Pass et al v. Government Employees Insurance Company et al

Filing 44

ORDER denying 42 Motion for Reconsideration; denying 43 Motion for Reconsideration. Signed by District Judge Sharion Aycock on 10/31/2014. (geb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
JOHNNYE H. PASS, and
FAITH PASS-BASS

PLAINTIFFS

V.

CAUSE NO. 3:13-CV-00016-SA-SAA

GOVERNMENT EMPLOYEES
INSURANCE COMPANY

DEFENDANT

Order
Plaintiffs Faith Pass-Bass and Johnnye H. Pass have filed two Motions for
Reconsideration [42, 43] asking the Court to reconsider its Order Denying Plaintiffs’ Motion to
Continue and its Order denying their Motions to Change Venue and Substitute Party [40]. The
Court will take each in turn.
Motion to Continue
The decision to grant a continuance is within the trial court’s discretion. Gandy v.
Alabama, 569 F.2d 1318, 1322 (5th Cir. 1978). The Court may consider many factors, including
“whether other continuances have been requested and granted.” Id. at 1324.
For example, in the criminal context, the Fifth Circuit affirmed a court’s decision to deny
continuance even though it left the defendant unrepresented at trial, implicating the Sixth
Amendment right to counsel. U.S. v. Mitchell, 777 F.2d 248, 257 (5th Cir. 1985). This decision
was based, in part, on the fact that the party and his attorney knew about attorney’s scheduling
conflict months in advance, but the motion was filed within days of trial. Id.
A similar delay exists in this case. Trial is set for November 3, 2014, one day before an
election in which Plaintiffs’ counsel is a candidate. Plaintiffs could have filed their motion at any
time after July 23, 2014, when they learned of the problematic date. Instead, they waited until

October, 9, 2014, less than a month before trial. A continuance at this point would result in
unnecessary expense, as the Court has already ordered a jury.
In addition, this is not the first request of this nature. Trial was originally set for July 28,
2014. The Plaintiffs moved for a continuance, which this Court granted on July 23, 2014. When
the Court has already granted a prior continuance, it weighs against granting a second. See
Gandy, 569 F.2d at 1324 (Among factors to consider when deciding a continuance motion are
“whether other continuances have been requested and granted”). For these reasons, Plaintiffs’
motion is denied and this case will be tried as scheduled.
Motion to Change Venue
In re-urging the Court to transfer this case to Oxford, Mississippi, Plaintiffs emphasize
the importance of a witness who lives within subpoena power of the courthouse in Oxford, but
beyond that of the courthouse in Aberdeen. Here, the Court reiterates its reasons set forth for
denying Plaintiffs’ earlier motion set forth in the Memorandum Opinion [41] entered earlier this
day. Under Uniform Local Civil Rule 7(b)(11), the Court is not required to give a reason for
denying the motion, as it was untimely. But even if timely, transferring venue here would be
inappropriate. Within the Northern District of Mississippi, intradistrict transfer requires “a strong
showing of prejudice.” Johnson v. Lewis, 645 F. Supp. 2d 578, 587 (N.D. Miss. 2009). The fact
that counsel had an opportunity to depose this purportedly important witness before trial greatly
lessens any prejudice caused by the venue. Johnson v. Lewis, 645 F. Supp. 2d 578, 587 (N.D.
Miss. 2009). As the Court noted in its Memorandum Opinion [41], any prejudice caused by
counsel’s failure to depose a key witness who is not subject to compulsory process does not form
a basis for a change of venue under 28 U.S.C. § 1404.

Motion to Substitute Party
In asking the Court to allow Jeryl P. Jones to substitute as a party for Johnnye Pass, her
counsel states that she is concerned about Pass’ ability to sit through court proceedings and
testify. The Court is sensitive to these concerns. There is however, no requirement that Pass
testify, and the Court is willing to excuse Pass from attending trial. Arrington v. Robertson, 114
F.2d 821, 823 (3rd Cir. 1940) (Explaining that a party may waive the right to be present at trial
by leaving the courtroom, at which time “the trial judge may proceed with the trial in his
absence”); see also Blair v. Faust, 408 S.W. 3d 98, 102 (Mo. 2013) (“When a party is
represented by counsel, she has the right to personally appear, or not, at her trial) (emphasis
added). For this reason, as well as those previously stated in the Memorandum Opinion [41],
Plaintiffs’ motion is DENIED.
Conclusion
For the foregoing reasons, the Plaintiffs’ Motions for Reconsideration [42, 43] are
DENIED.
SO ORDERED, this 31st day of October, 2014.

/s/ Sharion Aycock
U.S. DISTRICT JUDGE

.