Opinion
Civil Action No. 07-cv-01559-LTB-KMT.
April 11, 2008
ORDER
This matter is before the court on Defendants Elaine L. Chao and Department of Labor's (hereinafter "DOL) "Unopposed Motion to Amend Scheduling Order to Permit an Extension of Time to file a Responsive Brief" [Doc. No. 48, filed April 7, 2008]. Plaintiff, while not opposing the request for extension of time on the briefing schedule, filed a "Response of City of Colorado Springs to the Department of Labor's Unopposed Motion to Amend the Scheduling Order to Permit an Extension of Time to File a Responsive Brief" clarifying its position on certain other matters in the unopposed motion. [Doc. No. 51, filed April 10, 2008]. The District Court referred Defendants' motion to me on April 9, 2008.
In her order of November 28, 2007, Magistrate Judge Kristen Mix set the briefing schedule for the parties as: "Plaintiff's Opening Brief will be filed on or before February 11, 2008; Defendants' and Intervenor's Response Brief will be filed on or before April 7, 2008; and, Plaintiff's Reply Brief will be filed on or before May 22, 2008." [Doc. No. 19]
After the Administrative Record was filed, plaintiff opposed the inclusion of three documents. This court ruled on that issue on April 4, 2008, finding in favor of the plaintiff and striking the three contested documents. [Doc. No. 47] Since the plaintiff did not intend to rely on or reference the documents excluded by the April 4, 2008 ruling, the filing of their brief on the merits was not affected by the court's order. The defendants DOL, however, did intend to rely on the documents and, therefore, were unable to submit their brief on short notice following the ruling by the court. The DOL has expressed an intention to appeal the order striking the documents to the District Court as is their right.
Title 28, United States Code 636(b)(1) provides
Notwithstanding any provision of law to the contrary — (A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.Id. (emphasis added)
The DOL requests until April 11, 2008 to file its objections to the order. The plaintiff has requested an additional ten days to respond to the DOL's objection. Although it has not been requested, it is foreseeable that Defendant-Intervenor Amalgamated Transit Union Local 19 (hereinafter "ATU") may wish to be heard as well, although the court notes that ATU filed its response brief as scheduled on April 7, 2008 [Doc. No. 49].
Fundamental fairness requires that the DOL be allowed its right of appeal without prejudice to the filing of its brief on the merits of the case.
Therefore, it is ORDERED that DOL's Unopposed Motion to Amend Scheduling Order to Permit an Extension of Time to file a Responsive Brief [Doc. No. 48] is GRANTED.
1. The current briefing schedule will be stayed pending resolution of the DOL's anticipated appeal of the Magistrate Judge's Order.
2. The DOL's appeal of the Magistrate Judge's Order will be filed on April 11, 2008.
3. The substantive response brief on behalf of the DOL, originally to be filed on April 7, 2008, will be filed within ten calendar days from the date of entry of the District Court order on DOL's objections to the Magistrate Judge's Order.
4. The plaintiff, City of Colorado Springs, will have an additional forty-five (45) days from the date the DOL files its substantive response brief within which to file its reply.