Bowen v. Norfolk Southern Corporation
Filing
102
MEMORANDUM AND OPINION The Court again Denies Plaintiff/Counterclaim Defendant's motion to "set a deadline for the renewal of her previously filed Motions for Summary Judgment/Counterclaim Defendant's Rule 46 Objection to Order of the Court entered on 12/13/2013 93 . Signed by Judge Robert C. Chambers on 12/20/2013. (cc: attys; any unrepresented party) (skm)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
SALEENA BOWEN, as Personal Representative
of the Estate of JESS ENDICOTT, SR., deceased,
and as Personal Representative of the Estate
of JESS ENDICOTT, JR., deceased,
Plaintiff,
v.
CIVIL ACTION NO. 3:12-9226
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is Plaintiff/Counterclaim Defendant’s Rule 46 Objection to Order of the Court
[Entered on December 13, 2013], ECF No. 93, in which Plaintiff/Counterclaim Defendant again
moves the Court to “set a deadline for the renewal of her previously filed Motions for Summary
Judgment.” Defendant filed a Response in Opposition, ECF No. 94. The Court again DENIES
Plaintiff/Counterclaim Defendant’s motion to “set a deadline for the renewal of her previously
filed Motions for Summary Judgment.”
Per the Amended Scheduling Order entered on June 18, 2013—which was agreed to and
jointly submitted by the parties1—, all dispositive motions were due by December 1, 2013. ECF
No. 60. On November 26, 2013, Defendant filed a Motion to Exceed Page Limitation, which twice
requested that the Court allow Defendant to file a 25-page memorandum of law in connection with
its forthcoming motion for summary judgment “on December 2, 2013.” ECF No. 79. On
1
The electronic signature of counsel for Counterclaim Defendant is appended to the Order.
December 2, 2013, Defendant filed its motion for summary and partial summary judgment. ECF
Nos. 81, 83. Plaintiff/Counterclaim Defendant filed no request for extension despite this activity in
the case and the passage of the pre-arranged dispositive motion deadline. On December 3, 2013,
Plaintiff/Counterclaim Defendant filed her Motion to Set Deadline for Renewing Previously Filed
Motions for Summary Judgment. ECF No. 85. The Court denied this Motion in its Order dated
December 13, 2013. ECF No. 92.
In her Rule 46 Objection, Plaintiff/Counterclaim Defendant contends that the Court “may
have been mistaken or confused” as to Plaintiff/Counterclaim Defendant’s role in the case—that
she is not merely Plaintiff in the case, but that she is also a counterclaim defendant.
Plaintiff/Counterclaim Defendant also clarifies that in each of her disparate roles in the
case—Plaintiff and Counterclaim Defendant—, she is represented by separate counsel. At the time
of its entry of its Order on December 13, 2013, the Court was aware of both of these facts. Neither,
however, changes the reality that Plaintiff/Counterclaim Defendant remains a single party in the
case.
Next, Plaintiff/Counterclaim Defendant reiterates her position that the discovery
completion deadline had been moved back by informal agreement of the parties. However, the
discovery completion deadline and the dispositive motion deadline are two different deadlines,
and Plaintiff/Counterclaim Defendant does not allege that the latter was changed by informal
agreement. Further, the parties have no authority to change the dispositive motion deadline by
informal agreement. Local Rule of Civil Procedure 16.1(f)(1) (“Time limits in the scheduling
order for the . . . filing of motions . . . may be modified for good cause by order.”), 16.1(f)(3) (“A
private agreement to extend discovery beyond the discovery completion date in the scheduling
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order will be respected by the court if the extension does not affect . . . other dates and deadlines
specified in subparagraph (1).” (emphasis added)). Additionally, counsel defending
Plaintiff/Counterclaim Defendant on a counterclaim was not involved in scheduling the
depositions set to take place after the discovery deadline and gives no indication that it ever
planned to use those depositions in its planned motions for summary judgment. In fact,
Plaintiff/Counterclaim Defendant repeatedly states that all she planned to do was renew her
previously filed motions. In her Rule 46 Objection, Plaintiff/Counterclaim Defendant repeatedly
distinguishes between counsel representing her in each of her roles. Here, counsel for
Plaintiff/Counterclaim Defendant in her role as Plaintiff planned to depose Defendant’s experts;
counsel in her role as Counterclaim Defendant produces no showing of why the summary
judgment motions required the completion of the depositions before the motions were filed. Most
importantly, Plaintiff/Counterclaim Defendant took no action to extend the dispositive motion
deadline before it passed. Renaming a motion to extend a deadline will not change the nature of the
motion, and a renewed motion for summary judgment remains a dispositive motion. Thus, the
renewed summary judgment motions or the motion to extend the dispositive motion deadline were
due to be filed on or before the dispositive motion deadline. Plaintiff/Counterclaim Defendant
failed to meet this deadline.
For the reasons above, the Court DENIES Plaintiff/Counterclaim Defendant’s motion to
“set a deadline for the renewal of her previously filed Motions for Summary Judgment” as made in
Plaintiff/Counterclaim Defendant’s Rule 46 Objection to Order of the Court [Entered on
December 13, 2013], ECF No. 93.
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The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.
ENTER:
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December 20, 2013
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