R&T Roofing Contractor, Corp. v. The Fusco Corporation et al

Filing 93

ORDER: Granting 89 Motion to Strike. Plaintiff's 88 motion for summary judgment is stricken from the record. Signed by Judge Gustavo A. Gelpi on 6/27/2017. (GC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

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R&T ROOFING CONTRACTOR, CORP.,
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Plaintiff,
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CIVIL NO. 15-2955 (GAG)

v.
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THE FUSCO CORPORATION;
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA,

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Defendants.
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ORDER STRIKING SUMMARY JUDGMENT MOTION

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This diversity suit arises from a roofing contract between Plaintiff R&T Roofing Contractor,

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Corp. (“R&T”) and Defendants The Fusco Corporation (“Fusco”) and Travelers Casualty and Surety

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Company of America (“Travelers”) (collectively, “Defendants”). Fusco retained subcontractor R&T

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to perform roofing work as part of a major construction project to repair and modernize the Clemente

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Ruiz Nazario Courthouse and the Federico Degetau federal office building in Hato Rey, Puerto Rico.

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(Docket No. 4 at 2.) The project did not go according to plan, and R&T filed suit in federal court in

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November 2015. (Docket Nos. 1, 4.)

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Since then, R&T has only occasionally made efforts to litigate this suit.

The Court

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incorporates by reference it’s prior Memorandum and Order at Docket No. 65, which recounted this

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case’s procedural history and “R&T’s undue delay, repeated failure to cure deficiencies, and utter

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disregard for court deadlines warrant[ing] denial of leave” to amend its complaint. (Docket No. 65,

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at 3.) At that time, the Court noted “R&T missed numerous court deadlines without explanation”

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and often “waited for the deadline to lapse before seeking any extension or other relief.” Id. at 6.

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The Court, in its December 16, 2016 order, was crystal clear: “This strategy is plainly ineffective.”

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Civil No. 15-2955 (GAG)
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Id. Given this background, the Court once again addresses R&T’s failure to adhere to this Court’s

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case management deadlines.

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Presently before the Court is Defendants’ motion to strike R&T’s motion for summary

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judgment. (Docket Nos. 88, 89.) On June 29, 2016, following a scheduling conference, Magistrate

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Judge Bruce McGiverin set the dispositive motion deadline in this case for November 1, 2016.

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(Docket No. 36.) On May 24, 2017, over six months after the dispositive motion deadline lapsed—

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without requesting an extension of time or requesting leave to file the belated motion—R&T moved

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for summary judgment. (Docket No. 88.) Defendants moved to strike R&T’s motion as untimely.

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(Docket No. 89.) The Court ordered R&T to show cause, on or before June 16, 2017, as to why

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R&T’s motion for summary judgment should not be stricken from the record. (Docket No. 90.) On

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June 20, 2017, four days after the Court’s show cause deadline, R&T belatedly responded. (Docket

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No. 91.) Defendants responded in opposition to R&T’s show cause response. (Docket No. 92.)

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The Federal Rules of Civil Procedure endow trial courts with considerable case-management

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authority, including the power to set pretrial motions deadlines. FED. R. CIV. P. 16(b)(3)(A). The

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authority to set deadlines entails the authority to enforce deadlines. FED. R. CIV. P. 16(f). For

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example, a court may impose sanctions upon a party who “fails to obey a scheduling or other pretrial

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order.” FED. R. CIV. P. 16(f)(1)(C). Thus, “a litigant who ignores a case-management deadline does

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so at his peril.” Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998). This includes, but is

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not limited to, preclusion of an untimely motion. See Torres v. Commonwealth of Puerto Rico, 485

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F.3d 5, 10 (1st Cir. 2007) (affirming trial court’s preclusion of a motion filed eleven months after

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the court’s dispositive motion deadline); Rosario-Diaz, 140 F.3d at 315-16 (affirming trial court’s

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preclusion of two motions filed eight and fifteen weeks after the dispositive motion deadline).

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Civil No. 15-2955 (GAG)
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R&T’s attempts to excuse its belated summary judgment motion are unavailing. First,

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R&T’s show cause response was untimely. The Court ordered R&T to show cause by June 16,

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2017; R&T responded four days after that deadline lapsed. (Docket Nos. 90, 91.) R&T has

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disregarded this Court’s deadlines with shocking consistency. Courts are not required to “accept at

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face value” the excuses offered by litigants who exhibit “a pattern of dilatory conduct.” Torres, 485

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F.3d at 11. This unexcused and unexplained delay—standing alone—is sufficient grounds for

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striking R&T’s motion from the record.

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The substance of R&T’s excuse are no more persuasive. R&T justifies the over six-month

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delay by pinning the blame on Defendant Travelers’, who timely answered the complaint on

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December 22, 2016. If, prior to the November 1, 2016 dispositive motion deadline, R&T felt that it

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could not adequately file a dispositive motion because Travelers had not yet filed an answer, then

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the appropriate response would have been to seek an extension of the dispositive motion deadline.

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They did not. Plus, R&T was on notice of Travelers’ affirmative defenses as of February 1, 2016,

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when Travelers moved to dismiss. (Docket No. 17.) R&T’s failure to adhere to court deadlines,

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coupled with its failure to seek a timely extension, is insufficient to show cause as to the over six-

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month delay in filing for summary judgment. To sum up, inaction is an ineffective litigation strategy.

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Defendants’ motion to strike at Docket No. 89 is GRANTED. R&T’s motion for summary

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judgment at Docket No. 88 is stricken from the record.

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SO ORDERED.

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In San Juan, Puerto Rico, on this 27th day of June, 2017.

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s/ Gustavo A. Gelpí
GUSTAVO A. GELPI
United States District Judge

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