Shifers v. Arapahoe Motors Inc.

          ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL RECONSIDERATION OF THE COURT'S MINUTE ORDER AND FOR LEAVE TO FILE RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OUT OF TIME

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Martin Shifers's Motion for Partial Reconsideration of the Court's October 9, 2018 Minute Order and for Leave to File Response to Defendant's Motion for Summary Judgment Out of Time (the “Motion”). (Doc. # 136.) For the reasons explicated below, the Court denies Plaintiff's Motion (id.) and strikes as untimely his Response (Doc. # 134) to Defendant's Motion for Summary Judgment.

         I. BACKGROUND

         Plaintiff worked as a Service Advisor for Defendant's automobile dealership for more than 18 years. (Doc. # 36 at 2.) He alleges that he was terminated on June 9, 2016, due to age discrimination and that Defendant's stated reason for his termination- that he “was undereducated and under qualified” for his position-was pretextual. (Id. at 3-4.) After lodging of a Charge of Discrimination with the Equal Employment Opportunity Commission and receiving a Notice of Dismissal and Right to Sue from the Commission, Plaintiff initiated this action against Defendant on July 19, 2017. (id. at 4; Doc. # 1.) He asserts three claims for relief: (1) “age discrimination”; (2) violations of the Fair Labor Standard Act, 29 U.S.C. §§ 201-19, and the Colorado Wage Act, Colo. Rev. Stat. §§ 8-6-101-19; and (3) violations of the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1132. (Doc. # 36 at 2-8.) For purposes of this litigation, Plaintiff is represented by Ms. Nina H. Kazazian of Kazazian & Associates, LLC. (Doc. # 6.) Further factual details on Plaintiff's claims are irrelevant to the Motion presently before the Court.

         On August 21, 2018, Defendant filed its Motion for Summary Judgment. (Doc. # 105.) Pursuant to D.C.COLO.LCivR 56.1(a), any response by Plaintiff was to be filed no later than September 11, 2018. On September 10, 2018, Plaintiff filed an Unopposed Motion for an Extension of Time to Respond to the Motion for Summary Judgment (the “First Motion for an Extension of Time to Respond”). (Doc. # 120.) Plaintiff represented that since the Motion for Summary Judgment, his counsel had “been in the emergency room and had limited mobility due to a fall and a several sprained ankle, ” his counsel “had several motions and at least one unexpected discovery hearing set on another case, ” and his counsel's computer system was “infected with a virus” that required reinstallation of “the operating system and applications.” (Id. at 2.) Defendant did not oppose Plaintiff's request for a 14-day extension of time. (Id. at 1.)

         United States Magistrate Judge Kristen L. Mix granted Plaintiff's First Motion for an Extension of Time to Respond on September 11, 2018, pursuant to which Plaintiff's response to the Motion for Summary Judgment was due on or before September 25, 2018. (Doc. # 121.)

         On September 25, 2018, the day a response was due, Plaintiff filed a Second Motion for an Extension of Time to Respond to the Motion for Summary Judgment (the “Second Motion for an Extension of Time to Respond”). (Doc. # 123.) Plaintiff represented that his “counsel underestimated the amount of time it would take to sort through and respond to the volume of exhibits Defendants [sic] attached” to its Motion for Summary Judgment and that “another case in which Plaintiff's counsel [was] involved continue[d] to require a disproportionate and unexpected amount of time.” (Id. at 2.) Plaintiff stated that his counsel was unable to confer to Defendant and its counsel prior to filing his motion because “[t]he circumstances compelling [the] request arose after hours on September 25, 2018.” (Id. at 2.)

         Magistrate Judge Mix granted Plaintiff's Second Motion for an Extension of Time to Respond on September 28, 2018. (Doc. # 125.) Magistrate Judge Mix noted Second Motion for an Extension of Time to Respond was subject to denial for Plaintiff's failure to confer with opposing counsel but nonetheless granted the Second Motion for an Extension of Time to Respond and gave Plaintiff until October 5, 2018 to file a response. (Id.) Plaintiff did not file a Response by or on October 5, 2018.

         On October 8, 2018, Plaintiff filed a Third Motion for an Extension of Time to Respond to the Motion for Summary Judgment (the “Third Motion for an Extension of Time to Respond”), requesting a “three business day extension” for a response “through and including October 11, 2018.” (Doc. # 126.) Plaintiff alleged that his counsel was unable to file a response or the Third Motion “[d]ue to a family emergency that developed very late [five days beforehand, on October 3, 2018] and [was] still ongoing (though substantially improved).” (Id. at 2.)

         Magistrate Judge Mix granted Plaintiff's Third Motion for an Extension of Time to Respond on October 9, 2018. (Doc. # 128.) She wrote:

Similar to Plaintiff's prior request for an extension, the present Motion [(Doc. # 126)] does not comply with D.C.COLO.LCivR 7.1(a) because Plaintiff has not demonstrated a “reasonable good faith effort” to confer with opposing counsel. Plaintiff is reminded that the Motion [(Doc. # 126)] is subject to denial on this basis alone. Nevertheless, in the interest of expediency, the Court finds that an additional six-day extension is reasonable and that Plaintiff's failure to meet the prior deadlines was due to excusable neglect pursuant to Fed.R.Civ.P. 6(b)(1)(B).

(Id. at 1.) Accordingly, she ordered that Plaintiff's response was due on or before October 11, 2018. (Id.) She concluded by advising Plaintiff that “[g]iven that this is the third extension of such deadlines, . . . no further extensions will be granted.” (Id.) (emphasis added). Plaintiff did not file a response by or on October 11, 2018.

         On October 14, 2018, Plaintiff filed his Response to Defendant's Motion for Summary Judgment. (Doc. # 134.) Plaintiff does not make any mention of the untimeliness of his Response therein. (Id.)

         On October 16, 2018, Plaintiff filed the Motion presently before the Court. (Doc. # 136.) Plaintiff alleges that his counsel was unable to file his Response by October 11, 2018:

On Thursday and Friday, October 11 and 12, 2018[, ] Plaintiff's counsel was traveling for a conference on international flights that had WiFi onboard throughout the flight. Plaintiff's counsel confirmed that the WiFi service was typically reliable, and therefore reasonably expected to have access to the Internet to be able to electronically file the Response to the Motion for Summary Judgment in a timely manner. However, the WiFi was not functioning. Unfortunately, as a result, [Plaintiff's counsel] did not regain access to the internet until Sunday, October 14, 2018, at which point the Response to the Motion for summary judgment was filed with the Court [ECF 134 and 135]. [Plaintiff's counsel] immediately sent an email to counsel for [Defendant] explaining ...