Graham v. HRchitect, Inc. et al

Filing 47

MEMORANDUM OPINION AND ORDER. ORDERED that HRchitect, Inc. and Matt Lafata's Motion for Leave to File Motion for Summary Judgment and Motion to Dismiss (Dkt. #44) is hereby DENIED. Signed by Judge Amos L. Mazzant, III on 7/28/2017. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JANA GRAHAM
v.
HRCHITECT, INC. and MATT LAFATA

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Civil Action No. 4:16-CV-743
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is HRchitect, Inc. and Matt Lafata’s Motion for Leave to File
Motion for Summary Judgment and Motion to Dismiss (Dkt. #44). The Court, having considered
the relevant pleadings, finds the motion should be denied.
BACKGROUND
On June 24, 2016, Plaintiff Jana Graham (“Graham”) filed a lawsuit in the United States
District Court for the Northern District of Georgia, Atlanta Division alleging various employment
claims (Dkt. #1). Specifically, Plaintiff alleges Defendant HRchitect, Inc. failed to pay her
minimum wage and its President Matt Lafata (“Lafata”) retaliated against her in violation of the
Fair Labor Standards Act of 1938 (Dkt. #1). On September 26, 2016, the Northern District of
Georgia, Atlanta Division transferred the case to this Court (Dkt. #26). On October 5, 2016, the
Court issued its Order Governing Proceedings (Dkt. #28) and set the scheduling conference for
November 28, 2016. On November 14, 2016, the parties submitted a Joint Rule 26(f) Attorney
Conference Report complete with proposed scheduling order dates (Dkt. #35). On December 9,
2016, the Court issued its Scheduling Order, entering the proposed dates submitted by the parties
(Dkt. #38). The Scheduling Order set a March 6, 2017 deadline for motions to dismiss, motions
for summary judgment, and other dispositive motions.

Plaintiff contends that Plaintiff’s counsel contacted Defendants’ counsel to propose
deposition dates on December 20, 2016, and several times thereafter (Dkt. #46 at p. 2). Plaintiff
further contends that Defendants’ counsel did not seek deposition dates for Graham until after the
dispositive motion deadline (Dkt. #46 at p. 2). Both Graham and Matt Lafata were deposed on
June 15, 2017.
On July 10, 2017, Defendants filed this Motion for Leave to File Motion for Summary
Judgment and Motion to Dismiss (Dkt. #44). On July 17, 2017, Plaintiff filed a response (Dkt.
#46).
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure states that a party may move for summary
judgment at any time until 30 days after the close of all discovery unless a different time is set by
a local rule, or a court orders otherwise. Fed. R. Civ. P. 56(c)(1) (emphasis added). Rule 16 states
that a scheduling order may only be modified for “good cause” and with the judge’s consent. Fed.
R. Civ. P 16(b)(4); S & W Enters. v. SouthTrust Bank, 315 F.3d 533, 536 (5th Cir. 2003). Also,
Rule 6 states that if a request is made to extend time after the original time has already expired,
the court may “for good cause, extend the time . . . if the party failed to act because of excusable
neglect.” Fed. R. Civ. P. 6(b)(1)(B).
ANALYSIS
Defendants request leave to file a motion for summary judgment after the dispositive
motion deadline and claim there is good cause to grant their request. Defendants argue that the
Court should apply a good cause analysis and allow the Defendants to file a dispositive motion
after the deadline because “substantial justification” exists. However, this is not the correct
standard. A simple good cause analysis only applies where the party seeks an extension before the

