Lester v. Conoco Phillips et al

Filing 56

MEMORANDUM DECISION AND ORDER granting 49 Motion to Strike: striking 46 Motion for Summary Judgment and the Declarations of Kelly ODell and Steve Beck. Signed by Judge David Nuffer on 12/5/19 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JODEE LESTER,
Plaintiff,
v.
CONOCO PHILLIPS; WOODGROUP PSN,
INC.,
Defendant.

MEMORANDUM DECISION AND
ORDER GRANTING [49]
DEFENDANTS’ JOINT EXPEDITED
MOTION TO STRIKE PLAINTIFF’S
COUNTER-MOTION FOR SUMMARY
JUDGMENT AND THE
DECLARATIONS OF KELLY O’DELL
AND STEVE BECK
Case No. 4:18-CV-00022-DN-EJF
District Judge David Nuffer

Defendants Wood Group PSN, Inc. and ConocoPhillips (collectively “Defendants”)
moved to strike (the “Motion”) 1 Plaintiff Jodee Lester’s (“Plaintiff”) Joint Counter-Motion for
Summary Judgment (“Plaintiff’s Counter Motion for Summary Judgment”) 2 and two
declarations that were attached to Plaintiff’s motion. 3 Specifically, Defendants argue that striking
Plaintiff’s Counter Motion for Summary Judgment is appropriate because it was untimely filed.
Defendants also argue that striking the declarations is appropriate because Plaintiff failed to

1
Defendants’ Joint Expedited Motion to Strike Plaintiff’s Counter-Motion for Summary Judgment and the
Declarations of Kelly O’Dell and Steve Beck, docket no. 49, filed November 20, 2019.
2

Plaintiff’s Joint Motion to Conoco Phillips’ and Wood Groups’ Motion for Summary Judgment, docket no. 46,
filed November 11, 2019.
3

Plaintiff’s Counter Motion for Summary Judgment, Exhibit 26, Declaration of Steve Beck, docket no. 46-26, filed
November 11, 2019; Plaintiff’s Counter Motion for Summary Judgment, Exhibit 27, Declaration of Kelly O’Dell
page 1, docket no. 46-27, filed November 11, 2019; Plaintiff’s Counter Motion for Summary Judgment, Exhibit 28,
Declaration of Kelly O’Dell page 2, docket no. 46-28, filed November 11, 2019; Plaintiff’s Counter Motion for
Summary Judgment, Exhibit 29, Declaration of Kelly O’Dell page 3, docket no. 46-29, filed November 11, 2019;

produce them during the allotted discovery period. Plaintiff opposed the Motion 4 and Defendants
replied in support. 5
Because Plaintiff’s Counter Motion for Summary Judgment was filed seven weeks after
the dispositive motion deadline and because Plaintiff did not provide the subject disclosures as
would have been required during the discovery period, the Motion is GRANTED.
BACKGROUND
The scheduling order entered on April 19, 2019, established that fact discovery was to
close on June 28, 2019 and that dispositive motions were to be filed by September 16, 2019. 6 On
September 12, 2019, Defendant Wood Group PSN filed a motion requesting an extension until
September 23, 2019 to file a dispositive motion. 7 That motion indicated that counsel for
Defendant Wood Group PSN had conferred with counsel for Defendant Conoco Philips who did
not oppose the extension. 8 That motion also specified that efforts to reach Plaintiff’s counsel to
discuss a stipulation were unsuccessful. 9
The motion to extend the dispositive deadline was taken under advisement, and Plaintiff
was given a deadline respond. 10 Plaintiff did not respond by the assigned deadline and the
motion to extend the deadline was granted with the specific directive that the deadline was

4

Plaintiff’s Opposition to Defendant’s Joint Motion to Strike (“Opposition”), docket no. 51, filed November 22,
2019.

5

Defendants’ Reply Brief in Support of Their Joint Expedited Motion to Strike Plaintiff’s Counter-Motion for
Summary Judgment and the Declarations of Kelly O’Dell and Steve Beck (“Reply”), docket no. 54, filed November
25, 2019.
6

Scheduling Order, docket no. 31, filed April 19, 2019.

7

Motion for Extension of Summary Judgment Deadline, docket no. 38, filed September 12, 2019.

8

Id. at 2.

9

Id.

