WHITERU et al v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY

Filing 79

MEMORANDUM OPINION explaining reasons for Order 77 GRANTING Defendant's 71 Motion for Leave to File Supplemental Motion for Summary Judgment. Signed by Judge Ketanji Brown Jackson on 12/17/18. (lckbj3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAMEROON WHITERU, Individually
and as Personal Representative of the
Estate of Okiemute C. Whiteru, et ux.,
Plaintiffs,
v.
WASHINGTON METROPOLITAN
AREA TRANSIT AUTHORITY,
Defendant.

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No. 15-cv-0844 (KBJ)

MEMORANDUM OPINION REGARDING THIS COURT’S GRANT OF
DEFENDANT’S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL MOTION
FOR SUMMARY JUDGMENT
Before this Court at present is Defendant Washington Metropolitan Area Transit
Authority’s (“WMATA’s”) motion for leave to file a supplemental motion for summary
judgment based on decedent Okiemute Whiteru’s alleged contributory negligence. (See
Def.’s Mot. for Leave to File Supplemental Mot. for Summary Judgment (“Def.’s
Mot.”), ECF No. 71; Def.’s Mem. in Supp. of Def.’s Mot. (“Def.s’ Mem.”), ECF No.
71-1, at 2–3.) 1 Plaintiffs object to WMATA’s motion, arguing that WMATA has not
shown good cause, and that this Court already rejected WMATA’s meritless
contributory negligence argument. (See Pls.’ Opposition to Def.’s Mot. (“Pls.’
Opp’n”), ECF No. 73, at 1.)
On December 6, 2018, this Court issued an order that GRANTED WMATA’s
motion. (See ECF No. 77.) This Memorandum Opinion briefly explains the reasons for
Page-number citations to documents the parties have filed refer to the page numbers that the Court’s
electronic filing system assigns.

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that order. In short, the established factors that federal trial courts consider when
determining whether or not to permit an out-of-time filing of a summary judgment
motion under Federal Rule of Civil Procedure 6 weigh heavily in favor of allowing
WMATA to file the instant motion, and given the significance of the proposed filing,
this Court has exercised its considerable equitable discretion to authorize WMATA to
seek summary judgment at this time.
I.
This Court has already written an opinion in this case that details the pertinent
factual background. See Whiteru v. Wash. Metro. Area Transit Auth., 258 F. Supp. 3d
175 (D.D.C. 2017). Therefore, only a brief explanation of the relevant procedural
history is necessary here. On January 21, 2016, this Court issued an initial scheduling
order that set deadlines for discovery and for dispositive motions. (See Scheduling
Order, ECF No. 24.) WMATA timely filed its initial motion for summary judgment,
which the Court denied on July 7, 2017. See id. at 177. Thereafter, the Court
scheduled pretrial conferences and a trial date. (See Minute Entry of December 21,
2017.)
On May 4, 2018, at the initial pretrial conference, this Court granted Plaintiffs’
request to reopen expert discovery nearly two years after it had closed (over WMATA’s
objection) and vacated the trial date to accommodate Plaintiffs’ request for further
discovery. (See Transcript of Pretrial Conference on May 4, 2018, at 34–41; see also
Minute Entries of May 4, 2018, and May 22, 2018.) On July 25, 2018, WMATA
entered new counsel of record (see ECF No. 69), and on September 28, 2018,
WMATA’s new counsel filed the instant motion for leave to file a supplemental motion

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for summary judgment (see Def.’s Mot.).
In the motion for leave, WMATA’s new counsel asserts that he acted as
expeditiously as possible to move to file for summary judgment on the potentially
dispositive issue of contributory negligence after discovering prior counsel’s omission.
(See Def.’s Mem. at 2–3; see also Def.’s Reply to Pls.’ Opp’n (“Def.’s Reply”), ECF
No. 75, at 3–4.) Plaintiffs oppose the motion, insisting that the deadline to file
summary judgment motions has long passed, and that there is no reason for the Court to
excuse delay or allow pretrial litigation of contributory negligence. (See Pl.’s Opp’n at
1–2.)
II.
Federal Rule of Civil Procedure 6 allows a Court to permit a party to file an outof-time motion for summary judgment if the moving party can demonstrate “excusable
neglect.” Fed. R. Civ. P. 6(b)(1)(B). The Supreme Court has made clear that, in order
to determine whether a party’s delay amounts to “excusable neglect,” courts must
consider “the danger of prejudice to the [opposing party], the length of the delay and its
potential impact on judicial proceedings, the reason for the delay, including whether it
was within the reasonable control of the movant, and whether the movant acted in good
faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395
(1993). “‘Excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is not
limited strictly to omissions caused by circumstances beyond the control of the
movant.” Id. at 392. Furthermore, the district court enjoys “broad discretion” in this
determination. See Wilson v. Prudential Financial, 218 F.R.D. 1, 3 (D.D.C. 2003); see
also Yesudian v. Howard Univ., 270 F.3d 969, 971 (D.C. Cir. 2001) (describing the

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“great deference” owed to district courts in their “case-management decisions” under
Rule 6(b) (internal quotation marks and citation omitted)).
In this Court’s view, each of the Pioneer factors weighs in favor of granting
WMATA’s motion. First of all, it is clear to this Court that, at this phase of the
litigation, a slight delay for consideration of a dispositive motion will not prejudice
Plaintiffs; indeed, in their brief in opposition to WMATA’s motion, Plaintiffs have not
alleged any such prejudice. (See generally Pls.’ Opp’n; see also Def.’s Reply at 1, 6.)
Regarding the length of WMATA’s delay in filing this motion and its potential impact
on the pending judicial proceedings, the Court notes that WMATA’s new attorney
moved to file a supplemental motion just two months after WMATA’s change of
counsel. More important, this Court finds that the tardiness of the instant summary
judgment filing, which comes more than two years after the initial deadline for
dispositive motions, is unlikely to impact the overall proceedings for two reasons: first,
because there are several pending motions in limine related to the legal issue of the
availability of a contributory negligence defense (see Pls.’ Mot. in Limine to Preclude
Argument of Contributory Negligence, ECF No. 45; Pls.’ Mot. in Limine to Preclude
Argument of Assumption of Risk, ECF No. 46 (together, “Pls.’ Contributory
Negligence MILs”)); and second, because another trial date has not yet been set, and
this Court will not be available to try this case for several months—not until the late
summer of 2019, at the earliest.
Turning to the third factor in the excusable neglect analysis, WMATA’s posited
reason for the delay is “oversight by WMATA’s prior counsel.” (See Def.’s Mem. at 3.)
The D.C. Circuit has made clear that “‘excusable neglect’ does not require counsel to

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have been faultless, and ‘inadvertence, mistake, or carelessness’ can fall within the
rule.” Cohen v. Bd. of Trustees of the Univ. of D.C., 819 F.3d 476, 479 (D.C. Cir.
2016) (quoting Pioneer, 507 U.S. at 388). Moreover, the Circuit has explicitly declined
“to adopt a per se rule that garden variety attorney inattention can never constitute
excusable neglect.” In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1209 (D.C.
Cir. 2003).
This Court is fully aware that judges frequently exercise their discretion to reject
untimely filings where the justification for such a filing is minor attorney error, like
noncompliance with deadlines or filing procedures. See Inst. For Policy Studies v. CIA,
246 F.R.D. 380, 384–85 (D.D.C. 2007) (collecting cases). But the error alleged here is
neither minor nor the kind of “mere oversight” that courts may find insufficient to
support excusable neglect, see Gadsden v. Jones Lang Lasalle Americas, Inc., 210 F.
Supp. 2d 430, 436 (S.D.N.Y. 2002) (quotation marks and citation omitted): instead, it is
a significant legal issue of substantive judgment, the omission of which might well have
bordered on ineffectiveness by prior counsel. In addition, new counsel worked quickly
to prepare a supplemental motion for summary judgment and to ask for leave to file it
under Federal Rule of Civil Procedure 6(b)(1)(B). (See Def.’s Reply at 2–5.)
Notably, there is precedent in this district for the granting of similar WMATA
motions. In a nearly identical situation, when new counsel acted expeditiously, the
court found excusable neglect and granted the motion for a late-filed summary
judgment “supplement[]”—notwithstanding its “reservations” about excusing prior
counsel’s oversight. See McFadden v. Wash. Metro. Area Transit Auth., Case No. 141115 (Walton, J.), Order (“McFadden Order”), ECF No. 153, 3–4 (D.D.C. Feb. 26,

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2018). Here, this Court further observes that the delay in filing the supplemental
motion appears to be entirely attributable to WMATA’s change of counsel; Plaintiffs
have not offered any evidence that WMATA intentionally withheld this summary
judgment argument or otherwise acted in bad faith.
When weighing the Pioneer factors, courts must remember that the excusable
neglect determination “is at bottom an equitable one, taking account of all relevant
circumstances surrounding the party’s omission.” Pioneer, 507 U.S. at 395. In the
instant case, not only does each factor point toward granting WMATA leave to file the
supplemental motion, but broad equitable considerations also support WMATA’s
contention that its motion should be granted, because this Court previously vacated the
trial it had scheduled in this case in order to give Plaintiffs leave to correct an oversight
of theirs (i.e., leave to conduct additional expert discovery) more than two years after
expert witness discovery had closed. (See Initial Pretrial Conf. Tr., 33–41, May 4,
2018; Min. Order of May 22, 2018; see also Def.’s Reply at 1–2.) Given the potential
significance of the omission by prior WMATA counsel; the swiftness with which new
counsel moved for correction of this oversight; and the flexibility that this Court has
previously extended to Plaintiffs regarding lapsed deadlines, the Court concludes that a
finding of “excusable neglect” within the meaning of Rule 6 is warranted here.
III.
Plaintiffs’ objections center on WMATA’s reasons for failing to raise the
contributory negligence argument earlier. (See Pls.’ Opp’n at 2–5.) Notably, in so
arguing, Plaintiffs rely primarily—and mistakenly—on cases applying Rule 16’s “good
cause” standard (see id.), which differs from the Pioneer factors that a court must

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consider when determining “excusable neglect” under Rule 6. See Capitol Sprinkler
Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 226 (D.C. Cir. 2011) (explaining
Rule 16’s “good cause standard requires the party seeking relief to show that the
deadlines cannot reasonably be met despite [its] diligence” (alteration in original)
(internal quotation marks and citations omitted)). Rule 16 governs the modification of
scheduling orders, see Fed. R. Civ. P. 16(b)(4), but here WMATA is not seeking to
modify a scheduling order, nor is it asking for any relief that will require modifications
of a scheduling order in the future. The D.C. Circuit has analyzed similar late-filed
summary judgment motions only under Rule 6’s “excusable neglect” standard even in
cases where a scheduling order has been entered. See, e.g., Smith v. District of
Columbia, 430 F.3d 450, 456–57 (D.C. Cir. 2005) (reviewing Smith v. Dep’t of Mental
Health, Case No. 2-cv-481, where the district court granted a late-filed summary
judgment motion after issuing scheduling orders). Thus, Plaintiffs’ Rule 16 arguments
and the related authority are inapposite. 2
Plaintiffs also assert that this Court has already resolved the issue of contributory
negligence in this case, and to support this contention, Plaintiffs point to a footnote in
this Court’s prior opinion that explains that the station agent would have had an
affirmative duty to aid decedent Whiteru had she found him. See Whiteru, 258 F. Supp.

It is unclear if Plaintiffs are attempting to equate the “good cause” language in Rule 6(b) with that
same phrase in Rule 16. (See Pls.’ Opp’n at 2.) Although Rule 6(b) now contains the term “good
cause,” see Fed. R. Civ. P. 6(b)(1) (explaining that a court “may, for good cause” extend deadlines
under certain circumstances), when Pioneer explained Rule 6(b)’s “excusable neglect” inquiry, the
language of the rule allowed extensions for “cause shown.” See Andrews v. Daughtry, 994 F. Supp. 2d
728, 735 (M.D.N.C. 2014). The subsequent change in language was “intended to be stylistic only” and
did not somehow import Rule 16’s standard into the amended language of Rule 6(b). See 4B Charles
Allan Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 n. 9 (4th ed. 2015) (citing
Advisory Committee’s Note to the 2007 Amendment to Rule 6). Consequently, Pioneer’s emphasis on
“excusable neglect” remains the appropriate standard for the Rule 6(b) analysis. See, e.g., Yesudian,
270 F.3d at 971.
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3d at 192 n.11. But this footnote does not address, much less resolve, the issue of
whether any alleged contributory negligence by decedent Whiteru eliminates
WMATA’s liability. Rather, the language to which Plaintiffs point merely references
caselaw that suggests that the contributory negligence of a passenger on a common
carrier does not erase the common carrier’s duty to render assistance. See id.
Finally, to the extent that Plaintiffs object to WMATA’s motion for leave on the
grounds that any such supplemental motion for summary judgment would be meritless
(see Pls.’ Opp’n at 5–8), the parties’ briefs regarding Plaintiffs’ pending motions in
limine belie this contention. These pending briefs expressly raise the contributory
negligence question, and thereby suggest that there is a significant and material legal
dispute to be resolved by the Court. (See Pls.’ Contributory Negligence MILs.) Thus,
“even if a trial is [ultimately] required, the arguments raised . . . are issues the Court
will presumably have to address in any event [before] the trial.” McFadden Order at 6–
7. Consequently, the same concerns of judicial economy that Judge Walton considered
compelling in the substantially similar McFadden case exist here. See id. (emphasizing
that allowing a late dispositive motion “could obviate the need for trial, further
conserving judicial resources and the time and money the parties will have to expend if
this case proceeds to trial”).
IV.
This Court is persuaded that the Pioneer factors, as well as the broader gauge of
equitable circumstances more generally, “ultimately tip in favor of finding WMATA’s
neglect excusable.” Id. at 4; see also Yesudian, 270 F.3d at 971. Therefore, as
reflected in its Order of December 6, 2018, WMATA’s motion for leave to file a

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supplemental motion for summary judgment has been GRANTED, and the parties have
proceeded to propose a schedule for full summary judgment briefing. (See Proposed
Briefing Schedule, ECF No. 78.)

Ketanji Brown Jackson

DATE: December 17, 2018

KETANJI BROWN JACKSON
United States District Judge

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