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Swasey v. West Valley City

United States District Court, D. Utah, Central Division

April 12, 2017

DANIELLE SWASEY; D.S., BY AND THROUGH HER GUARDIAN AD LITEM, DANIELLE SWASEY; DANTE KETCHENS, D.K., BY AND THROUGH HIS GUARDIAN AD LITEM, DANTE KETCHENS, Plaintiffs,
v.
WEST VALLEY CITY; SHAWN COWLEY; KEVIN SALMON; SEAN MCCARTHY; JOHN COYLE; THAYLE “BUZZ” NIELSEN; and DOES 1-10, Defendants.

          Brooke C. Wells Magistrate Judge

          MEMORANDUM DECISION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT

          David Nuffer United States District Judge

         Plaintiffs' Amended Complaint contains five causes of action.[1] Plaintiffs' Fifth Cause of Action is a claim for intentional infliction of emotional distress against all defendants.[2]Defendant John Coyle, not joined by any other defendant, moves for summary judgment on Plaintiffs' Fifth Cause of Action (“Motion”).[3] Plaintiffs oppose the Motion (“Opposition”).[4] Mr. Coyle filed a reply in support of the Motion (“Reply”).[5] For the reasons below, the Motion is DENIED.

         THE MOTION IS UNTIMELY

         Before reaching the merits of the Motion, timeliness must be addressed. Mr. Coyle acknowledges that “the dispositive motions deadline . . . was March 15, 2016” but argues that his Motion, which was filed on November 11, 2016 should be accepted because “due to stipulations between the parties, . . . fact discovery continued well beyond [March 15, 2016].”[6] Mr. Coyle argues that “the deadline in the Scheduling Order is not controlling and that this Motion is timely given the amorphous nature of the discovery cut-off in this case.”[7] Mr. Coyle explains that depositions occurred “as late as July 2016” even though the Scheduling Order “set the close of fact discovery for December 1, 2015.”[8] Therefore, Mr. Coyle argues, “[i]t is clear from their conduct since adopting the Scheduling Order that the parties, and the Court, do not consider the [Scheduling] Order to be controlling.”[9]

         Mr. Coyle is incorrect. The Motion is untimely because it was filed nearly eight months after the deadline and there is no order from the court modifying the deadline.

         Federal Rule of Civil Procedure 16 provides that “[a] schedule may be modified only for good cause and with the judge's consent.”[10] To establish good cause for modifying a scheduling order, “the moving party must show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.”[11] Mr. Coyle has not made a motion nor has he explained how he has been diligent in attempting to meet the dispositive motion deadline. The only explanation about the delay is that the parties stipulated to extend fact discovery. But a stipulation to extend fact discovery does not automatically extend the dispositive motion deadline.[12] Those are two different deadlines in the scheduling order. Further, as Plaintiffs point out, [13] the most recent information used in the Motion is from May 2016 and there is no explanation why Mr. Coyle's Motion was filed six months after that date.

         Mr. Coyle also has not sought “the judge's consent”[14] by filing a motion to extend the dispositive motion deadline or a motion for leave to file the Motion past the deadline. Mr. Coyle says he filed late because “[i]n May 2016, the Court modified the Scheduling Order to extend expert discovery deadlines into August, even though the Scheduling Order also had trial set to begin on August 15, 2016.”[15] But the dispositive motion deadline was never modified. Also, Mr. Coyle is incorrect that the trial was set to begin on August 15, 2016. The May 20, 2016 Notice from the court vacated the dates for the final pre-trial conference and trial.[16]

• Mr. Coyle points to no authority that allowed him to file the Motion nearly eight months after the dispositive motion deadline.
• Other deadlines were extended, but the dispositive motion deadline never was.
• Mr. Coyle never filed a motion to extend the dispositive motion deadline or sought leave to file the Motion past the deadline.
• Even after the Opposition was filed, which plainly opposed Mr. Coyle's Motion on the basis of timeliness, Mr. Coyle did not move to modify the dispositive motion deadline.

         Accordingly, Mr. Coyle has failed to establish “good cause” under Rule 16. Additionally, Rule 6(b) does not apply because the deadline has already expired[17] and Mr. Coyle never filed a motion to extend the deadline.[18]

         Mr. Coyle argues that the late filing of the Motion does not prejudice the parties and should be allowed.[19] But Mr. Coyle cites no authority. Instead, he states incorrectly that a motion for judgment on the pleadings will be briefed on the same schedule as the Motion.[20] Mr. Coyle provides no citation to the motion for judgment on the pleadings to ...


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