Montgomery v. Broadway National Bank et al

Filing 33

MEMORANDUM OPINION AND ORDER GRANTING 23 Motion for Summary Judgment, filed by Broadway National Bank, GRANTING 32 Motion to Strike, filed by Broadway National Bank, GRANTING IN PART & DENYING IN PART 24 Motion for Miscellaneous Relief, filed by Broadway National Bank, GRANTING IN PART AND DENYING IN PART 28 Motion for Miscellaneous Relief filed by Broadway National Bank. Signed by Judge Jason K. Pulliam. (mgr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

PAUL MONTGOMERY,
Plaintiff,
v.

Case No. SA-23-CV-00459-JKP

BROADWAY NATIONAL BANK,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Broadway National Bank’s Motion for Summary
Judgment. See ECF No. 23. Broadway Bank also filed two motions asking the Court to grant its
Motion for Summary Judgment as unopposed because Plaintiff Paul Montgomery, who appears
pro se, failed to timely respond. See ECF Nos. 24, 28. Broadway Bank further requests the Court
strike Montgomery’s sur-reply for failure to seek leave of Court to file it. See ECF No. 32. After
due consideration of the motion, the parties’ briefings, and the record evidence, the Court
GRANTS IN PART and DENIES IN PART Broadway Bank’s motions to deem its Motion for
Summary Judgment unopposed (ECF Nos. 24, 28), GRANTS Broadway Bank’s Motion to
Strike Montgomery’s sur-reply (ECF No. 32), and GRANTS Broadway Bank’s Motion for
Summary Judgment (ECF No. 23). Final judgment will be entered by separate order.
BACKGROUND
This case is an employment discrimination action arising out of a dispute between
Plaintiff Paul Montgomery and his former employer, Defendant Broadway National Bank. On
June 7, 2024, Broadway Bank filed a Motion for Summary Judgment arguing there are no
material issues of fact in this case and requesting summary judgment in its favor. See ECF No.

23. Under the Local Rules, Montgomery had fourteen days to respond to the motion, that is until
June 21, 2024. See Local Rule CV-7(d)(2). When Montgomery failed to timely respond,
Broadway Bank filed a Motion to Deem its Motion for Summary Judgment Unopposed, Fully
Briefed and Granted. See ECF No. 24. Montgomery then filed a request for extension seeking
additional time to respond. See ECF No. 26. In his request, Montgomery acknowledged he
received the Motion for Summary Judgment and explained he was in the process of moving to
Boca Raton, Florida, and therefore needed an extension to respond. Id.
United States Magistrate Judge Elizabeth. S. Chestney, to whom this matter was referred
for pretrial management, granted the extension by text order with the following admonishment:
“Plaintiff is advised that although pro se litigants are held to a less stringent standard, they are
nevertheless required to follow the rules that govern all litigants in federal court. These rules
include but are not limited to observing the response times for motion as set forth in Local Rule
CV-7. Generally, motions for extensions of time must be filed before the deadline to be
considered.” This is not the first time Judge Chestney informed the plaintiff of the importance of
following the applicable rules in federal court. In a June 5, 2023 order, Judge Chestney provided
links to the Federal Rules of Civil Procedure, the Court’s Local Rules, and a manual for pro se
litigants, indicating: “[A]lthough pro se litigants are held to a less stringent standard, they are
nevertheless required to follow the rules that govern all litigants in federal court. Grant v.
Cuellar, 59 F.3d 524, 524 (5th Cir. 1995). These rules include but are not limited to the rules and
Court orders regarding conference with opposing counsel, following deadlines imposed by the
rules and the Court’s Scheduling Order, observing the response times for motions as set forth in
Local Rule CV- 7(e), and keeping the Court updated with a current address to ensure all filings
are received.” See ECF No. 11.

