Opinion
Case No. 2:03-CV-508 TC.
June 14, 2004
ORDER
This matter is before the court on Plaintiffs' Ex Parte Motion for Enlargement of Time and Plaintiffs' Request for a Franks Hearing. For the reasons set forth below, both of Plaintiffs' Motions are DENIED.
BACKGROUND
In 2003, Plaintiffs filed this action alleging, among other things, violations of 42 U.S.C. § 1983. Apparently, the events that gave rise to this action involved an arson investigation that focused on the Plaintiffs. Plaintiff Charles Schultz's home was destroyed by a fire on May 1, 2002. Plaintiffs were arrested on August 15, 2002, for setting fire to the home. The State of Utah later dismissed the charges against the Plaintiffs. Plaintiffs allege that Defendant James Dudzinski's affidavit in support of the arrest warrants failed to establish probable cause because the affidavit allegedly contained false statements.
This action consists of three cases (2:03-CV-508, 2:03-CV-707, and 2:03-CV-708) consolidated into one.
On March 29, 2004, Defendant James Dudzinski filed a Motion for Judgment on the Pleadings and served Plaintiffs via first class mail. (See Dudzinski Mot. for J. on the Pleadings at 2 (Certificate of Service).) Plaintiffs' opposition to Mr. Dudzinski's Motion was due on April 16, 2004. See DUCivR 7-1(b)(3) (requiring opposition memorandum to be filed fifteen days after service of the motion); Fed.R.Civ.P. 6(a) (adding three days to response time when motion served via first class mail). On April 30, 2004, Defendant Steve Ivie also filed a Motion for Judgment on the Pleadings and joined in Mr. Dudzinski's Motion. Mr. Ivie served Plaintiffs via first class mail. (See Ivie Mot. for J. on the Pleadings at 2 (Certificate of Service).) Plaintiffs' opposition to Mr. Ivie's Motion was due on May 18, 2004. (Id.) See DUCivR 7-1(b)(3); Fed.R.Civ.P. 6(a).
Plaintiffs did not file any opposition to either of Defendants' Motions. Instead, on May 14, 2004, Plaintiffs filed an ex parte request for an extension of thirty days to respond to both Motions. Plaintiffs' ex parte request was not filed within the response time allowed on Mr. Dudzkinski's Motion, but it was filed within the response time allowed on Mr. Ivie's Motion. On the same day, Plaintiffs filed their request for a Franks hearing "to review the Defendant's probable cause at the time Defendants presented arson charges to prosecutors." (Pls.' Request for Franks Hearing at 1.) Plaintiffs also filed a Motion for [Partial] Summary Judgment "regarding probable cause." (Pls.' Mot. for Summ. J. at 1.)
Defendants have since filed objections to Plaintiffs' ex parte request for an extension and Plaintiffs' request for a Franks hearing. They have also filed a motion requesting a ruling on their motions for judgment on the pleadings pursuant to Local Rule 7-1(d) ("Failure to respond timely to a motion may result in the court's granting the motion without further notice.").
ANALYSIS
1. Plaintiffs' Request for a Franks Hearing
A Franks hearing is a procedural tool used in criminal cases. In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held that a criminal defendant challenging the veracity of a search warrant affidavit is entitled to a hearing on the matter if the defendant's "allegations of deliberate falsehood" are supported by an offer of proof. Id. at 171. AFranks hearing is an adversarial evidentiary proceeding that allows a criminal defendant to demonstrate the falsity of the warrant affidavit and cross-examine the police officer who submitted the affidavit. See id. If the criminal defendant's hearing request is granted and the defendant prevails at the hearing, the appropriate remedy is suppression of the illegally obtained evidence at trial. See id. at 164.
