Cypherd et al v. Belk, Inc.

Filing 26

MEMORANDUM OPINION AND ORDER granting 17 Motion for Extension of Time to File Response/Reply; denying 18 Motion to Strike. Plaintiffs shall file their supplemental response to defendant's motion for summary judgment within fourteen (14) days of the entry of this Order. Signed by Chief District Judge Thomas A Varlan on 1/12/15. (JBR, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
MARGARET SUE CYPHERD, and
JOHN CYPHERD,
Plaintiffs,
v.
BELK, INC.,
Defendant.

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No.: 3:13-CV-232-TAV-CCS

MEMORANDUM OPINION AND ORDER
This civil action is before the Court on plaintiffs’ Memorandum in Response to
Defendant’s Motion for Summary Judgment and Motion to Extend Time for
Supplementation of Response Pending Party Deposition [Doc. 17], and Defendant’s
Motion to Strike Plaintiffs’ Late Filed Response [Doc. 18]. Plaintiffs, in their filing
[Doc. 17], respond to defendant’s motion for summary judgment [Doc. 15] and move the
Court to permit them to supplement their response to the motion for summary judgment
after the completion of the deposition of defendant’s store manager. Defendant has
responded, opposing plaintiffs’ motion to supplement their response to the motion for
summary judgment [Doc. 20] and separately moving to strike plaintiffs’ response in its
entirety [Doc. 18]. Plaintiffs have responded to defendant’s motion to strike [Doc. 21],
attaching a July 18, 2014, affidavit of their counsel regarding the facts underlying their
motion to supplement their response to the motion for summary judgment [Doc. 21-1].

I.

Background
This case is a premises liability case involving defendant’s department store

located in the Turkey Creek business area of Knoxville, Tennessee [Doc. 1-1; Doc. 16].
Plaintiffs seek to recover damages for alleged injuries they suffered as a result of plaintiff
Margaret Cypherd tripping over electrical outlet covers on the floor of defendant’s store
and falling to the ground as a result [Id.]. Defendant filed a motion for summary
judgment on June 6, 2014 [Doc. 15]. Consequently, plaintiffs had until June 30, 2014, in
which to file a response. Fed. R. Civ. P. 6(a), (d); E.D. Tenn. L.R. 7.1. Plaintiffs filed
their response ten days late, on July 10, 2014 [Doc. 17].
Prior to the expiration of plaintiffs’ time in which to respond to defendant’s
motion for summary judgment, the parties informally agreed to postpone the “hearing”
on the motion for summary judgment until after the depositions of defendant’s store
manager and plaintiffs [Doc. 17 p. 1; Doc. 18 p. 2; Doc. 21-1 p. 4]. These depositions
were scheduled to occur on July 15, 2014 [Doc. 21-1 p. 4], within the time period
permitted for discovery pursuant to the Court’s Scheduling Order [Doc. 12]. Plaintiffs’
counsel avers that he believed that the testimony of defendant’s store manager would be
necessary for a full response to defendant’s motion for summary judgment on the subject
of the electrical outlet covers at issue in this case, including the purpose of the covers, the
use of the covers within patron walkways, policies and procedures concerning the
placement and inspection of the covers, and prior incidents involving the covers [Doc.
21-1 p. 4].
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The parties disagree about whether their informal agreement included an extension
of time for plaintiffs to file a response to the motion for summary judgment [Doc. 17 p. 1;
Doc. 18 p. 2]. Plaintiffs’ counsel states that the agreement only specified that defendant
would not object to a postponement of the summary judgment “hearing,” but he assumed
that such an agreement implied that defendant would not oppose an extension of time for
plaintiffs to file a response to defendant’s motion for summary judgment [Doc. 21 p. 1–2;
Doc. 21-1 p. 4]. In any event, the parties did not memorialize their agreement by making
a filing with the Court, nor did plaintiffs timely seek an extension of time in which to
respond to defendant’s motion for summary judgment [Doc. 21 p. 1–2].
II.

Analysis
The Court turns first to defendant’s motion to strike plaintiff’s response to the

