Housing Authority of the City of Pitcher, Oklahoma, The v. United States of America et al
Filing
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OPINION AND ORDER by Judge Claire V Eagan that the Board's motion for extension of deadlines (Dkt. # 24) is hereby granted. The discovery deadline will be extended to January 2, 2015, and all other unexpired deadlines will be extended forty-five days from the dates in the scheduling order (Dkt. # 13) and minute order (Dkt. # 19). An amended scheduling order for all unexpired deadlines will be entered forthwith. The Board's motion for additional time to respond (D kt. # 25) is hereby granted. The Board's response to the United States' motion for summary judgment (Dkt. # 20) is hereby due January 23, 2015. The United States' reply will be due on February 6, 2015. ; setting/resetting deadline(s)/hearing(s): ( Responses due by 1/23/2015, Replies due by 2/6/2015); granting 24 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 20 First MOTION for Summary Judgment , 25 Response in Opposition to Mo tion, 19 Minute Order, Setting/Resetting Scheduling Order Date(s),,,,,, 24 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) and Continuance of Trial, 13 Scheduling Order, Setting/Resetting Scheduling Order Date(s),, ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
THE HOUSING AUTHORITY OF THE )
CITY OF PICHER, OKLAHOMA,
)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES OF AMERICA, ex rel.
)
SECRETARY, DEPARTMENT OF HOUSING )
AND URBAN DEVELOPMENT; and BOARD )
OF COUNTY COMMISSIONERS OF THE
)
COUNTY OF OTTAWA, OKLAHOMA,
)
)
)
Defendants.
)
Case No. 14-CV-0322-CVE-PJC
OPINION AND ORDER
Now before the Court are the motion for extension of deadlines (Dkt. # 24) and the motion
for additional time to respond (Dkt. # 25) filed by defendant Board of County Commissioners of the
County of Ottawa, Oklahoma (Board). The Court ordered expedited responses to both motions (Dkt.
# 26), and defendant United States of America has responded (Dkt. ## 28, 29).
I.
In 2007, the Picher Housing Authority (PHA) contracted with the Department of Housing
and Urban Development (HUD) to construct and operate a low-income housing project in Picher,
Oklahoma. Dkt. # 25, at 1-2. The PHA insured the project. Id. at 2. In 2008, a tornado struck Picher,
destroying the insured property. Id. The PHA made a claim under its insurance policy, and the
insurer paid approximately $1.6 million; the PHA deposited the funds in a local bank account. Id.
In 2009, the City of Picher was disincorporated and went into receivership. Id. As part of the
winding up process and in response to demands from both defendants, the PHA filed an action in
Oklahoma state court interpleading the funds remaining from the insurance payout. Dkt. # 2, at 4-7.
The United States timely removed to this Court on June 16, 2014. Dkt. # 2. The PHA has been
dismissed as a party. Dkt. # 22. The Court entered a scheduling order on July 18, 2014 that set
November 17, 2014 as the discovery deadline. Dkt. # 13.1 The United States filed a motion for
summary judgment on October 14, 2014. Dkt. # 20. The Board’s previous counsel retired from
practice on November 3, 2014, and the Board approved retention of new counsel on November 5,
2014. Dkt. # 24, at 3. The Board filed its motions on November 6, 2014. Dkt. ## 24, 25.2
II.
Pursuant to Federal Rule of Civil Procedure 16 and Local Civil Rule 7.2(g), the Board moves
for a ninety day extension of all deadlines. Dkt. # 24, at 1. Rule 16 provides that “[a] schedule may
be modified only for good cause and with the judge’s consent.” FED. R. CIV. P. 16(b)(4).
“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.’” Strope v. Collins, 315 F. App’x 57, 61 (10th Cir. 2009)3 (quoting Minter v. Prime
Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006)). An extension of time is necessary, the Board
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The scheduling order was amended by minute order on August 5, 2014. Dkt. # 19. The order
affected only the deadlines for the pretrial conference, exchange of demonstrative exhibits,
and non-jury trial. Id.
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Under the applicable Local Civil Rule, the Board’s response to the motion for summary
judgment was due November 4, 2014, twenty-one days after the motion was filed. LCvR
7.2(e). In its motion for extension of deadlines, the Board states that the deadline was
November 6, 2014. Dkt. # 24, at 4. The United States agrees that the Board’s response was
due on November 6, 2014. Dkt. # 28, at 2. As the United States agrees to the later date, the
Court will consider both motions without addressing their apparent untimeliness.
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Unpublished decisions are not precedential, but they may be cited for their persuasive value.
See FED. R. APP. 32.1; 10TH CIR. R. 32.1.
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contends, to allow its new counsel to become familiar with the case, especially with the looming
discovery deadline. Dkt. # 24, at 3-4. The United States responds that the Board has not been
diligent in meeting deadlines and that its inaction for four months should not be overlooked. Dkt.
