Desir v. Wendell et al

Filing 33

ORDER re 32 Letter filed by Remusat Claude Thebaud, Ray's Rapid Transporting LLC -- Third-Party Defendants' request for a modification of the scheduling order to permit them to file a summary judgment motion is denied. The request fo r an extension of the deadline to file a joint pretrial order is granted to the extent that the Joint Pretrial Order is now due on or before August 15, 2015. The parties are admonished to strictly abide by that order and to comply with this Courts individual rules when making any further requests for relief. SO ORDERED by Judge Dora Lizette Irizarry on 7/28/2015. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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REMOND DESIR,
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Plaintiff,
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-against:
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WENDELL I. AUSTIN; LOGAN LYNN
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WRAY; LYNN TRUCKING,
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Defendants.
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WENDELL I. AUSTIN; LOGAN LYNN
WRAY; LYNN TRUCKING,
Third-Party Plaintiffs,
-againstREMUSAT CLAUDE THEBAUD; RAY’S
RAPID TRANSPORTING LLC,

MEMORANDUM & ORDER
13-CV-00912 (DLI)(VMS)

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Third-Party Defendants.
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DORA L. IRIZARRY, United States District Judge:
On April 24, 2015, the Magistrate Judge issued a scheduling order that, inter alia, set a
deadline of June 8, 2015 for the parties to initiate any summary judgment motion practice in
accord with this Court’s Individual Practice Rules. Notably, that scheduling order granted the
“4th or 5th request for an extension” regarding pretrial deadlines. (See Docket Entry No. 28.)
The June 8, 2015 deadline having expired, Remusat Claude Thebaud (“Thebaud”), and Ray’s
Rapid Transporting LLC (“Ray’s Transporting,” and, together with Thebaud, “Third-Party
Defendants”) now seek to modify the scheduling order to extend the deadlines for initiating
summary judgment motion practice and filing a joint pretrial order (“JPTO”). Third-Party
Defendants’ application for a modification of the scheduling order is granted in part and denied

in part.
BACKGROUND
The instant action arises from a motor vehicle collision in Florida involving plaintiff
Remond Desir (“Desir”) and defendant Wendell I. Austin, who at the time of the accident was
operating a vehicle and trailer allegedly owned, respectively, by defendants Logan Lynn Wray
and Lynn Trucking. (See generally Compl., Docket Entry No. 1.) On August 22, 2013, those
three defendants collectively filed a third-party complaint against Ray’s Transporting, Desir’s
employer, and against Thebaud, who allegedly was operating the vehicle in which plaintiff was a
passenger when the accident occurred. (See generally Third-Party Compl., Docket Entry No. 7.)
Discovery between the parties commenced and several requests were made to the
Magistrate Judge to extend the discovery deadlines as well as the deadlines for summary
judgment motion practice and the filing of the JPTO. At the close of fact discovery, the
Magistrate Judge directed that any motions for summary judgment be initiated by May 1, 2015
through the filing of a premotion conference request letter (“promotion letter”) not to exceed
three pages, as required under this Court’s individual rules. See February 3, 2015 Scheduling
Order. Due to subsequent extensions to the expert discovery schedule, on April 24, 2015, the
Magistrate Judge issued a modified scheduling order extending the deadline for commencement
of summary judgment motion practice to June 8, 2015. See April 24, 2015 Scheduling Order.
That deadline came and passed without any party filing a premotion letter.
Thereafter, on June 24, 2015, Third-Party Defendants filed a motion ex parte seeking to
extend the expired deadline to initiate summary judgment motion practice to July 31, 2015. (See
Docket Entry No. 30.) The motion also requested that the July 15, 2015 deadline to file the
JPTO order be extended to August 15, 2015. By order dated June 26, 2015, the Court denied

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that motion as an improper ex parte submission. The same day, Third-Party Defendants refiled
their motion on notice to the other parties. (See Docket Entry No. 31) On June 29, 2015, the
Court granted the motion in part, but directed Third-Party Defendants to file a premotion letter
by no later than July 6, 2015. On that date, rather than filing a premotion letter in accordance
with the Court’s Order, Third-Party Defendants submitted a letter merely reiterating the same
request for an extension that they made in their two previous motions. (See Docket Entry No.
32.)
DISCUSSION
Rule 16(b) of the Federal Rules of Civil Procedure requires a district court to enter a
scheduling order that limits the time period for certain actions in a proceeding, including the
filing of dispositive motions. Modification of the scheduling order is expressly permitted.
However, in recognition of the court’s need to enforce its own orders and manage its docket,
modification is permissible “only for good cause and with the judge’s consent.” See Fed. R. Civ.
P. 16(b)(4); see also Jackson v. Ramey, 2010 WL 3761891, at *3 (N.D.N.Y. Sept. 2, 2010),
report and recommendation adopted 2010 WL 3761867 (N.D.N.Y. Sept. 20, 2010) (“Cases in
this circuit . . . have concluded that [Rule 16(b)] should apply to requests to extend the time to
file summary judgment motions beyond a court-imposed deadline, and that a party must,
therefore, show ‘good cause’ to justify such an extension.”)
The primary consideration in determining whether a party has shown good cause to
modify the scheduling order is “the diligence of the moving party.” Grochowski v. Phoenix
Constr., 318 F.3d 80, 86 (2d Cir. 2003) (citing Parker v. Columbia Pictures Indus., 204 F.3d
326, 340 (2d Cir. 2000)). Thus, “good cause” has been described as entailing that “schedul[ed]
deadlines cannot be met despite a party’s diligence.” Carnrite v. Granada Hosp. Group., Inc.,