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In spite of Judge Chestney’s admonishments, Montgomery again failed to meet the July
14, 2024 extended deadline to respond. Montgomery filed his response three days later, on July
17, 2024, without requesting leave to file an untimely response or providing a reason for missing
the deadline. Given this, Broadway Bank again filed a motion requesting the Court grant its
motion as unopposed. See ECF No. 28.
DISCUSSION
Under the Local Rules, courts may grant a motion as unopposed when the nonmovant
fails to timely respond. See Local Rule CV-7(d)(2). That said, in a case such as this where the
nonmovant appears pro se and has filed an untimely response, the Court’s practice is to review
the response on the merits to determine whether granting the motion is appropriate. Judge
Chestney, therefore, granted Broadway Bank leave to file a reply to Montgomery’s untimely
response. See ECF No. 30. After reviewing Broadway Bank’s Motion for Summary Judgment
(ECF No. 23), Montgomery’s untimely response (ECF No. 27), and Broadway Bank’s reply to
the untimely response (ECF No. 30), the Court finds Broadway Bank’s Motion for Summary
Judgment should be granted on the merits because Montgomery has failed to provide any
evidence demonstrating a genuine issue of material fact.
Summary judgment is appropriate where “the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see
also Rodriguez v. Pacificare, Inc., 980 F.2d 1014, 1019 (5th Cir. 1993). The “party seeking
summary judgment always bears the initial responsibility of informing the district court of the
basis for its motion.” Celotex Corp., 477 U.S. at 323. If the movant carries that initial burden, the

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burden shifts to the nonmovant to identify specific facts or present competent summary judgment
evidence showing the existence of a genuine fact dispute. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586–87 (1986); see also Fed. R. Civ. P. 56(c). Upon the shifting
burden “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment.” Heinsohn v. Carabin & Shaw, P.C., 832
F.3d 224, 234 (5th Cir. 2016) (citation omitted).
In this case, the Court finds Broadway Bank met its initial burden in its Motion for
Summary Judgment by showing that there is no genuine dispute as to any material fact and
Broadway Bank is entitled to judgment as a matter of law. Specifically, Broadway Bank
demonstrates Montgomery is unable to prove any constructive damage, failure to promote, sex or
gender discrimination, or retaliation. See ECF No. 23 at 3. In his response, Montgomery fails to
respond to the specific undisputed material facts offered by Broadway Bank in its Motion for
Summary Judgment. Furthermore, Montgomery offers in response only conclusory allegations
and unsubstantiated assertions that are unsupported by the evidence. Such “[u]nsubstantiated
assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment.” Heinsohn, 832 F.3d at 234. The Court, therefore, finds summary
judgment in favor of Broadway Bank is appropriate as a matter of law.
CONCLUSION
For the reasons discussed, the Court finds Montgomery failed to timely respond to
Broadway Bank’s Motion for Summary Judgment. Broadway Bank’s motions to deem its
Motion for Summary Judgment as unopposed are granted in part and denied in part.
Montgomery’s response is untimely; however, the Court also reviewed the motion and
responsive briefings on the merits. Based on its review on the merits, the Court finds

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Montgomery failed to meet his burden to show a genuine dispute of material fact. The Court,
therefore, finds summary judgment in favor of Broadway Bank is appropriate as a matter of law
and grants Broadway Bank’s Motion for Summary Judgment. The Court additionally grants
Broadway Bank’s request to strike Montogomery’s sur-reply for failure to request leave of court
to file it.
IT IS THEREFORE ORDERED that Defendant Broadway National Bank’s Motions to
Deem its Motion for Summary Judgment Unopposed are GRANTED IN PART and DENIED
IN PART. See ECF Nos. 24, 28.
IT IS FURTHER ORDERED that Defendant Broadway National Bank’s Motion to
Strike Plaintiff Paul Montgomery’s Sur-Reply is GRANTED. See ECF No. 32.
IT IS FINALLY ORDERED that Defendant Broadway National Bank’s Motion for
Summary Judgment is GRANTED. See ECF No. 23. Summary judgment is entered in favor of
Defendant Broadway National Bank. Final judgment will be entered by separate order.
It is so ORDERED.
SIGNED this 29th day of August, 2024.

JASON PULLIAM
UNITED STATES DISTRICT JUDGE

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