United States District Court, D. Colorado
MARTIN V. SHIFERS, Plaintiff,
v.
ARAPAHOE MOTORS, INC., d/b/a Ralph Schomp Automotive Honda, Defendant.
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 ...