June 20, 2019

Colorado Court of Appeals: Defendant’s Attorney’s Miscalculation of Deadline Is Not Excusable Neglect

The Colorado Court of Appeals issued its opinion in Sebastian v. Douglas County on Thursday, September 12, 2013.

CRCP 60(b)(1)—K-9 Dog—Intentional Seizure—Excusable Neglect—42 USC § 1983.

Plaintiff Fabian Sebastian appealed from the district court’s order, entered on remand from the Colorado Court of Appeals, denying his CRCP 60(b)(1) motion to set aside the court’s judgment entered in favor of defendants. The order was affirmed.

Deputy Black allowed a K-9 dog to give chase to two other suspects who fled. The dog stopped at a fence that the two suspects had successfully climbed. It returned to the suspect vehicle, where Sebastian remained seated, and proceeded to attack him.

Sebastian asserted that he was entitled to recover damages because the attack violated rights guaranteed him by the Fourth and Fourteenth Amendments to the U.S. Constitution. He claimed that Deputy Black was negligent, and that his conduct was outrageous. Sebastian failed to timely respond to defendants’ motion to dismiss the action for failure to state a claim on which relief could be granted. The court dismissed Sebastian’s complaint and later denied Sebastian’s motion to set aside the judgment of dismissal under CRCP 60(b)(1).

On appeal, Sebastian contended that the district court erred in denying his 60(b)(1) motion. Sebastian’s failure to file a timely response, however, was not excusable based on his attorney’s miscalculation of the deadline. Further, he did not present a meritorious claim. The district court concluded that Sebastian’s allegations would not support a finding of the threshold issue—that is, an intentional seizure—to support his 42 USC § 1983 claim. Although the trial court did not analyze any equitable considerations in favor of granting Sebastian’s 60(b)(1) motion, the district court’s decision refusing to vacate the judgment of dismissal was not manifestly arbitrary, unreasonable, or unfair based on the first two factors. Thus, the court did not abuse its discretion.

Summary and full case available here.

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