Sherrod v. Enigma Software Group USA, LLC

Filing 31

OPINION AND ORDER denying 27 Motion for Reconsideration ; granting 28 Motion for Extension of Time to File Response/Reply. Signed by Judge James L Graham on 1/28/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Nicole A. Sherrod,
Case No. 2:13-cv-36
Plaintiff,
v.

Judge Graham

Enigma Software Group USA, LLC,

Magistrate Judge Kemp

Defendant.
OPINION AND ORDER
This matter is before the Court on the Plaintiff’s Motion for Reconsideration (doc. 27)
and Motion for Extension of Time to File Response/Reply (doc. 28) filed on January 2 and
January 8, 2014 respectively. For the following reasons, the Court will deny the Plaintiff’s
Motion for Reconsideration and grant her Motion for Extension of Time.

I.

Background
The following facts are taken from the Plaintiff’s Complaint:
The Defendant, Enigma Software Group USA, LLC (Enigma), is a developer of PC

security software, which it sells to individual users, businesses, and government entities. Compl.
at ¶ 9, doc. 2. The Defendant sells its software to subscribers through the Internet. Id. The
Plaintiff, Nicole A. Sherrod, purchased viral removal software from the Defendant in April 2012.
Id. at ¶ 10. In October 2012, the Plaintiff canceled her subscription for the Defendant’s software.
Id. at ¶ 11. When the Plaintiff received a renewal notice for the Defendant’s software, the
Plaintiff contacted the Defendant, canceled the subscription, and received notification from the
Defendant that she canceled her subscription. Id. at ¶¶ 12–13. Despite the Plaintiff canceling her
subscription, the Defendant subsequently renewed her subscription and charged her credit card
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approximately $70.00. Id. at ¶ 14. The Plaintiff then requested that the Defendant credit her
account, but the Defendant has not complied with that request. Id. at ¶ 15.
On January 14, 2013, the Plaintiff filed a putative class action Complaint (doc. 2)
bringing claims of breach of contract, promissory estoppel, fraud, and misrepresentation against
the Defendant on behalf of herself and similarly situated consumers. The Defendant filed a
Motion for Summary Judgment (doc. 11) on June 18. In its Motion, the Defendant argue that its
business records conclusively demonstrate that “the plaintiff purchased two software
subscriptions from Enigma at two separate times for two different computers using two different
credit cards, but only cancelled one of those subscriptions and allowed the other to renew under
the terms of the applicable license agreement.” Def.’s Mot. for Summ. J. at 1, doc. 11. In
response to the Defendant’s Motion for Summary Judgment, the Plaintiff filed a Motion for
Leave to Conduct Discovery (doc. 16) pursuant to Federal Rule of Civil Procedure 56(d) on July
22.
Magistrate Judge Kemp held a status conference on the Plaintiff’s Motion on July 26,
“during which the parties agreed to confer on the proper scope of discovery for purposes of
responding to summary judgment.” Agreed Order at 1, doc. 22. In consultation with the parties,
Magistrate Judge Kemp issued an Agreed Order (doc. 22) granting in part and denying in part
the Plaintiff’s Motion for Leave to Conduct Discovery. This Order narrowed the Plaintiff’s
discovery requests to focus on information concerning her transactions with the Defendant.
Agreed Order at 1–2. In addition, the Order permitted the Plaintiff to take depositions of the
Defendant’s Vice-President of Technical Support and the Vice-President of one of the
Defendant’s vendors. Id. at 2. The Order granted the Plaintiff leave to request additional
discovery and set deadlines for the parties to conduct discovery. Id. at 2–3.

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On November 6, the Plaintiff filed a Supplemental Motion for Discovery (doc. 24)
pursuant to Rule 56(d). In her Motion, the Plaintiff sought additional discovery concerning the
Defendant’s internal operating procedures related to consumer purchases and cancellations of the
Defendant’s software subscriptions. On December 19, Magistrate Judge Kemp issued an Opinion
and Order (doc. 26) denying the Plaintiff’s Motion and directing the Plaintiff to file a response to
the Defendant’s Motion for Summary Judgment within 21 days. The Plaintiff subsequently filed
a Motion for Reconsideration (doc. 27) on January 2, 2014. On January 8, one day before the
Plaintiff was obligated to file her response to the Defendant’s summary judgment motion, the
Plaintiff filed a Motion for Extension of Time to File Response/Reply (doc. 28).

II.

