United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court on the defendants' motion for
summary judgment (filing 374) pursuant to
Fed.R.Civ.P. 56 and the plaintiffs' motion to strike
(filing 386) the motion for summary judgment as
untimely. The Court will deny the motion to strike, solely
because the Court is not persuaded that procedurally,
striking the motion for summary judgment is the right remedy.
But the Court agrees that the motion for summary judgment is
untimely, and will deny it on that basis.
begin, the parties have guided this case to its current state
through their extensive and burdensome pretrial practice.
Both sides have tested the Court's patience by requiring
it to maintain an active role in over three years of
boundless discovery disputes, see filing 140,
199, 241, 256, 262, while
consuming Court resources through at least six versions of
amended complaints, see filing 1, 23,
100, 154, 156, 227, and
three or four rounds of dispositive motions. See
filing 103, 160, 181,
229. The Court has done its best to accommodate the
contentious nature of this litigation by permitting numerous
extensions of discovery deadlines, issuing a stay on the
litigation while the Court resolved a motion to disqualify,
and pushing trial down the road for almost two years. See
filing 105, 187, 221, 280.
Now, less than six weeks before the parties are set for
trial, see filing 187 at 2; filing 280
at 2, the defendants have filed a motion for summary
judgment, including an 86 page brief (filing 379)
and 45 exhibits containing 1453 pages of evidence (filing
376), seeking dismissal of nearly all of the
plaintiffs' substantive allegations. See filing 379
that motion is too little, too late. Under Rule 56(b),
"[u]nless a different time is set by local rule or the
court orders otherwise, a party may file a motion for summary
judgment at any time until 30 days after the close of all
discovery." And here, the Court has ordered otherwise in
at least three orders which have governed the progression of
this case: (1) filing 105, (2) filing 187,
and (3) filing 280.
latter two orders (filing 187 and filing
280) are of particular relevance to the defendants'
underlying motion for summary judgment. In the second
progression order, filing 187, the Court, among
other things, extended the deadline for filing motions to
dismiss and motions for summary judgment. The order was
clear: "[t]he deadline for filing motions to dismiss and
motions for summary judgment is December 5, 2016."
Filing 187 at 2. Nearly one year later, the
progression order was, again, amended following an
unsuccessful settlement conference. See filing 280;
filing 386. That amended progression order,
primarily, extended expert depositions and deadlines and
pertained to various motions associated with trial
(i.e., Daubert motions and motions in
limine). It did not, however, alter any previous
deadlines set for dispositive motions such as the underlying
motion for summary judgment. See filing 280 at
1-2. Rather, the order specified the following:
9. The parties shall comply with all other stipulations and
agreements recited in the final progression order that are
not inconsistent with this order.
10. No further continuances of this case progression
schedule will be granted absent a substantial showing of good
Filing 280 at 2 (emphasis in original). In other
words, the third progression order made two things clear: (1)
all previous scheduling provisions, including the December 5,
2016 deadline for filing any motions to dismiss or motions
for summary judgment, remained intact; and (2) if the parties
wished to further extend the deadlines in any way, they would
need to demonstrate a substantial showing of good
cause. See filing 280.
defendants' June 27, 2018, motion for summary judgment
does not come close to complying with the deadline for
dispositive motions. And the defendants have not provided the
Court with any substantial reason why, in their view, an
extension of the dispositive motion deadline is warranted.
The defendants' argument, at today's hearing, seems
to be that the substance of the plaintiffs' claims have
changed warranting a belated filing of a summary judgment
motion. But having reviewed the plaintiffs' pleadings,
the Court sees no basis in them to conclude that any
amendments to the plaintiffs' claims sufficiently changed
the landscape to provide grounds for summary judgment that
were not there throughout these proceedings. Compare
filing 154 with filing 227. Regardless, there
is no reason to excuse a motion for summary judgment that is
this far past the deadline. Thus, the defendants' motion
for summary judgment--which was filed nearly eighteen months
after the deadline for dispositive orders had expired-will be
denied as untimely. Whether the grounds provided for summary
judgment might also be the basis for any other motion during
the course of trial is a matter the Court will consider if,
or when, such a motion is filed.
final matter, despite the parties' recent arguments and
briefing discussing the ways in which discovery remains
ongoing, see e.g. filing 396, the Court
wants to make one thing clear: ongoing discovery will not
delay the inevitable, and trial in this case will begin at
9:00 a.m. on August 13, 2018.
defendants' motion for summary judgment (filing
374) is denied.
plaintiffs' motion to strike (filing ...