# 28, at 1-3. According to the United States, the Board failed to provide its initial disclosures and
its answers to the United States’ first set of discovery requests within the time allotted by the
scheduling order and the Federal Rules of Civil Procedure. Id. The United States also argues that
the Board conducted no discovery in the four months prior to its motions, and that its decision to hire
new counsel on the day before a response to the United States’ motion for summary judgment was
due should not be considered good cause under Rule 16. Dkt. # 28, at 2-3.
The Court does not condone the Board’s failure to act. The Board should have been aware
of its counsel’s decision to retire and should have hired new counsel well before the retirement date.
However, the Board hired new counsel without noticeable delay once its previous counsel’s
retirement was imminent, and the new counsel has acted quickly since taking over the case. The
Court will not hold the Board’s new counsel wholly responsible for the actions of previous counsel.
If the United States is correct and the Board’s previous counsel conducted little to no discovery, then
not to extend the deadlines would almost certainly result in the Board being unable to muster any
facts in opposition to the United States’ motion for summary judgment, essentially deciding the case.
In a variety of contexts, the Tenth Circuit has expressed a preference that cases be decided on the
merits, not on technicalities. E.g., Lee v. Max Int’l, LLC, 638 F.3d 1318, 1321 (10th Cir. 2011) (“Of
course, our legal system strongly prefers to decide cases on their merits.”); Curley v. Perry, 246 F.3d
1278, 1284 (10th Cir. 2001) (“We reiterate that the district court should allow a plaintiff an
opportunity to cure technical errors or otherwise amend the complaint when doing so would yield
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a meritorious claim.”). The Court finds that, in the context of this case, the Board’s need to retain
new counsel--and counsel’s need to familiarize himself with the case--constitutes good cause under
Rule 16(b)(4) to extend the discovery deadline and other unexpired deadlines in this case. The Court
will therefore offer the Board and its new counsel some relief, if not the full relief requested. The
Court grants the Board’s motion for extension of deadlines (Dkt. # 24) and allows the Board an
additional forty-five days to complete discovery.
III.
The Board has also moved, pursuant to Rule 56(d), for additional time to respond to the
United States’ motion for summary judgment (Dkt. # 20). The Board requests this Court hold the
motion for summary judgment in abeyance until after the discovery cutoff. Dkt. # 25, at 7. Rule 56
states that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.” FED. R. CIV. P. 56(d)(1)-(3). “The party requesting additional discovery must
present an affidavit that identifies ‘the probable facts not available and what steps have been taken
to obtain these facts. The nonmovant must also explain how additional time will enable him to rebut
the movant’s allegations of no genuine issue of material fact.’” F.D.I.C. v. Arciero, 741 F.3d 1111,
1116 (10th Cir. 2013) (quoting Trask v. Franco, 446 F.3d 1036, 1042 (10th Cir. 2006)).
The affidavit of the Board’s counsel states that the Board cannot respond to the motion for
summary judgment without further discovery, pointing specifically to the need to depose a number
of individuals, including: Johnny Sparkman and Gregory Jungman, whose affidavits the United
States cites in its motion; Ed Crone, the receiver for the City of Picher; a number of as-yet
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unidentified individuals associated with the PHA’s purchase of insurance; and a representative of
the local bank into which the PHA deposited the insurance proceeds. Dkt. # 25-1, at 3-4. According
to the affidavit, these depositions are necessary to respond to the United States’ arguments and to
support the Board’s theory of the case. Id. at 4-5. The United States responds that the need to depose
these individuals has been known at least since the United States’ initial disclosures. Dkt. # 29, at
2. Thus, the United States argues, the Board has taken no steps to obtain the relevant facts, and it
should not be permitted to delay responding to the motion for summary judgment. Id. The Court
finds that the Board has adequately met the requirements of Rule 56(d). The Court grants the
Board’s motion for additional time to respond (Dkt. # 25); the Board need not respond to the United
States’ motion for summary judgment (Dkt. # 20) until twenty-one days from the date of the new
discovery deadline.
IT IS THEREFORE ORDERED that the Board’s motion for extension of deadlines (Dkt.
# 24) is hereby granted. The discovery deadline will be extended to January 2, 2015, and all other
unexpired deadlines will be extended forty-five days from the dates in the scheduling order (Dkt.
# 13) and minute order (Dkt. # 19). An amended scheduling order for all unexpired deadlines will
be entered forthwith.
IT IS FURTHER ORDERED that the Board’s motion for additional time to respond (Dkt.
# 25) is hereby granted. The Board’s response to the United States’ motion for summary judgment
(Dkt. # 20) is hereby due January 23, 2015. The United States’ reply will be due on February 6,
2015.
DATED this 17th day of November, 2014.
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