Motion for Reconsideration
The Plaintiff now argues that the she had no meaningful opportunity to conduct discovery

in this case because of the Magistrate Judge’s denial of her Supplemental Motion for Discovery.
Mot. for Reconsideration at 1, doc. 27. Therefore, the Plaintiff requests that the Court reconsider
and vacate the Magistrate Judge’s Discovery Opinion and Order. Id. at 2.

A.

Standard of Review
When reviewing a magistrate’s nondispositive ruling, the district court applies a “clearly

erroneous or contrary to law” standard of review. Fed. R. Civ. P. 72(a); 28 U.S.C. §
636(b)(1)(A). In the context of a discovery dispute, courts review a magistrate judge’s decision
for an abuse of discretion. Morris v. McQuiggin, No. 12–10417, 2013 WL 1914099, at *1 (E.D.
Mich. May 8, 2013) (citing Baker v. Peterson, 67 F. App’x 308 (6th Cir. 2003) (per curiam));
Nathan v. Ohio State Univ., No. 2:10–CV–872, 2013 WL 139874, at *2 (S.D. Ohio Jan. 10,

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2013); Highland v. Homeservices of Am., Inc., No. 3:05–CV–612, 2012 WL 1680109, at *3
(W.D. Ky. May 14, 2012) (quoting Carmona v. Wright, 233 F.R.D. 270, 276 (N.D.N.Y. 2006));
see also 12 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 3069 (2d
ed. 2013) (“many matters such as discovery scheduling or disputes might better be characterized
as suitable for an abuse-of-discretion analysis”).
Because the nondispositive review standard is highly deferential, magistrate
judges have broad discretion to regulate nondispositive matters, and reversal is
warranted only if that discretion is abused. Although legal authority may support
an objection, the critical inquiry is whether there is legal authority that supports
the magistrate’s conclusion, in which case there is no abuse of discretion. That
reasonable minds may differ on the wisdom of a legal conclusion does not mean it
is clearly erroneous or contrary to law.
Carmona, 233 F.R.D. at 276 (internal citations omitted).

B.

Discussion
In his decision, the Magistrate Judge reviewed the Plaintiff’s request for supplemental

discovery under Rule 56(d) and concluded that the Plaintiff failed to establish that she could not
present facts essential to justify her opposition to the Defendant’s summary judgment motion
without further discovery. The Plaintiff now argues that the Magistrate Judge abused his
discretion in denying the Plaintiff’s supplemental motion for discovery. First, the Plaintiff
argues, the Court failed to hold a case management conference and that the parties failed to
confer as required by Federal Rule of Civil Procedure 26(f). Pl.’s Mot. for Reconsideration at 6,
doc. 27. As a result, the Plaintiff maintains that she was unable to conduct full discovery as
permitted by Rule 26 and that she is unable to oppose the Defendant’s summary judgment
motion. Id. Second, the Plaintiff reminds the Court that summary judgment cannot be granted
without affording the non-moving party an adequate opportunity to conduct discovery. Id. at 7–

