Holland v. Keesler Federal Credit Union

Filing 122

ORDER granting Plaintiff Steven W. Holland's Motion 101 for Reconsideration. Signed by District Judge Halil S. Ozerden on May 16, 2017. (BGL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
STEVEN W. HOLLAND
v.

PLAINTIFF
CIVIL NO. 1:15-cv306-HSO-JCG

KEESLER FEDERAL CREDIT UNION

DEFENDANT

ORDER GRANTING PLAINTIFF STEVEN W. HOLLAND’S
MOTION FOR RECONSIDERATION [101]
BEFORE THE COURT is Plaintiff Steven W. Holland’s Motion for
Reconsideration [101] of the Court’s Text Only Order denying Plaintiff’s Motion [99]
for time. This Motion is fully briefed. After consideration of the Motion, the record
as a whole, and relevant legal authority, the Court finds that the Motion should be
granted. Plaintiff is directed to re-file his proposed Motion to Strike, previously
docketed as Document 100, and his proposed supporting Memorandum [100-1]
within three (3) days of the entry of this Order.
I. RELEVANT PROCEDURAL HISTORY
A.

Motions to Amend the Case Management Order
The Case Management Order [9] was entered on December 4, 2015,

establishing the deadline for Plaintiff Steven W. Holland (“Plaintiff”) to file his
expert designation as March 1, 2016, and the parties’ deadline for filing Daubert
and dispositive motions as May 23, 2016. The trial was originally scheduled for
October 2016. Order [9] at 4-5. A review of the record reflects numerous motions to
amend the Case Management Order or extend deadlines have been filed.

On March 31, 2016, Defendant filed an Unopposed Motion [22] requesting an
additional 30 days from the date Plaintiff served his expert report in which to file
Defendant’s expert report. Defendant’s Motion stated in part as follows:
Discovery is progressing in this matter. However, although the
Plaintiff filed its (sic) notice of service of designation of experts on March
1, 2016, and has provided to counsel for the Defendants a listing of prior
testimony of its designated expert, the Plaintiff has failed to provide the
Defendant with the following expert disclosures required by Rule 26:
(i)
(ii)
(iii)
(iv)
(v)

a complete statement of all opinions the witness will
express and the basis and reasons for them;
the facts or data considered by the witness in
forming them;
any exhibits that will be used to summarize or
support them;
the witness's qualifications, including a list of all
publications authored in the previous 10 years;
a statement of the compensation to be paid for the
study and testimony in the case.

Mot. [22] at 1-2 (emphasis in original). The Court granted Defendant’s Motion in an
April 1, 2016, Text Order and amended the Case Management Order to extend
Defendant’s deadline for filing its expert designation to May 9, 2016.
Defendant then filed on May 6, 2016, a Joint Motion [34] with Plaintiff
seeking additional time to designate experts. Defendant asserted that Plaintiff had
still not served an expert report because Plaintiff’s counsel reported that he had
been “ill for several weeks and unable to work” or “travel.” Mot. [34] at 1-2. The
Court granted the parties’ Motion in a May 10, 2016, Text Order and amended the
Case Management Order to extend: (1) Defendant’s deadline to designate experts to
June 17, 2016; (2) the discovery deadline to July 15, 2016; (3) the deadline for

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dispositive and Daubert motions to July 29, 2016; and (4) the trial date to April
2017.
On July 14, 2016, Plaintiff filed a Motion [39] seeking an additional 60-day
extension of deadlines for the completion of discovery and the filing of dispositive
and Daubert motions. Mot. [34] at 1-8.
The Court’s August 19, 2016, Text Order granted in part and denied in part
Plaintiff’s Motion [39. The Court’s August 19, 2016, Text Only Amended Case
Management Order required that Plaintiff’s deposition be taken on August 29,
2016, and that Defendant’s Rule 30(b)(6) representative’s deposition be taken on
August 30, 2016. The Order further extended deadlines for: (1) Plaintiff to
supplement his expert’s designation by September 9, 2016; (2) completion of
discovery by September 26, 2016; and (3) the filing of dispositive and Daubert
motions by October 10, 2016. The Order admonished the parties that
NO FURTHER EXTENSIONS WILL BE GRANTED ABSENT
EXTRAORDINARY CIRCUMSTANCES.
Also, on August 15, 2016, Plaintiff filed a Motion [46] seeking an additional
21 days to respond to Defendant’s previously filed Motion for Summary Judgment
[42] and Motion to Strike [44] Plaintiff’s expert. On August 30, 2016, the Court
determined that Plaintiff’s Motion should be granted and his deadline for
responding to these particular Motions was extended until September 6, 2016.
Order [52] at 1-2.

