Lopez v. Cantex Health Care Ctrs. II

• Decision Date: 24 February 2023
• Docket Number: 1:22-cv-00834-KWR-JMR
• Parties: TODD LOPEZ, as Personal Representative of the wrongful death estate of Robert Lewis, Plaintiff, v. CANTEX HEALTH CARE CENTERS II, LLC, and FARMINGTON HEALTH CARE CENTERS, LTD CO. d/b/a CEDAR RIDGE INN, Defendants.
• Court: U.S. District Court — District of New Mexico

TODD LOPEZ, as Personal Representative of the wrongful death estate of Robert Lewis, Plaintiff, v. CANTEX HEALTH CARE CENTERS II, LLC, and FARMINGTON HEALTH CARE CENTERS, LTD CO. d/b/a CEDAR RIDGE INN, Defendants.

No. 1:22-cv-00834-KWR-JMR

United States District Court, D. New Mexico

February 24, 2023

CONSOLIDATED ORDER REMANDING CASES

KEA W RIGGS UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on consolidated motions to remand filed in the following eight wrongful death cases: (1) Lopez v. Cantex Health Care Centers II LLC, et al., 22-cv-00822 KWR/JMR; (2) Lopez v. Cantex Health Care Centers II, LLC, et al. 22-cv-00824 KWR/JMR; (3) Lopez v. Cantex Health Care Centers II, LLC, et al., 22-cv-00825 KWR/JMR; (4) Lopez v. Cantex Health Care Centers II, LLC, et al., 22-cv-00826 KWR/JMR; (5) Lopez v. Cantex Health Care Centers II, LLC, et al., 22-cv-00827 KWR/JMR; (6) Lopez v. Cantex Health Care Centers II, LLC, et al., 22-cv-00831 KWR/JMR; (7) Murphy v. Cantex Health Care Centers II, LLC, et al., 22-cv-00832 KWR/JMR; and (8) Lopez v. Cantex Health Care Centers II, LLC, et al., 22-cv-00834 KWR/JMR.

In each case, Defendants also filed a motion for extension of time to file an untimely response to the motion to remand. Each case is before the undersigned. Plaintiffs Mr. Lopez and Mr. Murphy (“Plaintiffs”) serve as the personal representatives for the eight different wrongful death estates. For the reasons stated below, in each case the Court (1) DENIES the motion for extension of time and (2) GRANTS the motion to remand. Each case SHALL BE REMANDED to the First Judicial District Court, County of Santa Fe, New Mexico. This order WILL BE ENTERED in all eight cases.

Defendants removed these cases from state court on the basis of (1) diversity jurisdiction; (2) federal question jurisdiction; and (3) federal officer jurisdiction. For the reasons stated below, the Court will grant Plaintiffs' motions to remand as unopposed, or alternatively grant the motions on the merits for lack of subject matter jurisdiction.

BACKGROUND

Plaintiffs represent the wrongful death estates of several individuals who died in nursing and long-term care facilities owned by Defendants. On behalf of the wrongful death estates, Plaintiffs filed Complaints for Wrongful Death in the First Judicial District Court, County of Santa Fe, New Mexico. The complaints asserted the following four state law causes of action against Defendants:

Count I: Negligence resulting in wrongful death, including ordinary negligence, negligent hiring, training, retention, and/or supervision, negligence per se, and respondeat superior;

Count II: Violations of the Unfair Practices Act;

Count III: Civil Conspiracy; and

Count IV: Joint Venture.

Plaintiffs alleged that Defendants failed to implement measures to prevent or mitigate the spread of COVID-19. They alleged that Defendants failed to implement or enforce an appropriate facility control plan, failed to routinely and systematically clean and sterilize common medical equipment and other high-contact surfaces within Defendants' facility, failed to use personal protective equipment, permitted or required staff members to continue working at the facility despite exhibiting COVID-19 symptoms, and operated the facilities with an insufficient number of staff.

Defendants removed these cases to this court. Plaintiffs filed their motions to remand on December 1, 2022. Defendants' responses were due on or about December 15, 2022. Instead, on December 20, 2022, Defendants filed untimely motions for extension of time to file their responses, and unauthorized, untimely responses to the motions to remand on December 23, 2022.

Because the motions to remand and accompanying briefing appeared to be identical or substantially similar, the Court consolidated the motions to remand for the purpose of issuing the following ruling. This consolidated ruling will be filed in each case.

