NAVAJO NATION S REPLY IN SUPPORT OF ITS MOTION TO DISMISS CERTAIN NON-SETTLING PARTIES FOR FAILURE TO COMPLY WITH COURT S SCHEDULING ORDERS

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1 STATE OF NEW MEXICO SAN JUAN COUNTY THE ELEVENTH JUDICIAL DISTRICT COURT STATE OF NEW MEXICO, ex rel. STATE ENGINEER, Plaintiff, vs. THE UNITED STATES OF AMERICA, et al., Defendants. D-1116-CV HON. JAMES J. WECHSLER Presiding Judge SAN JUAN RIVER GENERAL STREAM ADJUDICATION Claims of the Navajo Nation Case No. AB-07-1 NAME OF PARTY: Navajo Nation. DESCRIPTIVE SUMMARY: The Navajo Nation provides additional authorities and argument in support of its Motion to Dismiss filed with the Court on October 4, NUMBER OF PAGES: 5 DATE OF FILING: October 24, NAVAJO NATION S REPLY IN SUPPORT OF ITS MOTION TO DISMISS CERTAIN NON-SETTLING PARTIES FOR FAILURE TO COMPLY WITH COURT S SCHEDULING ORDERS When a party is unable to comply with a deadline established by the Court, the proper course is to seek an extension of time in which to complete the required tasks. The Navajo Nation, United States and all parties who have filed responses to the Nation s Motion to Dismiss Certain Non-Settling Parties for Failure to Comply with Court s Scheduling Orders (filed Oct. 4, 2012) ( Navajo Nation Motion to Dismiss ) appear to agree on this point. Where we part company is over what should happen if the Court fails to rule on a motion for extension of time

2 and a deadline established in the Court s Scheduling Orders 1 is imminent. In such circumstances, [t]he proper course [is] to obey the court s order, Miksis v. Howard, 106 F.3d 754, 760 (7 th Cir. 1997), not ignore the order in reliance on the extension motion. 2 In Miksis, the United States Court of Appeals for the Seventh Circuit upheld the district court s decision to exclude defendant/appellant s medical experts as a sanction for their failure to disclose the experts within the time established in the district court s scheduling order. There, as here, appellants sought an extension of the court established deadline. There, as here, the appellants then let the deadline pass. As the Court of Appeals observed: The court issued no ruling modifying its September discovery schedule. Thus, that schedule remained in force and defendants disregarded it at their own risk. Defendants delay was not tardy only because of the court s own delay in ruling. Rather, defendants made a tactical decision to wait and see how the court ruled on their motion. The proper course was to obey the court s order, timely disclose the list of experts and their proposed opinion is, and update that disclosure if a medical examination was granted or if otherwise necessary. Miksis, 106 F.3d at 760 (emphasis in original). The Court of Appeals went on to conclude that [u]nwise tactical decisions such as this are not the type of occurrence for 1 Continuing the use of terms defined in its Motion to Dismiss, Scheduling Orders refers collectively to the August 7, 2012 Amended Order Setting Schedule Governing Discovery on the Non-Settling Parties and Remaining Proceedings, the February 3, 2012 Order (1) Granting Settling Parties Motion to Extend Certain Deadlines and (2) Setting Schedule Governing Discovery and Remaining Proceedings, and the September 29, 2011 Scheduling Order Governing Initial Pretrial Activities. 2 In its Motion to Dismiss, the Navajo Nation cited an unreported decision from the United States District Court for the Middle District of Florida for this proposition. Ellison v. Windt, 2001 WL , at *2 (M.D.Fla. Jan.24, 2001) ( Pendency of a motion for enlargement of time does not relieve the movant of the responsibility to comply with an existing deadline. If it did, parties could routinely ignore established deadlines by filing motions for enlargement of time on or shortly before a deadline. )