10
Docket Text Order Taking Under Advisement [38] Motion for Extension of Time, docket no. 40, filed September
12, 2019.

2

extended for all parties until September 23, 2019. 11 Defendants timely filed dispositive motions
on the day of the new deadline. 12 Plaintiff did not file a dispositive motion, nor did Plaintiff
move for an extension of time to file one.
On October 17, 2019, Plaintiff filed a stipulated motion to extend the deadline to file her
oppositions to Defendants’ dispositive motions.13 Plaintiff represented that, due to scheduling
deadlines and hearings on other matters, additional time was necessary for Plaintiff to respond to
the two dispositive motions. 14 Again, Plaintiff did not in this motion request leave to file a
belated dispositive motion. That Motion was granted, 15 and on November 11, 2019, Plaintiff
filed oppositions to Defendants’ motions. 16
That same day, and 49 days after the expiration of the dispositive motion deadline,
Plaintiff filed the Joint Counter-Motion for Summary Judgment. 17 In place of a statement of
undisputed facts in that motion, Plaintiff incorporated by reference her responses to Defendant
WoodGroup PSN’s statement of undisputed facts from her memorandum in opposition. 18 Those
responses cited two declarations attached to the Joint Counter-Motion for Summary Judgment
and offered by Plaintiff’s former coworkers Steve Beck and Kelly O’Dell. 19

11

Order Granting [38] Motion to Extend Deadline for Summary Judgment, docket no. 41, filed September 13, 2019.

12

Conoco Philips’ Motion for Summary Judgment, docket no. 42, filed September 23, 2019; Defendant Wood
Group PSN’s Motion for Summary Judgment, docket no. 43, filed September 23, 2019.
13

Stipulated Motion to Extend Parties Briefing Deadlines, docket no. 44, filed October 17, 2019,

14

Id. at 1.

15

Order Granting Stipulated Motion to Extend Parties’ Briefing Deadlines, docket no. 45, filed October 18, 2019.

16

Opposition to Conoco Phillip’s Motion for Summary Judgment, docket no. 47, filed November 11, 2019;
Opposition to Wood Group’s Motion for Summary Judgment, docket no. 48, field November 11, 2019.

17

Plaintiff’s Joint Motion to Conoco Phillips’ and Wood Groups’ Motion for Summary Judgment, docket no. 46,
filed November 11, 2019.
18

Id. at 4.

19

Opposition to Wood Group’s Motion for Summary Judgment at 2, 5, 8-10.

3

Although those declarations were dated March 13, 2019, well before the fact discovery
deadline of June 28, 2019, Defendants maintain that these declarations were never supplied to
them during the fact discovery period. 20
DISCUSSION
I.

Plaintiff’s Motion for Summary Judgment is Untimely and Plaintiff Has Not
Provided a Valid Reason for the Belated Filing

“‘District courts enjoy broad discretion to manage’ their dockets and to consider motions
that are not timely filed under their scheduling orders.” 21 However, a “‘Scheduling Order is not a
frivolous piece of paper, idly entered with can cavalierly disregarded by counsel without
peril.’” 22 ‘To the contrary, a scheduling order is an important tool necessary for the orderly
preparation of a case for trial.” 23 “Deliberate inaction” is not sufficient to establish good cause
for a party’s failure to observe the dispositive deadline in a Scheduling Order. 24
In response to the Motion, Plaintiff does not argue that good cause exists to consider the
Counter Motion for Summary Judgment on its merits despite the untimely filing, nor does she
offer citation to case law that would support denial of Defendants’ Motion. Instead, Plaintiff
argues that filing the Counter Motion for Summary Judgment 49 days after the expiration of the
dispositive motion deadline was appropriate under DUCivR 7-1 (b)(1)(A)(1) and supported by
the advisory committee note in the 1946 Amendment to Fed R. Civ. P. 56. 25 Plaintiff’s
interpretation of this rule and this note is incorrect.

20

Motion at 2-3.

21

Gardner v. Deseret Mut. Benefit Administrators, No. 2:14-CV-00602, 2016 WL 1595359, at *1 (D. Utah Apr. 20,
2016) (quoting Grynberg v. Ivanhoe Energy, Inc., 490 Fed.Appx. 86, 104 (10th Cir. 2012)).
22

Id. (quoting Lehman Bros. Holdings Inc. v. Universal Am. Mortg. Co., LLC, 300 F.R.D. 678, 681 (D.Colo. 2014)).