DISCUSSION

I. Defendants' untimely motions for extension of time to file untimely responses to the motions to remand are denied.

A. The Court denies Defendants' motions for extension of time to respond to Plaintiffs' motions to remand, finds that Defendants did not show excusable neglect, and grants the motions to remand as unopposed.

Defendants filed motions for extension of time to respond to the motions to remand out of time, and shortly thereafter filed responses to the motions to remand without the Court's permission. For the reasons stated below, the Court will deny the untimely motions for extension of time for failure to show excusable neglect under Fed.R.Civ.P. 6(b)(1)(B), strike the untimely responses to the motions to remand, and grant the motions to remand as unopposed pursuant to the Court's local rules. See D.N.M.LR-Civ. 7.1(b) (“The failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.”).

It is undisputed that the motions for extension of time and the responses were filed untimely. Plaintiffs filed their motions to remand on December 1, 2022. The responses to the motions to remand were due within fourteen days of the filing of those motions, D.N.M.LR-Civ. 7.4(a), and the motions for extension of time was due within that same time period. Id. Defendants filed untimely motions for extension of time on December 20, 2022. The untimely responses to the motions to remand were filed on December 23, 2022, without the Court's permission.

The parties appear to agree that the Court may grant an out of time extension if the Court finds excusable neglect pursuant to Fed.R.Civ.P. 6(b)(1)(B). Therefore, the Court will consider whether Defendants established excusable neglect.

District courts may allow untimely filings “if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). A finding of excusable neglect depends on four factors: “[1] the danger of prejudice to the [non-moving party], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (citation omitted). “The most important factor is the third; an inadequate explanation for delay may, by itself, be sufficient to reject a finding of excusable neglect.” Perez v. El Tequila, LLC, 847 F.3d 1247, 1253 (10th Cir. 2017); See United States v. Torres, 372 F.3d 1159, 1163 (10th Cir. 2004). Here, the Court finds that Defendants failed to establish excusable neglect.

As to the first factor, the Court finds that Plaintiffs were prejudiced. Defendants' delay, which includes the time spent briefing the motions for extension of time, has prejudiced Plaintiffs' by delaying the resolution of their case, increasing their costs by having to not only fully brief the motions to remand, but also the motions for extension of time to respond. Moreover, Plaintiffs have had to spend more time in a forum they did not choose.

As to the second factor, the length of the delay, Defendants filed their remand responses approximately one week after the deadline. The delay has caused a multiplication of proceedings in this court.

As to the third factor, the Court finds that Defendants failed to show a justifiable or good reason for the delay, and finds that any delay was within their reasonable control.

Defendants assert that their responses were untimely because the deadline was miscalendared by staff, and the miscalendaring was caused by staff illness. Defendants do not give any details. They do not explain how the alleged illness caused the miscalendaring. They submit no evidence, aside from e-mails to opposing counsel which are largely irrelevant to excusable neglect. See D.N.M.LR-Civ. 7.3(b) (“Parties must submit evidence, in the form of declarations, affidavits, deposition excerpts, or other documents, in support of allegations of fact.”). A party asserting excusable neglect bears the burden to prove it. Defendants did not file affidavits supporting their motion or request a hearing. The Court finds that the cursory, vague facts in their motions are insufficient to establish excusable neglect.

Alternatively, the Court finds that Defendants have not established excusable neglect, even on their allegations. Defendants summarily argue that “due to a clerical error in the calendaring of the response deadline, the deadline was not calendared properly by staff. Defense counsel has had several staff members out with illness and others filling in and working overtime, and thus, it was overlooked given the sheer number of other filings in the eight cases...” Lopez v. Cantex Health Care Centers II, LLC, et al., 1:22-cv-00822 KWR-JMR, Doc. 14 at 2.

Here, the Court finds that any “miscalendaring” was more likely than not based on a misunderstanding of the local rules. The deadline was calendared for 21 days, rather 14 days, after the response. See, e.g., Lopez v. Cantex, 1:22-cv-00822 KWR-JHR, Doc. 16, at 3; Doc. 16-1, Ex. A. Twenty-one days is a common deadline in various courts. Such misunderstanding of the rules or miscalculation of the deadline does not generally constitute excusable neglect. Biodiversity Conservation All. v. Bureau of Land Mgmt., 438 Fed.Appx. 669, 673 (10th Cir. 2011) (miscalculation of deadline or failure to know or understand rule does not constitute excusable neglect).

Alternatively even if the untimely filing was not a product of misunderstanding the rules, Defendants have not shown excusable neglect based on an alleged staff member's illness or miscalendaring, or that...