United States District Court, D. Colorado
JAMES S. GRADY, d/b/a GROUP FIVE PHOTOSPORTS, Plaintiff,
EVAN BRODERSEN, a/k/a EFAN BRUDER, and JOHN DOES 1-5, Defendants.
ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
ROBERT E. BLACKBURN, District Judge.
The matterd before me are (1) the Recommendation of United States Magistrate Judge [#61] filed September 16, 2014; and (2) the corresponding Unopposed Plaintiff James S. Grady's First Motion To Continue Trial Based on Magistrate Boland's Recommendation of September 16, 2014 [#68] filed November 20, 2014. No objections having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). Finding no error, much less plain error, in the recommendation, I find and conclude that recommendation should be approved and adopted. The motion to continue is granted.
For the reasons detailed by the magistrate judge, completion of discovery has been delayed. The deadlines for filing motions for summary judgment and for sanctions based on spoliation of evidence have been extended to November 14, 2014. Cross motions for summary judgment and a motion for default judgment as a discovery sanction were filed recently. These motions will be briefed fully on or about December 19, 2014.
The combined Final Pretrial Conference and Trial Preparation Conference are set for December 19, 2014, and trial is set to begin on January 5, 2015. These settings do not permit a reasonable time for the court to address and resolve the motions for summary judgment and default judgment.
The United States Court of Appeals for the Tenth Circuit has outlined four primary factors that should be considered to determine if a continuance of trial is warranted. See, e.g., Morrison Knudsen Corp. v. Fireman's Fund Ins. Co., 175 F.3d 1221, 1230 (10th Cir. 1999) (citing U.S. v. West, 828 F.2d 1468, 1469 (10th Cir. 1987) (listing factors)). The key relevant factors include:
(1) the diligence of the party requesting the continuance; (2) the likelihood that the continuance, if granted, would accomplish the purpose underlying the party's expressed need for the continuance; (3) the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance; [and] (4) the need asserted for the continuance and the harm that [movant] might suffer as result of the district court's denial of the continuance.
United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (quoting United States v. West, 828 F.2d 1468, 1470 (10th Cir. 1987)). On balance, these factors weigh in favor of a continuance.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#61] filed September 16, 2014, is APPROVED and ADOPTED as an order of this court;
2. That the corresponding Unopposed Plaintiff James S. Grady's First Motion To Continue Trial Based on Magistrate Boland's Recommendation of September 16, 2014 [#68] filed November 20, 2014, is GRANTED;
3. That the combined Final Pretrial Conference and Trial Preparation Conference set December 19, 2014, and trial set to commence January 5, 2015, are VACATED and CONTINUED pending further order;
4. That the Trial Preparation Conference Order [#42] entered February 20, 2014, is AMENDED and SUPPLEMENTED accordingly; and
4. That counsel SHALL CONTACT the court's administrative assistant at (303) 335-2350 on December 2, 2014, at 9:30 a.m. (MST), to reschedule a combined Final Pretrial Conference ...