Holland v. Keesler Federal Credit Union
Order granting Defendant Keesler Federal Credit Union's Motion 108 to Strike Plaintiff Steven W. Holland's Amended Response 103 in Opposition to Defendant's Second Motion 83 to Strike the Opinions and Testimony of Randall A. Snyder. Signed by District Judge Halil S. Ozerden on May 22, 2017. (BGL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
STEVEN W. HOLLAND
CIVIL NO. 1:15-cv306-HSO-JCG
KEESLER FEDERAL CREDIT UNION
ORDER GRANTING DEFENDANT KEESLER FEDERAL
CREDIT UNION’S MOTION  TO STRIKE PLAINTIFF
STEVEN W. HOLLAND’S AMENDED RESPONSE  IN
OPPOSITION TO DEFENDANT’S SECOND MOTION  TO
STRIKE THE OPINIONS AND TESTIMONY OF RANDALL A. SNYDER
BEFORE THE COURT is Defendant Keesler Federal Credit Union’s Motion
 to Strike Plaintiff Steven W. Holland’s Amended Response  in Opposition
to Defendant’s Second Motion  to Strike the Opinions and Testimony of Randall
A. Snyder. This Motion is fully briefed. After consideration of the Motion, the
record as a whole, and relevant legal authority, the Court finds that Defendant’s
Motion should be granted and Plaintiff’s Amended Response  should be
stricken from the record.
I. RELEVANT PROCEDURAL HISTORY
Motions to Amend the Case Management Order
A review of the record reflects that throughout this proceeding, numerous
motions to amend the Case Management Order or extend deadlines have been filed.
The original Case Management Order  in this case 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  at 4-5.
On March 31, 2016, Defendant filed an Unopposed Motion  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:
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
any exhibits that will be used to summarize or
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.  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  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.  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
dispositive and Daubert motions to July 29, 2016; and (4) the trial date to April
On July 14, 2016, Plaintiff filed a Motion  seeking an additional 60-day
extension of deadlines for the completion of discovery and the filing of dispositive
and Daubert motions. Mot.  at 1-8. The Court’s August 19, 2016, Text Order
amended the Case Management Order to require 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
Also, on August 15, 2016, Plaintiff filed a Motion  seeking an additional
21 days to respond to Defendant’s previously filed Motion for Summary Judgment
 and Motion to Strike  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  at 1-2.
On September 6, 2016, Plaintiff filed a Second Motion  requesting an
additional 14 days to respond to Defendant’s Motion for Summary Judgment 
and Motion to Strike  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  granted Plaintiff until
Tuesday, September 20, 2016, to file the responses. Order  at 1-3.
On the deadline of September 20, 2016, Plaintiff filed a Response  in
Opposition to Defendant’s Motion for Summary Judgment asserting that pursuant
to Federal Rule of Civil Procedure 56(d), he 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  at 1-14. 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  requesting an
additional 10 days to file his 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  “based upon counsel’s representation of
a medical emergency,” and Plaintiff’s deadline for filing his motions was extended to
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 , Plaintiff filed yet another Motion  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 ten-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.  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.”
On March 31, 2017, Plaintiff filed a Motion  for Reconsideration asking
the Court to reconsider its March 31, 2017, Text Only Order denying Plaintiff’s
Motion for Extension of Time , and allow him to file only a Motion to Strike
Defendant’s expert and supporting Memorandum. Mot.  at 1-5. The Court
ultimately granted this Motion and allowed Plaintiff an additional three days to
refile his Motion to Strike, previously docketed at , and his Memorandum  in Support.
On April 13, 2017, Plaintiff filed another Motion  seeking an additional
18 days to respond to Defendant’s Motion  for Summary Judgment. Via Text
Only Order the Motion was denied without prejudice. Later that same day,
Plaintiff filed an Amended Motion  seeking an additional 18 days to respond to
Defendant’s Motion  for Summary Judgment, and supplied the Court with
additional information concerning counsel’s schedule. Plaintiff’s Amended Motion
 was granted in part and denied in part, and Plaintiff was permitted an
additional eight days, or until April 21, 2017, to file his response. On the deadline
of April 21, 2017, Plaintiff filed his Response  to Defendant’s Motion for
Defendant’s Motion  to Strike Plaintiff’s Amended Response  in
Opposition to Defendant’s Second Motion  to Exclude Opinions and
Testimony of Plaintiff’s Expert Randall A. Snyder
On March 20, 2017, Defendant filed its Second Motion to Strike  the
opinions and expert testimony of Plaintiff’s expert Randall A. Snyder. Plaintiff’s
response was due no later than April 3, 2017, and on April 3, 2017, Plaintiff timely
filed a Response in Opposition . Plaintiff then filed, without seeking or
obtaining leave of Court, an untimely Amended Response  on April 4, 2017.
