Opinion
Civil Action No. 11-cv-03253-CMA-MEH
05-09-2012
DARLENE GAYNEL FOGLE, and RONALD JENNINGS FOGLE, Plaintiffs, v. ARCHER THOMAS ELLIOTT, JR., sued in his individual capacity, Defendant.
MINUTE ORDER
Entered by Michael E. Hegarty, United States Magistrate Judge, on May 9, 2012.
Before the Court is "Plaintiff's (sic) Motion for Reconsideration and Motion to Strike" [filed May 4, 2012; docket #49]. Plaintiffs ask the Court to (1) reconsider its April 27, 2012 Minute Order [docket #44] granting Defendant's Motion to Have Accepted as Timely the "Answer and Counterclaim to 'Amended Prisoner Complaint /Complaint for Gross Negligence/Complaint for Money Damages'" [docket #40]; (2) strike Defendant's Motion...[docket #40] pursuant to Fed. R. Civ. P. 12(f); and (3) grant Plaintiffs a 45-day extension of time within which to file an answer or other response to Defendant's counterclaim. Plaintiff's Motion is granted in part and denied in part as follows.
First, the Court denies Plaintiffs' request to reconsider its April 27, 2012 Minute Order. Defendant filed a motion to dismiss on March 20, 2012, which the Court denied without prejudice on April 2, 2012. (See docket #35.) Pursuant to Fed. R. Civ. P. 12(a)(4)(A), a party shall have 14 days after notice of the Court's denial of a motion within which to file a responsive pleading. However, because the Court granted Defendant leave to re-file his motion to dismiss after June 14, 2012, and because motions under Rule 12(b) must be filed before a responsive pleading, Defendant was not required to file an Answer by April 16, 2012. Moreover, the Court found that Defendant's explanation for the 1-day "delay" warranted the brief extension of time ultimately granted. (See docket #44.)
Second, the Court denies Plaintiffs' request to strike pursuant to Rule 12(f). Plaintiffs contend that Defendant's assertion that he was only seconds or minutes late in his filing "could be construed as a scandalous matter." The Court disagrees, and finds no other basis for striking Defendant's Motion [docket #40] pursuant to Fed. R. Civ. P. 12(f).
Finally, the Court grants in part Plaintiffs' request for an extension of time within which to file an answer or other response to Defendant's counterclaim. Although Plaintiffs have not demonstrated good cause for the 45-day extension set forth in their Motion, the Court finds that an additional 14 days is warranted. Therefore, Plaintiffs shall file an answer or other response to Defendant's counterclaim on or before May 21, 2012.
In addition, the Court reminds the parties of their continuing obligation to comply with D.C. Colo. LCivR 7.1A. Although the Court recognizes that Mr. Fogle is incarcerated and is, therefore, exempt from this rule, Ms. Fogle is not incarcerated and will be required to confer with opposing counsel prior to filing future motions.