Opinion
Civil Action No. 03-cv-02122-WDM-CBS.
July 31, 2007
ORDER
This matter is before me on Plaintiff's response to a show cause order, filed April 23, 2007, and Plaintiff's related motion for leave to file a late response brief, filed the same day.
On April 9, 2007, I issued a show cause order which detailed Plaintiff's extraordinary inability to comply with the deadlines and page limitations imposed by this court. ( See Order to Show Cause, Docket No. 174.) In addition, this order explained that after I struck Plaintiff's response to Defendant's summary judgment motion, Plaintiff failed to file an amended response — either in the time I allowed, or otherwise. Id. Therefore, I ordered Plaintiff to show cause why Defendant's motion for summary judgment should not be granted. Id.
In response, Plaintiff claims that he never received e-mail notification of the February 16, 2007, minute order that struck his response brief (Docket No. 159). Indeed, Plaintiff's counsel gives me his word as an officer of the court that he did not receive, and had no knowledge of, this critical minute order ( see Resp. Br., Docket No. 176, at 3). He also includes an affidavit from his legal secretary/paralegal asserting that she is "absolutely positive" that it was never received by the office (Gosnell Aff., Ex. 1 to Resp. Br., Docket No. 176, at ¶ 20).
Plaintiff also claims that he did not receive e-mail notification for a docket annotation entered the same day (Docket No. 158).
Plaintiff does not claim to have ever had difficulty receiving e-mail notifications either prior to or after this date. Moreover, given the extreme difficulty that Plaintiff has demonstrated in meeting court deadlines and page limits ( see Order to Show Cause, Docket No. 174), it is difficult to accept that the only day that Plaintiff failed to receive e-mail notifications from this court is the day that I issued a minute order. Further, this court's technical support staff has provided me with server activity logs indicating that the key e-mail was successfully delivered to one of the servers of Plaintiff's e-mail provider.
In addition, defense counsel advised the court of a conversation on February 22, 2007, that seemed to indicate that Plaintiff's counsel aware at that time of my February 16 minute order. In response, Plaintiff claims that this conversation simply involved a misunderstanding. ( See Reply Br., Docket No. 189, at ¶ 33.) After reviewing the parties' submissions, Plaintiff's explanation is plausible.
On the other hand, I am mindful of the law's strong preference for deciding cases on their merits. E.g., Gully v. Orr, 905 F.2d 1383, 1386 (10th Cir. 1990). Moreover, on February 28, 2007, Plaintiff filed a response brief relating to a motion to strike that had already been granted in my February 16 minute order. This filing is strong evidence in support of Plaintiff's claim that he never received this minute order. Of course, it is possible that Plaintiff actually did receive the minute order, and nonetheless filed this response brief in an effort to set up a later claim that he did not. However, Plaintiff is surely aware of the harsh sanctions that could result from such a misrepresentation to the court.
In the end, after balancing all of the above considerations, I will accept — albeit with reservations — Plaintiff's counsel's word as an officer of the court. As a result, the order to show cause will be discharged and Plaintiff's motion to file a response brief out of time will be granted.
Accordingly, it is ordered:
1. The order to show cause, issued April 9, 2007 (Docket No. 174), is discharged. 2. Plaintiff's motion to file a late response brief, filed April 23, 2007 (Docket No. 177), is granted and Plaintiff's attached brief is accepted for filing.