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Lafontaine v. Tween Brands, Inc.

United States District Court, E.D. Texas, Sherman Division

June 16, 2017




         Pending 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.


         On 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.

         On May 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).


         Rule 56 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).


         Tween 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, 2017.

         Tween 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.

         Excusable Neglect

         Because 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.

         1. Danger of Prejudice to Non-Movant

         The 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 ...

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