Weeks v. Union Pacific Railroad Company

Filing 36

ORDER on Plaintiff's Late 35 Opposition Filing, signed by District Judge Anthony W. Ishii on 4/29/2015. IT IS HEREBY ORDERED that: 1. The Court will consider Doc. No. 35 in resolving Defendants motion for summary judgment; and 2. Defendant may file a reply to Doc. No. 35, which may entail the filing of a new reply to the entirety of Plaintiffs opposition (if Defendant deems that to be necessary), within seven (7) days of service of this order.)(Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TREVOR WEEKS,
Plaintiff

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v.

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CASE NO. 1:13-CV-01641-AWI-JLT
ORDER ON PLAINTIFF’S LATE
OPPOSITION FILING

UNION PACIFIC RAILROAD CO.,
Defendant

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(Doc. No. 35)

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Trial in this matter is set for August 4, 2015, and the pre-trial conference is set for June 3,

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2015. On March 2, 2015, Defendant filed a motion for summary judgment. Hearing on this

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motion was set for April 6, 2015. On March 31, 2015, the Court took the motion under

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submission; Plaintiff had not filed an opposition.

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On April 9, 2015, Plaintiff’s counsel filed an ex parte application to extend time to file an

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opposition. See Doc. No. 31. The Court granted the motion and set a new briefing schedule. See

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Doc. No. 32.

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On April 20, 2015, Plaintiff filed an opposition. See Doc. No. 33. The opposition did not

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include a response to Defendant’s Statement of Undisputed Facts. See id. The Local Rules

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require a party opposing summary judgment to reproduce the moving party’s Statement of

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Undisputed Facts and respond thereto. See Local Rule 260(b).

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On April 27, 2015, Defendant filed a reply. See Doc. No. 34. Defendant pointed out that

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Plaintiff had not responded to the Statement of Undisputed Facts, other than to file repetitive

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objections to several of the proposed facts. See id.

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On April 28, 2015, Plaintiff filed a response to Defendant’s Statement of Undisputed

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Facts. See Doc. No. 35. This document complies with Local Rule 260(b). Plaintiff’s counsel also

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attached a declaration that stated he believed that the full opposition had been filed, and it was

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only while reading Defendant’s reply that he realized that the response to Defendant’s Statement

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of Undisputed Facts had not been filed. See id. Plaintiff’s counsel states that the omission was

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not intentional and that it was the result of clerical error. See id. Plaintiff’s counsel asks the Court

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to consider the late filing. See id.
Many of the facts in the Statement of Undisputed Facts are not disputed by Plaintiff, and

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those that are disputed are generally done through reference to either Defendant’s own exhibits or

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through citation to Plaintiff’s deposition. See Doc. No. 35. The same portions of Plaintiff’s

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deposition that are cited in the response to Defendant’s Statement of Undisputed Facts also appear

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to be cited in Plaintiff’s opposition. Cf. Doc. No. 33 with Doc. No. 35. Furthermore, Plaintiff’s

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response was filed less than 24 hours after the reply was filed. Considering this timing, the

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content of Plaintiff’s opposition, and Plaintiff’s counsel’s declaration, it appears that it was a

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mistake that caused Plaintiff to file a late response. Given the above, the Court will consider

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Plaintiff’s late filed response to Defendant’s Statement of Undisputed Facts and will also give

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Defendant additional time to reply.

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That being said, the Court is very concerned over a pattern that is starting to develop

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regarding Plaintiff’s filings. Plaintiff missed one deadline, and was granted relief. Plaintiff then

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filed an incomplete opposition, despite receiving additional time. Plaintiff has asked for what

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amounts to additional time, and is being granted that time. Although trial in this matter is not until

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August 2015, Plaintiff’s out of time filings are causing disruptions to, and diversion of resources

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from, the Court and opposing counsel. The Court likely will not look sympathetically at any

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further late filed documents by Plaintiff.

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Accordingly, IT IS HEREBY ORDERED that:
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The Court will consider Doc. No. 35 in resolving Defendant’s motion for summary
judgment; and

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Defendant may file a reply to Doc. No. 35, which may entail the filing of a new reply to

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the entirety of Plaintiff’s opposition (if Defendant deems that to be necessary), within

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seven (7) days of service of this order.

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IT IS SO ORDERED.
Dated: April 29, 2015
SENIOR DISTRICT JUDGE

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