United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is HRchitect, Inc. and Matt Lafata's
Motion for Leave to File Motion for Summary Judgment and
Motion to Dismiss (Dkt. #44). The Court, having considered
the relevant pleadings, finds the motion should be denied.
24, 2016, Plaintiff Jana Graham (“Graham”) filed
a lawsuit in the United States District Court for the
Northern District of Georgia, Atlanta Division alleging
various employment claims (Dkt. #1). Specifically, Plaintiff
alleges Defendant HRchitect, Inc. failed to pay her minimum
wage and its President Matt Lafata (“Lafata”)
retaliated against her in violation of the Fair Labor
Standards Act of 1938 (Dkt. #1). On September 26, 2016, the
Northern District of Georgia, Atlanta Division transferred
the case to this Court (Dkt. #26). On October 5, 2016, the
Court issued its Order Governing Proceedings (Dkt. #28) and
set the scheduling conference for November 28, 2016. On
November 14, 2016, the parties submitted a Joint Rule 26(f)
Attorney Conference Report complete with proposed scheduling
order dates (Dkt. #35). On December 9, 2016, the Court issued
its Scheduling Order, entering the proposed dates submitted
by the parties (Dkt. #38). The Scheduling Order set a March
6, 2017 deadline for motions to dismiss, motions for summary
judgment, and other dispositive motions.
contends that Plaintiff's counsel contacted
Defendants' counsel to propose deposition dates on
December 20, 2016, and several times thereafter (Dkt. #46 at
p. 2). Plaintiff further contends that Defendants'
counsel did not seek deposition dates for Graham until after
the dispositive motion deadline (Dkt. #46 at p. 2). Both
Graham and Matt Lafata were deposed on June 15, 2017.
10, 2017, Defendants filed this Motion for Leave to File
Motion for Summary Judgment and Motion to Dismiss (Dkt. #44).
On July 17, 2017, Plaintiff filed a response (Dkt. #46).
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).
request leave to file a motion for summary judgment after the
dispositive motion deadline and claim there is good cause to
grant their request. Defendants argue that the Court should
apply a good cause analysis and allow the Defendants to file
a dispositive motion after the deadline because
“substantial justification” exists. However, this
is not the correct standard. A simple good cause analysis
only applies where the party seeks an extension
before the deadline passes. See Fed. R.
Civ. P. 6(b)(1)(A). Here, Defendants' counsel did not
request an extension of the dispositive motion deadline until
after the deadline had already passed. A party
seeking an after-the-fact extension bears a heavier burden of
demonstrating both “good cause” and
“excusable neglect.” See Fed. R. Civ. P.
6(b)(1)(B) (“[T]he court may, for good cause, extend
the time . . . on motion made after the time has
expired if the party failed to act because of excusable
neglect.”) (emphasis added). 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 v. Sunbeam Prod., Inc.,
No. CIVA SA-08-CV-591-XR, 2010 WL 1752532, at *1 (W.D. Tex.
April 29, 2010) (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 Defendants have not shown
first factor, danger of prejudice to the non-movant, weighs
against the Court granting the motion for leave. 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, Defendants filed
their motion for leave to file a motion for summary judgment
over three months after the dispositive motion deadline.
Thus, it is likely that Plaintiff was “under the
impression that there were no further grounds” for
summary judgment. Id. Also, this case's
pre-trial conference is set for September 22, 2017, with
trial scheduled in October 2017. Therefore, it is likely that
Plaintiff has been preparing for trial, as the pretrial
conference is impending. Thus, as in Rivero, hearing
Defendants' summary judgment motion could adversely
affect Plaintiff's “trial preparation in reliance
on the scheduling order deadlines.” Id.
have also found prejudice when considering an untimely
summary judgment motion could force the parties to go to
trial without a summary judgment ruling. Deaton,
2014 WL 3452486, at *2. The Deaton case was
scheduled for trial only two months after the defendant filed
its untimely summary judgment motion. Id. Therefore,
the court warned that “the parties could be forced to
go to trial without a ruling” on the motion, which
would result in “further prejudice to Plaintiff.”
Id. This was because both parties would have to
fully brief the summary judgment motion two months before
trial. Id. Here, trial is also only two months away,
and both parties would have to fully brief the summary
judgment motion. This presents the possibility that trial
could start without a summary judgment ruling, which would
further prejudice Plaintiff.
second factor, the delay's length and its potential
impact on judicial proceedings also weighs against finding
excusable neglect. District courts in the Fifth Circuit have
found delays as short as a few weeks as too long to find
excusable neglect. Rivero, 2010 WL 1752532, at *1.
For example, the deadline to file dispositive motions in
Rivero was March 15, 2010. Id. The
defendant did not file a motion for leave to file a motion
for summary judgment until April 14, 2010. Id. In
refusing to find excusable neglect, the Rivero court
emphasized that the defendant was “aware as of March
23, 2010, that its own expert's opinion could serve the
basis for a motion for summary judgment, yet waited until
April 14 to seek leave from the Court to file a dispositive
motion beyond the deadline.” Id. In this case,
Defendants should have been aware from the moment Graham
filed suit that her testimony could be the basis for a
summary judgment motion. Yet Defendants waited until June 15,
2017, to depose Graham, long after the dispositive motion
deadline had passed. This lengthy delay is simply too long to
support an excusable neglect finding, especially considering
the impending trial.
third factor-reason for the delay and whether it was in
Defendants' reasonable control-also weighs against
finding excusable neglect. Defendants' argue the reason
for the delay in filing its summary judgment motion was
because of “significant factual developments, ”
discovery disputes, witnesses in different states, and
defense counsel's “unavoidable ...