Weeks v. Union Pacific Railroad Company

Filing 46

ORDER regarding defendant's request to file a second summary judgment motion, document 44 . As soon as possible, but no later than fourteen (14) days from the date of service of this order, the parties shall meet and confer regarding a second s ummary judgment motion by defendant; no later than five (5) days after the parties have met and conferred (as described above), defendant shall notify the Court whether it wishes to file a second summary judgment motion; and, the October 7, 2015, order's 28-day deadline for the parties to contact the Magistrate Judge is VACATED, and will be reset at a later time. Order signed by District Judge Anthony W. Ishii on 10/23/2015. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TREVOR WEEKS,

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CASE NO. 1:13-CV-1641 AWI JLT
Plaintiff

v.

ORDER REGARDING DEFENDANT’S
REQUEST TO FILE SECOND
SUMMARY JUDGMENT MOTION

UNION PACIFIC RAILROAD CO.,
Defendant

(Doc. No. 44)

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On October 7, 2015, the Court issued an order on Defendant’s motion for summary

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judgment. See Doc. No. 43. As part of the order, the Court gave both parties the opportunity to

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file additional motions – a motion to amend for Plaintiff and a second summary judgment motion

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for Defendant. See id. However, the Court put restrictions on the parties. See id. First, the Court

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required the parties to have a good faith belief in the merits of their motion, consistent with Rule

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11. See id. Second, the Court required the parties to meet and confer. See id. In pertinent part,

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the Court held: “Prior to the parties pursuing either a motion to amend or a second summary

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judgment motion, the parties are to meet and confer in order to help determine the advisability of

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pursuing either motion. The failure of a party to meet and confer will result in the denial of that

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party’s motion.” Id. The Court gave Defendant 14 days in which to file a request to pursue a

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second summary judgment motion.

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On October 21, 2015, Defendant filed a request and statement of intent to file a second

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summary judgment motion. See Doc. No. 44. In that request, defense counsel explains that it has

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a good faith belief that no genuine dispute of material fact exists, but that it may not file a motion

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if it later determines that a genuine dispute of material fact does exist. See id. Defense counsel

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then states: “On more than one occasion, Defendant has reached out to Plaintiff’s new counsel to

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meet and confer regarding Defendant’s intent to seek leave to file a second summary judgment

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motion. In one e-communication, Defendant asked counsel to identify specific times during which

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counsel would be available to discuss the issues raised in the Order. Defendant did not receive a

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response. Defendant will continue to reach out to counsel.” Id.

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Also on October 21, 2015, Plaintiff filed a response. See Doc. No. 45. Plaintiff’s counsel

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states that she “disagrees that defendant’s counsel attempted to meet and confer with plaintiff’s

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counsel as the Court ordered counsel to do prior to filing defendant’s instant request. Plaintiff’s

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counsel is now and has always been available to meet and confer during this 14-day period – via

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telephone, e-mail, U.S. Mail, fax or text, but has received no meet and confer communication from

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defendant’s counsel.” Id. (emphasis in original). Plaintiff’s counsel then states that Defendant’s

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request should be denied or Defendant should be made to meet and confer prior to the Court

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considering Defendant’s request. See id. Plaintiff’s counsel also indicates that she intends to

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pursue a motion to amend with the Magistrate Judge. See id.

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The Court is very dismayed by the parties’ October 21 filings. Defense counsel states that

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he attempted to contact Plaintiff’s counsel “on several occasions,” but he does not state when or

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how those attempts were made. Plaintiff’s counsel states the she received no attempts to meet and

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confer, but was available to meet within the 14 day period through a number of mediums. When

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the Court issues an order that requires parties to meet and confer, the Court expects its orders to be

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followed and the parties to act in good faith. The parties’ October 21 filings do not indicate good

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faith, and the situation is unacceptable.

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The Court will give the parties another opportunity to meet and confer. The meet and

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confer will be through either telephone conversation(s) or face to face meeting(s) – fax, text, and

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e-mail are insufficient. The meet and confer session(s) shall be conducted in good faith and shall

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involve a legitimate discussion of the issues and possible material disputed facts. Perfunctory

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conversations are insufficient. If the parties do not meet and confer within the time allotted, and

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the Defendant still wishes to proceed on a second summary judgment motion, Defendant shall file

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a notice that includes a description of the meet and confer efforts, including the date and time and
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medium that a meet and confer attempt was made, as well as the Plaintiff’s response (if any) to the

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attempt. If the Court finds that Defendant made a good faith effort to attempt to meet and confer,

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but Plaintiff did not adequately cooperate, then Defendant will be permitted to file a second

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summary judgment motion and Plaintiff’s counsel will be ordered to show cause why she should

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not be sanctioned. This procedure will also apply with respect to Plaintiff’s motion to amend,

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should the case progress to that point. Whichever party the Court determines is responsible for a

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failure to meet and confer will face the withdrawal of permission to file the motion in question

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(either the motion to amend or the second summary judgment motion), monetary sanctions, or

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both.1
The Court expects both parties to use best to comply with the Court’s orders. The Court

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does not expect to have to issue further orders or warnings.

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Accordingly, IT IS HEREBY ORDERED that:
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As soon as possible, but no later than fourteen (14) days from the date of service of this

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order, the parties shall meet and confer regarding a second summary judgment motion by

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Defendant;

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No later than five (5) days after the parties have met and conferred (as described above),

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Defendant shall notify the Court whether it wishes to file a second summary judgment

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motion;

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3.

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The October 7, 2015 order’s 28-day deadline for the parties to contact the Magistrate Judge
is VACATED, and will be reset at a later time.

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IT IS SO ORDERED.
Dated: October 23, 2015
SENIOR DISTRICT JUDGE

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Of course, if a party decides that it does not wish to pursue a motion, no meet and confer effort is necessary.

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