United States District Court, S.D. Texas, Houston Division
ORDER GRANTING DOE'S MOTION TO SUPPLEMENT THE
SUMMARY JUDGMENT RECORD
Rosenthal Chief United States District Judge
2015, Jane Doe, an 18-year-old high school senior, had an
intimate relationship with one of her teachers, Robert
Milton. Doe sued the Katy Independent School District,
several District employees, and Milton, asserting federal
claims under 42 U.S.C. § 1983, 20 U.S.C. §1681
et seq. (Title IX), and a state-law claim for
intentional infliction of emotional distress. (Docket Entry
No. 1). After four motions to dismiss and multiple amended
complaints, the Title IX claim against the District remains.
The District has moved for summary judgment that it is not
liable under Title IX. (Docket Entry No. 58). Doe responded
and the District replied. (Docket Entry Nos. 65, 66). The
court heard oral argument on the motion. (Docket Entry No.
70). Doe then moved to supplement the summary judgment
record, which the District opposes. (Docket Entry Nos. 71,
argument is that there were earlier incidents at District
schools involving Milton that would allow a jury to find that
the District knew of, and was deliberately indifferent to,
the risk that he continued to pose to female students like
Doe. After the court heard oral argument on the summary
judgment motion, Doe moved to supplement the summary judgment
record with declarations from “Jackie,
” who Doe alleges had an intimate
relationship with Milton while a student at a District school
in 2001, and Jackie's uncle, Brian Moorehead. (Docket
Entry No. 71).
2001, Milton was an art teacher at Mayde Creek High School.
(Docket Entry No. 65 at 3). Moorehead testifies in his
declaration that Jackie had lived with him while she was a
student at Mayde Creek High School. (Docket Entry No. 71-2 at
¶ 3). Moorehead testifies that he had discovered
inappropriate “love letters” from Milton to
Jackie. (Id. at ¶ 4). Moorehead testifies that
he told Mayde Creek High School Principal Tompkins that he
suspected an “inappropriate, possibly sexual
relationship” between Milton and Jackie, based on the
letters. (Id. at ¶ 6). Jackie reiterates her
uncle's testimony about the letters. (Docket Entry No.
71-1 at ¶¶ 4-5). She testifies that she knew her
uncle had spoken to Principal Tompkins, and that Milton then
told her that Tompkins “forced him to transfer schools
because of [her] uncle's report.” (Id. at
to allow a party to supplement the summary judgment record is
reviewed under Rule 16, governing the modification of a
pretrial schedule on a showing of good cause. Fed.R.Civ.P.
16(b)(4). The court considers four factors:
“(1) the explanation for the failure to submit a
complete report on time; (2) the importance of the testimony;
(3) potential prejudice in allowing the testimony; and (4)
the availability of a continuance to cure such
prejudice.” Shepherd on Behalf of Estate of
Shepherd v. City of Shreveport, 920 F.3d 278, 287-88
(5th Cir. 2019) (quoting Reliance Ins. Co. v. La. Land
& Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)).
the first factor, Doe explains the delay as resulting
“primarily from the sensitive nature of this
litigation, the witnesses' reluctance to testify, and
geographical considerations resulting from a move
out-of-state” by Moorehead. (Docket Entry No. 71 at 3).
She argues that the declarations were not available at the
time of her response to the District's motion for summary
judgment despite diligent efforts to secure them.
(Id. at 3-4). The District argues that Doe was not
diligent; that neither Jackie nor Moorehead is a
newly-discovered witness; and that Doe did not request a
continuance. (Docket Entry No. 74 at 3).
included allegations about Jackie and Moorehead in her
original complaint, filed on April 6, 2017. (Docket Entry No.
1). Doe listed Jackie and Moorehead as individuals with
discoverable information in her supplemental disclosures sent
on October 24, 2018. (Docket Entry No. 74-B). On December 19,
2018, the court permitted an extension of discovery to March
29, 2019. (Docket Entry No. 57). After the District moved for
summary judgment, the court granted Doe's unopposed
motion to extend the time for her response to the
District's motion. (Docket Entry No. 64). The District
points out that Doe did not ask for more time to conduct
discovery or tell the court of any difficulties in obtaining
the necessary discovery or evidence, even after Moorehead
moved from Texas to Louisiana. (Docket Entry No. 74 at 3-4).
This factors weighs slightly against Doe, but not heavily.
Doe has been otherwise diligent in conducting discovery
needed to respond to the many motions the District has filed.
The need for these declarations became acute only after the
latest motions and argument.
second factor weighs in favor of Doe because, as she argues,
the evidence is “clearly probative.” (Docket
Entry No. 71 at 3). See Rosa H. v. San Elizario Indep.
Sch. Dist., 106 F.3d 648, 659 (5th Cir. 1997)
(“[T]he plaintiff could prevail [under Title IX], for
example, by establishing that the school district failed to
act even though it knew that [the teacher] posed a
substantial risk of harassing students in general.”).
third factor addresses the potential prejudice of allowing
the testimony. Doe argues that the District is not unfairly
prejudiced because “they had the opportunity to locate
and depose these witnesses who were identified to them months
(if not years) ago.” (Docket Entry No. 71 at 4). The
District explains that it contacted Moorehead in the fall of
2018, and he told the District he did not want to be involved
in the lawsuit. (Docket Entry No. 74 at 4). When the
District's counsel raised this with Doe's counsel,
counsel confirmed that Moorehead did not want to be involved
and that Doe was no longer “going to be getting any
further evidence from Moorehead.” (Id.). The
District decided that if Doe was not going to pursue
Moorehead's deposition, it would not do so.
District argues that it would be prejudiced by the new
evidence. It argues that the previous declarations Doe
submitted “greatly exaggerate” or “outright
contradict” what the witnesses said in their
depositions. (Docket Entry No. 74 at 6). While the District
argues that it should have the opportunity to
“test” Moorehead's testimony, it notes that
attempting to take his deposition would only prolong the
resolution of this case. (Id.). Because Moorehead
now lives out of state, he is outside this court's
subpoena power to compel a deposition. (Id.). This
factor is neutral.
final factor, the availability of a continuance, is neutral.
Courts have refused to allow last minute amendments under
Rule 16(b) when doing so would require the court to reopen
discovery, necessitate new dispositive motions, and delay
resolution of the case. See Squyres v. Heico Cos.,
L.L.C., 782 F.3d 224, 238-39 (5th Cir. 2015); In re
Enron Corp. Sec., Derivative & ERISA Litig., No.
01-3624, 2011 WL 3489599, at *6 (S.D. Tex. Aug. 9, 2011). But
this is not a hard and fast rule. While Doe did not delay
between receiving the declarations and filing her motion to
supplement, it will be necessary to allow the District the
opportunity to supplement its summary judgment motion and
record, including the opportunity to depose Moorehead if
court will allow the motion to supplement and give the
District until November 22, 2019, to
supplement the record. Doe may respond by December 6,