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Ogden v. Cozumel, Inc.

United States District Court, W.D. Texas, Austin Division

October 9, 2019

SUSAN OGDEN AND ROBERT L. AND MARY D. OGDEN LIMITED PARTNERSHIP, Plaintiffs,
v.
COZUMEL, INC. D/B/A EL ARROYO, Defendant.

          ORDER

          SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE

         On September 16, 2019, the District Court filed an Amended Order of Referral referring to the undersigned all pending and future motions in this case, pursuant to 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72, and Rule 1 of Appendix C to the Local Rules of the U.S. District Court for the Western District of Texas.[1]

         Before the Court are Plaintiffs' Opposed Motion for Leave to File Plaintiffs' Motion for Partial Summary Judgment (“Motion for Leave to File”) (Dkt. No. 69); Defendant's Motion to Strike Late Filed Pleading and Confirm Deemed Admissions (“Motion to Strike”) (Dkt. No. 72); and the associated response and reply briefs (Dkt. Nos. 75, 77, 78, and 81).

         I. BACKGROUND

         This suit concerns ownership of the mark EL ARROYO, which has been used for more than 40 years in association with an Austin restaurant. On September 18, 2019, the District Court accepted and adopted a Report and Recommendation to, inter alia, grant Defendant's Motion for Partial Summary Judgment on the basis that Plaintiffs' claims for breach of contract and false or fraudulent federal registration are barred by the doctrine of laches (Dkt. Nos. 66 and 73). Plaintiffs now seek leave to file a motion for partial summary judgment as to Defendant's claim of fraud in the procurement of Plaintiffs' Texas state trademark registration on the basis that it too is barred by the doctrine of laches. Defendant opposes Plaintiffs' motion, pointing out that the deadline for dispositive motions expired more than four months ago, on May 31, 2019, and jury trial is set for November 2019, just a few weeks away.

         As for the Motion to Strike, Plaintiffs' Motion to Dismiss Defendant's Counterclaims was denied on March 26, 2019 (Dkt. No. 41), making Plaintiffs' Answer to Defendant's Counterclaims (“Answer”) due on April 9, 2019, pursuant to Fed.R.Civ.P. 12(a)(4)(A). Yet Plaintiffs did not file their Answer (Dkt. No. 19) until September 13, 2019, due to “counsel's inadvertent oversight.” Dkt. No. 77 at 1. Defendant now moves to “strike the late-filed answer and confirm Defendant's allegations are deemed admitted” under Fed.R.Civ.P. 8(b)(6). Dkt. No. 72 at 2. Plaintiffs argue in response that Defendant was aware of Plaintiffs' allegations and defenses to its counterclaims; Defendant would not be prejudiced by permitting Plaintiffs' late-filed Answer; and “Defendant's Position is contrary to the Fifth Circuit's preference for decisions on the merits.” Dkt. No. 77 at 7.

         II. ANALYSIS

         The Court addresses the two motions in turn.

         A. Motion for Leave to File

         Fed. R. Civ. P. 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge's consent.” The good cause standard “requires the ‘party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.'” S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A Charles Alan Wright et al., Federal Practice and Procedure § 1552.1 (2d ed. 1990)). In making the good cause determination, courts consider four factors: (1) the explanation for the failure to timely comply with the scheduling order; (2) the importance of the modification; (3) potential prejudice in allowing the modification; and (4) the availability of a continuance to cure such prejudice. Springboards To Educ., Inc. v. Houston Indep. Sch. Dist., 912 F.3d 805, 819 (5th Cir. 2019); see also Vazquez v. State Farm Lloyds, 2019 WL 2564573, at *2 (W.D. Tex. Mar. 13, 2019) (applying these factors to request to modify dispositive motion deadline).

         Where, as here, the time to act has expired, it may be extended by motion “if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). 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. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 n.8 (5th Cir. 2006); see also Rivero v. Sunbeam Prods., 2010 WWL 1752532, at *1 (W.D. Tex. April 29, 2010).

         “Even if good cause and excusable neglect are shown, it nonetheless remains a question of the court's discretion whether to grant any motion to extend time under Rule 6(b).” McCarty v. Thaler, 376 Fed.Appx. 442, 443 (5th Cir. 2010).

The district court has broad discretion in controlling its own docket. This includes the ambit of scheduling orders and the like. Thus, a court's refusal to allow the filing of a substantive motion on the eve of trial three months after the expiration of a deadline . . . ...

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