United States District Court, D. New Mexico
“Asher” Kashanian, Albuquerque, New Mexico, for
Michael Dickman, Santa Fe, New Mexico, for Defendants Anna
Montoya and Antonio Gutierrez.
ORDER DENYING PLAINTIFFS' OPPOSED MOTION FOR
EXTENSION OF TIME TO RESPOND TO DEFENDANTS ANNA MONTOYA AND
ANTONIO GUTIERREZ'S MOTION FOR SUMMARY JUDGMENT
MATTER comes on for consideration of Plaintiffs' Opposed
Motion for Extension of Time to Respond to Defendants Anna
Montoya and Antonio Gutierrez's Motion for Summary
Judgment, filed February 14, 2017. Doc. 143. Upon
consideration thereof, Plaintiffs' motion is not well
taken and should be denied.
February 7, 2017, Defendants Montoya and Gutierrez filed a
motion for summary judgment based in part on qualified
immunity. Doc. 142. Plaintiffs' response is due by
February 21, 2017 - 14 calendar days after service of the
motion - unless the parties agree to an extension or one is
granted by the court. See D.N.M. LR-Civ. 7.4(a). On
February 14, 2017, Plaintiffs filed a motion for an extension
of time to respond (Doc. 143), which Defendants Montoya and
Gutierrez oppose (Doc. 145).
may, for good cause, exercise its discretion by granting a
party's motion to extend the time for a response.
Fed.R.Civ.P. 6(b)(1)(A). Plaintiffs contend that a 30-day
extension is warranted for several reasons. First, they
indicate that their counsel has a large workload and had to
prepare for a trial set for February 9, 2017. Doc. 143 ¶
4. Second, Plaintiffs state that their counsel has been
working on a motion to amend the complaint, which they
believe will resolve many of the objections raised in
Defendants Montoya and Gutierrez's motion for summary
judgment. Id. ¶¶ 4, 6. Third, Plaintiffs
argue that the decision of Defendants Montoya and
Gutierrez's attorney not to file the motion for summary
judgment until after filing Defendants Robert Garcia's
and William Pacheco's motions for summary judgment
demonstrates that Defendants Montoya and Gutierrez would not
be prejudiced by an extension of time. Id. ¶ 5.
Fourth, Plaintiffs state that Plaintiff Andrew Ross had been
visiting family during the two weeks prior to Plaintiffs'
motion for an extension, and that he is not available to
record an affidavit within the current time frame.
Id. ¶ 7. Fifth, Plaintiffs assert that the
interests of justice would be served by granting the
extension, because Plaintiffs would be better able to present
their case and respond adequately to the summary judgment
motion. Id. ¶ 8. Finally, Plaintiffs indicate
that they notified the court on October 24, 2016, that
Plaintiffs' counsel would be unavailable from January
7-20, 2017. Doc. 150 (citing Doc. 15 ¶ 1).
however, have not established good cause to justify the
extension. Plaintiffs explain that they only intend to pursue
a cause of action against Defendants Montoya and Gutierrez
under § 1983. As suggested by these Defendants,
Plaintiffs can concede as to the claims seeking civil RICO
and injunctive relief, and only defend against summary
judgment on the civil rights claims under § 1983. Doc.
145 at 3. Plaintiffs know the facts and counsel should be
well versed in the legal standards on the remaining claims.
Fourteen days is ample time to respond with affidavits.
Additionally, Plaintiffs' counsel's workload and
preparation for a trial scheduled for February 9 does not
establish good cause, nor does the fact that Plaintiffs
provided notice of non-availability of Plaintiffs'
counsel for hearings from January 7-20, 2017.
the serious allegations made against them, Defendants Montoya
and Gutierrez understandably seek an expeditious resolution
of the case. Summary judgment is designed to resolve
factually and legally unsupported claims. Plaintiffs have now
filed an opposed motion to file a second amended complaint
recognizing the lack of specificity concerning their
constitutional claims. Doc. 149 (filed Feb. 19, 2017). But
this defect was made known to Plaintiffs at least as early as
January 13, 2017, when this court dismissed the claims
against Defendant Garcia, in part, on that basis. Doc. 121 at
5. Accordingly, it should be no surprise to Plaintiffs that
Defendants Montoya and Gutierrez, among others, would file a
motion on those grounds. That time has come, and Plaintiffs
have not established good cause to demonstrate why an
extension of time to respond to that motion should be
THEREFORE, IT IS ORDERED that Plaintiffs' Opposed Motion
for Extension of Time to Respond to Defendants Anna Montoya
and Antonio Gutierrez's Motion for Summary ...