Rosenblatt v. District of Columbia Public Schools, Early Childhood ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
BARBARA ROSENBLATT, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1469 (RWR)
)
MAYOR ADRIAN FENTY, )
)
Defendant. )
_____________________________ )
MEMORANDUM ORDER
The Scheduling Order was entered at a time after the
plaintiff had already filed two amended complaints. Since any
further amendments to the complaint had to be made by motion
under Federal Rule of Civil Procedure 15(a), the Scheduling Order
set a deadline of May 27, 2010 for any further motion to amend
the complaint. On May 27, 2010 and June 7, 2010, the plaintiff
improperly filed a third amended complaint and a corrected third
amended complaint, respectively, neither accompanied by any
motion for leave to amend. Rather than striking the third
amended complaint and corrected third amended complaint, the
Court will treat them as motions for leave to amend that were
unopposed by the defendant and will grant them.
The plaintiff filed a motion to file out of time her
opposition to the defendant's motion to dismiss, but she failed
to comply with the requirement of Local Civil Rule 7(m) that she
include in the motion a statement that she contacted opposing
-2-
counsel in advance to determine whether there is any opposition
to the relief sought. The defendant filed no opposition, and
rather than denying plaintiff's motion for failure to comply with
Local Civil Rule 7(m), the Court will grant it as conceded.1
The defendant filed a fourteen-page motion and memorandum to
1) dismiss Mayor Fenty as a defendant from the third amended
complaint which fails to name him in his official capacity and to
substitute the District of Columbia as the defendant; 2) dismiss
plaintiff's claim under 42 U.S.C. § 1981 for failure to state a
claim of municipal liability against the District of Columbia;
and 3) dismiss Count IV of the third amended complaint for
plaintiff's failure to exhaust her administrative remedies under
the Comprehensive Merit Personnel Act, D.C. Code § 1-601.01 et
seq. The plaintiff's one-and-one-half page opposition asserts an
intent to sue Mayor Fenty in his official capacity and seeks
leave to amend the third amended complaint to allege his official
capacity status, but fails to address the arguments advanced by
the defendant in support of dismissing the § 1981 claim and Count
IV. The Court will grant the plaintiff leave to amend the
complaint to allege the official capacity status of the
defendant. However, because an argument in a dispositive motion
that the opponent fails to address in an opposition may be deemed
1
Plaintiff is cautioned to scrupulously abide by the
governing rules in the future as the leeway granted in this Order
may not be extended again.
-3-
conceded, see Bonaccorsy v. District of Columbia, 685 F. Supp. 2d
18, 24 (D.D.C. 2010) (citing CSX Transp. Inc. v. Commercial Union
Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986); Felter v.
Salazar, 679 F. Supp. 2d 1, 3 n.2 (D.D.C. 2010), the defendant's
motion to dismiss the § 1981 claim and Count IV will be granted
as conceded.
The plaintiff has filed a consent motion to enlarge
discovery by two months because the defendant has not provided
records plaintiff sought over six weeks ago (see Joint Motion to
Enter Protective Order, Docket #23) and because she filed a
motion to compel which challenges the signature on the
defendant's interrogatory responses. (See Plaintiff's Motion to
Compel, Docket #24.) Resolution of the question concerning the
signature does not depend upon the discovery deadline. The
consent motion offers no reason why the records that have not
been produced in over six weeks will require another two months
to produce given due diligence. Because giving the defendant an
additional 30 days to produce the requested records is a fair
disposition, the consent motion will be granted only in part.
Accordingly, it is hereby
ORDERED that the plaintiff's third amended complaint [14]
and corrected third amended complaint [18], treated as motions
for leave to amend the complaint, be, and hereby are, GRANTED.
It is further
-4-
ORDERED that the plaintiff's motion [20] for leave to file
out of time be, and hereby is, GRANTED. It is further
ORDERED that the defendant's motion [19] to dismiss be, and
hereby is, GRANTED IN PART and DENIED IN PART. The request to
dismiss Mayor Fenty and substitute the District of Columbia as a
defendant is denied, and the plaintiff shall have until
September 7, 2010 to file an amended complaint alleging Mayor
Fenty's official capacity status. The § 1981 claim and Count IV
are dismissed. It is further
ORDERED that the plaintiff's consent motion [28] to enlarge
discovery be, and hereby is, GRANTED IN PART. The discovery
deadline is extended to September 27, 2010. It is further
ORDERED that the post-discovery status conference be, and
hereby is, continued to September 28, 2010 at 9:45 a.m.
SIGNED this 26th day of August, 2010.
________/s/_________________
RICHARD W. ROBERTS
United States District Judge