Channing v. Equifax, Inc.

Filing 46

ORDER - Plaintiff's motion for leave to file pretrial motions and to extend the discovery period (DE # 37) is DENIED and his motion for summary judgment (DE # 36) DISMISSED as untimely. Defendant's motion to strike or dismiss plaintiff' ;s motion for summary judgment (DE # 39) is GRANTED. Where defendant's motion for summary judgment (DE # 23) remains pending, the court finds good cause to continue the trial from its civil term commencing July 16, 2012, to a date and time to be noticed upon resolution of the pending dispositive motion, should issues remain for trial. Signed by District Judge Louise Wood Flanagan on 06/06/2012. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO.5:11-CV-293-FL

VICTOR CHANNING,
Plaintiff,

v.
EQUIFAX, INC.,
Defendant.

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ORDER

This matter comes before the court on defendant's motion for summary judgment, filed
March 16,2012 (DE # 23), to which plaintiff responded on April 9, 2012 and defendant replied on
April 26, 2012. Also before the court are plaintiff s motions for summary judgment (DE # 36) and
for leave to file pretrial motions and to extend the discovery period (DE # 37), filed April 20, 2012.
Also coming to the court's attention is that motion filed by defendant May 1, 2012, wherein
defendant seeks to strike or dismiss as untimely plaintiffs motion for summary judgment (DE # 39),
and its response in opposition to plaintiff s motion for an extension of the discovery period. The
issues raised are ripe for adjudication.

BACKGROUND
Plaintiff, proceedingpro se, filed complaint in state court under the Fair Credit Reporting Act
("FCRA"), 15 U.S.c. §§ 1681 et. seq, and defendant filed notice of removal to this court on June
10, 2011. Plaintiff alleges that defendant violated the FCRA in its handling of his credit file. He
further asserts various other claims, including fraud and negligent infliction of emotional distress.

The court entered case management order ("CMO") on July 19,2011, establishing therein
a discovery deadline of February 17, 2012, as well as a dispositive motions deadline of March 18,
2012. The parties jointly proposed these deadlines in their Rule 26(f) report, filed July 13,2011.
In accordance with the CMO, defendant filed motion for summary judgment on March 16,
2012, two days before the dispositive motions deadline. Plaintiff, however, did not file motion for
summary judgment until April 20, 2012, more than a month after the deadline set in the CMO.
Concurrent with this motion, plaintiff filed "motion for leave to file pretrial motions and to extend
the discovery period pursuant to Rule 26 until 30 days before the trial begins." Defendant responded
in opposition to the latter motion and moved to strike or dismiss the former.

DISCUSSION
Plaintiff moves the court to extend the deadline for filing of dispositive motions and for
conduct of discovery. Defendant, in tum, asks the court to dismiss as untimely plaintiffs motion
for summary judgment. As stated above, the CMO established a discovery deadline ofFebruary 17,
2012, and a dispositive motions deadline of March 18,2012.
"[A] scheduling order is not a frivolous piece ofpaper, idly entered, which can be cavalierly
disregarded by counsel without peril." Wooton v. CL. LLC, 2:09-CV-34-FL, 2010 WL 5477192,
at *4 (E.D.N.C. Dec. 29, 2010) (internal quotation marks omitted). Pursuant to Federal Rule ofCivil
Procedure 16(b)(4), the court's scheduling order "may be modified only for good cause and with the
judge's consent." The Fourth Circuit, interpreting Rule 16(b) in the context of a motion to amend
a pleading, held that the "good cause" standard "considers the diligence of the party seeking to
amend, rather than simply that party's lack of bad faith or the lack of prejudice to the opposing
party." Essential Hous. Mgmt., Inc. v. Walker, 166 F.3d 332, at *4 (4th Cir. 1998) (unpublished).

