Rudkin v. Roger Beasley Imports, Inc.

Filing 51

ORDER DENYING Plaintiff's 42 Motion for Extension of Time to Serve Discovery Responses. ORDER GRANTING Plaintiff's 45 Motion for Extension of Time to Response to Motion for Summary Judgment: Rudkin is ORDERED to respond to Beasley's Motion for Summary Judgment on or before September 21, 2018. Signed by Judge Andrew W. Austin. (lt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BRADLEY RUDKIN
VS.
ROGER BEASLEY IMPORTS, INC.

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A-17-CV-849-LY

ORDER
Before the Court are: Plaintiff’s Motion for Extension of Time to Serve Discovery Responses
(Dkt. No. 42); Defendant’s Response (Dkt. No. 47); Plaintiff’s Motion to Extend Time to Response
[sic] to Motion for Summary Judgment (Dkt. No. 45); and Defendant’s Response (Dkt. No. 50). The
District Court referred this matter for resolution. (Dkt. No. 29).
I. GENERAL BACKGROUND
Bradley Rudkin sues his former employer, Roger Beasley Imports, Inc., for sex discrimination
in violation of Title VII, breach of contract, invasion of privacy–public disclosure of private facts,
invasion of privacy–intrusion on seclusion, and intentional infliction of emotional distress. The case
was originally filed in Travis County District Court on August 1, 2017, and was removed to this court
on August 31, 2017, based on federal question and supplemental jurisdiction.
Beasley moved to dismiss the two invasion of privacy claims based on the Texas Citizen’s
Participation Act. TEX. CIV. PRAC. & REM. CODE §§ 27.001-27.011. The undersigned issued a Report
and Recommendation (Dkt. No. 18) finding that the claims should not be dismissed pursuant to the
TCPA. The District Court adopted the Report and Recommendation (Dkt. No. 20). Beasley filed an
interlocutory appeal to the Fifth Circuit on February 26, 2018. (Dkt. No. 21).
Beasley then filed a Motion to Compel requesting that the Court compel Rudkin to participate
in discovery. (Dkt. No. 28). Beasley argued that Rudkin ignored his obligations under the Federal
Rules of Civil Procedure and the Court’s Scheduling Order, failed to timely designate potential

witnesses, testifying experts, and proposed exhibits and failed to adequately respond to interrogatories
and requests for production. Beasley requested that the Court overrule all of Rudkin’s objections to
the discovery and assess one or more of the sanctions allowed by FED. R. CIV. P. 37 (a) and (b)(2)(A).
Rudkin’s counsel admitted his client did not fully participate in discovery, and stated that he has had
a difficult time obtaining responses from his client. The Court entered an Order on August 1, 2018.
(Dkt. No. 35). That Order stated:
Rudkin’s failure to meet his discovery obligations has slowed the progress of this case
and impeded Beasley’s ability to marshal its defense. However, it would be
inappropriate to impose what could effectively be “death penalty” sanctions without
giving Rudkin one final opportunity to meet his obligations. Further, the prejudice to
Beasley can be cured by something less than the sanctions requested. Accordingly,
Defendant’s Motion to Compel (Dkt. No. 28) is GRANTED IN PART AND
DENIED IN PART. Rudkin’s objections to the discovery requests are
OVERRULED and Rudkin is ORDERED to respond to Beasley’s discovery requests
in full no later than August 15, 2108. Failure to comply with this order will result in
the imposition of more severe sanctions. . . .
Id. Rudkin now moves to extend the time to respond to discovery past the deadline imposed by the
Court and moves to extend his deadline to respond to Defendant’s Motion for Summary Judgment,
(Dkt. No. 39), which was filed on August 15, 2018. Defendant Beasley opposes both motions.
II. ARGUMENTS
Rudkin’s counsel, Justin P. Nichols, asserts that he attempted to reach Rudkin several time in
an effort to inform him of the Court’s August 15, 2018, deadline, but was unable to reach him until
August 9, 2018. When he did reach him, he learned Rudkin was “the victim of a violent crime” as
Rudkin had been kicked out of his apartment by his roommate at gunpoint. Rudkin maintains that this
displacement rendered him unable to gain access to his documents and information necessary to
comply with the Court’s August 15, 2018, deadline. Rudkin asserts this qualifies as “good cause” for
the Court to extend the deadline to respond to discovery, until Rudkin could obtain access to his things.
Additionally, Rudkin requests an extension of time to respond to Defendant Roger Beasley’s
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Motion for Summary Judgment, asserting counsel for Rudkin has not been able to obtain documents
from Rudkin, although he believes Rudkin eventually obtained access to his home, and that counsel
has been “involved in a highly unusual matter” involving a temporary restraining order and a writ of
attachment for a child in Bexar County. Rudkin requests an extension to September 7, 2018, a date
which has passed.
Roger Beasley opposes both requests for extensions of time. It asserts that Rudkin’s discovery
responses are more than four and a half months overdue, and that the failure to designate experts,
witnesses, or exhibits will not likely be cured by Rudkin accessing his residence and the possessions
therein. With regard to the extension to respond to Defendant’s Motion for Summary Judgment,
Beasley points out that Rudkin’s response was due August 29, 2018, and he requested a three-week
extension until September 7, 2018, which Rudkin also failed to meet. Beasley asserts that Rudkin is
not prosecuting this lawsuit and that no further extensions should be granted.
III. ANALYSIS
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). In general, good cause requires “some showing of good faith ... and [a] reasonable basis
for noncompliance within the time specified.” McDonald v. United States, 898 F.2d 466, 467 (5th Cir.
1990) (internal quotation marks omitted). In assessing whether to grant relief, courts often consider
“the danger of prejudice to the [nonmovant], the length of the delay and its potential impact on the
judicial proceedings, the reason for the delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good faith.” Adams v. Travelers Indem. Co. of Conn.,
465 F.3d 156 n.8 (5th Cir. 2006).

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The Court is suspect of the impact of Rudkin’s lack of access to his possessions on his ability
to respond to discovery—especially in light of his counsel’s previous difficulties in obtaining discovery
responses from him prior to this incident. Additionally, Rudkin’s counsel “believes” that Rudkin
accessed his possessions and has still failed to produce discovery to date. Given these facts, Rudkin
has failed to show good cause to extend his discovery deadline further. Accordingly, the Court deny
the request to allow Rudkin additional time to respond to discovery.
With regard to Rudkin’s request to extend the time to respond to Defendant’s Motion for
Summary Judgment, the Court finds that Defendant will not be prejudiced by granting an extension,
and counsel’s stated reasons are sufficient to allow additional time. The Court will therefore extend
the deadline to respond to Defendant’s Motion for Summary to September 21, 2018. No further
extensions will be allowed.
IV. ORDER
Accordingly, Plaintiff’s Motion for Extension of Time to Serve Discovery Responses (Dkt. No.
42) is DENIED. Plaintiff’s Motion to Extend Time to Response [sic] to Motion for Summary
Judgment (Dkt. No. 45) is GRANTED and Rudkin is ORDERED to respond to Beasley’s Motion
for Summary Judgment on or before September 21, 2018. No further extensions will be given and
failure to comply with this order will result in the imposition of sanctions up to and including dismissal
of his case for lack of prosecution.
SIGNED this 13th day of September, 2018.

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ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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