Moss v. State of Alabama, Department of Corrections et al

Filing 42

MEMORANDUM OPINION AND ORDER that plaintiff's 40 Motion to Re-Consider and Allow Affidavits and Alabama State Personnel Board Rules in Support of the Plaintiff's Opposition of the Defendants' Motion for Summary Judgment Out of Time D ue to Accidental Clerical Calendaring Error-Non-Prejudicial is DENIED; advising that the Court will not consider the arguments made in (Doc. # 40 ), nor will it consider any of the exhibits to that; that defendants' 41 Motion to Strike and Opposition to Plaintiff's Motion to Reconsider is DENIED as MOOT. Signed by Honorable Judge Mark E. Fuller on 6/24/2011. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CESAR MOSS,

)
)
Plaintiff,
)
v.
)
)
STATE OF ALABAMA, DEPARTMENT )
OF CORRECTIONS, et al.,
)
)
Defendants.
)

CASE NO. 2:10-cv-0766-MEF
(WO)

MEMORANDUM OPINION AND ORDER
This cause is before the Court on Plaintiff's Motion to Re-Consider and Allow
Affidavits and Alabama State Personnel Board Rules in Support of the Plaintiff's Opposition
of the Defendants' Motion for Summary Judgment Out of Time Due to Accidental Clerical
Calendaring Error-Non-Prejudicial (Doc. #40) filed on June 22, 2011 and on defendants'
Motion to Strike and Opposition to Plaintiff's Motion to Reconsider (Doc. #41) filed on June
23, 2011.
Plaintiff filed this action on September 10, 2010. On November 4, 2010, this Court
entered a Uniform Scheduling Order (Doc. # 22) setting a deadline of May 18, 2011 for the
filing of any dispositive motion. It also required that "all briefs filed by any party relating"
to a dispositive motion which included a discussion of the evidence "must be accompanied
by a specific reference, by page and line, to where the evidence can be found in the
supporting deposition or document." (Doc. # 22 at p. 1). Thus, all parties to this action were

on notice as of November 4, 2010 that dispositive motions would be filed not later than May
18, 2011 and that briefs predicated on a discussion of the evidence must include proper
citations and be accompanied by the contemporaneous filing of the evidence discussed.
On May 18, 2011, the served defendants to this action filed a motion for summary
judgment (Doc. # 23), which included evidentiary submissions and a brief in support of the
motion. On May 19, 2011, this Court issued an Order (Doc. # 24) addressing the schedule
for the submission of the motion. That Order plainly indicated that the motion would be
under submission as of June 10, 2011. It required counsel for plaintiff to "file a response
which shall include a brief and any evidentiary materials on or before June 3, 2011." (Doc.
# 24). It allowed a reply from defendants by June 10, 2011.
On the afternoon of June 3, 2011, counsel for plaintiff contacted law clerk for the
undersigned to ask a question about a matter in the scheduling order unrelated to dispositive
motions. Aware that the response to summary judgment had not been filed at that time, the
law clerk reminded counsel for plaintiff that her response in opposition to summary judgment
was due on that very day. Plaintiff's counsel indicated that it was her belief that the response
in opposition to summary judgment was due on June 10, 2011. The law clerk read the order
setting the deadline to counsel over the phone. Counsel for plaintiff asked questions about
how late she could file a response using the Court's electronic filing system and indicated she
planned to file a brief in opposition to the summary judgment. The law clerk advised that
the response could be electronically filed as late as 11:59 p.m. and that there was also an

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after-hours filing box in front of the court house which could be used for filings.
At 10:41 p.m. on June 3, 2011, counsel for plaintiff electronically filed a brief in
opposition to the motion for summary judgment. In her brief in opposition, counsel for the
plaintiff referred to the deposition of plaintiff, albeit without proper citation as required by
the Uniform Scheduling Order. No other items of evidence were discussed in the brief. The
deposition of the plaintiff was not electronically filed on June 3, 2011, nor was it placed in
the after hours filing box on that date.
The brief contained a statement to the effect that if the Court was not persuaded by
the arguments plaintiff's counsel had made, she would like leave to conduct further
discovery. Plaintiff's counsel did not specific with particularity the nature of the further
discovery, nor did she account for her failure to obtain the discovery prior to that date other
than to vague indicate that Defendants had failed to put a knowledgeable representative up
for deposition and had ignored her "requests" for discoverable material. Plaintiff's counsel
does not indicate the nature and dates of her "requests." Moreover, Plaintiff's counsel never
filed a motion to compel seeking the Court's intervention relating to these discovery issues
despite knowing that she would be expected to be in a position to respond to a motion for
summary judgment by no later than sometime in early June. The Court has nothing before
it from which it could conclude anything except that Plaintiff's counsel was dilatory about
obtaining the discovery through the means provided in the Federal Rules of Civil Procedure
in a timely fashion.