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175 F.R.D. 439, 446 (W.D.N.Y. 1997) (citing 6A Wright, Miller & Kane, Fed. Practice and
Procedure § 1522.1, at 231 (2nd ed. 1990)). While a court in its discretion may consider other
factors, such as prejudice to the non-moving parties, diligence remains the central focus of the
court’s inquiry.

See, e.g., Armstrong Pump, Inc. v. Hartman, 2013 WL 6230110, at *5

(W.D.N.Y. Dec. 2, 2013.) (“Thus, diligence is primary . . . under Rule 16 to justify amending
the schedule.”) (citing Gullo v. City of New York, 540 F. App’x 45, 47 (2d Cir. 2013)).
Here, an extension of the summary judgment deadline is not warranted because ThirdParty Defendants do not establish good cause for their failure to comply with both the June 8,
2015 deadline set initially by the Court, and the July 6, 2015 deadline set thereafter by the Court.
See Fry v. Hartford Ins. Co., 2011 WL 1672474, at *3 (W.D.N.Y. May 3, 2011) (striking
summary judgment motion filed beyond the deadline set by scheduling order where no good
cause was shown); see also Jackson v. Goord, 2013 WL 1560204, at *5-6 (W.D.N.Y. Apr. 10,
2013); Stover v. Northland Grp., Inc., 2007 WL 1360603, at *2-3 (W.D.N.Y. May 8, 2007)
(dismissing summary judgment motion filed after deadline where no good cause was shown).
Third-Party Defendants initially did not provide any justification for missing the summary
judgment deadline. After the Court directed them to do so, their counsel submitted a letter
explaining that he was involved in two motor vehicle accidents on consecutive days in early
March 2015, which allegedly compromised his full attention to the case. (See Docket Entry No.
32.)
Be that as it may, it still does not explain why Third-Party Defendants were unable to
make arrangements at any point between March and June 2015 to file a cursory three-page
premotion letter with the Court by the June 8, 2015 deadline. Nor does it explain why ThirdParty Defendants, after the Court granted them an extension until July 6, 2015 to file such letter,

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still failed to do so. Notably, additional deadline extensions had been granted previously by the
Magistrate Judge. These failures evince a clear lack of diligence on the part of Third-Party
Defendants that precludes a finding of good cause.
The record also demonstrates that Third-Party Defendants have repeatedly failed to
comply with this Court’s individual rules. For example, requests for extensions are to be made
no less than two business days before the deadline at issue. If Third-Party Defendants knew in
early March that counsel would need additional time to initiate a summary judgment motion,
they could have requested an extension as soon as the Court entered its April 24, 2015
scheduling order, or at any point thereafter up to and including two days business days before the
June 8, 2015 deadline.

When Third-Party Defendants finally made an application for an

extension well after the deadline had already expired, they did so by motion whereas this Court’s
individual rules require that such requests be made by letter.
Finally, it is noteworthy that the other parties to this action evidently are prepared to
move forward with the case, as none of them sought to file a summary judgment motion.
Therefore, Third-Party Defendants’ late filing of a summary judgment motion would carry with
it the prospect of delay and increased litigation costs for those other parties. While they have yet
to object to the requested extension, even their consent would not justify modification of the
scheduling order in the absence of a demonstration of good cause by Third-Party Defendants.
Moreover, even if the potential for delay and increased costs did not cause prejudice to the nonmoving parties, a lack of prejudice is not a substitute for the moving party’s obligation to
demonstrate its own diligence and thereby establish good cause for a modification. See Gullo,
540 F. App’x at 45 (“That defendants suffered no prejudice does not change the fact that
plaintiffs failed to pursue amendment with diligence.”); Stover, 2007 WL 1360603, at *3

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(“[C]onsiderations such as lack of prejudice to the plaintiff or the purported merits of the
summary judgment motion need not be weighed and will not be viewed as substitutes for the
failure to demonstrate due diligence.”); Carnrite, 175 F.R.D. at 446.
Under the circumstances here, modification of the scheduling order to permit Third-Party
Defendants to file a summary judgment motion is not warranted. However, because the instant
application may have impacted the parties’ preparedness to file a JPTO, the Court in its
discretion directs the parties to file the JPTO on or before August 15, 2015.
CONCLUSION
Third-Party Defendants’ request for a modification of the scheduling order to permit
them to file a summary judgment motion is denied. The request for an extension of the deadline
to file a joint pretrial order is granted to the extent that the JPTO is now due on or before August
15, 2015. The parties are admonished to strictly abide by that order and to comply with this
Court’s individual rules when making any further requests for relief.
SO ORDERED.
Dated: Brooklyn, New York
July 28, 2015
/s/
DORA L. IRIZARRY
United States District Judge

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