Free Order on Motion for Extension of Time to File Response/Reply - District Court of Colorado - Colorado

Case 1:04-cv-00860-WDM-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00860-WDM-PAC ROBERT ALWARD, Plaintiff(s), v. VAIL RESORTS, INC., et al., Defendant(s). __________________________________________________________________ ORDER __________________________________________________________________ Patricia A. Coan, Magistrate Judge This is an employment case in which p l a i n tiff claims age and national origin discrimination, ERISA violations and a variety of state common law claims. A June 4, 2 0 0 4 Order of Reference referred this case to the undersigned for pretrial case management. I. In the course of lengthy and contentious discovery, I determined that plaintiff' s counsel should be sanctioned for abusive litigation conduct. See April 28, 2005 Order re: Sanctions. Accordingly, I ordered plaintiff to show cause in writing, almost two months later, by June 22, 2005, why she should not be sanctioned. See id. at 15. I ordered defendants to submit their affidavits of reasonable attorney fees and costs

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incurred with respect to the discovery areas outlined in my April 28, 2005 order by May 23, 2005 and then gave plaintiff five weeks to file objections to the attorney fees requested. See id. I then set the sanctions and fee issues for hearing on July 6, 2005, approximately nine weeks later. See id. In the meantime, after requests for extension of time on both sides, the dispositive motions deadline was extended to its final deadline of June 16, 2005; plaintiff' counsel was given extensions of time to file s her response to the show cause order and to the attorney fees and costs affidavits; and the July 6, 2005 hearing was continued, at plaintiff' request, to July 28, 2005. s To date, two and a half months after my April 28, 2005 Order, plaintiff' s requests for extensions of time have resulted in the following: 1) plaintiff still has not responded to defendants' dispositive motions, although, according to the court' s record, it appears that responses were due on July 7, 2005; plaintiff' reply to the s response to his dispositive motion was due July 14, 2005; plaintiff' counsel has not s shown cause in writing why she should not be sanctioned (the current deadline is July 18, 2005); the response to the order to show cause why the $100 sanction imposed in December 2004 should not remain is July 22, 2005; and plaintiff' s counsel has not filed objections to defense counsel' May 23, 2005 fees and costs s affidavits, which objections now are due by July 19, 2005.

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Plaintiff now moves again for extensions of time to respond to summary judgment motions, to provide responses to orders to show cause and to move the July 28, 2005 hearing date. As grounds for her motion, plaintiff cites the press of business. She refers to a two to three day trial in New York, a settlement conference July 15, 2005 and the briefing schedule which is described above. See Pl. July 13, 2005 Motion at 2-4. Plaintiff' counsel also complains that the court has s misunderstood her efforts to resolve disputes under D.C. Colo.LCivR 7.1.A. before filing her motions. Finally, plaintiff wants more time to respond to defendants' dispositive motions because they filed three motions while counsel for plaintiff anticipated only one dispositive motion. II. Plaintiff asks that the deadline for his responses to defendants' motions for summary judgment be extended to July 22, 2005, the deadline to file responses to show cause orders to August 1, 2005; and the July 28, 2005 hearing continued to August 5, 2005 or later. As noted, all of the foregoing deadlines, excepting the show cause response to the $100 sanction order, have been extended at least once at plaintiff' request. s Rule 16(b), Fed. R. Civ.P. requires good cause for any modifications to

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deadlines in the scheduling order. See Rule 16(b), Fed. R. Civ.P. " Good cause" under Rule 16(b) requires a showing by the party seeking leave to modify the scheduling order to allow the proposed amendment that the scheduling order deadline could not have been met despite that party' diligent efforts. Colorado s Visionary Academy v. Medtronic, Inc., 194 F.R.D. 684 (D.Colo. 2000)(M.J. Boland)(internal citation omitted). As more fully explained in another decision from Magistrate Judge Boland: Rule 16(b) does not focus on the bad faith of the movant, or the prejudice to the opposing party. Rather, it focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment. Properly construed, 'good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts. In other words, this court may 'modify the schedule on a showing of good cause if [the deadline] cannot be met despite the diligence of the party seeking the extension.' Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Pumpco, Inc. v. Schenker Intern., Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (internal citations omitted). Here, the Scheduling Order set the dispositive motions deadline. Rule 56 then provided the response deadlines. I do not find good cause under Rule 16(b) to extend the deadlines yet again, and particularly the deadline for plaintiff' responses s to defendants' summary judgment motions, because plaintiff' counsel has been s

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fully aware of all the deadlines 1, weeks, and sometimes months ago, and failed to plan her schedule accordingly. She thus does not meet Rule 16(b)' diligence s requirement as described in Pumpco. In the alternative, Rule 6(b)' " s cause"standard may be applied, particularly with respect to the deadlines other than response deadlines to dispositive motions. Rule 6(b), Fed. R. Civ.P. permits a court, in its discretion, to enlarge deadlines upon a showing of cause if the request is made before the end of the period originally prescribed or as extended by previous order. See Rule 6(b), Fed. R.Civ.P. The issue under Rule 6(b) here is whether counsel' press of business is " s cause"under the Rule for multiple timely requests for extensions of time to respond to dispositive motions and orders to show cause. I think not. The purpose of setting deadlines is a valid method of case management for a trial court. Litigants are entitled to have their cases timely heard. Here, the complaint was filed April 28, 2004. The parties engaged in discovery from July 2004 through January 2005. There were numerous discovery disputes, motions hearings and discovery orders. The dispositive motions deadline was originally March 14, 2005 and was extended to June 16, 2005. The final pretrial conference

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with the possible exception of the second order to show cause concerning the $100 sanction

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was originally set for May 6, 2005 and is now set for August 12, 2005. I find that plaintiff' counsel has used the excuse of her workload for many, if not all, of the s requested extensions of time over the course of this case. An attorney' inability or s failure to plan her workload does not rise to the level of " cause"under Rule 6(b). The remaining issues in this case need to be resolved so the case can move forward to the final pretrial order and trial. Notwithstanding, it would be unfair to this plaintiff not to be able to file responses to defendants' motions for summary judgment, so I will allow some time for those responses. I will also allow some more time for a response to the second show cause order. On July 28, 2005, I will hear plaintiff' responses to the show s cause orders issued April 28, 2005 and July 12, 2005, and any objections to defendants' fees and costs affidavits, filed May 23, 2005. III. Accordingly, for the reasons stated, it is hereby ORDERED that Plaintiff' Second Motion Extension [sic] of Time to Respond to s Defendants' Motions for Summary Judgment, to File Objections to Defendants' Fee Affidavit and to Respond to Order to Show Cause re: Sanctions; and Motion to Reset Hearing [filed July 13, 2005] is granted in part and denied in part as follows:

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The deadline for plaintiff to respond to defendants' motions for summary judgment is July 21, 2005; the deadline to respond to my April 28, 2005 Order to Show cause is July 19, 2005; the deadline to respond to the July 12, 2005 order to show cause re: the $100 sanction is July 26, 2005. Any other relief requested in plaintiff' motion is denied. It is further s ORDERED that the hearing July 28, 2005 at 8:30 a.m. shall go forward as previously set. Counsel shall meet and confer and attempt to resolve the sanctions and fees issue in my conference room from 8:00 to 8:30 a.m. on July 28, 2005.

Dated July 15, 2005. By the Court: s/Patricia A. Coan Patricia A. Coan Magistrate Judge

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