Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01258-LTB-BNB

Document 91

Filed 06/27/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1258-LTB-BNB STUDENT MARKETING GROUP, INC., Plaintiff, v. COLLEGE PARTNERSHIP, INC., f/k/a COLLEGE BOUND STUDENT ALLIANCE, INC., Defendant. _____________________________________________________________________________ DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE ______________________________________________________________________________ Defendant College Partnership, Inc. ("College Partnership"), by and through its counsel, Rosemary Orsini and Brian K. Matise of Burg Simpson Eldredge Hersh & Jardine, P.C., hereby submits its response to Plaintiff Student Marketing Group, Inc.'s "Motion Strike Defendant College Partnership, Inc.'s Response to Plaintiff's Motion for Summary Judgment, or, in the Alternative, Motion for Extension of Time for Plaintiff to File a Reply to Defendant's Response."

I. INTRODUCTION Plaintiff is correct that through inadevertance, Defendant filed its response to Plaintiff's Motion for Summary Judgment sixteen calendar days after the deadline. Accordingly, the Court has discretion pursuant to Fed. R. Civ. P. 6(b) whether to consider Defendants' response to Plaintiff's Motion for Summary Judgment. For the reasons indicated below, the Court should exercise discretion to accept the filing as the result of excusable neglect. Plaintiff can show no prejudice as a result of the filing.

Case 1:04-cv-01258-LTB-BNB

Document 91

Filed 06/27/2005

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Defendant does not object to Plaintiff's Motion for Extension of Time to file a Reply Brief. Defendant's legal assistant recalls mailing a copy of Defendant's reply brief to Plaintiff's counsel on June 1, 2005, as indicated on the Certificate of Service. However, Defendant does not doubt that for some reason Plaintiff's counsel did not receive a copy of the response brief. Accordingly, it is in the interest of justice to allow Plaintiff additional time to file its Reply Brief.

II. FACTUAL BACKGROUND On May 6, 2005, Defendant requested an extension of time to file a response brief to Plaintiff's Motion for Summary Judgment. The Court granted an extension through May 16, 2005. At the time the Order granting the extension was received, the regular legal assistant for Defendant's counsel was on a vacation, and a temporary replacement was responsible for calendaring deadlines. See Affidavit of Keri Dugan at ¶ 2 (attached as Exhibit A). The May 16, 2005 deadline was not calendared, but instead a June 1, 2005 deadline was calendared. See Calendar Entries for May 16, 2005 and June 1, 2005 (attached as Exhibit B). Although undersigned counsel filed only one motion for an extension of time, undersigned counsel mistakenly believed that another extension of time either had been requested or granted. Undersigned counsel acknowledges that he should have verified that a second extension order had been entered instead of relying on his calendar. Contemporaneous with this Response, Defendant is filing a Motion for Leave to Accept Untimely Response Brief. On June 1, 2005, Defendant's legal assistant mailed a copy of the Response Brief to Plaintiff. Defendant's legal assistant distinctly recalls preparing the mailing because the Response Brief was too large to fit into a standard 9 by 11 inch envelope, and she had to prepare a second envelope. -2-

Case 1:04-cv-01258-LTB-BNB

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Defendant cannot explain why Plaintiff did not receive this mailing. However, Defendant agrees that it is in the interest of justice to allow Plaintiff any reasonable extension of time to file a reply.

III. ANALYSIS

A.

The Court should deny the Motion to Strike Based on Excusable Neglect. Fed. R. Civ. P. 6(b) provides the Court with authority to enlarge the period of time to file a

response even after expiration of the deadline. Fed. R. Civ. P. 6(b). The Court has discretion to accept an untimely pleading upon a showing of excusable neglect. City of Chanute, Kansas v. Williams Natural Gas Co., 31 F.3d 1041, 1044 (10th Cir. 1994). Excusable neglect is an "elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Id.at 1046 (citing Pioneer Inv. Servs. v. Brunswick Assocs. Ltd., 113 S. Ct. 1489, 1496 (1993). The Court also has discretion to consider all of the briefs and evidence before it when deciding a Motion for Summary Judgment, including untimely briefs. Sanchez v. Board of County Comm'rs, 948 F. Supp. 950, 952 n.1 (D. Kan 1996). Undue delay and prejudice to the opposing party are two of the primary factors in determining whether neglect is excusable. Id. at 1046-47 (citing In re Centric Corp., 901 F.2d 1514, 1517 (10th Cir. 1990). In the present case, Plaintiff has not presented any prejudice resulting from the delay. The delay also has not affected any deadlines; in fact, Magistrate Judge Boland has set a hearing on a discovery motion for July 15, 2005 which may impact the trial of this matter more than the Motion for Summary Judgment. Plaintiff makes a number of unwarranted and unsupported statements in its Motion to Strike -3-

