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Stratton v. Rapid City Lodge

April 29, 2010

JENNA M. STRATTON, PLAINTIFF,
v.
RAPID CITY LODGE, NO. #1187 ORDER OF ELKS OF THE UNITED STATES OF AMERICA; FRANCIS JOHNSON, INDIVIDUALLY; AND FRANCIS JOHNSON, BERNARD D. FRIEND, LARRY BULMAN, MORRIS MOST, AND MERLE WHITE IN THEIR CAPACITY AS BOARD TRUSTEES OF THE RAPID CITY LODGE, NO. #1187 BENEVOLENT & PROTECTIVE ORDER OF ELKS OF THE UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

PLAINTIFF'S MOTION FOR LEAVE FROM SCHEDULING ORDER BENEVOLENT & PROTECTIVE

PROCEDURAL HISTORY

On February 17, 2010, plaintiff filed a motion for substitution of party or in the alternative motion for leave from scheduling order. (Docket 49). On March 11, 2010, all defendants, except Francis Johnson, filed a response (Docket 56) in opposition to plaintiff's motion (the "Lodge Defendants"). Defendant Francis Johnson does not oppose plaintiff's motion ("Defendant Johnson"). While this motion was pending, Defendant Johnson filed a motion to extend deadlines (Docket 62) which is not opposed by plaintiff, but the Lodge Defendants have informally advised the court that they oppose Defendant Johnson's motion to extend deadlines based solely on their objection to plaintiff's pending motion. Both motions are ripe for resolution by the court.

FACTUAL BACKGROUND FOR PLAINTIFF'S MOTION

The essence of plaintiff's motion for substitution of party or for leave from the scheduling order is to allow the withdrawal of defendant Merle White and the inclusion of Brettrick J. Sutton, in his official capacity, as a member of the Board of Trustees of the Rapid City Lodge No. #1187 Benevolent & Protective Order of Elks of the United States of American. (Docket 49, p. 1). The basis for this request is that Mr. White resigned from the board of trustees on April 7, 2007, and plaintiff has just recently, through the deposition of Mr. Sutton in January 2010, confirmed that Mr. Sutton was appointed as an interim board member following Mr. White's resignation. Id. Plaintiff asserts that good cause exists to warrant leave of the court to allow the filing of an amended complaint after the deadline established for amendment of pleadings by the scheduling order. (Docket 10). The scheduling order set the deadline to join additional parties and amend pleadings as September 1, 2009. Subsequent joint or unopposed motions to amend the scheduling order have been filed by the parties, but the September 1, 2009, deadline was never modified.

Plaintiff's motion for substitution of party or for leave from scheduling order was filed six months after the original deadline for adding additional parties or amending pleadings. Plaintiff asserts that her good cause for not timely filing the amended complaint consists of the following:

1. Defendant Merle White was originally believed to be on the board of trustees from and after July 2007. (Docket 50, p. 1).

2. Defendants' answer (Docket 4, ¶ 7) included a general allegation that Mr. White was a board member from "April 1, 2004 through approximately March 1, 2007." (Docket 57, p. 1).

3. Defendants' initial disclosures (Docket 57-1, ¶ 36) as to Mr. Sutton were "address and telephone number are unknown. Mr. Sutton may have information regarding the allegations . . . ." Id. at p. 2.

4. Defendants' answer and responses to written discovery were not received by plaintiff until after the amendment to pleadings deadline, and then did not contain the official minutes of the meetings of the board of trustees. See Docket 57-6. (Docket 57, p. 3).

5. The depositions of Mr. White and the other board of trustee members, taken September 22, 2009, through October 7, 2009, were unclear as to when Mr. Sutton succeeded Mr. White on the board of trustees. Id. at pp. 2-3.

6. The deposition of Mr. Sutton could not be scheduled until January 5, 2010. Id. at p. 3.

7. It was only as a result of Mr. Sutton's deposition that plaintiff was able to confirm Mr. Sutton had been on the board of trustees at all times relevant to plaintiff's causes of action against the board members in their official capacities. Id. at p. 4.

8. Plaintiff's counsel then had to wait until Mr. Sutton's deposition was transcribed to submit it with ...


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