23

Id. (quoting Washington v. Arapahoe County Dept. of Social Servs., 197 F.R.D. 439, 441 (D.Colo. 2000)).

24

Id.

25

Opposition at 1-2.

4

DUCivR 7-1 (b)(1)(A)(1) provides that motions are not to be made in response to reply
memoranda. Specifically, the rule states:
No motion, including but not limited to cross-motions and motions pursuant to
Fed. R. Civ. P. 56(d), may be included in a response or reply memorandum. Such
motions must be made in a separate document. A cross-motion may incorporate
the briefing contained in a memorandum in opposition.
This does not mean, as Plaintiff contends, 26 that cross-motions for summary judgment are
considered “responsive documents” to a timely filed Rule 56(d) motion. Indeed, that is why
DUCivR 7-1 (b)(1)(A)(1) specifies that responsive documents are not to include motions.
And although a cross-motion for summary judgment may incorporate the briefing
contained in a memorandum in opposition, this would apply to instances where dispositive
motions—including cross-motions—are timely filed before the expiration of the applicable
deadline motion. Nothing in DUCivR 7-1 (b)(1)(A)(1) permits the belated filing of a crossmotion for summary judgment without leave simply because it is “responding” to arguments
raised in a previously filed motion for summary judgment by an opposing party.
Plaintiff’s reliance on the advisory committee note to the 1946 Amendment to Fed. R.
Civ. P. 56 is also misplaced. Plaintiff selectively quotes language from this committee note that
Rule 56 “allows a claimant to move for summary judgment at any time after the expiration of 20
days … after the service of a motion for summary judgement by the adverse party.” 27 However,
Plaintiff ignores what immediately follows the quoted text: “This will normally operate to permit
an earlier motion by the claimant than under the original rule[.]” 28

26

Opposition at 2.

27

Fed. R. Civ. P. 56 advisory committee’s note to 1946 amendment.

28

Id.

5

As the note explains, the purpose of the 1946 amendment was to remove any prohibition
on a claimant filing for summary judgment before an opposing party formally filed an answer. 29
The 1946 amendment therefore applies to circumstances that arise early on in a case—long
before the expiration of an established dispositive motion deadline. The amendment does not
support Plaintiff’s interpretation that she is permitted to file a cross-motion for summary
judgment in response to an opposing party’s summary judgment motion after the dispositive
motion deadline expires.
Plaintiff has incorrectly understood these procedural requirements and, based on that
faulty interpretation, deliberately ignored the established deadline to file dispositive motions.
Furthermore, she has not offered any other appropriate justification for ignoring the ordered
deadline. Defendant’s Motion is granted, and Plaintiff’s Counter Motion for Summary Judgment
is stricken.
II.

Plaintiff’s Belated Disclosure of the Beck and O’Dell Declarations
Violates Fed. R. Civ. P. 26(e)(1) Because the Failure to Disclose
Was Not Substantially Justified or Harmless

Before addressing Defendants’ challenge to the Steve Beck and Kelly O’Dell
declarations, it is necessary to address Plaintiff’s argument that Defendants have inappropriately
made a motion to strike. 30 DUCivR 7-1(b)(1)(b) states that “[m]options to strike evidence as
inadmissible are no longer appropriate and should not be filed. The proper procedure is to make
an objection.” However, Defendants are not raising issues regarding admissibility under the
Federal Rules of Evidence. Defendants are arguing that Plaintiff violated the duty of disclosure

29

Id.

30

Opposition at 2-3.

6

in the Federal Rules of Civil Procedure. 31 Defendants have sought relief that is permitted under
federal and local rules and the Motion will be considered as to the declarations.
Defendants included in their request for production “all documents that related to or
concern any communication between [Plaintiff] and any current or former [co-worker] related to
the allegations in Plaintiff’s Amended Complaint.” 32 Plaintiff represents that, through counsel,
she provided a list of witnesses with discoverable information and an e-mail with a summary and
description of these sorts of communications. 33
However, once a party has responded to a request for production, Fed. R. Civ. P. 26(e)(1)
imposes a continuing duty to supplement these responses:
A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory,
request for production, or request for admission—must supplement or correct its disclosure or
response: (A) in a timely manner if the party learns that in some material respect the disclosure
or response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing . . . .
If a party fails to provide information in compliance with this duty, Fed. R. Civ. P.
37(c)(1) provides that “the party is not allowed to use that information or witness to supply
evidence on a motion . . . unless the failure was substantially justified or is harmless.” According
to the United States Court of Appeals for the Tenth Circuit, four factors are to be considered
when determining if a party’s failure to disclose was substantially justified or harmless: “(1) the
prejudice or surprise to the impacted party (2) the ability to cure the prejudice; (3) the potential
for trial disruption; and (4) the erring party’s bad faith or willfulness.” 34

31

Reply at 6.

