Bean-Kemp et al v. City Of Houston et al

Filing 155

ORDER DENYING 154 Opposed MOTION for Leave to File Response to Plaintiffs' Partial Motion for Summary Judgment, GRANTING 145 MOTION for Summary Judgment.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LISA BEAN KEMP , et al.,
Plaintiffs,
v.
CITY OF HOUSTON , et al.,
Defendants.

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CIVIL ACTION H-10-3111

ORDER
Pending before the court is a motion for partial summary judgment filed by plaintiffs Lisa
Bean-Kemp, Tamika Sewell, and Tiffany Sloan (“Plaintiffs”) (Dkt. 145) and a motion for leave to
file a response filed by defendants City of Houston, R.T. Hatcher, Harold Hurtt, and W.G. Munoz
(“Defendants”) (Dkt. 154). After considering the motions and applicable law, the court is of the
opinion that the motion for partial summary judgment (Dkt. 145) should be GRANTED and the
motion for leave to file a response (Dkt. 154) should be DENIED.
I. BACKGROUND AND ANALYSIS
On April 4, 2013, the court entered an order extending the dispositive motion deadline, which
required that all dispositive motions be filed on or before May 15, 2013, and that all responses be
filed within two weeks of the dispositive motions. Dkt. 130. In the same order, the court granted
in part a motion to extend the discovery deadline. Id. The court intentionally set a short deadline
for responses to dispositive motions so that the extensions to the discovery and dispositive motions
deadlines would not impact the trial date. The court issued an amended scheduling order
concurrently with the order extending the deadlines. Dkt. 131. The amended scheduling order states
that dispositive motions must be filed by May 15, 2013, but it does not address the response

date. See id. Regardless, the court’s order on the motions to extend the deadlines order was clear
that responses were due within two weeks of the motions. See Dkt. 130.
On May 15, 2013, Plaintiffs filed the instant motion for partial summary judgment. Dkt. 145.
Defendants also filed motions for summary judgment on May 15, 2013. Dkts. 147, 148. On May
29, 2013, which was exactly two weeks after the motions for summary judgment were filed,
Plaintiffs responded to Defendants’ motions. See Dkts. 151, 152. Defendants, however, did not file
a response to Plaintiffs’ motion until June 6, 2013. Dkt. 153. Concurrently with the response,
Defendants filed an opposed motion for leave to file a response. Dkt. 154. In that opposed motion
for leave, Defendants note that Plaintiffs are opposed to their filing the response because Plaintiffs
assert that the response should have been filed by the deadline set forth in the court’s April 4 order.
Id. Defendants argue that the court should allow them to file the response because they were relying
on the docket date shown on CM/ECF, which was June 6, 2013. Id. The CM/ECF submissions date
is automatically generated and therefore not adjusted for alternative dates that the court sets. If the
court issues an order specifying a certain due date, that date supersedes the automatically generated
date provided on CM/ECF, just as it supersedes the due dates set forth in the Federal Rules of Civil
Procedure. See, e.g., Fed. R. Civ. P. 56(b) (“Unless a different time is set by local rule or the court
orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the
close of all discovery.” (emphasis added)). If Defendants were unsure which deadline applied, a call
to the case manager would have quickly clarified matters. Defendants’ motion for leave to file a
response is DENIED.
Generally, under Local Rule 7.4, a motion to which a party does not respond is considered
unopposed. See S.D. Tex. L.R. 7.4 (“Failure to respond will be taken as a representation of no
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opposition.”). Here, Plaintiffs have filed a motion for summary judgement requesting that the court
grant summary judgment in their favor on five of Defendants’ sixteen affirmative defenses. Dkt. 145
(motion); see Dkt. 134 (amended answer). Specifically, Plaintiffs request that the court grant
summary judgment in their favor on the affirmative defenses of contributory negligence and/or
assumption of risk (paragraphs 60 and 68 of the answer), limitations on liability under the Texas Tort
Claims Act (paragraph 59), governmental immunity with regard to pendant state claims
(paragraph 63), lack of notice pursuant to the Houston City Charter (paragraph 67), and res judicata
and collateral estoppel (paragraph 70). Dkt. 145. Plaintiffs’ motion is GRANTED, and the
affirmative defenses contained in paragraphs 59, 60, 63, 67, 68, and 70 of Defendants’ answer to
Plaintiffs’ second amended complaint are hereby DISMISSED.
Even if the court were to consider Defendants’ response, the court would grant Plaintiffs’
motion. In the response, Defendants stated that they were not opposed to the court granting summary
judgment with regards to the affirmative defenses of contributory negligence and/or assumption of
risk, limitations on liability under the Texas Tort Claims Act, lack of notice pursuant to the Houston
City Charter, and res judicata and collateral estoppel. See Dkt. 153. However, Defendants argued
that the court should deny Plaintiffs’ request as it relates to qualified and municipal immunity. Id.
Defendants do not assert in their response that they are entitled to qualified immunity over pendant
state claims. See id. This is likely because there are no pendant state claims. Instead, their
arguments are centered around the general qualified immunity defenses. See id. Plaintiffs’ motion
for partial summary judgment, however, specifically delineates the paragraph number of the
affirmative defense relating to qualified immunity for pendant state claims, and the substance of the
motion notes that the “Court should grant summary judgment to Plaintiffs on Defendants’
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affirmative defenses [sic.] regarding the non-existent pendent claims.” Dkt. 145 (emphasis added).
Defendants’ response does not address this issue. Thus, the result would be the same whether or not
the response is considered.
II. CONCLUSION
Plaintiffs’ motion for partial summary judgment (Dkt. 145) is GRANTED. The affirmative
defenses contained in paragraphs 59, 60, 63, 67, 68, and 70 of Defendants’ answer to Plaintiffs’
second amended complaint are hereby DISMISSED. Defendants’ motion to file a response (Dkt.
154) is DENIED. The response contained at docket entry 153 is hereby STRICKEN.
It is so ORDERED.
Signed at Houston, Texas on July 2, 2013.

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Gray H. Miller
United States District Judge

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