Shivner v. CorrValues, LLC
| Decision Date | 05 April 2022 |
| Docket Number | Civ. 20-0497 RB/CG |
| Parties | CONNIE SHIVNER, Individually and as Personal Representative of the Wrongful Death Estate of John Shivner, Deceased, Plaintiff, v. CORRVALUES, LLC, GILA REGIONAL MEDICAL CENTER, BOARD OF TRUSTEES OF GILA REGIONAL MEDICAL CENTER, BOARD OF COUNTY COMMISSIONERS OF GRANT COUNTY, GRANT COUNTY DETENTION CENTER, JOHN/JANE DOES I AND JOHN/JANE DOES II, Individually and in his/her official capacity as an employee of Grant County Detention Center, Gila Regional Medical Center, and/or CorrValues, LLC, Defendants. |
| Court | United States District Courts. 10th Circuit. District of New Mexico |
Decedent John Shivner was arrested on December 26, 2017, and immediately underwent surgery due to a gunshot wound in his shoulder. On December 31, he was released into the custody of the Grant County Detention Center (GCDC). Shivner received follow-up outpatient shoulder surgery on February 12, 2018. During his recovery at the GCDC, Shivner's health deteriorated, and he was transported to the Gila Regional Medical Center (GRMC) on February 16, 2018. GRMC staff admitted Shivner for constipation, dehydration, nausea, and vomiting. Almost 16 hours later, he went into respiratory failure. Exploratory surgery revealed total ischemic bowel and the surgeon performed a colectomy. During recovery Shivner contracted pneumonia and refused respiratory support measures. He died on February 20, 2018.
Shivner's wife, Connie Shivner (Plaintiff), brings a lawsuit against the Board of County Commissioners of the County of Grant (the Board), CorrValues LLC (CorrValues), GRMC and the GRMC Board of Trustees (the GRMC Defendants), and John/Jane Doe officers and staff of GCDC, GRMC, and CorrValues. Plaintiff has been represented by counsel during the majority of this lawsuit, but her attorneys withdrew in October 2021, after the deadline for Plaintiff to identify expert witnesses had passed. Defendants filed three motions for summary judgment in December 2021, basing them largely on Plaintiff's failure to submit any expert testimony. Plaintiff did not respond to the motions.
On February 17, 2022, Cathryn Wallace entered a notice of appearance on behalf of Plaintiff. On the same date, Plaintiff filed a motion for leave to file responses to the motions for summary judgment, citing new lay witness testimony that she believes will create genuine factual disputes. Defendants oppose the motion. Having considered the parties' arguments and evidence before the Court, the Court will deny the motion to extend, grant the motions for summary judgment, and dismiss this lawsuit.
In her motion to extend, Plaintiff seeks an extension of time to “present additional factual information and evidence . . . to counter” Defendants' summary judgment motions. (Doc. 91 at 1.) A recitation of the procedural history of this case is in order.
Plaintiff filed her lawsuit in state court on February 19, 2020. (See Doc. 1-A at 1.) Defendants removed the matter to this Court on May 22, 2020. (Doc. 1 at 1.) United States Chief Magistrate Judge Carmen Garza held a status conference with the parties on June 23, 2020. (Doc. 10.) Cathryn Wallace, who at that time was with the Lopez & Associates law firm out of Silver City, New Mexico, was one of three attorneys who appeared at the status conference on behalf of Plaintiff. (See id.; Doc. 96 at 2.) The other two attorneys included William Perkins, also of Lopez & Associates, and Dathan Weems, of Dathan L. Weems Attorney at Law in Albuquerque. Wallace had not officially entered an appearance in the case. (See Doc. 96 at 2.) Pursuant to D.N.M. LR-Civ. 83.4(a), which mandates that “[t]o participate in a pending proceeding, an attorney must enter an appearance or obtain leave of the Court[, ]” Judge Garza advised Wallace “to enter her appearance before proceeding with her representation of Plaintiff.” (Doc. 10.) Due to a variety of health and workload concerns, and because of difficulties being admitted to federal practice, Wallace asserts that she stepped back from her representation of Plaintiff.[1] (Doc. 96 at 2.) Perkins, Weems, and another attorney from the Weems firm continued to represent Plaintiff. (See Docket.)
Plaintiff filed a First Amended Complaint in July 2020, and the Board moved to dismiss in August 2020. (See Docs. 28; 33.) The Court granted the motion in part in an Opinion entered March 18, 2021. (Doc. 42.) Plaintiff filed her Second Amended Complaint March 24, 2021. (Doc. 44 (SAC).) Judge Garza held a Rule 16 Scheduling Conference on May 20, 2021, and set the (Doc. 53.) The Scheduling Order set a deadline of September 1, 2021, for “Plaintiff to identify in writing any expert witness to be used by Plaintiff at trial and to provide expert reports pursuant to [Federal Rule of Civil Procedure] 26(a)(2)(B) . . . .” (Doc. 55 at 1.) The Court set pretrial conferences for September and October 2022, and a jury trial beginning November 28, 2022. (Docs. 58-60.) Judge Garza held a status conference on July 15, 2021, and the parties “agreed that discovery [was] proceeding as scheduled.” (Doc. 62.)
