Ellis et al v. Houston et al

Filing 107

ORDER granting 104 Motion to Amend.The trial of this case is continued to April 2, 2012. The pretrial conference is continued, and will be held before the undersignedmagistrate judge in chambers on March 20, 2012 at 9:00 a.m. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JARYL ELLIS, MICHAEL HUNTER,
)
TIFFANY JOHNSON, PAUL ZEIGER, and )
AARON DELANEY,
)
)
Plaintiffs,
)
)
v.
)
)
ROBERT P. HOUSTON, et. al.,
)
)
Defendants.
)

8:10CV3222

MEMORANDUM AND ORDER

Defendant Chad Miles has moved to amend his answer to assert qualified immunity as an
affirmative defense. (Filing No. 104). The plaintiffs object to the motion to amend as untimely.

The plaintiffs filed their lawsuit on November 10, 2010. Miles was not initially named as
a defendant, and was not served until May 16, 2011. The Nebraska Attorney General’s Office
entered an appearance as counsel for defendant Miles on June 3, 2011, but was granted leave to
withdraw its representation of Miles on June 27, 2011. An answer was filed on behalf of defendant
Miles on July 6, 2011 by his current counsel of record.

The defendants represented by the Nebraska Attorney General’s Office filed a motion for
summary judgment on November 14, 2011. Their motion seeks dismissal of plaintiff’s claims based
on the defense of qualified immunity. Defendant Miles moved to amend his answer to raise the
qualified immunity defense on December 8, 2011.

Defendant Miles’ proposed motion to amend does not violate any specific deadline in any
progression order entered after Miles was added as a party. There is nothing of record indicating
additional discovery will be required if defendant Miles is now permitted to raise the qualified
immunity defense, and allowing his proposed amendment will cause only a minor delay relative to
the length and history of this case to date. Considering the totality of this file, particularly in the
context of avoiding piecemeal or incomplete determinations of the parties’ claims and defenses, the
court finds defendant Miles’ motion to amend should be granted.

Accordingly,
IT IS ORDERED:
1)

Defendant Miles’ motion to amend, (filing no. 104), is granted. Defendant Miles’
amended answer, a copy of which is attached to his motion, shall be filed on or
before December 20, 2011.

2)

Any motions for summary judgment between the plaintiffs and defendant Miles shall
be filed on or before December 22, 2011.

3)

O n or before January 11, 2012, the plaintiffs shall file their responses to the pending
motion for summary judgment filed by defendants Dennis Blakewell, Timothy
Furby, Chad Haney, Robert P. Houston, Barry Loock, Sean Runge, Cathy Sheair,
Joseph Staley and Kevin Stoner, (filing no. 98), and any timely motion for summary
judgment hereafter filed by defendant Miles.

4)

Defendant Miles shall have until January 11, 2012 to respond to any motion for
summary judgment filed by the plaintiffs.

5)

As to any and all summary judgment motions filed, any reply shall be filed on or
before January 17, 2012.

6)

The pretrial conference is continued, and will be held before the undersigned
magistrate judge in chambers on March 20, 2012 at 9:00 a.m.

7)

The trial of this case is continued, and is set as the first civil case to be tried before
the Honorable Richard G. Kopf on April 2, 2012. This civil case setting is subject
to any criminal case trial setting for the week of April 2, 2012.

DATED this 17th day of December, 2011.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

-2-