Summary
In Blangsted v. Snowmass-Wildcat Fire Protection Dist., 2008 WL 4411440 (D. Colo. Sept. 16, 2008) (slip op.), Judge Miller addressed facts similar to those presented here - a public employee alleged that he suffered retaliation for associational activities on behalf of a union, but no collective bargaining agreement was in place.
Summary of this case from Cillo v. City of Greenwood Vill.Opinion
Civil Action No. 04-cv-02260-WDM-KLM.
July 14, 2008
ORDER
Plaintiff moves to strike Defendant Cowan's untimely summary judgment motion based upon qualified immunity. Given that this case has been pending for a lengthy period of time and that the filing violates the scheduling order, the motion is justified, particularly since it would impose an unfair burden on Plaintiff to respond given the impending trial. However, as Defendant points out, Tenth Circuit authority permits the raising of qualified immunity at any time. Langley v. Adams County, 987 F.2d 1473, 1481 n. 3 (10th Cir. 1993). Although qualified immunity is a waiveable defense, See Evans v. Fogarty, 241 Fed. Appx. 542, 551 n. 9 (10th Cir.), in this case the defendants have consistently raised qualified immunity through the Pretrial Order. Therefore, I cannot conclude that the defense has been waived as to Defendant Cowan.
Presented with these competing considerations, I resolve the matter by granting Plaintiff's motion to strike the motion for summary judgment without prejudice to the right of Defendant Cowan to move for judgment as a matter of law at the close of Plaintiff's case. I recognize that this ruling deprives Defendant Cowan of one of the benefits of a pretrial ruling on qualified immunity, namely avoiding litigation expense. In this case, however, Cowan's own lack of diligence has imposed that cost as he could have timely filed a motion based on qualified immunity and did not.
Since the issue of qualified immunity remains, I will consider Defendant's motion for summary judgment as his trial brief on the issue.
Accordingly, it is ordered:
1. Plaintiff's Motion to Strike Defendant William Cowan's Motion for Summary Judgment (doc. no. 102) is granted and the motion for summary judgment (doc. no. 78) is stricken without prejudice to Defendant urging qualified immunity at the close of Plaintiff's case.