United States District Court, W.D. Texas, Austin Division
SUSAN OGDEN AND ROBERT L. AND MARY D. OGDEN LIMITED PARTNERSHIP, Plaintiffs,
COZUMEL, INC. D/B/A EL ARROYO, Defendant.
HIGHTOWER, UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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.
Court addresses the two motions in turn.
Motion for Leave to File
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).
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).
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.
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 . . . ...