Tracy et al v. Telemetrix et al

Filing 321

MEMORANDUM AND ORDER - The plaintiff's motion for summary judgment 302 is denied without prejudice to refiling, subject to conditions. The plaintiff's motion 303 to restrict access to certain exhibits that have been filed in support of the motion for summary judgment and that are subject to the protective order 191 is granted. The defendants' joint motion 319 for an extension of time to file a response to the plaintiff's motion for summary judgment, and the plaintiff's objection thereto 320 , are denied as moot. The Clerk of Court shall send a copy of this memorandum and order to Magistrate Judge Zwart. Ordered by Senior Judge Richard G. Kopf. (Copies given as directed) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL J. TRACY, an individual
and derivatively as a shareholder of
Telemetrix,
Plaintiff,
v.
TELEMETRIX, INC., WILLIAM
BECKER, LARRY BECKER,
GARY BROWN, BECKER
CAPITAL MANAGEMENT, LLC,
GREEN EAGLE
COMMUNICATIONS, INC.,
GREEN EAGLE NETWORKS,
INC., GAYLE BECKER, DIANE
LARKOWSKI, and MITCHELL
BENNETT,
Defendants.

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8:12CV359

MEMORANDUM
AND ORDER

On September 4, 2015, Plaintiff filed an amended motion for leave to file a
third amended complaint after the progression order deadline. (Filing 260.) The
motion sought to add three defendants—Gayle Becker, Mitchell Bennett, and Diane
Larkowski—and seven causes of action against those defendants. While the motion
to file an amended complaint was still pending, and on November 9, 2015, Plaintiff
filed a “first” motion for partial summary judgment as to various claims against the
original defendants.1 (Filing 302.)

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Plaintiff’s brief in support of his “first” motion for summary judgment is 83
pages long, and Plaintiff has filed 197 exhibits in support of the motion. (Filings 304308.)

On November 13, 2015—two days after Plaintiff’s motion for partial summary
judgment was filed—Magistrate Judge Zwart granted Plaintiff’s motion to file a third
amended complaint, thereby allowing the addition of three defendants. (Filing 310.)
One of those defendants, Gayle Becker, has waived service of process and counsel
have entered their appearance. (Filings 313, 314, 317.) The original defendants and
new defendant Gayle Becker have been ordered to file a responsive pleading to the
third amended complaint by December 11, 2015. (Filing 316.) The remaining two
new defendants, Mitchell Bennett and Diane Larkowski, have not yet been served.
The original defendants and new defendant Gayle Becker have filed a motion
for an extension of time to respond to Plaintiff’s motion for summary judgment, which
is currently due December 3, 2015. (Filing 319.) The motion states that the defendants
plan to file a motion pursuant to Fed. R. Civ. P. 56(d) asking the court to defer
consideration of Plaintiff’s motion for partial summary judgment or, alternatively, to
allow the defendants time to conduct discovery. The motion proposes three “if-then”
scenarios2 for the defendants’ deadline to respond to the motion for summary
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Specifically, the motion requests the following:

WHEREFORE, GE Defendants and Telemetrix Defendants
respectfully request that the Court enter an Order granting this Motion
and enlarging the time for Defendants to respond to Plaintiff’s Motion
[for Summary Judgment] as follows:
(a) if the Court defers consideration of Plaintiff’s First Motion
[for Summary Judgment] pursuant to Rule 56(d)(l), then Defendants
request that they be allowed to respond to the First Motion no sooner
than 45 days after the Court notifies the parties that the Court will
consider the First Motion;
(b) if the Court allows Defendants time to take discovery
pursuant to Rule 56(d)(2), then Defendants request that they be allowed
30 days after the completion of such discovery to respond to the First
Motion; or
(c) if the Court denies Defendants’ Rule 56(d) motion, then
Defendants request that they be allowed 45 days after the Court’s Order
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judgment depending upon whether this court eventually grants the still-to-be-filed
Rule 56(d) motion. Plaintiff objects to the defendants’ motion for an extension of time
for the reason that no Rule 56(d) motion has yet been filed. (Filing 320.)
Because (1) Plaintiff’s motion for partial summary judgment (Filing 302) is
based on a complaint that is no longer operative; (2) a third amended complaint has
now been filed (Filing 260-1), adding three new defendants—two of whom have not
yet been served, and all of whom have not yet filed an answer to the new complaint;
and (3) the court refuses to inefficiently resolve this complex 2012 case via numerous
piecemeal motions for summary judgment, the pending motion for partial summary
judgment shall be denied without prejudice to refiling after all defendants are at the
same point. That is, I shall consider one set of cross-motions for summary judgment
filed by the parties named in the operative third amended complaint (Filing 260-1)
once discovery is completed by all parties. Further, I shall require the parties to
submit with such cross-motions for summary judgment a joint stipulated statement of
material facts.3
Accordingly,
IT IS ORDERED:
1.
The plaintiff’s motion for summary judgment (Filing 302) is denied
without prejudice to refiling, subject to the following conditions:

denying Defendants’ Rule 56(d) motion to respond to the First Motion.
(Filing 319 at CM/ECF p. 7.)
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If the parties find this task impossible, perhaps they should reconsider the
wisdom of filing motions for summary judgment instead of proceeding directly to
trial.
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(a)

The court will consider one set of cross-motions for summary
judgment filed by the parties named in the operative third
amended complaint (Filing 260-1) once all parties have completed
discovery; and

(b)

The parties shall submit with such cross-motions for summary
judgment a joint stipulated statement of material facts;

2.
The plaintiff’s motion (Filing 303) to restrict access to certain exhibits
that have been filed in support of the motion for summary judgment and that are
subject to the protective order (Filing 191) is granted;
3.
The defendants’ joint motion (Filing 319) for an extension of time to file
a response to the plaintiff’s motion for summary judgment, and the plaintiff’s
objection thereto (Filing 320), are denied as moot; and
4.
The Clerk of Court shall send a copy of this memorandum and order to
Magistrate Judge Zwart.
DATED this 2nd day of December, 2015.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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