Frazier v. Vintage Stock Inc

Filing 78

ORDER denying 74 Motion for Leave to File Motion for Partial Summary Judgment; denying as moot 76 Motion to Strike. Signed by Honorable Timothy D. DeGiusti on 6/7/2016. (mb)

IN THE UNITED STATE DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DONALD EUGENE FRAZIER, JR.,
Plaintiff,
vs.
VINTAGE STOCK, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. CIV-15-550 D

ORDER
Before the Court is Defendant’s Application for Leave to File Motion for Partial
Summary Judgment [Doc. No. 74], which seeks relief from the April 18, 2016 dispositive
motion deadline. Plaintiff has filed a timely response in opposition to the Application, and
a separate motion to strike Defendant’s Exhibit A.1
Upon consideration, the Court finds that the Application should be denied. Defendant
neither acknowledges nor attempts to satisfy the “good cause” requirement of Fed. R. Civ.
P. 16(b)(4) for modifying a case schedule, or the “excusable neglect” requirement of Fed. R.
Civ. P. 6(b)(1)(B) for extending an expired deadline. Defendant’s sole reason for failing to
file a timely dispositive motion is that it recently discovered facts to support summary
judgment on one of Plaintiff’s claims. The original Scheduling Order stated: “If the deadline
for dispositive motions . . . precedes the discovery deadline, the parties are expected to
conduct any discovery necessary for such motions in advance of the motion deadline.” See

1

Exhibit A to the Application is an excerpt of a transcript of Plaintiff’s deposition, which was taken May 11,
2016. Plaintiff states, correctly, that the time period for him to review the transcript has not expired. See Fed.
R. Civ. P. 30(e)(1).

Scheduling Order [Doc. No. 41], p.2. Defendant states no reason why it did not depose
Plaintiff before the motion deadline or ask Plaintiff earlier to admit the fact on which it
intends to rely for a summary judgment motion.2 Further, Defendant’s proposed motion
would merely “narrow and simplify the issues in need of adjudication at the bench trial of
this matter.”3 See Def.’s Appl. ¶ 10. If undisputed facts show that Defendant is entitled to
a judgment on one of Plaintiff’s claims, this conclusion can easily be included in the Court’s
findings.4
IT IS THEREFORE ORDERED that Defendant’s Application for Leave to File
Motion for Partial Summary Judgment [Doc. No. 74] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike [Doc. No. 76] is
DENIED as moot.
IT IS SO ORDERED this 7th day of June, 2016.

2

Defendant cites Plaintiff’s admission in response to Defendant’s second set of discovery requests.

3

The parties have filed a written waiver of their rights to a jury trial. See Notice [Doc. No. 70].

4

Unless otherwise ordered, the parties’ trial submissions are currently due to be filed by June 9, 2016.

2