Graham et al v. Consolidation Coal Company et al
Filing
143
OPINION AND ORDER granting in part and denying in part Plaintiffs Motion to Vacate 132 ; Vacating Order 131 entered 7/21/2015. The parties must comply with the modified schedule as set forth. Signed by Judge James P. Jones on 7/27/2015. (lml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
DIANNA L. GRAHAM, ET AL.,
Plaintiffs,
v.
CONSOLIDATION COAL COMPANY,
ET AL.,
Defendants.
)
)
)
)
)
)
)
)
)
)
Case No. 1:13CV00011
OPINION AND ORDER
By: James P. Jones
United States District Judge
April D. Ferrebee and Marvin W. Masters, The Masters Law Firm lc,
Charleston, West Virginia, and Terrence Shea Cook, T. Shea Cook, P.C.,
Richlands, Virginia, for Plaintiffs; Jonathan T. Blank and Larissa LPC Sneathern,
McGuire Woods LLP, Charlottesville, Virginia, and David Grant Altizer and
Mandy Varney French, Altizer, Walk and White PLLC, for Defendants.
On June 22, 2015, the defendants in this civil action moved for summary
judgment. As of July 21, 2015, the plaintiffs had not filed a response to the
defendants’ motions. As a result, I entered an order notifying the parties that the
defendants’ motions were deemed submitted for decision without further briefing
or argument. The plaintiffs promptly filed a motion requesting the court to vacate
the order, or, in the alternative, to grant an extension of time to file a response to
the defendants’ summary judgment motions.
The plaintiffs’ motion to vacate has been fully briefed by the parties and is
ripe for decision. For the following reasons, I will vacate my order and provide the
plaintiffs with an extension of time.
In the initial Scheduling Order for this proceeding, I instructed the parties
that “[m]otions for summary judgment must be filed no later than January 2, 2015.
Any response to the motion, including the brief in opposition, must be filed no
later than 14 days after service of the motion.” (Scheduling Order ¶ 6, ECF No.
52.)
During the course of this proceeding, this Scheduling Order has been
modified numerous times, including changes to deadlines associated with summary
judgment motions.
For example, pursuant to the current Second Amended
Scheduling Order, drafted by the parties and entered by the magistrate judge, the
parties were required “to file summary judgment motions by August 7, 2015.”
(Second Am. Scheduling Order ¶ 2.f., ECF No. 101.) In turn, the parties were “to
file responses to . . . motions for summary judgment by August 21, 2015.” (Id. ¶
2.g.) In spite of these changes, however, the order noted that “other deadlines in
the Scheduling Order, (Docket Item No. 52), remain the same.” (Id. ¶ 3.)
Pursuant to the court’s local rules, “[u]nless otherwise directed by the Court,
the opposing party [to a motion] must file a responsive brief and such supporting
documents as are appropriate within 14 days after service.” W.D. Va. Civ. R.
11(c)(1). The instruction contained within the initial scheduling order in this
-2-
proceeding is consistent with Local Rule 11(c)(1) in that it recognizes that motions
may be filed prior to a defined deadline, but still trigger only fourteen days in
which to respond.
The plaintiffs contend, however, that they believed the date contained in the
Second Amended Scheduling Order set a firm deadline for any summary judgment
response, regardless of when the summary judgment motion was filed. More
specifically, the plaintiffs argue that when the defendants filed for summary
judgment on June 22, 2015, they believed that they had until August 21, 2015, to
respond. Stated differently, the plaintiffs believed that they had approximately two
months to respond as a result of the Second Amended Scheduling Order.
In support of their position, the plaintiffs reference Local Rule 16, which
states that “[t]he scheduling order shall govern any deadline fixed or procedure
ordered that is in conflict with that contained in these rules.” W.D. Va. Civ. R. 16.
The plaintiffs argument is based on the use of “by” in the Second Amended
Scheduling Order, as opposed to the use of “no later than” in the initial scheduling
order and “within” in Local Rule 11(c)(1).
In turn, the defendants contend that the language of the Second Amended
Scheduling Order did not abrogate, nor is it in conflict with, the timing
requirements imposed by Local Rule 11(c)(1) or the court’s initial scheduling
order. In short, the defendants argue that the language reflects a date certain for
-3-
any reply, and not the last possible date a response could be entered regardless of
when a summary judgment motion was actually filed.
As a practical matter, I believe that the defendants’ position is in harmony
with the spirit of the local rules and the initial scheduling order for this proceeding.
However, I also recognize the potential ambiguity created by the wording of the
Second Amended Scheduling Order. As a result, I find it appropriate to consider
whether the plaintiffs’ failure to timely respond was the result of excusable neglect.
Pursuant to Federal Rule of Civil Procedure 6(b), “[w]hen an act may or
must be done within a specified time, the court may, for good cause, extend the
time: . . . (B) on motion made after the time has expired if the party failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). The Fourth Circuit has
recognized five factors to consider in determining whether a party has
demonstrated “excusable neglect.”
Specifically, a court will consider (1) the
danger of prejudice to the nonmoving party; (2) the length of the delay and its
potential impact on judicial proceedings; (3) the reason for the delay; (4) whether
the delay was within the reasonable control of the moving party; and (5) whether
the late-filing party acted in good faith. Thompson v. E.I. DuPont de Nemours &
Co., 76 F.3d 530, 533 (4th Cir. 1996); see also Martinez v. United States, 578 F.
App’x 192, 195 n.* (4th Cir. 2014) (unpublished) (“Excusable neglect generally
has the same meaning throughout the federal procedural rules.”). Moreover, “[t]he
-4-
most important of the factors identified . . . for determining whether ‘neglect’ is
‘excusable’ is the reason for the [delay].”
Cf. Thompson, 76 F.3d at 534
(addressing the failure to file a notice of appeal within 30 days of the entry of
judgment).
In this case, I find that the ambiguity created by the conflicting language of
the scheduling orders in this case is sufficient to establish excusable neglect.
Moreover, I find that the plaintiffs acted in good faith based upon their
interpretation of the various scheduling orders. Additionally, the plaintiffs’ delay
does not present a risk of prejudice to the defendants and does not negatively
impact the progression of this litigation.
Nonetheless, the plaintiffs are directed to file a response to the defendants’
summary judgment motions no later than August 7, 2015. Pursuant to Local Rule
11(c)(1), the defendants may file a rebuttal brief within 7 days after service of the
plaintiffs’ reply brief. Also, if the plaintiffs elect to file a motion for summary
judgment, they must do so no later than August 7, 2015. Any summary judgment
motion filed by the plaintiffs will be subject to the timing requirements imposed by
Local Rule 11(c)(1).
For these reasons, the plaintiffs’ Motion to Vacate (ECF No. 132) is
GRANTED in part and DENIED in part and the court’s Order entered July 21,
-5-
2015 (ECF No. 131) is VACATED. The parties must comply with the modified
schedule set forth herein.
It is so ORDERED.
ENTER: July 27, 2015
/s/ James P. Jones
United States District Judge
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?