On October 4, 2021, the Dathan Weems Law Firm moved to withdraw as counsel for Plaintiff, explaining that “Plaintiff no longer wishes for [the firm] to represent her in this matter.”
(Doc. 68 at 1.) Judge Garza granted the motion. (Doc. 69.) On October 6, 2021, William Perkins filed a motion to withdraw, citing the same reason. (Doc. 70 at 1.) Judge Garza denied the motion without prejudice for failure to comply with D.N.M. LR-Civ. 83.8(a). (Doc. 71.) Judge Garza held a telephonic status conference on October 8, 2021. (Doc. 72.) Perkins and Plaintiff were both present. (See id.) Judge Garza “asked counsel the status of discovery.” (Id.) “Counsel stated that the parties have exchanged written discovery, that Plaintiff's deposition is currently scheduled for November 19, 2021, and that Defendants do not anticipate conducting any other depositions.” (Id.) Neither Plaintiff nor Perkins mentioned needing more time to secure an expert. (See id.) Judge Garza explained to “Plaintiff that, if she were to proceed pro se in this matter, the Court would be required to hold her to the same rules of procedure as an attorney practicing before this Court.” (Id.) Plaintiff stated that she understood. (Id.) Perkins re-filed his motion to withdraw as counsel on October 14, 2021, and Judge Garza granted it the next day. (Docs. 74-75.)
Judge Garza held another status conference on December 7, 2021. (Doc. 79.) Plaintiff appeared and did not request additional time for discovery or to secure an expert. (See id.) Defendants filed their motions for summary judgment on December 30, 2021, the deadline for pretrial motions. (See Docs. 55 at 2; 80-82.) When Plaintiff failed to respond to the motions, Defendants filed notices that briefing was complete. (Docs. 84-86.)
On February 8, 2022, at Wallace's request, Judge Garza held a status conference, at which both Plaintiff and Wallace appeared. (See Doc. 89.) Wallace “explained she was seeking an extension of time to respond to the dispositive motions currently pending . . . .” (Id.) Judge Garza advised her to file a motion. (Id.) Wallace entered her appearance on February 17, 2022, and filed her motion to extend on the same day. (Docs. 90-91.) Plaintiff requests leave to respond out of time to the dispositive motions to present “additional evidence very recently obtained that may rebut the facts alleged in the . . . Motions for Summary Judgment.” (Doc. 91 at 2.)
Under Federal Rule of Civil Procedure 6(b), “the court may, for good cause, extend the time” for Plaintiff to respond “on [a] motion made after the time has expired if [she] failed to act because of excusable neglect.” Fed. R. Civ. 6(b)(1)(B). “[A] finding of excusable neglect under Rule 6(b)[(1)(B)] 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.” Est. of Anderson v. Denny's Inc., 291 F.R.D. 622, 631 (D.N.M. 2013) (quoting In re Four Seasons Sec. Laws Litig., 493 F.2d 1288, 1290 (10th Cir. 1974)) (subsequent citation omitted). “[I]t is well established that inadvertence, ignorance of the rules, and mistakes construing the rules do not constitute excusable neglect for purposes of Rule 6(b).” Id. at 631-32 (quoting Quigley v. Rosenthal, 427 F.3d 1232, 1238 (10th Cir. 2005)). The Court examines several factors in deciding whether Plaintiff has shown excusable neglect, “including: (i) the danger of prejudice to the opposing party; (ii) the length of the delay and its potential impact on the judicial proceedings; (iii) the reason for the delay, including whether it was within the reasonable control of the movant; and (iv) whether the movant acted in good faith.” Id. at 632 (citing Schupper v. Edie, 193 F. App'x. 744, 746 (10th Cir. 2006)) (subsequent citation omitted). Defendants argue that Plaintiff has shown neither good cause nor excusable neglect for her failure to timely respond to the motions. (See Docs. 93 at 3-5; 94 at 2-6; 95 at 3-8.)
CorrValues contends that Defendants would be prejudiced by allowing Plaintiff's response when she relies on affidavits from individuals “whom Defendants had (and will have) no opportunity to depose, discovery having closed December 1 2021.” (Doc. 95 at 7-8.) The Court agrees that Defendants will suffer some prejudice from Plaintiff's late submission of the affidavits after the close of discovery. Not only will they not have the opportunity to depose the late-identified witnesses, but Defendants might want to...
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