Rosenblatt v. District of Columbia Public Schools, Early Childhood

• Court: District Court, District of Columbia
• Decided: August 26, 2010
• Docket: Civil Action No. 2009-1469
• Status: Published

Opinion

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