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10. At the heart of the Plaintiff’s argument is her contention that “[s]he cannot oppose summary
judgment without the additional [requested] discovery, and without using that additional
discovery to prepare for and take the depositions of two important defense witnesses.” Id. at 8.
Further, the Plaintiff emphasizes, the scope of discovery under the Federal Rules of Civil
Procedure is broad and allows for the discovery of any information reasonably calculated to lead
to the discovery of admissible evidence. Id. at 9. In conclusion, the Plaintiff requests the
opportunity to conduct additional discovery and to depose two defense witnesses. Id. at 10.
Under Rule 56(d), 1 a nonmoving party may obtain discovery if it identifies specific
reasons, by affidavit or declaration, why it cannot present facts essential to justify opposition to
the moving party’s summary judgment motion. Fed. R. Civ. P. 56(d)(2). This Rule “recognizes
that there are instances when a party lacks the necessary facts to properly contest a summary
judgment motion.” CareToLive v. FDA, 631 F.3d 336, 345 (6th Cir. 2011). The party seeking
additional discovery bears the burden of demonstrating that adequate discovery has not occurred.
Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004); Lanier v. Bryant, 332 F.3d 999, 1006 (6th
Cir. 2003). The declaration or affidavit required by Rule 56(d) “must indicate the need for
discovery, what material facts may be uncovered, and why the information has not been
previously discovered.” Egerer v. Woodland Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009).
“Nebulous assertions that more discovery time would have produced evidence to defeat
summary judgment will be unavailing.” Lanier, 332 F.3d at 1006. See also Summers, 368 F.3d at
887 (citing United States v. Cantrell, 92 F. Supp. 2d 704, 717 (S.D. Ohio 2000)) (“Bare
allegations or vague assertions of the need for discovery are not enough” to justify granting a
Rule 56(d) motion).
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On December 1, 2010, Rule 56(d) replaced former Rule 56(f). The Advisory Committee states that Rule 56(d)
“carries forward without substantial change the provisions of former subdivision 56(f).” Fed. R. Civ. P. 56 advisory
committee note (2010 amendments).
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First, the Plaintiff’s assertion that the Court failed to hold a case management conference
and that the parties failed to confer as required by Federal Rule of Civil Procedure 26(f) is not
supported by the record. The Defendant filed its Motion for Summary Judgment on June 18,
2013. Thereafter, the Court granted the Plaintiff’s request for an extension of time to respond to
the Defendant’s summary judgment motion. In lieu of a response to the Defendant’s Motion, the
Plaintiff filed a Motion for Discovery (doc. 16) on July 22. The following day, the Court
scheduled a status conference. At that status conference, “the parties agreed to confer regarding
the proper scope of discovery and to report back to the Court.” Agreed Order at 1. The Agreed
Order recognized that the parties had conferred and agreed on the scope of discovery for the
purpose of the Plaintiff’s response to Defendant’s summary judgment motion. Id. The Order
directed the parties to serve initial disclosures pursuant to Federal Rule of Civil Procedure
26(a)(1) and set forth a detailed discovery schedule. Id. at 2–3.
Considering these facts, it is perplexing that the Plaintiff continues to argue that the
parties failed to confer pursuant to Rule 26(f) and that no case management conference was held.
Rule 16 empowers courts to hold pretrial conferences and mandates that a court issue a
scheduling order. Fed. R. Civ. P. 16. Courts may hold pretrial conferences for case management
purposes. See Fed. R. Civ. P. 16(a). Under Rule 16, courts are required to issue a scheduling
order “limit[ing] the time to join other parties, amend the pleadings, complete discovery, and file
motions.” Fed. R. Civ. P. 16(b). Rule 26 generally governs the discovery process and requires
that the parties confer prior to seeking discovery. Fed. R. Civ. P. 26. At the Rule 26(f)
conference, “the parties must consider the nature and basis of their claims and defenses and the
possibilities for promptly settling or resolving the case; make or arrange for the disclosures

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required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and
develop a proposed discovery plan.” 2 Fed. R. Civ. P. 26(f)(2).
Here, the Magistrate Judge held two status conferences with the parties to discuss case
management as permitted by Rule 16(a). At the first status conference on July 26, 2013, “the
parties agreed to confer regarding the proper scope of discovery and report back to the Court.”
Joint Motion for Enlargement of Time at 1, doc. 18. As part of their discussions, “the parties
exchanged drafts of a proposed agreed on order setting forth specific proposed discovery
requests.” Second Joint Motion for Enlargement of Time at 2, doc. 20. The Magistrate Judge
subsequently issued the parties’ Agreed Order, which (1) narrowed the scope of discovery to
focus on the Plaintiff’s personal claims against the Defendant; (2) set forth specific requests for
production agreed on by the parties; (3) permitted the Plaintiff to take depositions of the
Defendant’s Vice President for Technical Support and a Vice President at the Defendant’s third
party vendor; and (4) authorized the Plaintiff to seek additional discovery. Agreed Order at 1–2.

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A discovery plan must state the parties’ views and proposals on:
(A) what changes should be made in the timing, form, or requirement for disclosures under Rule
26(a), including a statement of when initial disclosures were made or will be made;
(B) the subjects on which discovery may be needed, when discovery should be completed, and
whether discovery should be conducted in phases or be limited to or focused on particular issues;
(C) any issues about disclosure or discovery of electronically stored information, including the
form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial-preparation materials, including-if the parties agree on a procedure to assert these claims after production--whether to ask the court
to include their agreement in an order;
(E) what changes should be made in the limitations on discovery imposed under these rules or by
local rule, and what other limitations should be imposed; and
(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).

