Charalambopoulos v. Grammer
MEMORANDUM OPINION AND ORDER granting #218 MOTION to Partially Modify Scheduling Order to Permit Defendant to File a Motion to Stay Proceedings Pending Plaintiff's or His Counsel's Satisfaction of Attorneys' Fee Award. The court directs the clerk of court to file under seal ECF document No. [219-1], which is Grammer's motion to stay. (Ordered by Judge Sidney A Fitzwater on 10/23/2017) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
§ Civil Action No. 3:14-CV-2424-D
Defendant-counterplaintiff Camille Grammer (“Grammer”) moves to partially modify
the court’s scheduling order to permit her to file a motion to stay proceedings pending
plaintiff-counterdefendant Dimitri Charalambopoulos’ (“Charalambopoulos’”) or his
counsel’s satisfaction of attorney’s fee award. For the reasons that follow, the court grants
On March 10, 2016 the court awarded Grammer $118,999.61 in attorney’s fees and
$2,308.05 in expenses (“Award”) incurred in connection with her motion to dismiss pursuant
to the Texas Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code Ann. §
27.001 et seq. (West 2015). On November 11, 2016 Charalambopoulos filed a notice of
inability to pay court ordered attorney’s fees, attaching in support an affidavit stating that he
does not have the funds to satisfy the Award. On June 7, 2017 the court ordered
Charalambopoulos to produce to Grammer the contingent fee agreement (“Fee Agreement”)
that he had entered into with Provost Umphrey, the law firm representing him in this suit.
Allegedly based on the contents of the Fee Agreement, which was produced to Grammer on
June 29, 2017, Grammer now seeks to modify the scheduling order1 to permit her to file a
motion to stay.
Fed. R. Civ. P. 16(b)(4) governs a party’s request to modify a scheduling order.
Cartier v. Egana of Switz. (Am.) Corp., 2009 WL 614820, at *2 (N.D. Tex. Mar. 11, 2009)
(Fitzwater, C.J.). To modify the scheduling order, a party must demonstrate good cause and
obtain the judge’s consent. Id.
“The ‘good cause’ standard focuses on the diligence of the party seeking to modify
the scheduling order.” Cut-Heal Animal Care Prods., Inc. v. Agri-Sales Assocs., Inc., 2009
WL 305994, at *1 (N.D. Tex. Feb. 9, 2009) (Fitzwater, C.J.). The good cause standard
“require[s] the movant ‘to show that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.’” Puig v. Citibank, N.A., 514 Fed. Appx. 483,
487-88 (5th Cir. 2013) (per curiam) (quoting S & W Enters., L.L.C. v. SouthTrust Bank of
Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003)). “Mere inadvertence on the part of the movant
and the absence of prejudice to the non-movant, are insufficient to establish ‘good cause.’”
Under the court’s May 9, 2016 order granting joint motion to partially modify
scheduling order, the deadline for filing motions not otherwise covered by the scheduling
order was July 15, 2016.
Price v. United Guar. Residential Ins. Co., 2005 WL 265164, at *4 (N.D. Tex. Feb. 2, 2005)
(Fish, C.J.) (citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). Instead,
the movant must show that, despite her diligence, she could not reasonably have met the
scheduling deadline. See S & W Enters., 315 F.3d at 535; Am. Tourmaline Fields v. Int’l
Paper Co., 1998 WL 874825, at *1 (N.D. Tex. Dec. 7, 1998) (Fitzwater, J.) (citing 6A
Charles Alan Wright, et al., Federal Practice & Procedure § 1522.1 at 231 (2d ed. 1990)).
“In determining whether the movant has met its burden under Rule 16(b)(4), the court
considers four factors: (1) the party’s explanation, (2) the importance of the requested relief,
(3) potential prejudice in granting the relief, and (4) the availability of a continuance to cure
such prejudice.” Cartier, 2009 WL 614820, at *3 (citing S & W Enters., 315 F.3d at 536).
The court considers the four factors holistically and “does not mechanically count the number
of factors that favor each side.” EEOC v. Serv. Temps, Inc., 2009 WL 3294863, at *3 (N.D.
Tex. Oct. 13, 2009) (Fitzwater, C.J.), aff’d, 679 F.3d 323 (5th Cir. 2012).
The court first considers Grammer’s explanation. Grammer contends that she has
good cause to seek to modify the deadline for the limited purpose of permitting her to file the
motion to stay proceedings because Charalambopoulos did not assert his alleged inability to
pay until November 11, 2016, and because Grammer’s counsel did not receive the documents
on which Grammer is basing her motion to stay proceedings until June 29, 2017, fewer than
two weeks before she filed the instant motion and long after the motions deadline set by the
Charalambopoulos responds that, although Grammer did not receive the Fee
Agreement until June 29, 2017, that agreement did not provide Grammer with any new
information that could support her motion; that Grammer and her counsel knew long before
the scheduling order deadline that Provost Umphrey had paid debts and expenses for
Charalambopoulos in the past; that Grammer has taken inconsistent positions in this case,
arguing on the one hand “that good cause exists to file her untimely Motion to Stay the
proceedings pending payment of the award because Charalambopoulos first claimed an
inability to pay after the scheduling order deadline, while on the other hand . . . oppos[ing]
Charalambopoulos’ motion to stay the enforcement of the award based on a very real
possibility that Charalambopoulos would be unable to pay,” P. Br. 6; and that Grammer
offers no explanation for why she filed her motion to stay in July 2017, which was eight
months after Charalambopoulos filed his notice and merely five months before the trial
setting. In sum, Charalambopoulos contends that, given Grammer’s awareness of facts
supporting her motion and the absence of any legitimate explanation for her delay, the first
factor weighs against Grammer.