motion for summary judgment [Doc. 18]. Defendant argues that that the Court should
not consider plaintiffs’ response to the motion for summary judgment because plaintiffs
filed their response after the time in which to do so had expired. Plaintiffs argue that
their late filing was not intentional, pointing to the oral agreement between the parties
and a calendaring error on the part of plaintiffs’ attorney, and that the Court has
discretion to consider their late response to the motion for summary judgment.
It is improper for a district court to grant summary judgment in favor of a movant
“simply because the adverse party has not responded.” Carver v. Bunch, 946 F.2d 451,
455 (6th Cir. 1991). “The court is required, at a minimum, to examine the movant’s
motion for summary judgment to ensure that he has discharged that burden.” Id. Subject
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to these constraints in ruling on summary judgment motions, however, “trial courts have
inherent power to control their dockets.” See Anthony v. BTR Auto. Sealing Sys., Inc.,
339 F.3d 506, 516 (6th Cir. 2003).
Here, there is no dispute that plaintiffs filed their response ten days late. In the
time between the filing deadline and the date that plaintiffs responded, defendant’s
motion for summary judgment became ripe for disposition. In the past, the Court has
considered and granted motions for summary judgment in the absence of a response from
the nonmoving party. See, e.g., McCorkle v. Tenn. Valley Auth., 2012 WL 1188465 at
*2–4 (E.D. Tenn. April 9, 2012). Parties that fail to comply with the Court’s filing
deadlines do so at their peril. See E.D. Tenn. L.R. 7.2.
Nevertheless, there is also no dispute that the parties in this case had agreed to
postpone the summary judgment “hearing” until after the deposition of defendant’s store
manager was taken. Although informal oral agreements between parties are not binding
on the Court, plaintiffs’ late filing is partially the result of an apparent misunderstanding
between the parties. In light of the Sixth Circuit’s guidance that motions for summary
judgment should be considered on their merits regardless of whether there has been a
response, and given all of the circumstances of this case, the Court will take into account
plaintiffs’ response to the motion for summary judgment.
The Court next turns to plaintiffs’ motion to supplement their response to
defendant’s motion for summary judgment [Doc. 17]. Plaintiffs argue that the testimony
of defendant’s store manager will allow them to more fully respond to issues concerning
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the electrical outlet covers at issue in this case. Defendant argues that the Court should
not grant plaintiffs’ motion to supplement their response because their motion does not
comply with the requirements of Rule 56(d) of the Federal Rules of Civil Procedure.
Rule 56(d) addresses circumstances in which a nonmoving party to a motion for
summary judgment “shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). In such
circumstances, 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.” Id.
The Sixth Circuit generally requires compliance with the formalities of Rule 56(d)
before it will entertain an appeal on the issue of whether there was adequate time for
discovery. See Cacevic v. City of Hazel Park, 226 F.3d 483, 488–89 (6th Cir. 2000)
(discussing the rule in its prior iteration as Rule 56(f)). The purpose of requiring such
compliance, however, is to “give[] the district court a chance to rule on the need for
additional discovery.” Id. at 488 (quoting Plott v. Gen. Motors Corp., 71 F.3d 1190,
1196 (6th Cir. 1995)) (internal quotation marks omitted). Accordingly, the Sixth Circuit
has “intimated that either a Rule 56[d] affidavit ‘or a motion’ would suffice.” Id.
(quoting Plott, 71 F.3d at 1196). District courts have discretion to determine the proper
course of action under Rule 56(d). See Plott, 71 F.3d at 1196–97.
Here, plaintiffs have brought the issue of incomplete discovery to the Court’s
attention, and they have filed an affidavit averring to the facts underlying their motion to
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supplement their response. The Court need not decide whether plaintiffs’ actions are
sufficient to comply with Rule 56(d), however, because the Court concludes that
supplemental briefing is otherwise appropriate.
As with all matters of docket control, the Court has the discretionary power to
amend the briefing schedule or order supplemental briefing in this case. See E.D. Tenn.
L.R. 7.1; Anthony, 339 F.3d at 516; Gould v. Wood/Chuck Chipper Corp., 2000 WL
1234334 at *4 (6th Cir. Aug. 25, 2000). The sole argument that defendant makes in its
motion for summary judgment is that it did not violate its duty of care to plaintiffs
because the electrical outlet covers over which plaintiff Margaret Cypherd tripped did not
present a dangerous condition as a matter of law [Doc. 15]. In determining whether a
condition is dangerous under Tennessee law, the Court considers, among other things,
“whether the danger was known and appreciated by the plaintiff, whether the risk was
obvious to a person exercising reasonable perception, intelligence, and judgment, and
whether there was some other reason for defendant to foresee the harm.” Green v.
Roberts, 398 S.W.3d 172, 177 (Tenn. Ct. App. 2012) (quoting Coln v. City of Savannah,
966 S.W.2d. 34, 42 (Tenn. 1998)) (internal quotation marks and brackets omitted).
Here, it is reasonable to believe that defendant’s store manager would have
information that is relevant to the question of whether the outlet covers at issue in this
case presented a dangerous condition. Indeed, based on defendant’s argument in its
motion for summary judgment, the store manager may be a key witness. The deposition
was scheduled to take place within the time period permitted for discovery, and briefing
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on any relevant information raised by the store manager’s testimony is necessary to fully
develop the legal issues before the Court. Considering the law governing defendant’s
sole argument in its motion for summary judgment, the timing of a potentially important
deposition, the importance of ruling on the merits of the summary judgment motion, and
the other circumstances of this case, the Court concludes that supplemental briefing
would be helpful and appropriate.
III.

Conclusion
For these reasons, Defendant’s Motion to Strike Plaintiffs’ Late Filed Response

[Doc. 18] is DENIED, and Plaintiff’s Motion to Extend Time for Supplementation of
Response Pending Party Deposition [Doc. 17] is GRANTED. Plaintiffs shall file their
supplemental response to defendant’s motion for summary judgment within fourteen
(14) days of the entry of this Order. The Court’s local rules shall govern the deadline for
any supplemental reply that defendant may file.
IT IS SO ORDERED.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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