Banks v. Jackson Hospital & Clinic, Inc. et al

Filing 32

MEMORANDUM OPINION AND ORDER that plaintiff Viola H. Banks's 28 motion for extension of time is granted to the following extent: that plaintiff Banks has until March 2, 2012, to respond to defendant's 25 motion for summary judgment on c ondition that plaintiff Banks's counsel pay 50 % of the reasonable attorney's fees and expenses that defendant has incurred in connection with the extension motion; that if plaintiff Bank's files a timely summary judgment response pursuant to the extension, defendant is allowed until March 9, 2012 to file a reply; that fees and expenses must be paid by plaintiff Banks's counsel and are not to be borne by the plaintiff Banks herself; that plaintiff's counsel has unti l February 23, 2012, to file a notice accepting the extension terms; that if plaintiff files a timely notice of acceptance of the extension terms, defendant is allowed until March 2, 2012, to file a motion for reasonable attorney's fees and expenses. Signed by Honorable Judge Myron H. Thompson on 2/21/2012. (Attachments: # 1 Civil Appeals Checklist)(cc, )

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

VIOLA H. BANKS,

)
)
Plaintiff,
)
)
v.
)
)
JACKSON HOSPITAL & CLINIC, )
INC.,
)
)
Defendant.
)

CIVIL ACTION NO.
2:11cv462-MHT
(WO)

OPINION AND ORDER
Plaintiff Viola H. Banks brought this lawsuit against
defendant Jackson Hospital & Clinic, Inc., alleging raceand age-based discrimination in employment.

The case is

now before the court on Banks’s motion for an extension
of time to file her response to the hospital’s motion for
summary judgment.

For the reasons that follow, the court

will conditionally grant Banks’s motion.
There are numerous, compelling reasons why Banks’s
extension motion should be denied.

First among them is

the

request,

eleventh-hour

nature

of

the

which

was

submitted the day before the summary-judgment response was

due.

This court made clear in its uniform scheduling

order that eleventh-hour extension motions would “be
denied outright” if not predicated on “unforeseen and
unavoidable
movant.”

circumstances

beyond

the

control

of

the

Uniform Scheduling Order 6 (Doc. No. 23).

Banks’s counsel raised no objection to that requirement,
yet his motion for an extension failed to identify any
unforseen or unavoidable circumstance and, when pressed
during an on-the-record telephone conference held on
February 16, 2012, he could provide no viable explanation
for his delay.
Instead, he argues only that he prioritized other
cases during the critical discovery period and therefore
has not developed a sufficient record upon which to base
his

response

judgment.

to

the

hospital’s

motion

for

summary

Put another way, Banks’s counsel needs more

time and waited until the eleventh-hour to make the
request only because he has been dilatory in attending to
this case, including in seeking discovery in this case.

2

From

July

13,

2011,

when

he

entered

a

notice

of

appearance, until December of that year, he made no
discovery requests, took no depositions, and failed to
meaningfully advance this case towards trial.

He is

therefore responsible for the very conditions that he now
argues justify an extension.

It is not the court’s job

to undo his mistake, and neglect does not constitute an
unavoidable circumstance.
Nonetheless, and only because there will be no real
prejudice to the hospital, the court finds that some
extension is justified so that Banks will not be left out
of court due to the negligence of her attorney. The court
is therefore persuaded that an extension of time until
March 2, 2012, is warranted, albeit only conditionally.

***
For

the

foregoing

reasons,

it

is

ORDERED

that

plaintiff Viola H. Banks’s motion for extension of time
(doc. no. 28) is granted to the following extent:

3

(1) Plaintiff Banks has until March 2, 2012, to
respond to defendant Jackson Hospital & Clinic, Inc.’s
motion

for

summary

judgment

(doc.

no.

25),

on

the

condition that plaintiff Banks’s counsel pay 50 % of the
reasonable attorney’s fees and expenses that defendant
Jackson Hospital & Clinic, Inc. has incurred in connection
with the extension motion.
(2) If

plaintiff

Banks

files

a

timely

summary-

judgment response pursuant to the extension allowed by
this order, defendant Jackson Hospital & Clinic, Inc. is
allowed until March 9, 2012, is file a summary-judgment
reply.
(3) The above-referenced fees and expenses must be
paid by plaintiff Banks’s counsel and are not to be borne
by the plaintiff Banks herself.
(4) Plaintiff Banks’s counsel has until Thursday,
February

23,

2012,

to

file

a

notice

in

this

court

accepting the extension terms of this order; otherwise
plaintiff Banks is not allowed additional time to respond

4

to defendant Jackson Hospital & Clinic, Inc.’s motion for
summary judgment (doc. no. 25).
(5) If plaintiff Banks files a timely notice of
acceptance of the extension terms of this order, defendant
Jackson Hospital & Clinic, Inc. is allowed until March 2,
2012, to file a motion for reasonable attorney’s fees and
expenses pursuant to this order.
DONE, this the 21st day of February, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE