Garecht v. Professional Transportation, Inc. et al

Filing 54

ORDER STRIKING 48 Stipulation filed by John Garecht, STRIKING 52 MOTION Agreed Motion To Reset Class Certification Briefing Schedule And Set Telephonic Status Conference filed by Professional Transportation, Inc. Show Cause Hearing set for 1/13/2016 at 2:00 PM in East St. Louis Courthouse before Magistrate Judge Donald G. Wilkerson. Signed by Magistrate Judge Donald G. Wilkerson on 1/6/16. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN GARECHT,
Plaintiff,
v.
PROFESSIONAL
INC.
Defendant.

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TRANSPORTATION,)
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Case No. 3:14-cv-378-SMY-DGW

ORDER
WILKERSON, Magistrate Judge:
On October 7, 2015, this Court issued an Amended Scheduling Order setting forth various
deadlines and adopting the deadlines contained in the Joint Report of Parties (Doc. 47). Pursuant
to that Order, the Parties should have given priority to class certification discovery. Common
sense dictates that class certification discovery should be concluded prior to the filing of Plaintiff’s
Motion to Certify Class. That brief was due on November 1, 2015. A response was due 30 days
thereafter. No such motion was filed by the November 1, 2015 deadline.
In contravention of this Court’s Scheduling Order, the parties elected to file a “Stipulation
to Amend Amended Scheduling Order” (Doc. 48). According to this filing, the parties believe
that this Court’s Scheduling Order and Federal Rule of Civil Procedure 29 give them carte blanche
to modify the deadlines set forth by the Court. The parties also believe that, without the Court’s
approval, they may amend an Order of this Court and reset Plaintiff’s filing deadline to December
8, 2015. The Amended Scheduling Order does not grant the parties permission to unilaterally
change the filing date of motions. The Order states: “If the parties believe that additional time is
necessary to conduct discovery and file motions, they may file a motion, either jointly or

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individually.” No such motion has been filed. Rule 29 likewise does not grant parties free reign
to modify motion filing deadlines. In pertinent part, Rule 29 states that “the parties may stipulate
that . . . other procedures governing or limiting discovery be modified – but a stipulation extending
the time for any form of discovery must have court approval if it would interfere with the time set
for completing discovery, for hearing a motion, or for trial.” The Rule discusses modification of
discovery deadlines and does not govern motion filing deadlines. Accordingly the Stipulation
(Doc. 48) filed by the parties is hereby STRICKEN as being filed in contravention of this Court’s
Order and the Rules of Civil Procedure.
Plaintiff’s Motion to Certify Class (Doc. 49) is untimely. No motion has been filed to
seek additional time to file the Motion to Certify Class. At this point, Plaintiff is required by Rule
6(b)(1)(B) to show excusable neglect for failing to act by the deadline. It is within this Court’s
discretion to determine whether Plaintiff should be permitted to file an untimely motion. See
Raymond v. Ameritech Corp., 442 F.3d 600, 605-606 (7th Cir. 2006).
The parties also seek an open-ended deadline for Plaintiff to file an “Amended” Motion for
Class Certification in order to acquire additional discovery (Doc. 52). There is no indication in
the motion why the parties waited until December 23, 2015 to bring to the Court’s attention a delay
in class certification discovery; discovery that common sense dictates should have been completed
by November 1, 2015 at the latest. There is also no explanation of what deficiency is contained in
Plaintiff’s motion such that an amendment would be necessary.

The parties also state:

“Defendant’s response to Plaintiff’s Motion for class certification is currently due on January 7,
2016, and the parties have agreed to strike that deadline, as Plaintiff will be filing an amended
motion as set forth above.” The Court is unaware of any rule of law or Rule of Civil Procedure
that would permit any party to “strike” a deadline that is imposed by a Court Order. Accordingly,

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Defendant’s response to the (untimely) Motion to Certify Class will itself be untimely if filed after
January 7, 2016. The failure to file a timely response may, pursuant to Local Rule 7.1, be
considered by the District Court as an admission of the merits of the motion. The “Agreed
Motion” is STRICKEN as impertinent.
This matter is SET for an IN PERSON hearing on January 13, 2016 at 2:00 p.m. All
attorneys of record shall appear. The parties shall come prepared to explain why they failed to
follow the deadlines set in this Court’s Amended Scheduling Order. The parties shall also come
prepared to explain why this Court should exercise its discretion and extend any deadlines in this
case.
IT IS SO ORDERED.
DATED: January 6, 2016

DONALD G. WILKERSON
United States Magistrate Judge

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