Shaw v. Wal-Mart Louisiana, LLC

Filing 35

ORDER & REASONS denying 24 Motion for Extension of Time to Answer re 20 MOTION for Summary Judgment. The motion for summary judgment will be heard on 1/11/2012, on the papers. Signed by Judge Martin L.C. Feldman on 1/6/2012. (caa, ) Modified on 1/6/2012 (caa, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PERCY SHAW

CIVIL ACTION

VERSUS

NO. 11-539

WAL-MART LOUISIANA, LLC

SECTION "F"
ORDER & REASONS

Before the Court is the plaintiff’s motion for extension of
time to answer the defendant’s motion for summary judgment.
the reasons that follow, plaintiff’s motion is DENIED.

For

Wal-

Mart’s motion for summary judgment will be heard on January 11,
2012, on the papers.
I. Background
After being fired about a month after giving testimony in
connection with a co-worker’s termination, Percy Shaw sued his
long-time employer, Wal-Mart Louisiana LLC in the 22nd Judicial
District Court for the Parish of St. Tammany for retaliatory
discharge and conspiracy to retaliate under Louisiana law.
The plaintiff claims that his damages include mental anguish
and distress in the past, present, and future; medical and
pharmaceutical expenses in the past, present, and future; past
and future wages and the loss of earning capacity; apprehension
of not being able to support his family; inconvenience; fear and
fright; embarrassment, humiliation, and aggravation; and other
damages allowable under the law.

Because Louisiana law bars

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plaintiff from doing so, plaintiff’s complaint alleges no amount
in controversy.

Contending that damages exceed $75,000, the

defendant timely removed on the basis of diversity jurisdiction.
The Court denied the plaintiff’s motion to remand to state court
by Order and Reasons dated May 12, 2011.
Wal-Mart moved for summary judgment on December 20, 2011,
and noticed its motion for hearing on January 11, 2012.

On

December 23, 2011, plaintiff filed this motion for a thirty day
extension of time to respond to Wal-Mart’s summary judgment
motion, citing a need for additional discovery.1

Because Wal-

Mart opposes plaintiff’s motion for an extension of time, this
motion was initially also noticed for submission on January 11,
2012, the same date as Wal-Mart’s motion for summary judgment.
In order to resolve the extension of time question prior to the
submission date of Wal-Mart’s motion for summary judgment, the
Court moved the hearing date for this motion to January 6, 2012.
The pre-trial conference and trial dates are January 23, 2012 and
February 6, 2012.
Plaintiff also filed a motion to compel discovery on
December 31, 2011, which is noticed for hearing before Magistrate
Judge Chasez on January 11, 2012.
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As the motion for summary judgment is noticed for hearing
on January 11, 2012, the plaintiff’s response was due on January
3. Plaintiff in fact submitted a response, but noted that he did
so only in case his motion for an extension of time was denied.
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II. Discussion
Plaintiff bases his motion for an extension of time to
respond to Wal-Mart’s summary judgment motion on an asserted need
to conduct more discovery.

Under the scheduling order entered in

this case, the discovery cut-off was December 26, 2011.
Rule 16(b) of the Federal Rules of Civil Procedure, a
scheduling order can only be modified by “a showing of good cause
and by leave of the district judge.”

S&W Enters. v. Southtrust

Bank of Ala., 315 F.3d 533, 535 (5th Cir. 2003) (citing Fed. R.
Civ. P. 16(b)).

Additionally, “The good cause standard requires

the ‘party seeking relief to show that the deadlines cannot
reasonably be met despite the diligence of the party needing the
extension.’” Id. (citing 6A Charles Alan Wright et al., Federal
Practice and Procedure § 1522.1 (2d ed. 1990)).
Plaintiff has failed to show good cause for requesting the
extension.

First, plaintiff does not make clear in his motion

and memorandum what the written discovery is that he asserts he
is waiting for.

Second, Wal-Mart disclosed Ms. Turnbow’s

identity to the plaintiff on two separate occasions: in its
response to plaintiff’s first set of written interrogatories
(June 20, 2011), and in its witness list (November 21, 2011).
According to an email exchange between plaintiff’s counsel and
Wal-Mart’s counsel, plaintiff asked to depose Ms. Turnbow on
December 19, 2011, just seven days before the discovery cut-off.

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Plaintiff does not explain in his motion or memorandum why he did
not depose Ms. Turnbow earlier.

Plaintiff’s assertion that he

only found out about Ms. Turnbow’s potential relevance to the
case after taking Jahane Tidwell’s deposition on December 14,
2011 does not excuse the lack of diligence on plaintiff’s part.
Finally, the declarations that Wal-Mart submits in support of his
motion for summary judgment were made by Mr. Beck, Ms. Turnbow,
and Ms. Tidwell, all of whom were disclosed to plaintiff, not
once but twice.

And plaintiff apparently has not sought to

compel any remedy for deficient discovery.

Plaintiff makes

absolutely no case for an extension.
Accordingly, IT IS ORDERED: the plaintiff’s motion for an
extension of time to respond to plaintiff’s motion for summary
judgment is DENIED.

The motion for summary judgment will be

heard on January 11, 2012, on the papers.
New Orleans, Louisiana, January 6, 2012.

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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