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Lester v. Phillips

United States District Court, D. Utah

December 5, 2019

JODEE LESTER, Plaintiff,
v.
CONOCO PHILLIPS; WOODGROUP PSN, INC., Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING [49] DEFENDANTS' JOINT EXPEDITED MOTION TO STRIKE PLAINTIFF'S COUNTER-MOTION FOR SUMMARY JUDGMENT AND THE DECLARATIONS OF KELLY O'DELL AND STEVE BECK

          David Nuffer United States District Judge.

         Defendants Wood Group PSN, Inc. and ConocoPhillips (collectively “Defendants”) moved to strike (the “Motion”)[1] Plaintiff Jodee Lester's (“Plaintiff”) Joint Counter-Motion for Summary Judgment (“Plaintiff's Counter Motion for Summary Judgment”)[2] and two declarations that were attached to Plaintiff's motion.[3] Specifically, Defendants argue that striking Plaintiff's Counter Motion for Summary Judgment is appropriate because it was untimely filed. Defendants also argue that striking the declarations is appropriate because Plaintiff failed to produce them during the allotted discovery period. Plaintiff opposed the Motion[4] and Defendants replied in support.[5]

         Because Plaintiff's Counter Motion for Summary Judgment was filed seven weeks after the dispositive motion deadline and because Plaintiff did not provide the subject disclosures as would have been required during the discovery period, the Motion is GRANTED.

         BACKGROUND

         The scheduling order entered on April 19, 2019, established that fact discovery was to close on June 28, 2019 and that dispositive motions were to be filed by September 16, 2019.[6] On September 12, 2019, Defendant Wood Group PSN filed a motion requesting an extension until September 23, 2019 to file a dispositive motion.[7] That motion indicated that counsel for Defendant Wood Group PSN had conferred with counsel for Defendant Conoco Philips who did not oppose the extension.[8] That motion also specified that efforts to reach Plaintiff's counsel to discuss a stipulation were unsuccessful.[9]

         The motion to extend the dispositive deadline was taken under advisement, and Plaintiff was given a deadline respond.[10] Plaintiff did not respond by the assigned deadline and the motion to extend the deadline was granted with the specific directive that the deadline was extended for all parties until September 23, 2019.[11] Defendants timely filed dispositive motions on the day of the new deadline.[12] Plaintiff did not file a dispositive motion, nor did Plaintiff move for an extension of time to file one.

         On October 17, 2019, Plaintiff filed a stipulated motion to extend the deadline to file her oppositions to Defendants' dispositive motions.[13] Plaintiff represented that, due to scheduling deadlines and hearings on other matters, additional time was necessary for Plaintiff to respond to the two dispositive motions.[14] Again, Plaintiff did not in this motion request leave to file a belated dispositive motion. That Motion was granted, [15] and on November 11, 2019, Plaintiff filed oppositions to Defendants' motions.[16]

         That same day, and 49 days after the expiration of the dispositive motion deadline, Plaintiff filed the Joint Counter-Motion for Summary Judgment.[17] In place of a statement of undisputed facts in that motion, Plaintiff incorporated by reference her responses to Defendant WoodGroup PSN's statement of undisputed facts from her memorandum in opposition.[18] Those responses cited two declarations attached to the Joint Counter-Motion for Summary Judgment and offered by Plaintiff's former coworkers Steve Beck and Kelly O'Dell.[19]

         Although those declarations were dated March 13, 2019, well before the fact discovery deadline of June 28, 2019, Defendants maintain that these declarations were never supplied to them during the fact discovery period.[20]

         DISCUSSION

         I. Plaintiff's Motion for Summary Judgment is Untimely and Plaintiff Has Not Provided a Valid Reason for the Belated Filing

