Malbrough v Holmes et al

Filing 82

ORDER AND OPINION entered. Plaintiff's Motion for Extension of Time (Dkt. 80) is DENIED. If Plaintiff wants to file a response to the pending motion for summary judgment, it must be filed today. Any late response will be struck. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
NICOLE MALBROUGH,
Plaintiff.
VS.
JASON DEON HOLMES, ET AL.
Defendants.

March 05, 2021
Nathan Ochsner, Clerk

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§ CIVIL ACTION NO. 3:17-cv-00283
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ORDER AND OPINION
I must admit that the recent events in this case have left me speechless.
And I am not often one to be at a loss for words. To make sure we are all on the
same page, let me recount the key facts.
Defendant filed a motion for summary judgment on January 8, 2021. See
Dkt. 58. Plaintiff’s response was due on or before January 29, 2021. On February
23, 2021, this case was referred to me to handle all pre-trial matters. After
reviewing the docket sheet, I quickly noted that a motion for summary judgment
had been filed. I then looked to find the response to that motion, but did not see
one. I clearly must have missed it. The response was due on January 29, 2021 and
here I was at the end of February 2021. A response had to be here somewhere.
Alas, my search came up empty. The reason: no response had been filed.
For most of my colleagues on the bench, the next step would have been
easy: rule on the merits of the motion for summary judgment right there and
then. Given that Plaintiff was now more than a month delinquent in filing a

response to the motion for summary judgment, that approach would have been
reasonable and understandable.
But I am a nice guy. Maybe too nice. I went ahead and issued an order on
Monday, March 1, 2021, noting that Plaintiff was more than a month overdue in
filing a response to the motion for summary judgment. See Dkt. 79. I don’t know
why Plaintiff did not timely file a response to the dispositive motion, but I am
always willing to give someone a second chance. Things happen. Life happens.
Out of the pure goodness of my heart, I informed Plaintiff that I would give her
until Friday, March 5 to file a response to the motion for summary judgment.
And then I went back to work, fully expecting that Plaintiff would submit a
summary judgment response on March 5, 2021.
Boy, was I surprised when Plaintiff requested additional time to respond at
2 p.m. sharp the day before her March 5, 2021 deadline. See Dkt. 80 (“Motion for
Extension of Time”). In that motion, Plaintiff asks me to extend her response
date to April 19, 2021. That’s right—six weeks from today, 102 days from the date
the motion was filed, 81 days from Plaintiff’s original deadline, and 46 days after
the generous deadline I had imposed sua sponte.
As all lawyers should know, you have to give a judge a reason to move a
deadline. And you need a really, really good reason to move a “second” deadline.
So, what’s Plaintiff’s compelling reason? Well, according to Plaintiff’s Motion for
Extension of Time, “Plaintiff’s deposition was taken on Saturday, January 30th,
2021 at 10:00 a.m.” and she “has not yet received a transcript of her deposition
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for purposes of review.” Dkt. 80 at 2. Huh? Plaintiff needs six weeks from today
to review her own deposition transcript to respond to the pending motion for
summary judgment? Something doesn’t smell right. To state the obvious,
Plaintiff does not need to review her own deposition transcript to respond to a
motion for summary judgment. I hate to give away state secrets, but she can
actually submit a declaration (or affidavit) providing her own sworn testimony
without attaching the deposition transcript. What a novel concept! But wait,
there’s more. Defendant’s opposition to the Motion for Extension of Time points
out that Plaintiff did not even order a copy of the deposition transcript until
Monday, March 1, 2021—more than a month after the January 30, 2021
deposition concluded and, conveniently, just a few hours after my March 1, 2021
order. To put it mildly, Plaintiff is not making a persuasive showing for a need to
extend the response date further.
Let me make a brief comment about the law. In asking me to extend the
March 5, 2021 summary judgment deadline, Plaintiff does not mention a legal
standard that should govern my discretionary authority. Based on my legal
acumen, there are several possibilities, but none offer Plaintiff any relief. First,
Rule 56(d) allows a district court to deny or continue a summary judgment
motion so that a party might have additional time to gather evidence to oppose
the motion. See FED. R. CIV. P. 56(d). To seek relief under Rule 56(d), the party
must submit an affidavit or declaration explaining why the party cannot present
facts essential to justify its opposition. See id. Put aside the fact that Plaintiff’s
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Motion for Extension of Time was not verified. Put aside the fact that it was not
filed before the January 29, 2021 deadline passed. Put aside, too, the fact that the
Plaintiff’s Motion does not even reference Rule 56(d). Plaintiff cannot possibly
claim she needs more time to gather evidence to oppose the motion because the
discovery period is over, and it has been for a long time. See Dkt. 54 (ordering
completion of discovery by December 17, 2020).
Rule 6(b) is another possibility. Rule 6(b) provides that a court may “for
good cause” extend a deadline “before the original time or its extension expires.”
FED. R. CIV. P. 6(b)(1)(A). To establish “good cause,” Malbrough must “show that
the deadlines cannot reasonably be met despite the diligence of the party needing
the extension.” S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d
533, 535 (5th Cir. 2003) (quotation omitted). As already explained, Plaintiff’s sole
proffered reason for needing another six-week extension to respond to the
summary judgment motion is so that counsel can review Plaintiff’s deposition
transcript. That reasoning does not pass go. It certainly does not come close to
satisfying the good cause standard. Because Plaintiff has failed to establish good
cause for moving the March 5, 2021 summary judgment response deadline,
Plaintiff’s Motion for Extension of Time (Dkt. 80) is DENIED. If Plaintiff wants
to file a response to the pending motion for summary judgment, it must be filed
today. Any late response will be struck.

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SIGNED on this 5th day of March 2021.

______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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