3 which we reverse trial courts on appeal. Id. (quoting Daniel J. Hartwig Assoc., Inc. v. Kanner, 913 F.2d 1213, 1223 (7 th Cir. 1990). This Court is vested with broad discretion to manage its docket in a manner that promotes judicial efficiency and economy. In pursuit of those goals, the Court is empowered to impose sanctions when parties fail to conform their actions to the schedule established by the Court. The Non-Settling Parties have long been on notice that failure to comply with the Scheduling Orders particularly failure to timely file objections to the settlement could result in their dismissal from the Navajo Inter Se. The various responses to the Navajo Nation s Motion to Dismiss cite no authority to the contrary. The Cities of Aztec and Bloomfield ( Cities ) assert that they should not be dismissed because the Cities filed a timely motion for extension of time, requesting an extension of all deadlines in this matter. Cities Response to Navajo Nation s Motion to Dismiss Certain Non-Settling Parties for Failure to Comply with Court s Scheduling Order and United States Joinder in the Navajo Nation s Motion to Dismiss (filed Oct. 18, 2012) at 2. None of the cases cited by the Cities stand for the proposition that a party, when faced with deadlines it cannot meet, should seek an extension of time and the party s claim should not be dismissed. Cities Response at 7 (emphasis added) (citing Gaylord Shops, Inc. v. South Hills Shoppers City, Inc., 33 F.R.D. 303, 305 (W.D. Penn. 1963); Chiropractic Alliance of New Jersey v. Parisi,164 F.R.D. 618, 621 (D.N.J. 1996); Kassim v. City of Schenectady, 221 F.R.D. 363, 366 (N.D.N.Y. 2003)). Unlike the decision in Miksis, the cases cited by the Cities simply do not address the obligations of a party who, facing a hard scheduling deadline, has sought an extension of time on which the court has not ruled. In none of those cases did the courts hold that by filing a request for an extension of time, a party is excused from complying with the court imposed deadlines

4 Citing to the somewhat incongruously titled universal rule of practice in New Mexico, the community ditch defendants too allege that the filing of a timely motion for extension of time tolls deadlines imposed by the court until the court rules on the motion. Community Ditch Defendants Opposition to Navajo Nation s Motion to Dismiss (filed Oct. 19, 2012) at 2 ( The universal rule of practice in New Mexico is that the filing of a timely motion for extension of time has the effect of tolling deadlines until the court rules on the motion. ). Unlike the Navajo Nation, the community ditch defendants cite no authority, either from New Mexico or elsewhere, substantiating the existence of the point of law on which they rely. The Navajo Nation is not aware of the universal rule of practice and apparently is not on the service list of the oracle responsible for the pronouncement of such rules in the State. Finally, the San Juan Water Commission ( SJWC ) argues that actions of the Settling Parties have established a course of dealing in this proceeding consenting to the suspension of deadlines pending final resolution of timely filed motions for extensions. San Juan Water Commission s Response in Opposition to the Navajo Nation s Motion to Dismiss (filed Oct. 19, 2012) at 5-6. SJWC cites no authority, and the Navajo Nation is aware of none, for incorporating the concept of course of dealing from contract law into the rules governing practice before the courts. 3 Many of the Non-Settling Parties made no effort to comply with the deadline for filing objections and disclosures established in the Court s Scheduling Orders. Other Non-Settling Parties made a tactical decision to rely on their unresolved motions for extension of time and simply disregarded the Court s long-established deadlines. In both cases, dismissal of the non- 3 See U.C.C. Art. 1, 1-205(1) ( A course of dealing is a sequence of previous conduct between parties to a particular transactions which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct. ) - 4 -

5 compliant parties is the appropriate sanction where the Court has repeatedly advised the parties of the importance of adherence to the Scheduling Orders and specifically advised that the Court would consider dismissal as an appropriate sanction for non-compliance. See Miksis, 106 F.3d at 760 ( The court issued no ruling modifying its September discovery schedule. Thus, that schedule remained in force and defendants disregarded it at their own risk. ). The Navajo Nation s Motion to Dismiss is well-founded and should be granted. Respectfully submitted this 24 th day of October, NAVAJO NATION Stanley M. Pollack M. Kathryn Hoover Navajo Nation Department of Justice Post Office Drawer 2010 Window Rock, Navajo Nation (AZ) (928) CERTIFICATE OF SERVICE I hereby certify that on this 24th day of October, 2012, an electronic version of the Navajo Nation s Reply in Support of its Motion to Dismiss Certain Non-Settling Parties for Failure to Comply with Court s Scheduling was served by electronic mail to: wrnavajointerse@nmcourts.gov and aoccaj@nmcourts.gov. Stanley M. Pollack - 5 -