Willis et al v. Smith et al
MEMORANDUM OPINION AND ORDER granting 49 MOTION for Extension of Time to File Response/Reply by District Judge James A. Parker. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BOBBY L. WILLIS, Individually and as trustee of the
BOBBY L. WILLIS AND CARRIE S. WILLIS TRUST,
WILLIS ASSET MANAGEMENT, LLC, JTB
DEVELOPMENT PROPERTIES 3, LLC, and JTB
DEVELOPMENT PROPERTIES 4, LLC,
No. CIV 16-167 JP/LF
QUENTIN SMITH and STOREY & CLYDE, INC.,
QUENTIN SMITH and STOREY & CLYDE, INC.,
MEMORANDUM OPINION AND ORDER
On November 15, 2016, Defendants filed a SECOND MOTION TO DISMISS: CLAIMS
CONCERNING ALLEGED INVESTMENT AND CONSTRUCTIVE TRUST OF
GEMSTONES, JEWELRY, AND ORGANS (Doc. No. 35) (Second Motion to Dismiss).
Plaintiffs had until November 30, 2016 to file a response to the Second Motion to Dismiss.
However, at the request of counsel for the Plaintiffs, counsel for Defendants agreed to extend the
deadline for filing a response to December 6, 2016. Plaintiffs failed to file a response by
December 6, 2016, and on December 9, 2016, counsel for Defendants inquired, by email, when
Plaintiffs would respond. Doc. No. 52, Ex. 1. Not having received a response to counsel’s
inquiry by December 19, 2016, counsel for Defendants sent an email to counsel for Plaintiffs
stating that since the extension for filing a response “ran out thirteen days ago” Defendant
Quentin Smith decided to file a notice of completion of briefing. Id. Plaintiffs’ counsel
responded by stating “We are investigating this.” Id.
On December 19, 2016, Defendant Smith filed a NOTICE OF COMPLETION OF
BRIEFING (Doc. No. 48). The following day, December 20, 2016, “Plaintiff” filed a MOTION
TO FILE A RESPONSE OUT OF TIME (Doc. No. 49) (Motion to File). The Motion to File
does not identify who or which among the four Plaintiffs filed the Motion to File. With respect to
the delay, “Plaintiff” states there was “confusion regarding the motion to extend deadlines.” Id. ¶
4. According to the Motion to File, when “Counsel became aware that Defendants’ counsel
expected a response [to the Second Motion to Dismiss], [Plaintiffs’ counsel] acted accordingly to
immediately draft and file a response.” Id. This is not entirely accurate since counsel for
Plaintiffs had requested and received an extension of time to file the Response until December 6,
2016, was reminded on December 9, 2016 about the failure to file the Response, and yet, did not
seek an additional extension of time until December 20, 2016.
On December 21, 2016, Plaintiffs filed an unauthorized RESPONSE TO
DEFENDANTS’ MOTION TO DISMISS CLAIM REGARDING GEMSTONES, JEWELRY,
AND ORGANS. (Doc. No. 50) (Response to Second Motion to Dismiss). Plaintiffs argued in
part that Defendants filed their Second Motion to Dismiss more than nine months after service of
the Complaint, which Plaintiffs believe Rule 12(b) prohibits as untimely. Id. at 1–2.
On December 21, 2016, Defendants filed DEFENDANTS QUENTIN SMITH AND
STOREY & CLYDE, INC.’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO
FILE RESPONSE OUT OF TIME (Doc. No. 52) (Response to Motion to File). Defendants argue
that the Court should deny Plaintiffs’ Motion to File because Plaintiffs have had three chances to
file a response (the original 30 days,1 the extension to December 6, 2016, and the reminder nine
days after the extended deadline), and yet failed to do so (until December 21, 2016). Defendants
assert that Plaintiffs’ failure to file a timely response is part of a pattern of failures to participate
in good faith. Id. ¶ 2. Defendants also contend that Defendant Smith already has been prejudiced
in these proceedings and that he will suffer additional prejudice if the Court considers Plaintiffs’
late, unauthorized Response to the Second Motion to Dismiss.
On December 28, 2016, Plaintiffs filed PLAINTIFFS’ REPLY TO DEFENDANTS’
RESPONSE TO MOTION TO FILE OUT OF TIME (Doc. No. 54) (Reply to Motion to File).
Plaintiffs argue that Defendants have not articulated any legitimate basis for denying their
Motion to File. They further assert that “it is especially curious that Defendants would object to
such an insignificant lapse in timeliness when … Defendants’ [Second] Rule 12(b)(6) motion to
dismiss – was filed more than nine months after service of the Complaint and thus is untimely
under Rule 12(b).” Id. at 1. In support of this argument, Plaintiffs cite to an opinion wherein this
Court noted that “Rule 12(b) states that motions under that provision ‘must be made before
pleading if a responsive pleading is allowed,’ and courts frequently apply this plain-language
interpretation of the Rule to untimely motions to dismiss.” Id. at 3 (citing Cunningham v. New
Mexico, No. CIV 13-142 JP/WPL (Doc. No. 36) (D.N.M. Dec. 4, 2013)).
Plaintiffs’ decision to go on the attack when they missed an extended deadline they
sought and when they failed to file an immediate response even after being reminded is curious.
