United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Renee Lafontaine's Motion
to Strike Defendant Tween Brands, Inc.'s Motion for
Summary Judgment (Dkt. #25). After considering the relevant
pleadings, the Court finds that the motion should be granted.
April 1, 2015, Renee Lafontaine (“Lafontaine”)
was a customer at Justice Stores, L.L.C. in Stonebriar Centre
in Frisco, Texas. While in the store, Lafontaine slipped and
fell in a puddle of water, resulting in left knee injuries,
neck pain, headaches, and stiffness (Dkt. #26 at p. 4). On
April 18, 2016, Lafontaine sued Tween Brands, Inc.
(“Tween”), the store owner, in state court for
negligence based on premises liability. Lafontaine alleges
that Tween “failed to maintain its premises in a
reasonable safe condition as would a prudent retail store
operator.” (Dkt. # 1, Exhibit C at pp. 2-3). Lafontaine
also alleges that Tween “negligently created and/or
allowed to exist a dangerous condition” because a
customer came into the store “with a leaking water
bottle despite Tween's policy prohibiting drinks and food
inside their store.” (Dkt. # 1, Exhibit C at pp. 2-3).
Finally, Lafontaine asserts that Tween “controlled
customer's ingress and egress into and out of the store,
” and thus assumed a legal duty owed to Lafontaine.
20, 2016, Tween removed the case to this Court based on
diversity jurisdiction (Dkt. #1 at pp. 2-3). The Court's
Scheduling Order set the deadline for filing dispositive
motions for December 27, 2016 (Dkt. #11). On March 31, 2017,
Tween filed a Motion for Summary Judgment (Dkt. #22) three
months after the deadline, alleging that Lafontaine cannot
prove that Tween or its employees had actual or constructive
knowledge of the puddle. On April 10, 2017, Lafontaine filed
an Amended Motion to Strike Tween's Motion for Summary
Judgment (Dkt. #25), on the basis that the summary judgment
motion was untimely. On April 12, 2017, Tween filed a
Response to Lafontaine's Motion to Strike, and a Motion
to Extend Time (Dkt. #26).
of the Federal Rules of Civil Procedure states that a party
may move for summary judgment at any time until 30 days after
the close of all discovery unless a different time
is set by a local rule, or a court orders otherwise.
Fed.R.Civ.P. 56(c)(1) (emphasis added). Rule 16 states that a
scheduling order may only be modified for “good
cause” and with the judge's consent. Fed. R. Civ. P
16(b)(4); S & W Enters. v. SouthTrust Bank, 315
F.3d 533, 536 (5th Cir. 2003). Also, Rule 6 states
that if a request is made to extend time after the original
time has already expired, the court may “for good
cause, extend the time . . . if the party failed to act
because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).
asserts that its failure to file its Motion for Summary
Judgment by December 27, 2016, was justified by
“excusable neglect” under Rule 6 of the Federal
Rules of Civil Procedure (Dkt. #26 at pp. 7-9). Tween also
contends that good cause exists under Rule 16 of the Federal
Rules to extend the dispositive motion deadline to March 31,
must satisfy both the excusable neglect and good cause
requirements to prevent the Court from granting
Lafontaine's Motion to Strike. Tween primarily argues
that it satisfies these requirements because it relied solely
on Lafontaine's deposition testimony to support its
summary judgment motion, but did not have this testimony
until February 13, 2017 (Dkt. #26 at p. 8). Therefore, Tween
argues it satisfies the requirements because it did not have
the information it relied on to support its summary judgment
motion until after the deadline.
the deadline for filing dispositive motions passed before
Tween filed its motion for summary judgment, Tween must first
show that its failure to timely act was due to
“excusable neglect.” Fed.R.Civ.P. 6(b);
Rivero v. Sunbeam Products, Inc., No.
SA-08-CV591-XR, 2010 WL 1752532 (W.D. Tex. Apr. 29, 2010).
Relevant factors used to determine “excusable
neglect” include: (1) the danger of prejudice to the
non-movant; (2) the length of the delay and its potential
impact on judicial proceedings; (3) the reason for the delay,
including whether it was within the movant's reasonable
control; and (4) whether the movant acted in good faith.
Rivero, 2010 WL 1752532, at *1 (citing Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship,
507 U.S. 380, 395 (1993); Adams v. Travelers Indem. Co.
of Conn., 465 F.3d 156, 161 n.8 (5th Cir. 2006)). For
the following reasons, the Court finds that Tween fails to
satisfy excusable neglect.
Danger of Prejudice to Non-Movant
danger of prejudice to Lafontaine is clear. District courts
in the Fifth Circuit have found prejudice in this context
when finding excusable neglect would affect trial
preparation. Deaton v. Kroger Co., No. 4:13-CV-254,
2014 WL 3452486, at *2 (E.D. Tex. July 15, 2014); see
Rivero, 2010 WL 1752532, at *1 (finding excusable
neglect would prejudice plaintiff because it would
“impact their preparation for trial in reliance on the
scheduling order deadlines”). In Deaton, the
defendant filed a motion for leave and a motion for summary
judgment on July 27 and July 30, 2014, over six months after
the December 11, 2013 deadline to file summary judgment
motions. 2014 WL 3452486, at *1. The Deaton court
found the “potential prejudice to Plaintiff is
extremely high” because the plaintiff was “under
the impression that there were no further grounds for a
summary judgment motion, and has been preparing for trial in
September of 2014.” Id. Here, Tween filed
their motion for summary judgment over three months after the
dispositive motion deadline. Thus, it is likely that
Lafontaine was “under the impression that there were no
further grounds” for summary judgment. Id.
Also, this case's pre-trial conference is set for July
21, 2017, with trial scheduled sometime ...