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"'Good cause' is shown when the moving party demonstrates that the scheduling order deadlines
cannot be met despite its diligent efforts." Dent v. Montgomery County Police Dept., 745 F. Supp.
2d 648, 663 (D. Md. 2010); see also Neighbors Law Firm, P.C. v. Highland Capital Mgmt., L.P.,
5:09-CY-352-F, 2011 WL 238605, at *2 (E.D.N.C. Jan. 24, 2011) ("Thus, a court may 'modify the
schedule on a showing of good cause if [the deadline] cannot be met despite the diligence of the
party seeking the extension. "') (quoting Fed. R. Civ. P. 16(b), advisory committee's note to 1983
amendment).!
Under the above Rule 16(b)(4) "good cause" standard, courts have refused to extend the
deadline for filing ofdispositive motions absent the moving party's demonstration ofdiligence. For
instance, in Corkrey v. Internal Revenue Service, 192 F.R.D. 66 (N.D.N.Y. 2000), the court denied
defendant's motion to extend the dispositive motions deadline where defendant argued only "that
its dispositive motion is likely to prevail, it is in the process of preparing the motion, the motion
likely will save the parties and the [c ]ourt time and expense, and plaintiffs do not oppose its request
for an extension." ld. at 68. Similarly, in Neighbors Law Firm, the court refused to extend the
dispositive motions deadline where the movant did not "explain what circumstances prevented it
from filings its motion for summary judgment [before the deadline]." Neighbors Law Firm, 2011
WL 238605, at *2.
tSee
Holmes v. Grubman, 568 F.3d 329,335 (2d Cir. 2009) ("Whether good cause exists turns on the diligence of
the moving party.") (internal quotation marks omitted); Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir.
2008) ("The primary measure ofgood cause is the movant's diligence in attempting to meet the order's requirements");
Strope v. Collins, 315 F. App'x 57, 61 (10th eir. 2009) ("Demonstrating good cause under the rule requires the moving
party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate
explanation for any delay") (internal quotation marks omitted); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11 th
eiL 1998) ("This good cause standard precludes modification unless the schedule cannot be met despite the diligence
ofthe party seeking the extension") (internal quotation marks omitted); Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 609 (9th eir. 1992) ("Although the existence or degree of prejudice to the party opposing the modification might
supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking
modification ... If that party was not diligent, the inquiry should end.") (internal citation omitted).

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In addition, a motion to enlarge the discovery period will be denied where the movant fails
to provide cause for extension.

See,~,

Remediation Products, Inc. v. Adventus Americas Inc.,

3:07-CV-153-RJC-DCK, 2009 WL 2497939, at *3 (W.D.N.C. Aug. 13,2009) (refusing to extend
the discovery deadline where movants did not show "that they diligently pursued [ ] discovery but
were unable to reasonably meet the deadline"); Handy v. Cummings, l1-CV-00581-WYD-KMT,
2012 WL 1144663 (D. Colo. Apr. 4,2012) (finding that pro se plaintiff failed to demonstrate the
requisite good cause for extension of the discovery deadline).
Here, plaintiff has not provided any justification for his failure to comply with the court's
deadlines for completion of discovery and for filing of dispositive motions. Plaintiff references his

pro se status and contends that he did not understand the court's deadlines to be "absolute and
unmoveable." PI. 's Mot.

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1.

While the court affords a pro se plaintiff and his pleadings liberal

treatment, it cannot excuse his failure to comply with court deadlines absent good cause. Here, the
CMO clearly informed: "Continuances will be granted only upon showing ofgood cause, particularly
focusing upon the evidence of diligence by the party seeking delay and of prejudice that may result
if the continuance is denied." CMO § II.E.
Plaintiff further appears to argue that an extension of the discovery period is necessary to
allow for additional depositions. PI.' s Mot.

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2. Yet plaintiff has not provided any specifics as to

the depositions he now seeks to conduct, and defendant informs that during the seven-month
discovery period, plaintiff did not serve any discovery requests on defendant - no interrogatories,
requests for production of documents, requests for admissions, or deposition notices. Def.' s Resp.
1. Plaintiff does not provide any indication to the contrary.

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Where plaintiff has not demonstrated diligent effort to comply with the court's deadlines,
plaintiffs motion for leave to file pretrial motions and to extend the discovery period (DE # 37) is
DENIED. Accordingly, defendant's motion to dismiss as untimely plaintiffs motion for summary
judgment (DE # 39) is GRANTED. Plaintiffs motion for summary judgment (DE # 36) is
DISMISSED.

CONCLUSION
Plaintiffs motion for leave to file pretrial motions and to extend the discovery period (DE
# 37) is DENIED and his motion for summary judgment (DE # 36) DISMISSED as untimely.
Defendant's motion to strike or dismiss plaintiff's motion for summary judgment (DE # 39) is
GRANTED. Where defendant's motion for summary judgment (DE # 23) remains pending, the
court finds good cause to continue the trial from its civil term commencing July 16, 2012, to a date
and time to be noticed upon resolution of the pending dispositive motion, should issues remain for
trial.
SO ORDERED, this theV day of June, 2012.

United States District Judge

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