Lujan v. city of Albuquerque6/19/2003
Plaintiffs John Lujan and Aaron Romero appeal from an unfavorable summary judgment of dismissal entered under the rationale that, under Rule 1-007.1(D) NMRA 2003, Plaintiffs' failure to respond to Defendants' motions for summary judgment constituted consent to grant the motions. We reverse.
BACKGROUND
In February 1998, Plaintiffs sued Defendants for wrongful termination of employment. A jury was requested. Discovery occurred and appears to have been diligently pursued. An October 5, 2000, scheduling order required discovery to be completed by March 30, 2001, with dispositive motions to be filed by February 28, 2001. The order set trial on a trailing docket for April 30, 2001. The order also required Plaintiffs to disclose their expert witnesses by January 30, 2001, and all parties to disclose their fact witnesses by March 1, 2001. It further stated that the parties could not stipulate to extensions, that a motion and order were required for any modification, and that extensions would be granted only upon a showing of good cause. A settlement conference occurred on February 6, 2001.
Defendants filed three motions for summary judgment on February 28, 2001. A hearing scheduled for March 28, 2001, on the motions, was vacated on March 9, 2001, on the district court's own motion and was reset for April 11, 2001. As of March 21, 2001, Plaintiffs had neither responded to Defendants' motions, nor sought any extensions. Defendants presented the district court with a letter dated March 21, 2001, enclosing a form of order granting Defendants summary judgment on their motions. The letter informed the court that Plaintiffs' "failure to file a response within the prescribed time period constitutes consent to grant the motion, and the court may enter an appropriate order." The proposed order granted Defendants' motions for summary judgment and dismissed Plaintiffs' claims with prejudice. Defendants sent a copy of the letter to Plaintiffs' counsel.
The district court signed the order submitted by Defendants dismissing each count of Plaintiffs' complaint with prejudice and vacating the trial set for April 30, 2001. The order is "dated" March 22, 2001, the "March 22" portion of which is handwritten. The order was filed on March 26, 2001, and stated: "The Plaintiffs failed to respond to these motions [for summary judgment] within the prescribed fifteen (15) day period, pursuant to Rule 1-007.1 DNMRA . This Court having considered the Defendants' brief relevant law and being otherwise informed, finds that the motions will be granted."
Plaintiffs acknowledged below, as they do on appeal, that the due date for their responses was March 18, 2001. Actually, March 18, 2001, was a Sunday. Considering the three days for mailing allowed in Rule 1-006(D) NMRA 2003, under Rule 1-006(A) Plaintiffs had until the end of the next day, which was Monday, March 19, 2001, to file their responses.
On April 4, 2001, Plaintiffs moved for reconsideration of the summary dismissal, and indicated in the motion that a copy of Defendants' letter to the district court was attached to it. In their motion for reconsideration, Plaintiffs stated that their counsel "unfortunately took [the court's continuance of the hearing date] as an indication that [counsel] could delay presentation of Plaintiffs' response . . . until 10 days before the rescheduled hearing." Plaintiffs contended that the district court erred in granting the summary judgment motions solely due to Plaintiffs' failure to timely respond to the motions within the prescribed fifteen day period, pursuant to Rule 1-007.1. On April 10, 2001, the district court denied the motion for reconsideration without ex
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