Pittman v. Experian Information Solutions, Inc. et al

Filing 104

ORDER Regarding Defendant's Motion for Leave to File Motion for Summary Judgment and Suspending the Final Pretrial and Trial Dates Until Further Notice. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION
HOWARD PITTMAN,
Plaintiff,

Case No. 14-13591
Honorable Victoria A. Roberts

v.
EXPERIAN INFORMATION
SOLUTIONS, INC., et al.,
Defendants.
_____________________________/
ORDER REGARDING DEFENDANT’S MOTION FOR LEAVE TO FILE
MOTION FOR SUMMARY JUDGMENT [Doc. 100] AND SUSPENDING
THE FINAL PRETRIAL AND TRIAL DATES UNTIL FURTHER NOTICE
Pursuant to the Court’s scheduling order, the deadline to file dispositive motions
was August 12, 2016. Plaintiff Howard Pittman and Defendant iServe Servicing, Inc.,
filed cross motions for summary judgment. The Court granted iServe’s motion and
dismissed it from this case, and denied Pittman’s motion. Servis One, Inc. d/b/a BSI
Financial Services (“BSI”) – the sole remaining defendant – did not file a timely
dispositive motion.
BSI now moves for leave to file a late motion for summary judgment or motion for
judgment as a matter of law; BSI’s motion for leave (which incorporates BSI’s
motion/brief for summary judgment) is before the Court. [Doc. 100]. The motion is fully
briefed.
BSI says the Court decided the threshold legal issue in its order regarding cross
motions for summary judgment – i.e., “that the loan modification upon which Pittman’s
claims were predicated did not conform with the Statute of Frauds” – such that Pittman’s

claims fail as a matter of law, and “[a] trial would not be in the best interest of either
party.” [Doc. 100, PgID 2456-57].
Pittman says BSI cannot establish the good cause necessary to warrant its late
filing and modification to the scheduling order under Federal Rule of Civil Procedure
16(b)(4). Alternatively, he requests an opportunity to respond to the motion for
summary judgment if the Court grants BSI leave.
“A [scheduling order] may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4). “The primary measure of Rule 16’s ‘good cause’
standard is the moving party’s diligence in attempting to meet the case management
order’s requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002)
(citation omitted). The Court should also consider any “possible prejudice to the party
opposing the modification.” Id.
BSI cannot establish good cause. Although it responded to Pittman’s motion for
summary judgment and was aware of the issues and governing law, BSI did not file this
motion until five months after the dispositive motion deadline and over a month after the
Court ruled on the cross motions for summary judgment. Moreover, trial is scheduled to
begin February 21, 2017. This is carelessness, not diligence.
On the other hand, entertaining BSI’s motion for summary judgment would not
prejudice Pittman. In fact, if BSI is entitled to judgment as a matter of law, resolving this
matter on summary judgment – rather than proceeding to trial and ultimately granting
BSI judgment as a matter of law after Pittman presents his case – would save Pittman
the time and expense of preparing for trial (e.g., completing the joint final pretrial order,
briefing motions in limine, appearing for final pretrial conference, etc.) and appearing at

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trial. Nevertheless, because the primary consideration of the good cause standard is
the moving party’s diligence, BSI fails to show it is entitled to a modification of the
scheduling order under Rule 16(b)(4).
Despite this failure, “the Court has the inherent authority to consider untimely
motions for summary judgment even where a party has not shown good cause for an
extension of time.” Cooper v. Shelby Cnty., Tenn., No. 07-2283-STA-CGC, 2010 WL
3211677, at *3-*4 (W.D. Tenn. Aug. 10, 2010). As the Sixth Circuit held, “it is within the
court’s discretion to consider a motion for summary judgment, even after the time
stipulated in the court’s order, where such consideration will eliminate unnecessary
trials which waste the parties’ time and money, and allow the court to give judgment on
the issues of law where no disputed issues of fact are found.” Williams v. Wilkinson,
134 F.3d 373, 1997 WL 809971, at *2 (6th Cir. Dec. 18, 1997) (internal quotation marks
and brackets omitted).
The Court will entertain BSI’s motion for summary judgment, because: (1) the
Court previously ruled that (i) no signed permanent loan modification existed, (ii)
Michigan law bars Pittman from arguing estoppel, and (iii) Pittman cannot show BSI
made an error in reporting his loan payments as overdue; and (2) ruling on the motion
may prevent an unnecessary trial, which would save time, money, and judicial
resources. See id.; Century Indem. Co. v. Aero-Motive Co., 379 F. Supp. 2d 879, 88081 (W.D. Mich. 2004), aff’d, 155 Fed. Appx. 833 (6th Cir. 2005).
Pittman may file a supplemental response/sur-reply to BSI’s motion for summary
judgment and reply brief. The supplemental response/sur-reply is due FEBRUARY 13,
2017, and may not exceed 5 pages.

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The Court is entertaining BSI’s motion because it may serve judicial efficiency by
preventing an unnecessary trial, and may save the parties Court the associated time
and expense that goes with trial. However, BSI’s lack of diligence in bringing this
motion only one month before trial is set to begin is inexcusable and sanctionable. See
Chao v. Local 951 United Food & Commercial Workers, No. 1:05-CV-638, 2006 WL
2771771, at *1-*2 (W.D. Mich. Sept. 25, 2006); Fed. R. Civ. P. 16(f).
Rule 16(f) allows the Court to “issue any just orders, including those authorized
by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to obey a scheduling or
other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C). BSI’s inexcusable failure to comply
with the scheduling order justifies a sanction.
The Court SANCTIONS BSI’s counsel $2,000, payable to Pittman; Pittman’s
counsel is not entitled to any of this amount. BSI’s counsel must pay Pittman by
FEBRUARY 24, 2017.
Moreover, Rule 16(f)(2) provides that: “Instead of or in addition to any other
sanction, the court must order the party, its attorney, or both to pay the reasonable
expenses – including attorney’s fees – incurred because of any noncompliance with this
rule, unless the noncompliance was substantially justified or other circumstances make
an award of expenses unjust.” Fed. R. Civ. P. 16(f)(2). BSI’s noncompliance was not
substantially justified, and no other circumstance makes an award of expenses unjust.
The Court AWARDS Pittman its reasonable costs and attorney fees incurred in
briefing BSI’s late motion, capped at $2,500. Pittman’s counsel is entitled to this award,
not Pittman. By FEBRUARY 13, 2017, Pittman’s counsel must submit a statement of
expenses that sets forth the costs and fees incurred in briefing this matter. Unless

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objected to in writing, BSI’s counsel must pay Pittman’s counsel the amount of those
expenses by FEBRUARY 24, 2017.
The Court SUSPENDS all final pretrial dates and the February 21 trial; these
dates will be rescheduled if necessary.
IT IS ORDERED.
/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: January 31, 2017
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
January 31, 2017.
s/Linda Vertriest
Deputy Clerk

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