Allgeyer v. Cincinnati City of et al

Filing 37

MEMORANDUM OPINION AND ORDER denying 34 Plaintiff's Motion for Leave of Court for Plaintiff's Summary Judgment on Pleadings Granting Relief, which is construed as a motion seeking leave to file an untimely motion for summary judgment. Signed by Magistrate Judge Stephanie K. Bowman on 5/13/2020. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:16-cv-01128-MWM-SKB Doc #: 37 Filed: 05/13/20 Page: 1 of 3 PAGEID #: 1046

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARY JILL ALLGEYER
Plaintiff,

Case No. 1:16-cv-1128
McFarland, J.
Bowman, M.J.

v.
CITY OF CINCINNATI, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff, proceeding pro se and in forma pauperis, filed a complaint against the
City of Cincinnati and two individuals. Pursuant to local practice, this case was referred
to the undersigned magistrate judge. See generally 28 U.S.C. § 636(b).

Presently

pending is an untimely “summary judgment” motion filed by Plaintiff. (Doc. 34). For
procedural reasons, the motion is denied.
I.

Background

This case was filed in December 2016 and the Court entered a calendar order on
March 30, 2017. After judgment was granted to the two individual defendants, the Court
vacated the original deadlines and entered an amended calendar order, which included
a dispositive motion deadline of January 4, 2019.

(Doc. 20).

The sole remaining

Defendant complied with that deadline and moved for summary judgment.
More than a year ago, on April 1, 2019, the undersigned recommended that the
Defendant’s motion be granted and that this case be dismissed. (Doc. 30). Plaintiff filed
objections to that Report and Recommendation (“R&R”), to which the City filed a

Case: 1:16-cv-01128-MWM-SKB Doc #: 37 Filed: 05/13/20 Page: 2 of 3 PAGEID #: 1047

response. However, a final ruling on the objections and R&R has been delayed for
administrative reasons; namely, the recent transfer of the case to a new presiding district
judge.
Ten and a half months after the deadline for filing dispositive motions, and nearly
eight months after the R&R recommending that judgment be granted in favor of the City
and that this case be dismissed, Plaintiff filed a new 41-page motion. Plaintiff’s motion is
captioned as a “motion for leave of court for plaintiff’s summary judgment on pleadings
granting relief.” (Doc. 34). Despite a caption implying that Plaintiff is seeking permission
to file her motion out-of-time, the contents of the motion give no such indication.
II.

Analysis

The Defendant City has filed a response based primarily upon the untimeliness of
the motion. The City additionally suggests that the motion “appears to relitigate claims
previously dismissed by this Court, discovery disputes already decided…, and legal
arguments which are the subject of Magistrate [Judge] Bowman’s April 1, 2019 Report
and Recommendation.” (Doc. 35 at 2). The City requests leave to flesh out these
arguments should this Court grant Plaintiff leave to consider her untimely motion. Plaintiff
filed no reply to the City’s response.
Pursuant to Rule 16(b)(4), Fed. R. Civ. P., a scheduling order may be modified
“only for good cause and with the judge’s consent.” Plaintiff’s motion fails to show good
cause for filing her motion so many months beyond the court’s established deadline.
Without addressing the merits, the undersigned concludes that the motion should be
denied on procedural grounds. Even if Plaintiff had attempted to show “good cause” for
her failure to comply with the scheduling order, the undersigned still would deny the

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Case: 1:16-cv-01128-MWM-SKB Doc #: 37 Filed: 05/13/20 Page: 3 of 3 PAGEID #: 1048

pending motion as untimely based upon the pending R&R that recommends summary
judgment to the Defendant.

The undersigned forewarns Plaintiff that any additional

motions will be denied on the same procedural grounds unless or until the presiding
district judge rejects the pending R&R,
III.

Conclusion and Order

Accordingly, IT IS ORDERED THAT:
Plaintiff’s motion for leave of court (Doc. 34), herein construed as a motion seeking
leave to file an untimely motion for summary judgment, is DENIED.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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