regarding the
timing of the summary judgment motion that an affirmative defense was properly pled in
Motion for Summary Judgment [#131]. A second round of summary judgment – filed more than
one year after their due date -- would result in an undue burden on the court and would risk
further delay in the proceedings. Based on these facts, Middleton and Cruz have waived the
defense of qualified immunity at the summary-judgment stage.
For the above-stated reasons:
1. Bradley’s Emergency Motion to Strike Defendant’s Motion for Summary
Judgment as Untimely Filed [#228] is ALLOWED and
2. Defendant Frank J. Middleton’s Motion for Summary Judgment Based on
Qualified Immunity [#224] and Defendant Timothy J. Cruz’s Motion for
Summary Judgment Based on Qualified Immunity [#241] are DENIED as
IT IS SO ORDERED.
Date: July 31, 2017
/s/ Indira Talwani
United States District Judge
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