         “‘District courts enjoy broad discretion to manage' their dockets and to consider motions that are not timely filed under their scheduling orders.”[21] However, a “‘Scheduling Order is not a frivolous piece of paper, idly entered with can cavalierly disregarded by counsel without peril.'”[22] ‘To the contrary, a scheduling order is an important tool necessary for the orderly preparation of a case for trial.”[23] “Deliberate inaction” is not sufficient to establish good cause for a party's failure to observe the dispositive deadline in a Scheduling Order.[24]

         In response to the Motion, Plaintiff does not argue that good cause exists to consider the Counter Motion for Summary Judgment on its merits despite the untimely filing, nor does she offer citation to case law that would support denial of Defendants' Motion. Instead, Plaintiff argues that filing the Counter Motion for Summary Judgment 49 days after the expiration of the dispositive motion deadline was appropriate under DUCivR 7-1 (b)(1)(A)(1) and supported by the advisory committee note in the 1946 Amendment to Fed R. Civ. P. 56.[25] Plaintiff's interpretation of this rule and this note is incorrect.

         DUCivR 7-1 (b)(1)(A)(1) provides that motions are not to be made in response to reply memoranda. Specifically, the rule states:

No motion, including but not limited to cross-motions and motions pursuant to Fed.R.Civ.P. 56(d), may be included in a response or reply memorandum. Such motions must be made in a separate document. A cross-motion may incorporate the briefing contained in a memorandum in opposition.

         This does not mean, as Plaintiff contends, [26] that cross-motions for summary judgment are considered “responsive documents” to a timely filed Rule 56(d) motion. Indeed, that is why DUCivR 7-1 (b)(1)(A)(1) specifies that responsive documents are not to include motions.

         And although a cross-motion for summary judgment may incorporate the briefing contained in a memorandum in opposition, this would apply to instances where dispositive motions-including cross-motions-are timely filed before the expiration of the applicable deadline motion. Nothing in DUCivR 7-1 (b)(1)(A)(1) permits the belated filing of a cross-motion for summary judgment without leave simply because it is “responding” to arguments raised in a previously filed motion for summary judgment by an opposing party.

         Plaintiff's reliance on the advisory committee note to the 1946 Amendment to Fed.R.Civ.P. 56 is also misplaced. Plaintiff selectively quotes language from this committee note that Rule 56 “allows a claimant to move for summary judgment at any time after the expiration of 20 days … after the service of a motion for summary judgement by the adverse party.”[27] However, Plaintiff ignores what immediately follows the quoted text: “This will normally operate to permit an earlier motion by the claimant than under the original rule[.]”[28]

         As the note explains, the purpose of the 1946 amendment was to remove any prohibition on a claimant filing for summary judgment before an opposing party formally filed an answer.[29]The 1946 amendment therefore applies to circumstances that arise early on in a case-long before the expiration of an established dispositive motion deadline. The amendment does not support Plaintiff's interpretation that she is permitted to file a cross-motion for summary judgment in response to an opposing party's summary judgment motion after the dispositive motion deadline expires.

         Plaintiff has incorrectly understood these procedural requirements and, based on that faulty interpretation, deliberately ignored the established deadline to file dispositive motions. Furthermore, she has not offered any other appropriate justification for ignoring the ordered deadline. Defendant's Motion is granted, and Plaintiff's Counter Motion for Summary Judgment is stricken.

         II. Plaintiff's Belated Disclosure of the Beck and O'Dell Declarations Violates Fed.R.Civ.P. 26(e)(1) Because the Failure to Disclose Was Not Substantially Justified or Harmless

         Before addressing Defendants' challenge to the Steve Beck and Kelly O'Dell declarations, it is necessary to address Plaintiff's argument that Defendants have inappropriately made a motion to strike.[30] DUCivR 7-1(b)(1)(b) states that “[m]options to strike evidence as inadmissible are no longer appropriate and should not be filed. The proper procedure is to make an objection.” However, Defendants are not raising issues regarding admissibility under the Federal Rules of Evidence. Defendants are arguing that Plaintiff violated the duty of disclosure in the Federal ...


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