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deadline passes. See Fed. R. Civ. P. 6(b)(1)(A). Here, Defendants’ counsel did not request an
extension of the dispositive motion deadline until after the deadline had already passed. A party
seeking an after-the-fact extension bears a heavier burden of demonstrating both “good cause” and
“excusable neglect.” See Fed. R. Civ. P. 6(b)(1)(B) (“[T]he court may, for good cause, extend the
time . . . on motion made after the time has expired if the party failed to act because of excusable
neglect.”) (emphasis added). Relevant factors used to determine “excusable neglect” include: (1)
the danger of prejudice to the non-movant; (2) the length of the delay and its potential impact on
judicial proceedings; (3) the reason for the delay, including whether it was within the movant’s
reasonable control; and (4) whether the movant acted in good faith. Rivero v. Sunbeam Prod., Inc.,
No. CIVA SA-08-CV-591-XR, 2010 WL 1752532, at *1 (W.D. Tex. April 29, 2010) (citing
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 161 n.8 (5th Cir. 2006)). For the following reasons,
the Court finds that Defendants have not shown excusable neglect.
The first factor, danger of prejudice to the non-movant, weighs against the Court granting
the motion for leave. District courts in the Fifth Circuit have found prejudice in this context when
finding excusable neglect would affect trial preparation. Deaton v. Kroger Co., No. 4:13-CV-254,
2014 WL 3452486, at *2 (E.D. Tex. July 15, 2014); see Rivero, 2010 WL 1752532, at *1 (finding
excusable neglect would prejudice plaintiff because it would “impact their preparation for trial in
reliance on the scheduling order deadlines”). In Deaton, the defendant filed a motion for leave and
a motion for summary judgment on July 27 and July 30, 2014, over six months after the December
11, 2013 deadline to file summary judgment motions. 2014 WL 3452486, at *1. The Deaton court
found the “potential prejudice to Plaintiff is extremely high” because the plaintiff was “under the
impression that there were no further grounds for a summary judgment motion, and has been

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preparing for trial in September of 2014.” Id. Here, Defendants filed their motion for leave to file
a motion for summary judgment over three months after the dispositive motion deadline. Thus, it
is likely that Plaintiff was “under the impression that there were no further grounds” for summary
judgment. Id. Also, this case’s pre-trial conference is set for September 22, 2017, with trial
scheduled in October 2017. Therefore, it is likely that Plaintiff has been preparing for trial, as the
pretrial conference is impending. Thus, as in Rivero, hearing Defendants’ summary judgment
motion could adversely affect Plaintiff’s “trial preparation in reliance on the scheduling order
deadlines.” Id.
Courts have also found prejudice when considering an untimely summary judgment motion
could force the parties to go to trial without a summary judgment ruling. Deaton, 2014 WL
3452486, at *2. The Deaton case was scheduled for trial only two months after the defendant filed
its untimely summary judgment motion. Id. Therefore, the court warned that “the parties could be
forced to go to trial without a ruling” on the motion, which would result in “further prejudice to
Plaintiff.” Id. This was because both parties would have to fully brief the summary judgment
motion two months before trial. Id. Here, trial is also only two months away, and both parties
would have to fully brief the summary judgment motion. This presents the possibility that trial
could start without a summary judgment ruling, which would further prejudice Plaintiff.
The second factor, the delay’s length and its potential impact on judicial proceedings also
weighs against finding excusable neglect. District courts in the Fifth Circuit have found delays as
short as a few weeks as too long to find excusable neglect. Rivero, 2010 WL 1752532, at *1. For
example, the deadline to file dispositive motions in Rivero was March 15, 2010. Id. The defendant
did not file a motion for leave to file a motion for summary judgment until April 14, 2010. Id. In
refusing to find excusable neglect, the Rivero court emphasized that the defendant was “aware as

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of March 23, 2010, that its own expert’s opinion could serve the basis for a motion for summary
judgment, yet waited until April 14 to seek leave from the Court to file a dispositive motion beyond
the deadline.” Id. In this case, Defendants should have been aware from the moment Graham filed
suit that her testimony could be the basis for a summary judgment motion. Yet Defendants waited
until June 15, 2017, to depose Graham, long after the dispositive motion deadline had passed. This
lengthy delay is simply too long to support an excusable neglect finding, especially considering
the impending trial.
The third factor—reason for the delay and whether it was in Defendants’ reasonable
control—also weighs against finding excusable neglect. Defendants’ argue the reason for the delay
in filing its summary judgment motion was because of “significant factual developments,”
discovery disputes, witnesses in different states, and defense counsel’s “unavoidable scheduling
conflicts.” (Dkt. #44 at p. 2). None of these reasons for delay constitute excusable neglect.
First, Defendants allege significant factual developments warrant granting leave to file a
motion for summary judgment. Defendants allege that Graham’s deposition revealed that her
claims were factually unsupported. However, Defendants do not explain why they waited to
depose Graham until six months after they received the Scheduling Order on December 9, 2016.
And courts have refused to find excusable neglect when the circumstances leading to the delay
were within the defendant’s control. Rivero, 2010 WL 1752532, at *2. In Rivero, the court found
against excusable neglect because “the circumstances leading up to [defendant’s] delay were all
within its control” because the defendant “had the information” upon which it based its summary
judgment motion two months before the dispositive motion deadline. Id. Here, the Court
recognizes that Defendants did not have Graham’s testimony at the time of the dispositive motion
deadline. But Defendants had four months to depose Graham and draft a summary judgment