Case 1:04-cv-01258-LTB-BNB

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alleging that Defendant is attempting "to disregard and manipulate the Rules of this Court." Motion to Strike at 5 ¶ 17. Contrary to Plaintiff's strong assertions, Defendants have complied with the Orders and Rules of this Court, with this one exception. If Plaintiff believed that Defendant violated any other Rules or Orders of this Court, Plaintiff should raise that issue by appropriate motion. Under the totality of circumstances, any neglect was excusable. In the interest of substantial justice and considering the factors, the Court should accept the Response Brief. B. Plaintiff's cases are distinguishable. Plaintiff cites Paoloni v. Goldtein, 331 F. Supp. 2d 1310, 1311-12 (D. Colo. 2004) for the proposition that when a filing is untimely, a court should consider the moving party's evidence and determine whether summary judgment is appropriate solely based on the moving party's evidence. Plaintiff misreads Paoloni. In Paoloni, no response brief was filed to the Motion for Summary Judgment. Id. at 1311. There is a significant between an untimely filed response and no response at all because if no response is filed, the Court has no admissible evidence to consider in response to the Motion for Summary Judgment. In In re Lenard, 140 B.R. 550 (D. Colo. 1992), this Court held that the bankruptcy court abused its discretion by failing to allow a party to present testimony at the hearing of the Motion for Summary Judgment even though the party had not filed a response by the due date. In that case, the party opposing summary judgment indicated at the hearing that it intended to present testimony in opposition at the hearing even though it had not filed a response. The Court concluded that the untimely evidence should have been accepted as it was tendered at the hearing of the motion. Accordingly, Lenard actually for the proposition that the Court should be liberal in accepting and considering evidence in response to a Motion for Summary Judgment. -4-

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Plaintiff also presents an unpublished 10th Circuit case, Mendez v. Brown, 12 Fed. Appx. 784, 2001 WL 433448 (10th Cir. 2001). The laws of the Tenth Circuit disfavor citation of unpublished opinions and unpublished opinions may be filed only if it has persuasive value on a material issue that has not been addressed in a published opinion and it would assist the Court in its disposition of such an issue. 10th Cir. R. 36.3. The Mendez case also involves a complete failure to respond to a Motion for Summary Judgment before judgment was entered rather than an untimely filing. Mendez,12 Fed. Appx at 785. Nonetheless, the Court must still consider three factors before deeming Plaintiff's facts admitted: (1) the degree of actual prejudice; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir. 1988); Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988). Without a showing of such prejudice to Plaintiff, interference with the judicial process, and culpability, the Court should not grant the Motion without considering evidence in opposition.

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IV. CONCLUSION

For the reasons indicated, the Court should grant Plaintiff and extension of time to file its Reply Brief, but deny the Motion to Strike. Respectfully submitted, BURG SIMPSON ELDREDGE HERSH & JARDINE, P.C.

Brian K. Matise 40 Inverness Drive East Englewood, Colorado 80112 Telephone: (303) 792-5595 Facsimile: (303) 708-0527 ATTORNEYS FOR DEFENDANT COLLEGE PARTNERSHIP, INC. CERTIFICATE OF SERVICE I hereby certify that on this by depositing same in the United States mail, first class postage prepaid, to the following: Gary Parish, Esq. R. Daniel Scheid, Esq. Sander, Scheid, Ingebretsen, Miller & Parish P.C. 700 17th St., Suite 2200 Denver, CO 80202 Patrick J. McElhinny, Esq. Dianna S. Karg, Esq. Kirkpatrick & Lockhart LLP 535 Smithfield St. Henry W. Oliver Building Pittsburgh, PA 15222 _________________________________ /s/Keri L. Dugan -6-