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On September 6, 2016, Plaintiff filed a Second Motion [53] requesting an
additional 14 days to respond to Defendant’s Motion for Summary Judgment [42]
and Motion to Strike [44] Plaintiff’s expert, representing that he had just received
deposition transcripts in this case and that he had “a week’s worth” of depositions in
other cases. The Court’s September 15, 2016, Order [59] granted Plaintiff until
Tuesday, September 20, 2016, to file the responses. Order [59] at 1-3.
On September 20, 2016, Plaintiff filed a Response [60] in Opposition to
Defendant’s Motion for Summary Judgment asserting that pursuant to Federal
Rule of Civil Procedure 56(d), Plaintiff needed additional time to complete discovery
and respond to Defendant’s Motion for Summary Judgment. The Court ultimately
granted Plaintiff’s Rule 56(d) Motion on December 12, 2016, and denied Defendant’s
Motion for Summary Judgment without prejudice. Mem. Op. and Order [74] at 114. On January 6, 2016, a Text Only Amended Case Management Order was
entered which extended the discovery deadline until March 6, 2017, and the
dispositive motion deadline until March 20, 2017.
On March 20, 2017, Plaintiff filed another Motion [93] requesting an
additional 10 days to file a summary judgment motion and a motion to strike
Defendant’s expert, alleging that an immediate family member of Plaintiff’s counsel
had a medical emergency. By Text Order dated March 21, 2017, the Court granted
Plaintiff’s Motion for Extension of Time [93] “based upon counsel’s representation of
a medical emergency,” and Plaintiff’s deadline for filing his motions was extended to

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Thursday, March 30, 2017. Plaintiff was once again admonished that: “NO
FURTHER EXTENSIONS OF TIME WILL BE GRANTED.”
Finally, on the deadline of March 30, 2017, after Defendant timely filed its
Motion for Summary Judgment [97], Plaintiff filed yet another Motion [99] seeking
an additional day to file his summary judgment motion and motion to strike,
alleging that following the medical emergency, Plaintiff’s counsel spent the
remainder of the 10-day extension preparing for and attending depositions “in a
separate action pending in the United States District Court for the Middle District
of Florida.” Mot. [99] at 1-6. The Court’s March 31, 2017, Text Order denied
Plaintiff’s Motion, admonishing Plaintiff that he “was previously advised that no
further extensions would be granted.”
B.

Plaintiff’s Motion for Reconsideration [101]
Plaintiff’s present Motion [101] asks the Court to reconsider its March 31,

2017, Text Only Order denying Holland’s Motion for Extension of Time [99] and
permit him to file only a Motion to Strike Defendant’s expert and a supporting
Memorandum. Mot. [101] at 1-5. Plaintiff asserts that his Motion [99] for an
additional one day to file Daubert and summary judgment motions should have
been granted in that he satisfied both the “good cause” and “excusable neglect”
standards for requesting additional time under Federal Rules of Civil Procedure
6(b) and 16(b). Mot. Recons. [101 at 1-6. Plaintiff’s counsel maintains that he was
precluded from working on the motions in this case because of the medical

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emergency followed by the “March 29-30” depositions “involving a separate federal
case pending in the United States District Court for the Middle District of Florida.”
Defendant’s Response in Opposition [105] argues that Plaintiff has failed to
proffer any good faith factual basis to support either his Motion for Time [99] or his
Motion for Reconsideration [101]. Defendant takes the position that Plaintiff’s
assertion that he needed additional time due to depositions in another case does not
rise to the level of good cause in that Plaintiff’s counsel either knew about the
depositions when he asked for the original “10 day” extension in this case, or
scheduled them after the fact.
In Reply [106], Plaintiff acknowledges that he was probably “overly
conservative” in seeking only a “10 day” extension considering the “unknowns with
the trip to Texas and the always-difficult-to anticipate length of depositions.” Reply
[106] at 9. Plaintiff asks that the Court allow him to file his Motion to Strike
Defendant’s expert and the proposed supporting Memorandum. Id. at 12.
II. DISCUSSION
A.