The Court expects parties to abide by the deadlines established by the Federal Rules of Civil
Procedure and the corresponding Local Rules of the District of New Mexico. Even when an
The local rules allow only fourteen days, not thirty days, to file a response to a motion. D.N.M. LR-Civ.
attorney believes a “lapse in timeliness” is “insignificant” or inconsequential, an attorney is not
at liberty to disregard deadlines, particularly where a party requests and obtains an extension of
In addition, Plaintiffs’ argument that Defendants’ Second Motion to Dismiss is untimely
is unpersuasive. Notwithstanding the fact that Defendants’ filed a Rule 12(b)(6) motion to
dismiss after the pleadings had closed, it is not uncommon for courts to treat Rule 12(b)(6)
motions as Rule 12(c) motions. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th
Cir. 2002) (observing that a defendant’s Rule 12(b) motion filed after an answer should generally
be treated as a Rule 12(c) motion for judgment on the pleadings). Moreover, Rule 12(h)
expressly permits a court to consider the defense of failure to state a claim upon which relief can
be granted in a Rule 12(c) motion for judgment on the pleadings. Fed. R. Civ. P. 12(h)(2)(B).
The distinction between Rule 12(b) and Rule 12(c) motions is purely formal since the Court
reviews both motions under the same standard. Jacobsen, 287 F.3d at 941 n.2.
Furthermore, Plaintiffs’ insistence that Defendants’ Second Motion to Dismiss is
untimely under Rule 12 is inconsistent in view of Plaintiffs’ failure to raise that argument in
response to Defendants’ First Motion to Dismiss.2 To the extent that Plaintiffs intended to argue
that Defendants are not allowed to file successive motions under Rule 12, the Tenth Circuit
Court of Appeals, in Albers v. Bd. of Cty. Comm'rs of Jefferson Cty., Colo., 771 F.3d 697, 701
(10th Cir. 2014), rejected that position. (noting that while Rule 12(g)(2) precludes successive
Rule 12 motions, the rules allow parties to raise a defense of failure to state a claim by a motion
for judgment on the pleadings under Rule 12(c)).
Defendants’ First Motion to Dismiss was filed about two months before the Second Motion to Dismiss.
By Plaintiffs’ calculations, this means the First Motion to Dismiss was seven months late.
Finally, the Court also reviewed its decision in Cunningham v. New Mexico, but finds it
easily distinguishable from the present circumstances. In Cunningham, the Court was concerned
with several procedural errors committed by the defendants. No. CIV 13-142 JP/WPL (Doc. No.
36 at 3). The defendants had filed two motions to dismiss after the pleadings had closed, one
seeking dismissal of state law claims and one seeking dismissal of § 1983 claims. The Court
concluded that the defendants’ motion to dismiss the state law claims was untimely primarily
because the defendants had filed an earlier motion for summary judgment addressing the same
state law claims that was pending before the court. Under those circumstances, where a motion
to dismiss was filed after a motion for summary judgment, both of which raised the same claims,
the best way to resolve “the mess [defendants] ha[d] created” was to deny or dismiss the motion
to dismiss the state law claims and address those claims in a ruling on the summary judgment
motion. In other words, the procedural posture of Cunningham that was “especially muddled by
Defendants’ erroneous filings”3 dictated the result. But, consistent with Jacobsen, the Court still
converted defendants’ motion to dismiss the federal law claims to a Rule 12(c) motion for
judgment on the pleadings. Thus, Plaintiffs’ reliance on Cunningham is unavailing.
The Court concludes, therefore, that Plaintiffs’ counsel’s “confusion” did not excuse the
untimely filing of the Response to the Second Motion to Dismiss. Moreover, Plaintiffs’ Motion
to File and Plaintiffs’ argument in their Reply that Defendants’ Second Motion to Dismiss was
untimely, are not supported by law or the circumstances. While the Court will consider
Plaintiffs’ Response to the Second Motion to Dismiss, the Court will also consider imposing
The only thing that the circumstances in Cunningham may have in common with those in the present
proceeding is the creation of a sense of muddled bewilderment on the part of the judge when trying to
comprehend Plaintiffs’ 97 paragraph Complaint (Doc. No. 1-1) and 46 pages of attachments to the
sanctions because of Plaintiffs’ counsel’s conduct in failing to meet a filing deadline and in
unnecessarily complicating these proceedings.
Accordingly, in order to promote justice and judicial efficiency and in an attempt to deter
unnecessary litigation expenses, the Court contemplates exercising its inherent authority to
impose monetary sanctions. Plaintiffs must show cause in writing by January 10, 2017, why they
and/or their attorney should not be sanctioned in the amount of Defendants’ reasonable
attorney’s fees and costs incurred in opposing Plaintiffs’ Motion to File.
IT IS THEREFORE ORDERED that:
(1) Plaintiff’s [sic] MOTION TO FILE RESPONSE OUT OF TIME (Doc. No. 49) is
granted to the extent the Court will consider Plaintiffs’ Response to the Second
Motion to Dismiss (Doc. No. 50);
(2) Defendants have until January 10, 2017, to file a Reply in support of the Second
Motion to Dismiss; and
(3) Plaintiffs must show cause in writing by January 10, 2017, why they and/or their
attorney should not be sanctioned in the amount of Defendants’ reasonable attorney’s
fees related to the filing of Defendants’ Response to Plaintiffs’ Motion to File.
SENIOR UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?