Sterling v. United States Department of the Interior et al

Filing 65

ORDER AND REASONS granting 64 Motion for Leave to File Memorandum in Opposition. IT IS FURTHER ORDERED: that the hearing on the defendants' motion to dismiss or for summary judgment is continued to May 30, 2018, on the papers; any request for leave to file reply papers must be filed no later than May 18, 2018. IT IS FURTHER ORDERED: that the pretrial conference and trial date are hereby continued, to be reset by the Court. Signed by Judge Martin L.C. Feldman on 4/30/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KEVIN STERLING

CIVIL ACTION

v.

NO. 17-0742

RYAN ZINKE, Secretary,
U.S. DEPARTMENT OF THE INTERIOR, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiff’s motion for leave to file
plaintiff’s memorandum in opposition to defendant’s motion to
dismiss and/or alternatively for summary judgment out of time.
For the reasons that follow, the motion is GRANTED.
Background
This lawsuit arises from a challenge to the U.S. Department
of the Interior’s employment practices, including allegations that
an employee was tasked with duties beyond his pay grade, but
received a delayed reclassification (and corresponding delayed
increase in pay) due to his African American race, and that he
suffered retaliation in the form of an increased workload after
complaining about the unlawful employment practices.
After a scheduling conference was held, on August 25, 2017,
the Court issued a scheduling order setting an April 26, 2018
pretrial conference date, a May 14, 2018 jury trial date, as well
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as other deadlines.

On March 21, 2018, the defendants filed their

motion to dismiss or for summary judgment, selecting April 4, 2018
as the submission date.

The next day, counsel for plaintiff

requested that the submission date be continued to April 18, 2018
because the deadline for submitting opposition papers was two days
prior

to

the

depositions
counsel’s

deadline

scheduled
unopposed

to

complete

but

discovery,

outstanding.

request

and

reset

with

The
the

Court
hearing

two

more

granted
on

the

defendants’ motion to April 18, which set the plaintiff’s deadline
for filing opposition papers at April 10, 2018.
A week after the Court granted the plaintiff’s request to
continue the hearing date and the deadline for responding, the
plaintiff moved to continue the trial date so that he would have
more time to depose two additional individuals he claimed may have
been involved with making retaliatory employment decisions.
defendants opposed the motion.

The

Meanwhile, on April 12, two days

after the deadline for the plaintiff to respond to the defendants’
motion to dismiss or for summary judgment, the plaintiff also moved
to extend the hearing date on the motion so that he would have
additional time to respond.

This time, counsel for plaintiff

claimed that he was unable to submit a timely response to the
defendants’

motion

because

the

court

reporter

transcribing

depositions from March 14 and March 27 had not yet prepared the
2

transcripts;

counsel

requested

that

the

hearing

date

on

the

defendants’ motion be reset to May 2, 2018.
On April 12, 2018, the Court determined that the plaintiff
had failed to satisfy Rule 56(d) and that he likewise failed to
demonstrate good cause warranting a continuance of the trial.
Court

denied

the

plaintiff’s

request

to

continue

the

The

trial.

Nevertheless, in order for the Court to consider the merits of the
defendants’ motion, the Court granted the plaintiff’s request to
continue
judgment,

the

hearing

setting

the

on

the

hearing

defendants’
on

May

2,

motion

for

2018,

summary

making

the

plaintiff’s opposition papers due not later than April 24, 2018; 1
a full two weeks later.
Despite this indulgence, counsel for plaintiff waited until
the deadline for submitting his opposition papers, April 24, to
request, yet again, that this Court provide the plaintiff with
additional time to respond to the defendants’ motion. 2

This time,

plaintiff’s counsel claimed that, on April 18, “the attorney
primarily responsible for writing the Memorandum in Opposition

The Court also moved the pretrial conference to May 3, 2018.
Despite having moved for this exact same relief previously, the
plaintiff’s motion was marked “DEFICIENT” by the Clerk’s Office
because plaintiff’s counsel had neglected to set the motion (which
was opposed by the defendants) for hearing. Plaintiff’s counsel
remedied this deficiency the next day, on April 25, 2018.
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2

resigned from the firm.”

Plaintiff’s counsel urged the Court to

allow him one extra day to file the opposition papers, stating
that other matters had interfered with his ability to timely
complete

the

papers.

Plaintiff’s

counsel

insisted

that

his

opposition papers would be filed not later than April 25, 2018.
When plaintiff’s counsel failed to honor his requested extension,
the Court denied the request on April 26, 2018.
At

11:55

p.m.

on

Thursday,

April

26,

2018,

counsel

for

plaintiff filed a motion for leave to file plaintiff’s memorandum
in opposition to the defendants’ motion to dismiss or for summary
judgment.

To support his request for leave to file the opposition

and few hundred pages of exhibits, plaintiff’s counsel details his
other legal obligations that interfered with his ability to meet
the latest, the April 24th, deadline.
The Court first observes that only one attorney has ever been
enrolled to represent Kevin Sterling.

Therefore, that attorney’s

suggestion that another attorney was primarily responsible for
drafting

Mr.

unprofessional.

Sterling’s

opposition

papers

and

at

best,

Equally unprofessional is plaintiff’s counsel’s

last minute requests to seek an extension.
defendants

is,

defendants

themselves

Although counsel for

likely

will

suffer

only

limited prejudice from the plaintiff’s tardy submission, for the
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Court to accept the plaintiff’s eleventh hour opposition papers
will force a continuance of the pretrial and trial dates in order
to allow time for the Court to review the voluminous record and
papers and issue a ruling on the merits.
The Court will not punish Mr. Sterling for his attorney’s
unprofessional conduct.
that

the

plaintiff’s

For that reason alone, IT IS ORDERED:

motion

for

leave

to

file

memorandum

in

opposition to the defendants’ motion to dismiss or for summary
judgment is GRANTED.

IT IS FURTHER ORDERED: that the hearing on

the defendants’ motion to dismiss or for summary judgment is
continued to May 30, 2018, on the papers; any request for leave to
file reply papers must be filed no later than May 18, 2018.

IT IS

FURTHER ORDERED: that the pretrial conference and trial date are
hereby continued, to be reset by the Court. 3
New Orleans, Louisiana, April 30, 2018

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

During the scheduling conference with this Court’s Case Manager,
only a new pretrial conference and trial date will be selected.
Plaintiff’s counsel has never shown good cause warranting a
continuance and therefore discovery will not be reopened unless
all counsel agree it would be in the interest of justice.
Moreover, counsel for plaintiff should note his responsibility for
sanctions under 28 U.S.C. § 1927, if requested by defendant.
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