Fed. R. Civ. P. 26(f)(3).
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At the conclusion of the Agreed Order, the Magistrate Judge set forth a detailed discovery
schedule. Id. at 3.
The parties’ pleadings and the Agreed Order demonstrate that the parties conferred
consistent with the intent of Rule 26(f). After the parties conferred, the Magistrate Judge issued
the Agreed Order consistent with the parties’ discovery plan. Further, the Magistrate Judge
outlined a detailed discovery schedule consistent with Rule 16(b). To the extent that the Agreed
Order did not provide time limits to amend the pleadings or file substantive motions as required
by Rule 16(b), the Magistrate Judge stated his intention to set those deadlines following the
completion of discovery. Agreed Order at 3. In short, the parties and the Magistrate Judge
substantively complied with the requirements of Rule 16 and Rule 26. Even if the Court were to
find to the contrary, the Plaintiff has failed to provide explain the legal significance of this
purported failure in the context of Rule 56(d), the central issue in her Motion for
Reconsideration.
Second, the Plaintiff continues to argue that documents related to the Defendant’s
internal operating procedures are necessary for her to respond to the Defendant’s summary
judgment motion. In support of her initial Rule 56(d) motion, the Plaintiff submitted two
affidavits, one from herself and one from her counsel, attesting to her need for additional
discovery. In both affidavits, the affiants outlined disputes with the Defendant’s account of the
facts. See Sherrod Aff. at ¶¶ 6–9; Laliberte Aff. at ¶¶ 6–8. The Plaintiff asserted that “I believe
discovery is necessary to explore the following subject matter. Such explanation will allow me to
present affirmative evidence in support of my claims and in opposition to the defendant’s
summary judgment motion.” Sherrod Aff. at ¶ 10. Similarly, the Plaintiff’s counsel stated that “I

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believe that the following discovery is required to oppose summary judgment with affirmative
evidence supporting the plaintiff’s claims.” Laliberte Aff. at ¶ 9.
In her Supplemental Motion for Discovery, the Plaintiff incorporated these affidavits by
reference and requested “limited additional discovery concerning Defendant’s business
processes.” Pl.’s Supp. Mot. for Disc. at 2, doc. 24. According to the Plaintiff, “[she] agreed to
the limitations in the Agreed Order under the apparent misimpression that Defendant would
produce business process documents concerning her subscriptions, her cancellations of those
subscriptions, Defendant’s failure to cancel both subscriptions, and Defendant’s unauthorized
charges for cancelled subscriptions.” Id. at 3. The Plaintiff emphasized that these business
process documents were “crucial” to understanding the Defendant’s alleged misconduct. Id.
Further, the Plaintiff noted, discovery of business process documents would allow the Plaintiff to
understand the technical documents produced by the Defendant and which the Defendant relied
on in its summary judgment motion. Id.
Next, the Plaintiff discussed the Defendant’s lack of production of documents concerning
the Defendant’s relationship with Digital River, a third-party vendor responsible for customer
billing, account renewal, and cancellation functions in connection with customer purchases of
software subscriptions from the Defendant. Id. at 4. Stressing her lack of knowledge concerning
Digital River’s business practices and business relationship with the Defendant, the Plaintiff
asserted that she should be permitted to conduct further discovery related to Digital River. Id.
In conclusion, the Plaintiff acknowledged that she had the opportunity to depose a
defense witness and a representative of Digital River. Pl.’s Supp. Mot. for Disc. at 4. However,
she explained, because of “Defendant’s very limited document production” she was “incapable
of adequately preparing for those depositions” and therefore she declined to depose those

