Howard v. City of Albuquerque et al

Filing 55

ORDER by Magistrate Judge Laura Fashing granting in part 33 ORDER on Motion to Extend. See order for specifics. (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MAJESTIC HOWARD, individually and
MAJESTIC HOWARD, as Guardian of
MAJESTY HOWARD,
MAJESTIC HOWARD, JR.,
and KARISMA STRONG,
Plaintiffs,
VS.

No. 17-cv-855-JB-LF

CITY OF ALBUQUERQUE,
OFFICER JONATHAN FRANCO,
individually, OFFICER BEN DAFFRON,
individually, OFFICER JOSHUA CHAFIN,
individually, OFFICER SONNY MOLINA,
individually.
Defendants.
ORDER GRANTING IN PART MOTION FOR EXTENSION OF TIME TO FILE
PLAINTIFF’S EXPERT WITNESS DESIGNATIONS
THIS MATTER is before the Court on plaintiff Majestic Howard’s Motion for Extension
of Time to File Plaintiff’s Expert Witness Designation, filed on March 19, 2018. Doc. 33.
Defendant Jonathan Franco filed a response opposing the extension, Doc. 36, and plaintiff filed a
reply, Doc. 43. On the same day that he filed his motion for an extension of time, plaintiff filed a
Motion to Stay Proceedings Pending Determination of Competency. Doc. 32. In the instant
motion, plaintiff asks the Court to extend the time for filing his expert witness designation from the
current deadline of March 19, 2018, Doc. 23, until thirty days after the Court lifts any stay granted
pursuant to his pending motion to stay. Doc. 33 at 1. Having reviewed the briefing and the
relevant law, the Court finds the motion is well-taken in part and should be GRANTED IN PART.
As grounds for an extension, plaintiff states that he needs more time to designate expert
witnesses pending a full determination of Mr. Howard’s competency. Doc. 33 at 2. Defendant

Franco opposes the motion, arguing that plaintiff has not shown good cause for an extension, has
failed to explain how the issue of his competency prevented him from obtaining an expert and
meeting the Court’s deadlines, and is attempting to benefit from his dilatory conduct. Doc. 36 at
2. Defendant asks the Court to bar plaintiff from “using any experts in this litigation.” Id.
While plaintiff might have raised the issue of competency sooner, the Court finds plaintiff’s desire
to resolve the issue of competency before proceeding in this litigation constitutes good cause for
granting an extension of the deadline to designate experts. The Court therefore will grant an
extension.
However, rather than extending the deadline to designate experts until thirty days after the
Court lifts any stay imposed, as plaintiff requests, the Court finds the better course of action in this
case is to vacate the current scheduling order deadlines (See Doc. 23). The Court will reset the
scheduling order deadlines after the Court rules on the pending motion to stay, and after any stay,
if granted, has been lifted. While plaintiff asserts that an extension of time to file his expert
witness designation will not affect the trial setting, and that he does not wish to continue the trial
setting, the Court finds that, given the current progress in this case, this case will not be ready for
trial by the current trial setting of September 17, 2018, see Doc. 23 at 2. The parties should
address vacating the August 17, 2018 motion hearing, the September 7, 2018 pretrial conference,
and the September 17, 2017 trial setting with Judge Browning.
IT IS THEREFORE ORDERED that Plaintiff Majestic Howard’s Motion for Extension of
Time to File Plaintiff’s Expert Witness Designation is GRANTED IN PART. The current
scheduling order deadlines—other than the August 17, 2018 motion hearing, the September 7,

2

2018 pretrial conference, and the September 17, 2018 trial setting, which will be addressed by
Judge Browning—(see Doc. 23) are VACATED.

_________________________
Laura Fashing
United States Magistrate Judge

3