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motion to meet the deadline. Moreover, Defendants do not indicate that they were prevented from
deposing Graham, and Plaintiff’s counsel represented that Plaintiff proposed deposition dates as
early as December 2016 (Dkt. #46 at p. 2). Defendants should have known that Graham’s
testimony would be essential to support any summary judgment motion it planned to file.
Defendants could have sought Graham’s deposition before the dispositive motion deadline or
petitioned the Court for an extension of the dispositive motion deadline. Thus, the Defendant has
not shown the Court that the “significant factual developments” were out of Defendants’ control.
Next, Defendants argue discovery disputes caused the delay and were out of their control.
This argument is meritless. The only discovery dispute on the record before the dispositive motion
deadline regarded Defendants’ deficient production. On February 28, 2017, the Court held a
telephone conference to address a production request. Defendants’ counsel did not appear (Dkt.
#39). Nothing before the Court indicates discovery disputes are to blame for the missed deadline.
The final two reasons for delay provided by Defendants are witnesses located out of state
and unavoidable scheduling conflicts. These reasons are not only vague, but the Defendants also
do not provide any authority that such reasons justify a finding of excusable neglect.
The final factor to consider in an excusable neglect analysis is good faith. The parties do
not provide the Court with evidence of good faith or a lack thereof. Regardless, the other three
factors weigh against a finding of excusable neglect. Thus, the Court finds Defendants have not
shown the delay was due to excusable neglect.
Because Defendants have not shown excusable neglect, a good cause analysis is not
required. See Fed. R. Civ. P. 16(b)(4) (requiring both good cause and excusable neglect). Even if
a good cause analysis were required, Defendants have not shown good cause for an extension of
the deadline. The Fifth Circuit has established four factors the Court should consider when

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determining whether good cause exists: (1) the explanation for the failure to timely move for leave
to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the
amendment; (4) the availability of a continuance to cure the prejudice. Sw. Bell Tel. Co. v. City of
El Paso, 346 F.3d 541, 546–47 (5th Cir. 2003). Additionally, a party must show that it “could not
have met the deadline despite its diligence.” S & W Enters., 315 F.3d at 536–38. First, the
Defendants have not attempted to explain why they did not timely move for leave to amend the
scheduling order. Second, as discussed above, allowing the Court to consider the motion for
summary judgment would prejudice the Plaintiff because of the proximity of trial and the need for
full briefing before the Court could rule on the motion. This fact also weighs against a favorable
weighing of the fourth good cause factor because a trial continuance is not feasible considering the
Court’s busy docket. See S & W Enters., 315 F.3d at 537 (finding district courts have broad
“discretion not to grant a continuance,” because they have the “power to control their dockets by
refusing to give ineffective litigants a second chance to develop their case.”). Finally, the
Defendants have not shown that they could not have met the deadline despite their diligence. Id.
The Fifth Circuit has held that a party does not “diligently pursue discovery” when they filed a
motion three months after a scheduling order deadline, and provided no information about its
discovery efforts. Agee v. City of McKinney, Tex., 593 F. App’x 311, 313–14 (5th Cir. 2014). The
Fifth Circuit in Agee found that a party had “not diligently pursued discovery” because he “finally
filed his motion . . . eighty-six days after” the dispositive motion deadline. Id. Furthermore, the
party did not exercise diligence because he “provided no information regarding [its] efforts to
obtain discovery.” Id. Here, as in Agee, Defendants have not provided an explanation as to why
they could not have deposed Graham in time to draft a summary judgment motion before the

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dispositive motion deadline. The Court finds Defendants have not shown good cause to modify
the dispositive motion deadline.
CONCLUSION
The Court finds Defendants have not met their burden in showing both good cause and
excusable neglect for the delay under Rule 16. It is therefore ORDERED that HRchitect, Inc. and

. Matt Lafata’s Motion for Leave to File Motion for Summary Judgment and Motion to Dismiss
(Dkt. #44) is hereby DENIED.
The Clerk is instructed to terminate that HRchitect, Inc. and Matt Lafata’s Motion for
Summary Judgment (Dkt. #45) as an active motion.

SIGNED this 28th day of July, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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