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witnesses. 3 Id. Absent documents concerning the Defendant’s internal business policies and
procedures related to software subscriptions and cancellations, the Plaintiff argued that she was
unable to respond to the Defendant’s summary judgment motion. Id. at 5. The Plaintiff did not
cite any legal authority to support her request.
At the outset of his Opinion and Order, the Magistrate Judge reviewed the Defendant’s
summary judgment motion and its accompanying exhibits and thoroughly discussed the
procedural history of this case. Sherrod v. Enigma Software Grp., USA, LLC, No. 2:13–cv–36,
2013 WL 6730795, at *1–2 (S.D. Ohio Dec. 19, 2013). The Magistrate Judge then turned his
attention to the Plaintiff’s Supplemental Motion for Discovery. After outlining the parties’
respective arguments, the Magistrate Judge analyzed the Plaintiff’s request for additional
discovery under Rule 56(d). Id. at *2–3. Based on his review of the pleadings, the Magistrate
Judge concluded that the Plaintiff failed to demonstrate that further discovery was necessary to
formulate a response to the Defendant’s summary judgment motion:
Ms. Sherrod agreed to the scope of discovery necessary to respond to the
summary judgment motion, and her belief that documents pertaining to Engima’s
business processes would have been included in that discovery is not
substantiated by the language in the agreed-on order. Ms. Sherrod’s vague
assertion that documents explaining Enigma’s business processes would
“establish an internal standard against which Defendant’s conduct can be
measured” fails to “state with some precision” how she expects those documents
would help her to oppose summary judgment.
Id. at 3 (internal citation omitted).
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The Plaintiff further argued:
Defendant’s production placed her in a position of asking business process questions at deposition
that each witness could decline to answer for lack of knowledge or memory, or without referring
to the undisclosed policies and procedures that governed subscriptions and cancellations.
Moreover, for the same reasons, each witness could decline to answer questions relating to the
business relationship between Defendant and Digital River. To the extent each witness answered
such question, [the Plaintiff] would have no way to know whether they were fabricating their
testimony or predicating it upon written business policies and procedures.

Pl.’s Supp. Mot. for Discovery at 4.
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In response to the Plaintiff’s argument that she needed additional discovery to understand
the technical documents produced by the Defendant, the Magistrate Judge observed that the
Plaintiff could have deposed the Defendant’s employee as provided for in the Agreed Order. Id.
at *4. The Magistrate Judge further emphasized that “[b]y her own admission, Ms. Sherrod
elected not to pursue that discovery, and a Rule 56(d) motion may not be based on a preference
that the discovery sought come in the form of documents, as opposed to deposition testimony.”
Id.
In conclusion, the Magistrate Judge found that the Plaintiff failed to satisfy Rule 56(d)’s
standard for additional discovery and denied the Plaintiff’s Supplemental Motion. Id.
Having reviewed the Plaintiff’s pleadings and the Magistrate Judge’s decision, the Court
concludes that the Magistrate Judge did not abuse his discretion in denying the Plaintiff’s
Supplemental Motion for Leave to Conduct Discovery. Rule 56(d) requires the movant to present
“specified reasons” why she cannot present facts essential to justify her opposition to the nonmovant’s motion for summary judgment. 4 Here, the Plaintiff failed to present the Magistrate
Judge with specific reasons why additional discovery was necessary pursuant to Rule 56(d). The
Plaintiff’s affidavits contain bare bones statements, expressing a general, unspecified need for
further discovery. As previously noted, conclusory statements and vague assertions do not justify
granting a Rule 56(d) motion. Summers, 368 F.3d at 887 (citing Cantrell, 92 F. Supp. 2d at 717);
Lanier, 332 F.3d at 1006.
The Plaintiff’s pleadings contain similarly imprecise arguments. According to the
Plaintiff, discovery related to the Defendant’s “business processes associated with consumer
4

Although Rule 56(d) instructs a party seeking additional discovery to file an affidavit or declaration discussing his
or her need for further discovery, the Sixth Circuit has recognized that this is not a rigid requirement. See Reliance
Mediaworks (USA) Inc. v. Giamarco, Mullins & Horton, P.C., — F. App’x —, 2013 WL 6698039, at *5 n.2 (6th.
Cir. Dec. 20, 2013) (citing Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, 280 F.3d 619, 628 (6th
Cir. 2002)) (“In Abercrombie, the Sixth Circuit cautioned courts not to “exalt form over substance” in mandating the
filing of a 56(d) affidavit. . . . But at minimum, the [moving] party must comply with the substance of Rule 56(d).”).
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purchases and cancellations of software subscriptions” is necessary to “establish an internal
standard against which Defendant’s conduct can be measured.” Pl.’s Supp. Mot. for Disc. at 4.
The Plaintiff insists that the “Defendant’s policy and procedure documents are crucial to
understanding how Defendant’s business process should work vis-à-vis how it worked for Ms.
Sherrod.” Id. at 3. Further, the Plaintiff asserts that these business process documents are
necessary in order to interpret technical documents provided to the Plaintiff in discovery. Id. In
the Court’s view, the Plaintiff has failed to provide a detailed explanation of why these
documents are necessary for her to respond to the Defendant’s summary judgment motion.
The Plaintiff’s claims against the Defendant sound in contract and tort. In its Motion for
Summary Judgment, the Defendant presented business records purportedly demonstrating that it
renewed the Plaintiff’s subscription pursuant to the terms of the contract. Therefore, in order to
respond to the Defendant’s motion, the Plaintiff must present evidence that the Defendant
violated the terms of the contract when it renewed the Plaintiff’s software subscription. The
Plaintiff has not explained, and it is unclear to the Court, how documents relating to the
Defendant’s internal operating procedures could demonstrate that the Defendant breached its
contract with the Plaintiff. The terms of the contract control the dispute between the parties, and
there is no suggestion that the Defendant’s internal operating procedures were incorporated into
the contract between the parties. Although documents concerning the Defendant’s internal
operating procedures might be useful to provide context to the Plaintiff’s claims, the Plaintiff has
failed to explain why they are necessary to respond to the Defendant’s summary judgment
motion. To the extent that the Plaintiff has raised claims of fraud and misrepresentation, the
Plaintiff has not explained how documents related to the Defendant’s internal operating
procedures are material to her tort claims. Without a detailed explanation providing specific