Relevant Legal Standard
After the entry of a case management order, a motion to amend the

scheduling order is analyzed under Federal Rule of Civil Procedure 16(b)(4), which
provides that “[a] schedule may be modified only for good cause and with the judge’s
consent.”
To show good cause, the party seeking to modify the scheduling order
has the burden of showing “that the deadlines cannot reasonably be met
despite the diligence of the party needing the extension.” Filgueira v.

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US Bank Nat’l Ass’n, 734 F.3d 420, 422 (5th Cir. 2013) (per curiam)
(internal quotation marks and citation omitted). There are four relevant
factors to consider when determining whether there is good cause under
Rule 16(b)(4): “(1) the explanation for the failure to timely [comply with
the scheduling order]; (2) the importance of the [modification]; (3)
potential prejudice in allowing the [modification]; and (4) the
availability of a continuance to cure such prejudice.” Meaux Surface
Protection, Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010) (internal
quotation marks and citation omitted).
Squyres v. Helico Cos. LLC, 782 F.3d 224, 237 (5th Cir. 2015).
An order denying an amendment to the scheduling order constitutes an
interlocutory order because it “does not end the action as to any of the claims or
parties.” FED. R. CIV. P. 54(b). “Federal Rule of Civil Procedure 54(b) authorizes a
district court to reconsider and reverse rulings on an interlocutory order ‘for any
reason it deems sufficient.’” United States v. Renda, 709 F.3d 472, 479 (5th Cir.
2013) (citing Saqui v. Pride Ctr. Am., LLC, 595 F.3d 206, 210-11 (5th Cir. 2010)). A
district court's decision to grant or deny reconsideration is reviewed for abuse of
discretion. Id. at 478-79. “A trial court abuses its discretion when its ruling is
based on an erroneous view of the law or a clearly erroneous assessment of the
evidence.” Austin v. Kroger Texas, No. 16-10502, 2017 US App. LEXIS 6479, at *6
(5th Cir. April 14, 2017) (quoting United States v. Yanez Sosa, 513 F.3d 194, 200
(5th Cir. 2008)).
B.

Discussion
Throughout this case, this Court has generously granted motions for

extensions of time and requests to amend the Case Management Order; however,
Plaintiff’s counsel has repeatedly demonstrated an inability or unwillingness to

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work within the confines of the Court’s deadlines, even after being advised that
further extensions would not be permitted. See Draper v. KK Ford, LP, 196 F.
App’x 264, 265 (5th Cir. 2006) (denying an extension of a deadline because “[a] busy
practice does not constitute excusable neglect.”); Hernandez v. Mario’s Auto Sales,
Inc., 617 F. Supp. 2d 488, 495 (S.D. Texas 2009) (holding that a “burdensome
schedule” does not constitute good cause).
After review of the Motion for Reconsideration [101], all related pleadings,
the record as a whole, and relevant legal authority, however, the Court finds that
Plaintiff should be granted one last extension because he did seek leave of Court for
an additional day in which to file his Motion to Strike prior to the expiration of the
deadline. The Motion for Reconsideration will be granted and Plaintiff shall, within
three (3) days of the entry of this Order, refile his unedited Motion to Strike,
previously docketed at [100], and his Memorandum [101-1] in Support. Plaintiff’s
counsel is cautioned that no further extensions of time will be permitted, and that
any discrepancies between the previously submitted Motion to Strike [100] and
Memorandum [101-1] in Support and the Motion and Memorandum Plaintiff files
pursuant to this Order will not be permitted.
III. CONCLUSION
After consideration of the record and the relevant legal authority, the Court
finds Plaintiff’s Motion for Reconsideration [101] should be granted.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff Steven
W. Holland’s Motion for Reconsideration [101] is GRANTED, and Plaintiff shall,

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within three (3) days of the entry of this Order refile his unedited Motion to Strike,
previously docketed at [100], and his Memorandum [101-1] in Support.
SO ORDERED AND ADJUDGED this the 16th day of May, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE 

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