This case is a civil action and, as such, the Franks holding does not apply here. Also, in civil cases, unlike in criminal cases, the question of probable cause to arrest is "'a proper issue for the jury if there is room for a difference of opinion.'" DeLoach v. Bevers, 922 F.2d 618, 623 (10th Cir. 1990) (quoting Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th Cir. 1985)). In civil litigation, the judge will reach the issue of probable cause only if a party demonstrates that summary judgment is appropriate. See id.; Fed.R.Civ.P. 56. Thus, in a civil action, the use of the adversarial pre-trial evidentiary hearing contemplated by Franks would be at odds with the well-established principle that contested issues of material fact are for the jury.
For these reasons, Plaintiffs' request for a Franks hearing is DENIED. 2. Plaintiffs' Ex Parte Request for Enlargement of Time
Plaintiffs seek thirty extra days within which to respond to the Defendants' Motions for Judgment on the Pleadings. As noted above, Plaintiffs' request for an extension was not filed within the response time relating to Mr. Dudzkinski's motion whereas the request for an extension was filed within the response time relating to Mr. Ivie's motion. Plaintiffs contend that they should be given an extension "because the parties have stipulated to the taking of depositions." (Pls.' Ex Parte Mot. for Enlargement of Time at 1.) They claim that they "are conducting the depositions of both James Dudzinski and Steve Ivy [sic], which they believe are critical to aid in the preparation of appropriate responses. . . ." (Id. at 2.) But the depositions of Mr. Dudzinski and Mr. Ivie are not critical to a resolution of the motions for judgment on the pleadings, because the standard applicable to such motions requires the court to assume the allegations set forth in the complaint are true. See University of Utah v. Shurtleff, 252 F. Supp.2d 1264, 1273 (D. Utah 2003) (applying Rule 12(b)(6) standard of review to motions for judgment on the pleadings).
Defendants note that the parties have not "stipulated" to the depositions. There is no need to stipulate, because neither Mr. Dudzinski nor Mr. Ivie has moved for dismissal of Plaintiffs' Fourth Amendment claim, which claim the depositions are presumably going to address. (See Dudzinski's Objection to Pls.' Ex Parte Request for Extension of Time (Dkt. No. 34) at 4;see also Ivie's Objection to Pls.' Ex Parte Request for Extension of Time (Dkt. No. 33).)
Moreover, at least with respect to Mr. Dudzinski's motion, Plaintiffs have not shown excusable neglect. The Federal Rules of Civil Procedure provide guidance on whether to grant extensions of time that have been filed after the response period has expired. Rule 6 states in relevant part:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may . . . upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
Fed.R.Civ.P. 6(b)(2) (emphasis added). "[A] finding of excusable neglect under Rule 6(b)(2) requires both a demonstration of good faith by the parties seeking the enlargement and also it must appear that there was a reasonable basis for not complying within the specified period." In re Four Seasons Sec. Laws Litig., 493 F.2d 1288, 1290 (10th Cir. 1974);see also Cloyd v. Arthur Anderson Co., 151 F.R.D. 407, 413 (D. Utah 1993) ("[T]o show excusable neglect, . . . simple inadvertence or mistake of counsel does not suffice, and some showing of 'good faith on the part of the party seeking enlargement and some reasonable basis for noncompliance within the time specified' is normally required.") (quoting Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987)).
Plaintiffs have not provided any reason, other than the ones noted above, for failing to respond to the Defendants' Motions for Judgment on the Pleadings. Plaintiffs have not demonstrated a good faith reasonable basis for their failure to respond to Defendants' pending motions within the time allowed or within a reasonable time thereafter. Accordingly, the court DENIES Plaintiffs' request for an extension of time.
ORDER
For the foregoing reasons, the court ORDERS as follows:
1. Plaintiffs' Request for a Franks Hearing is DENIED.
2. Plaintiffs' Ex Parte Motion for Enlargement of Time is DENIED.
3. The court acknowledges Defendants' requests for a ruling on their Motions for Judgment on the Pleadings. (See Dkt. Nos. 33-34.) The court needs no further briefing on the motions and will issue its decision on the two Motions in due course.