United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
Bitters and Boland timely filed their summary judgment
motions, (Filing Nos. 182 and 184),
Plaintiff moved to continue the summary judgment deadline.
(Filing No. 186). Plaintiff's motion to continue
was filed at 11:41 p.m. on March 20, 2018-the deadline for
filing a motion for summary judgment. Counsel's
“late attempt to seek the position of Defendants
Bitters and Boland” garnered no response before
Plaintiff's motion was filed. (Filing No. 186, at
CM/ECF p. 2). Defendants Bitters and Boland have now
filed a brief opposing Plaintiff's motion to continue.
(Filing No. 187). For the reasons discussed below,
the motion will be denied.
court initially notes that once again, Plaintiff has failed
to comply with Nebraska's local rules governing civil
motion practice. As my previous opinion explained:
Pursuant to Rule 7.1 of the Nebraska Civil Rules, a motion
must state the basis for the motion and the specific relief
requested, the supporting brief must be filed as a separate
filing, and unless the evidence is hyperlinked in the brief,
the evidence must be filed separately from the brief. NECivR
7.1. “[A] party who does not follow this rule
may be considered to have abandoned in whole or in part that
party's position on the pending motion.”
(Filing No. 181, at CM/ECF p. 15) (quoting NECivR
7.1). Like Plaintiff's improperly filed Motion
to Extend Deadlines, to Amend, and for Attorney Fees as
Sanctions against Henry, (Filing No. 166), Plaintiff
has again filed the pending motion, brief, and supporting
evidence as one docket filing.
the court could deny Plaintiff's motion outright for
failure to comply with this court's rules, I will also
address the merits of the motion.
to Rule 16(b)(4), a case management order setting progression
deadlines “may be modified only for good cause and with
the judge's consent.” Fed. R. Civ. P.
16(b)(4). The movant's level of diligence and the
degree of prejudice to the parties are both factors to
consider when assessing if good cause warrants extending a
case management deadline, with the movant's diligence
being the first consideration and the extent of prejudice to
either party considered only following a requisite threshold
finding of due diligence. Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 716-17 (8th Cir. 2008); Marmo v.
Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir.
argues good cause exists to continue the summary judgment
deadline because Plaintiff's counsel, James H. McMenamy,
has been ill; Plaintiff's co-counsel, Robert J. Gaudet,
was very busy working on other cases; and Plaintiff needs to
subpoena and depose Defendant Henry's family members
before filing a summary judgment motion, but Defendant Henry
has yet to provide those witness' addresses. (Filing
McMenamy had influenza during the two- or three-week period
prior to the summary judgment deadline. But he is not the
only attorney representing the plaintiff. His co-counsel, Mr.
Gaudet, states that he was also unable to work on this
lawsuit, explaining that during the two weeks prior to the
summary judgment deadline, he lacked time “due to
numerous court-imposed deadlines and urgent work in other
matters.” (Filing No. 186, at CM/ECF p. 2).
cited in Mr. Gaudet's brief, one of those matters
involved a case filed in 2017: The above-captioned action was
filed in 2014.
Gaudet also states Almanza v. United States, 135
Fed.Cl. 113 (2017), required his immediate attention during
the week prior to the summary judgment deadline. That case is
settled, with the settlement approved by the court on
November 6, 2017. Id. The only lingering issue in
Almanza is the amount of fees owed to
Plaintiff's counsel. Mr. Gaudet was not an attorney of
record for the plaintiff class in Almanza, but he
worked on the file. His affidavit in support of his requested
fee recovery, (Almanza v. USA, 1:13-cv-130, at Dtk.
No. 157-3),  was attached to the reply brief filed by
Plaintiff's counsel of record on March 16, 2018,
(id. at Dkt. No. 157). Pursuant to an order entered
on March 15, 2018, (id. at Dkt. No. 156), a
previously filed PDF document containing a three-column table
of Mr. Gaudet's 38 time entries, (id. at Dkt.
No. 140-3), was converted to an Excel format and delivered to
the judge's chambers by March 19, 2018, (id. at
Dkt. No. 158).
Mr. Gaudet claims that during the week prior to the summary
judgment deadline, he “had to submit (via co-counsel)
objections to an order to quash for filing with the U.S.
Bankruptcy Court for the Western District of Virginia.”
(Filing No. 186, at CM/ECF p. 3). Mr. Gaudet is not
the attorney of record for any parties in that court.
counsel for Defendants Bitters and Boland, the court
sympathizes with Mr. McMenamy and hopes he is now fully
recovered. However, Plaintiff's counsel has not
adequately explained why neither attorney for Plaintiff could
file a straightforward motion to continue and/or contact
defense counsel regarding the need for a continuance until,
both figuratively and literally, the eleventh hour. Mr.
Gaudet is, no doubt, a busy attorney. But when, as in this
case, the lawsuit has been ...