32

Motion at 6.

33

Opposition at 3-4.

34
Bio Med Techs. Corp. v. Sorin CRM USA, Inc., No. 14-CV-0154-WJM-CBS, 2015 WL 7294791, at *5 (D. Colo.
Nov. 19, 2015) (citing Woodworkers Supply, Inc. v. Principal Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999)).

7

These factors do not support the conclusion that Plaintiff’s failure to disclose the
declarations of Steve Beck and Kelly O’Dell was either substantially justified or harmless. As to
the first three factors, Defendants have made it very clear in their briefing that, in addition to the
declarations being attached to an untimely and unexpected cross-motion for summary judgment,
the existence of these declarations was a surprise to them. 35 Fact discovery had been closed for
nearly five months when Plaintiff filed the declarations on November 11. At this point, well into
the briefing period for Defendants’ dispositive motions, it is difficult to imagine how Defendants
would be able to cure the prejudice of this belated disclosure. And a cure could not occur in a
way that would not disrupt the established scheduling as the case proceeds towards trial.
As to the last factor, Plaintiff argues that the belated disclosure was inadvertent and not in
bad faith. 36 Plaintiff maintains that providing the list of potential witnesses and the summary email is proof that she complied with Defendants’ request and fulfilled her Rule 26 duties. 37
Although the e-mail relates events and statements that are included in the Steve Beck and Kelly
O’Dell declarations, the e-mail does not identify Beck or O’Dell by name 38 or in such a way that
Defendants would have been able to select them off of the list of potential witnesses to interview
during the discovery period. The unspecific and summary nature of the e-mail required
continued clarification and supplementation under Fed. R. Civ. P. 26(e)(1). Plaintiff failed to
uphold that obligation here.
Even if Plaintiff’s failure to disclose was not made in bad faith, the decision to rely on a
list of potential witness and a summary of the witnesses’ information during the discovery period

35

Motion at 6.

36

Opposition at 3-4.

37

Id. at 4.

38

Opposition, Exhibit 2, Summary E-mail of Interviews, docket no. 51-2, filed November 22, 2019.

8

and then disclose the declarations of two specific witnesses after the discovery period had passed
was willful. Plaintiff’s actions were not substantially justified or harmless under the applicable
factors and represent a violation of Fed. R. Civ. P. 26(e)(1). A sanction under Fed. R. Civ. P.
37(c)(1) is appropriate and therefore Defendants’ Motion is granted. The declarations of Steve
Beck and Kelly O’Dell are stricken and cannot be used as evidence.
ORDER
IT IS HEREBY ORDERED that Defendant’s Motion is Strike 39 is GRANTED. IT IS
FURTHER ORDERED that Plaintiff’s Joint Counter-Motion for Summary Judgment 40 and the
attached declarations of Steve Beck and Kelly O’Dell 41 are STRICKEN.
Signed December 5, 2019
BY THE COURT

________________________________________
David Nuffer
United States District Judge

39
Defendants’ Joint Expedited Motion to Strike Plaintiff’s Counter-Motion for Summary Judgment and the
Declarations of Kelly O’Dell and Steve Beck, docket no. 49, filed November 20, 2019.
40

Plaintiff’s Joint Motion to Conoco Phillips’ and Wood Groups’ Motion for Summary Judgment, docket no. 46,
filed November 11, 2019.

41

Plaintiff’s Counter Motion for Summary Judgment, Exhibit 26, Declaration of Steve Beck, docket no. 46-26, filed
November 11, 2019; Plaintiff’s Counter Motion for Summary Judgment, Exhibit 27, Declaration of Kelly O’Dell
page 1, docket no. 46-27, filed November 11, 2019; Plaintiff’s Counter Motion for Summary Judgment, Exhibit 28,
Declaration of Kelly O’Dell page 2, docket no. 46-28, filed November 11, 2019; Plaintiff’s Counter Motion for
Summary Judgment, Exhibit 29, Declaration of Kelly O’Dell page 3, docket no. 46-29, filed November 11, 2019;

9