In her reply, Grammer contends that, contrary to Charalambopoulos’ assertion, the
Fee Agreement does contain information that was previously unknown to Grammer (i.e.,
language in the Fee Agreement that obligates Provost Umphrey to pay or advance funds to
satisfy the Award on Charalambopoulos’ behalf), and that the touchstone of her motion to
stay is the express language contained in the Fee Agreement. Grammer also maintains that
she has been diligent in pursuing possible remedies to recover the Award, filing her motion
seeking discovery of Charalambopoulos’ inability to pay seven days after Charalambopoulos
filed his notice of inability to pay, and filing the instant motion thirteen days after she
received the Fee Agreement.
The court concludes that Grammer’s explanation is satisfactory. In deciding whether
to grant Grammer’s motion to amend the scheduling order, the court does not consider
whether Grammer will ultimately prevail on the merits of her motion to stay. It is sufficient
that Grammer has shown that she did not have sufficient grounds to prevail on a motion to
stay until she received the contents of the Fee Agreement on June 29, 2017. The court
concludes that this factor weighs in favor of amending the scheduling order.
The court next considers the importance of the requested relief. Grammer contends
that the motion to stay is important because the Award remains unsatisfied and the incentive
for Charalambopoulos or his counsel to satisfy the Award will in all likelihood vanish once
this litigation concludes. She maintains that the stay that she seeks may be the only
mechanism to recover the Award.
Charalambopoulos responds that the only reason he has not paid the Award is because
he cannot afford to pay it; that the conclusion of the litigation has no bearing on his
obligation to pay the Award; and that Grammer’s bare assertions in support of this factor are
conclusory and speculative. Grammer contends in reply that the Award she seeks to recover
was rendered under the TCPA, and that “[g]iven the emphasis Texas law places upon
payment of attorneys’ fees under the TCPA, the issue is sufficiently important that the Court
should grant Grammer leave to file her Motion to Stay Proceedings and address the issue on
its merits.” D. Reply 5.
The court concludes that this factor weighs slightly in favor of amending the
scheduling order. Although the motion Grammer seeks to file is not case-dispositive, she
correctly maintains that, under Texas law, she is entitled to an award of attorney’s fees in
connection with the court’s dismissal of certain claims under the TCPA. The court concludes
that, to the extent the relief Grammer seeks will help her obtain payment of the Award to
which she is legally entitled under Texas law, it is important.
The court next considers as the third factor whether Charalambopoulos will be
prejudiced if the court grants the requested relief. Charalambopoulos contends that the relief
Grammer seeks would unduly prejudice him because “granting her Motion would have the
practical effect of denying Charalambopoulos his day in court indefinitely despite doing no
wrong.” P. Br. 12. The court disagrees that the prejudice Charalambopoulos describes will
result from the court’s amending the scheduling order. In arguing that he will be prejudiced,
Charalambopoulos presupposes that the court will grant the motion that Grammer seeks to
file. But in deciding the instant motion, the court is not considering whether Grammer
should ultimately prevail on her motion to stay; it is considering only whether she should be
permitted to file the motion. Charalambopoulos has not established any prejudice that he will
suffer if the court amends the scheduling order to permit Grammer to file the motion to stay.
The court concludes that the third factor weighs in favor of amending the scheduling order.
The fourth factor is the availability of a continuance to cure such prejudice. Because
the court concludes that Charalambopoulos has not shown that he will be prejudiced by
permitting Grammer to file her motion to stay, and because the court can continue trial of this
case, if necessary, to cure any prejudice that Charalambopoulos will incur as a result of
amending the scheduling order so that Grammer can file the motion to stay, the court
concludes that this factor weighs in favor of granting Grammer’s motion.2
Assessing the four factors holistically, the court concludes that Charalambopoulos has
established good cause to modify the Scheduling Order. The court “does not mechanically
count the number of factors that favor each side [,][a]nd it remembers at all times that the
good cause inquiry focuses on the diligence of the party seeking to modify the scheduling
order.” EEOC v. Serv. Temps, Inc., 2009 WL 3294863, at *3. Grammer has offered a
satisfactory explanation for the delay in filing her motion to stay (i.e., she did not have the
evidence she needed to support the motion until recently), the motion is important insofar as
it will enable Grammer to seek from this court relief related to the attorney’s fees to which
she is entitled under the TCPA, and Charalambopoulos has not demonstrated that he will be
prejudiced if the court merely permits Grammer to file her motion to stay. Accordingly, the
The trial in this case is currently set for the two-week docket of December 4, 2017.
court grants them motion.
Grammer has included her proposed motion to stay in a sealed appendix filed in
support of her motion to partially modify scheduling order. The court directs the clerk of
court to file under seal ECF document No. 219-1, which is Grammer’s motion to stay.
For the reasons explained, the court grants Grammer’s motion to partially modify
scheduling order to permit defendant-counterplaintiff to file a motion to stay proceedings
pending plaintiff’s or his counsel’s satisfaction of attorney’s fee award. The court directs the
clerk of court to file under seal ECF document No. 219-1, which is Grammer’s motion to
October 23, 2017.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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