Defendant responded with the present Motion  to Strike on April 10,
2017, asking the Court to strike Plaintiff’s Amended Response . Mot. to Strike
 at 1-2. Defendant argues that after Plaintiff timely filed his initial Response
, he filed an untimely Amended Response  without leave of Court as
required by Federal Rule of Civil Procedure 15. Mem.  at 5.
Plaintiff maintains that Rule 15 is not applicable to his Amended Response
because it is not a “pleading,” that his original Response  was timely filed, that
his Amended Response  was filed only one day later, and that Defendant “was
not prejudiced” because Defendant had the Amended Response for “five (5) days
before it filed its Reply.” Resp. in Opp’n  at 3-6.
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
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.
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).
Defendant’s Motion to Strike  should be granted and Plaintiff’s
Amended Response  should be stricken as untimely filed and otherwise
in violation of Local Uniform Civil Rule 7.
As previously stated, on April 3, 2017, Plaintiff timely filed his 13-page
Response in Opposition  to Defendant’s Second Motion to Strike  the
opinions and expert testimony of Plaintiff’s expert Randall A. Snyder. On April 4,
2017, however, after the deadline to respond had expired, Plaintiff filed an untimely
and unauthorized 31-page Amended Response  which, together with its
attached Exhibits “A” – “D”, total 280 pages.
Defendant’s Motion to Strike  Plaintiff’s Amended Response 
followed. In responding to the present Motion to Strike , Plaintiff fails to offer
any explanation why he was unable to timely file a complete response that would
have required no amendments, nor does he claim that he discovered any additional
evidence between the April 3, 2017, deadline and the April 4, 2017, filing of his
Amended Response. Resp. in Opp’n M. to Strike  at 1-5. The only explanation
offered by Plaintiff for the untimely and unauthorized Amended Response appeared
in a footnote to the Amended Response, which stated in pertinent part that it had
been filed to “correct the omission of exhibits, to correct certain typographical
errors, and to supplement certain factual and legal positions relevant to
Defendant’s arguments.” Am. Resp.  at 1 n.1.
After review of the Response and Amended Response, it appears to this Court
that in lieu of seeking additional time, Plaintiff filed his timely Response 
simply as a placeholder to satisfy Plaintiff’s 14-day deadline for responding to
Defendant’s Second Motion  to Strike Plaintiff’s expert. See L. U. CIV. R. 7.
Plaintiff neither sought leave of Court for a one-day extension of time to submit a
response, nor did he proffer any argument that would support such an extension.
Apparently, in this instance Plaintiff was following the old axiom that is easier to
beg for forgiveness than to seek permission.
The Court need not consider the four factors for amending the Case
Management Order because Plaintiff’s explanation for this late filing falls far short
of establishing “good cause” for his failure adhere to the deadline. S&W
Enterprises, LLC v. Southtrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir.
2003) (denying leave to amend complaint because plaintiff offered no adequate
explanation for failing to comply with the scheduling order, and that the same facts
were known “from the time of its original complaint to the time it moved for leave to
amend”). In addition, the Response and Amended Response combined would equal
44 pages, in violation of Local Uniform Civil Rule 7. No permission for these excess
pages was sought or obtained.
Plaintiff’s deadline for filing a response was April 3, 2017. The Amended
Response  was significantly and materially distinct from the Response, not a
supplementation. Plaintiff’s counsel has shown a repeated disregard for, and an
inability or unwillingness to abide by, the Court’s deadlines and orders. Moreover,
the Amended Response violates the page limitation requirement set forth in Local
Uniform Civil Rule 7. The Court further finds that based upon the record as a
whole, the Amended Response was filed in bad faith, and that it should be stricken.
After review of the Motion for Strike , all related pleadings, the record
as a whole, and relevant legal authority, the Court finds that Defendant’s Motion to
Strike  should be granted and Plaintiff’s Amended Response  to
Defendant’s Second Motion to Strike  the opinions and expert testimony of
Plaintiff’s expert Randall A. Snyder should be stricken and removed from the
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant’s
Motion to Strike  is GRANTED, and Plaintiff’s Amended Response  to
Defendant’s Second Motion to Strike  the opinions and expert testimony of
Plaintiff’s expert Randall A. Snyder is STRICKEN. The Clerk is directed to strike
and remove Plaintiff’s Amended Response  from the record.
SO ORDERED AND ADJUDGED this the 22nd day of May, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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