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On June 6, 2011, the Court noted the filing of the response in opposition to the
summary judgment, but discovered that plaintiff's counsel had not filed the deposition pages
cited in the response. A law clerk for the undersigned called plaintiff's counsel to ask where
the deposition pages cited in the response were and why they had not been filed. Counsel
for plaintiff stated that she had mailed them to the Clerk of the Court. Based on later events,
the Court concludes that this statement was false.
On June 7, 2011, counsel for plaintiff filed a Motion to Supplement Plaintiff-Cesar
Moss' Response in Opposition to Defendants' Motion for Summary Judgment (Doc. # 27).
This motion, which was dropped in the Court's after-hours filing box, sought leave to
supplement plaintiff's response in opposition by providing the Court with a copy of the
plaintiff's deposition. The motion was accompanied by a paper copy of that deposition which
was not in compliance with this Court's local rules for filing. The motion itself provided no
explanation whatsoever of why the plaintiff's counsel failed to timely file the evidence in
support of her opposition the defendants' summary judgment motion. Consequently, the
Court issued an order requiring plaintiff to show cause why her motion should not be denied.
The Court expected Counsel to explain her own failure to timely comply with deadlines
imposed by orders of this Court or at least to seek extensions of deadline with which she
could not comply. Instead, Counsel for plaintiff apparently mistook this order as an
invitation to submit further argument and evidence in opposition to the motion for summary
judgment.

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On June 20, 2011, plaintiff's counsel filed a response (Doc. # 33) to the show cause
order which contained new arguments relating to the pending dispositive motion, which had
been under submission for ten days. She also attempted to file numerous affidavits and other
exhibits in support of her opposition. Arguing she must do so to "prevent manifest injustice,"
counsel for plaintiff placed new arguments and evidence before the Court a full ten days after
the date which she incorrectly believed to be the deadlines for her opposition. Despite the
fact that defendants had no opportunity to respond to her untimely submission, counsel for
plaintiff argued that there was not prejudice caused by the out of time filing. Counsel for
plaintiff asserted that she had acted in good faith, but that due to "excusable neglect" she was
acting untimely. Specifically, plaintiff's counsel blamed confusion in her calendar due to her
secretary quitting, at an unspecified time, for her failure to timely file the materials. She does
not address, however, the fact that she was informed of the actual deadline before it had
passed by the law clerk. She does not explain why she did not seek an extension of time
before the deadline passed. She does not explain why the materials other than the plaintiff's
deposition are not referenced in her original brief or why it took her until June 20, 2011 to
be prepared to file the materials.
Because the Court found that the neglect by plaintiff's counsel was not in fact
excusable neglect and because the Court was not persuaded that the plaintiff's counsel had
show good cause for the failure to timely seek to submit the materials other than the
plaintiff's deposition, the Court entered Orders (Doc. # 34 and Doc. #35) which allowed

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plaintiff to submit a copy of the deposition of plaintiff, in proper format, and nothing else.
The Court also granted a motion to strike the untimely materials which defendants' filed.
(Doc. # 38).
On June 22, 2011, plantiff's counsel filed Plaintiff's Motion to Re-Consider and Allow
Affidavits and Alabama State Personnel Board Rules in Support of the Plaintiff's Opposition
of the Defendants[sic] Motion for Summary Judgment Due to Accidental Clerical
Calendaring Error-Non-Prejudicial (Doc. # 40). To this motion, plaintiff's counsel appended
the untimely evidentiary materials she had previously attempted to file and repeated her
additional arguments in opposition to summary judgment. Indeed, it appears that this
document is nearly identical to the document plaintiff's counsel filed on June 20, 2011. The
additional arguments are not at all persuasive.
For the foregoing reasons, Plaintiff's Motion to Re-Consider and Allow Affidavits and
Alabama State Personnel Board Rules in Support of the Plaintiff's Opposition of the
Defendants' Motion for Summary Judgment Out of Time Due to Accidental Clerical
Calendaring Error-Non-Prejudicial (Doc. #40) filed on June 22, 2011 is DENIED. When
considering the pending motion for summary judgment, the Court will not consider the
arguments made in (Doc. # 40), nor will it consider any of the exhibits to that.
It is further ORDERED that defendants' Motion to Strike and Opposition to Plaintiff's
Motion to Reconsider (Doc. #41) filed on June 23, 2011 is DENIED as MOOT.
th

DONE this the 24 day of June, 2011.

/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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