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reasons why discovery of these documents are necessary pursuant to Rule 56(d), the Court
cannot conclude that the Magistrate Judge abused his discretion in denying the Plaintiff’s
Supplemental Motion.
In her Motion for Reconsideration, the Plaintiff presents new arguments and expands on
arguments previously presented to the Magistrate Judge. 5 See Pl.’s Mot. for Reconsideration at
2–4 (e.g., discussing how the Defendant’s internal operating procedures would be relevant to the
Plaintiff’s fraud claim; arguing that without internal operating procedures, the Plaintiff would
have no way to determine whether the Defendant met its contractual obligations). The Court
considers only those arguments presented to the Magistrate Judge. See Murr v. United States,
200 F.3d 895, 902 n.1 (6th Cir. 2000) (collecting cases) (recognizing that when reviewing
objections to a magistrate’s decision, courts do not consider new arguments or issues not
presented to the magistrate); North Am. Rescue Prods., Inc. v. Bound Tree Med., LLC, No.
2:08–cv–101, 2010 WL 1873291, at *5 (S.D. Ohio May 10, 2010) (Holschuh, J.) (citing Murr
when reviewing objections to a magistrate’s discovery order). Therefore, the Plaintiff’s Motion
for Reconsideration and the new arguments contained therein do not alter the Court’s conclusion
that the Magistrate Judge did not abuse his discretion in denying the Plaintiff’s Supplemental
Motion.

III.

Motion for Extension of Time to File Response/Reply
In his December 19, 2013 Opinion and Order denying the Plaintiff’s Supplemental

Motion, the Magistrate Judge ordered the Plaintiff to file a response to the Defendant’s summary
judgment motion within 21 days of the Order being entered. Sherrod, 2013 WL 6730795, at *4.
At the conclusion of his Order, the Magistrate Judge stated, “This order is in full force and effect,
5

The Plaintiff includes these arguments in the section entitled “Procedural History and Relevant Facts.”
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notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District
Judge.” Id. at 5 (citing S.D. Ohio L.R. 72.3). On January 2, 2014, the Plaintiff filed his Motion
for Reconsideration of the Magistrate Judge’s Order. On January 8, one day before the Plaintiff’s
response to the Defendant’s motion for summary judgment was due, the Plaintiff filed a Motion
for Extension of Time (doc. 28), requesting that the Court resolve the Motion for
Reconsideration prior to requiring her to file a response to the Defendant’s motion for summary
judgment. Pl.’s Mot. for Extension of Time at 1, doc. 28. Further, the Plaintiff argued, even if the
Court denied her request, the Court should grant an additional period of time for her to respond
because her counsel experienced the reoccurrence of a lower back injury that prevented him from
working since late December 2013. Id. at 2.
Absent a stay or other order from this Court, the Plaintiff was obligated to submit her
response to the Defendant’s summary judgment motion on January 9. Her pending Motion for
Extension of Time did not excuse her from this obligation. Nonetheless, the Court will grant the
Plaintiff’s Motion and allow her 14 days to file a response to the Defendant’s Motion for
Summary Judgment.

IV.

Conclusion
For the foregoing reasons, the Court DENIES the Plaintiff’s Motion for Reconsideration

(doc. 27) and GRANTS the Plaintiff’s Motion for Extension of Time (doc. 28). The Plaintiff
shall file a response to the Defendant’s Motion for Summary Judgment within 14 days of this
Order being filed.

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IT IS SO ORDERED.
s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: January 28, 2014

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