Holt et al v. St. Lukes Health System, doing business as CHI St. Lukes Patients Medical Center et al

Filing 48

ORDER entered DENYING 41 MOTION to Strike 40 Response in Opposition to Motion for Summary Judgment, 44 MOTION to Strike 43 Response in Opposition to Motion, 42 Response in Opposition to Motion, Plaintiffs' Third S uplemental Response in Opposition to St. Luke's Motion for Summary Judgment and The Affidavit of Rockne W. Onstad. A Motion Hearing set for 2/16/2018 at 10:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KELLY HOLT, et al.,
Plaintiffs,
v.
ST. LUKE’S HEALTH SYSTEM, d/b/a
CHI ST. LUKE’S PATIENTS MEDICAL
CENTER, et al.,
Defendants.

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January 22, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-2898

ORDER DENYING MOTIONS TO STRIKE
St. Luke’s filed a motion for summary judgment on December 1, 2017. (Docket Entry No.
36). The plaintiffs responded, (Docket Entry No. 37), and filed a supplemental response, (Docket
Entry No. 28). St. Luke’s replied on December 22. (Docket Entry No. 39). The plaintiffs filed a
second supplemental response on December 24, (Docket Entry No. 40). St. Luke’s moved to strike
the second supplemental response because it was untimely and the plaintiffs did not seek leave from
the court. (Docket Entry No. 41). The plaintiffs opposed the motion, and in that opposition included
a third supplemental response to the motion for summary judgment. (Docket Entry No. 42). The
plaintiffs then filed a second opposition to the motion to strike. (Docket Entry No. 43). St. Luke’s
moved to strike the second opposition and the plaintiff’s third supplemental response. (Docket Entry
No. 44).
St. Luke’s argues that the plaintiffs’ second supplemental response to the motion for
summary judgment, filed on December 24, is untimely because any responses were due on
December 22 and the plaintiffs did not seek leave from the court to file the response. (Docket Entry

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No. 41). The plaintiffs respond that discovery has been ongoing in this case and they did not depose
the defendant’s experts until December 20 and 21, 2017. The plaintiffs state that they tried to take
the depositions earlier, but St. Luke’s would not agree. The plaintiffs assert that St. Luke’s filed a
reply late on December 22, the Friday before Christmas and that the plaintiffs diligently responded
on Sunday, December 24. The plaintiffs argue that they had recently deposed St. Luke’s expert and
were submitting additional summary judgment evidence in a fact-heavy medical malpractice case.
Local Rule 7.3 and 7.4 require that responses to opposed motions be filed 21 days from the
date the motion is filed. S. DIST. TEX. LOCAL R. 7.3, 7.4. Federal Rule of Civil Procedure 6(b)
allows the court to extend the time, for good cause. “Under Federal Rule of Civil Procedure 6(b),
the trial court has broad discretion to accept late-filed affidavits ‘where the failure to act was the
result of excusable neglect.’ Absent an affirmative showing of excusable neglect, a trial court does
not abuse its discretion in refusing an untimely proffer.” Slaughter v. Southern Talc Co., 919 F.2d
304, 307 (5th Cir. 1990). “The permissive language of Rule 6(b) shows that any grant of an
extension of time for when an act must be done falls to the district court’s discretion.” McCarty v.
Thaler, 376 Fed. App’x 442, 443 (5th Cir. 2010) (per curiam). “Moreover, any grant of an extension
that is filed after the time for a response has expired may only be granted upon a finding of
excusable neglect.” Id. “Even if good cause and excusable neglect are shown, it nonetheless
remains a question of the court's discretion whether to grant any motion to extend time under Rule
6(b).” Id.
“The determination of what constitutes ‘excusable neglect’ is an equitable one.” Gonzalez
v. Lopez, 2008 U.S. Dist. LEXIS 109653, at *12 (N.D. Tex. Jan. 23, 2008) (citing Pioneer Inv.
Servs., Co. v. Brunswick Assocs., Ltd. P’ship, 507 U.S. 380, 395 (1993)). “Relevant factors for the

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court to consider in determining whether excusable neglect exists include: (1) the danger of
prejudice to the opposing party; (2) the length of the delay and its potential impact on the judicial
proceedings; (3) the reason for the delay, including whether it was within the reasonable control of
the movant; and (4) whether the movant acted in good faith.” Id. (citing Adams v. Travelers Indem.
Co. of Connecticut, 465 F.3d 156, 162 n.8 (5th Cir. 2006)).
The plaintiffs have shown excusable neglect and good cause for their barely late
submissions. Discovery was ongoing at the point that their responses were due and they had only
recently deposed St. Luke’s expert. The delay was minimal. The plaintiffs diligently filed their latefiled response on Christmas Eve. St. Luke’s has not demonstrated how, if at all, it will suffer
prejudice from the supplemental evidence filed 3 and 6 days after the 21-day deadline. There is no
evidence of bad faith. The defendant’s motions to strike, (Docket Entry Nos. 41, 44), are denied.

The court will hear oral argument on the motion for summary judgment on February 16,
2018 at 10:00 a.m. in Courtroom 11-B at the United States Courthouse, 515 Rusk St., Houston
Texas, 77002.
SIGNED on January 22, 2018, at Houston, Texas.
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Lee H. Rosenthal
Chief United States District Judge

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