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Robertson v. The Home Depot, Inc.

United States District Court, M.D. Louisiana

February 17, 2017

LAWRENCE E. ROBERTSON
v.
THE HOME DEPOT, INC.

          RULING AND ORDER

          JUDGE JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT.

         This matter comes before the Court on the Motion to Amend and Supplement Response Filed to Defendant's Motion for Summary Judgment (Doc. 50) filed by Plaintiff Lawrence E. Robertson (“Plaintiff”) and Home Depot's Opposition to Plaintiff's Motion to Amend and Supplement Response to Motion for Summary Judgment and Request for Fees and Costs (Doc. 57) filed by Defendant The Home Depot, Inc. (“Defendant”). Both motions are opposed. (Docs. 57 and 64.) Oral argument is not necessary. The Court has carefully considered the law, the record as a whole, and the arguments and submissions of the party and is prepared to rule. For the following reasons, both motions are granted in part and denied in part.

         I. Introduction and Procedural Background

         On December 29, 2014, Plaintiff filed a Complaint against Home Depot, alleging race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), retaliation in violation of Title VII and the ADEA, and retaliation for taking leave under the Family Medical Leave Act (“FMLA”). (Doc. 1.) Plaintiff also alleges race discrimination in violation of 42 U.S.C. § 1981 and makes state law claims under Louisiana Civil Code articles 2315 and 2320. (Doc 1.)

         Defendant answered the Complaint on May 19, 2015. (Doc. 14.) Defendant's Motion for Summary Judgment was filed on March 15, 2016. (Doc. 24.) The Court issued a briefing schedule on March 16, 2016 requiring Plaintiff to file his opposition within twenty-one (21) days.

         On March 31, 2016, Plaintiff filed a consent Motion for Extension of Time to File Response to Motion for Summary Judgment (Doc. 29), in which Plaintiff requested an additional twenty-one (21) days to respond. That motion was granted, and Plaintiff was given until April 26, 2016, to file his response. (Doc. 30.)

         On April 22, 2016, Plaintiff filed a second ex parte Motion for Extension of Time to File Response to Motion for Summary Judgment. (Doc. 32.) In this motion, Plaintiff requested an additional fourteen (14) days to respond. This motion was opposed. (Doc. 33.) The Court granted Plaintiff's motion, giving Plaintiff until May 10, 2016, to file his opposition. (Doc. 34.)

         Plaintiff, however, did not file an opposition on or before May 10, 2016. Instead, he filed a Motion Requesting Permission to File Memorandum in Response to Motion for Summary Judgment in Excess of Page Limit, (Doc. 35), [1] which was granted on May 12, 2016. (Doc. 37.)

         On May 11, 2016, the day after his opposition was due, Plaintiff filed yet another Motion for Enlargement of Time in Which to File Response to Motion for Summary Judgment. (Doc. 36.) In his memorandum supporting the motion, counsel for Plaintiff alleged that she had encountered computer filing problems and therefore requested an additional two days within which to complete the filing of her opposition. The Court granted Plaintiff's request for an additional two days. (Doc. 38.) Plaintiff's Response To Defendant's Motion for Summary Judgment was filed on May 13, 2016. (Doc. 39.) It should be noted that, in violation of this Court's Local Rules (L. Civ. R. 56(b)), a separate statement of contested issues of material fact was not attached.[2]

         On May 17, 2016, Plaintiff filed a Motion to Amend and Supplement Response Filed to (sic) Defendant's Motion for Summary Judgment. (Doc. 40.) In this pleading, Plaintiff asked for permission to add certain exhibits not previously attached for various reasons ranging from “identifying exhibits numerically rather than alphabetically”, not “verifying hyperlinks were properly executed”, problems scanning documents and physical symptoms causing her to move more slowly than normal and problems with perception. (Id.) On May 25, 2016, Home Depot filed a Reply Memorandum in Support of Motion for Summary Judgment. (Doc. 44.)[3]

         On May 24, 2016, Defendant filed Home Depot's Motion to Strike Recordings Used in Opposition. (Doc. 42.) In the motion, defendants specifically moved to strike Docs. 39-13-16 (resubmitted as Docs. 40-1-4), on the basis that recorded conversations of current Home Depot employees had been taken without the knowledge or permission of counsel for Home Depot in violation of Louisiana Rules of Professional Conduct, rule 4.2 (and the comparable ABA model rule), that the statements had never been previously identified and were unsworn. (Doc. 42.) A separate briefing schedule was set for the Motion to Strike. (Doc. 43.) Plaintiff opposed the motion on June 14, 2016. (Doc. 59.) Defendant replied. (Doc. 62.)

         On June 1, 2016, the Court held a status conference, and that status conference is critical to the instant motions. At this conference, the Court discussed with the parties the various pleadings which had been filed and the circumstances surrounding same. Counsel for Plaintiff indicated that, for the reasons outlined in the Motion to Amend and Supplement (Doc. 40), there continued to be some confusion about the proper exhibits attached to that motion. Specifically, “[t]he Plaintiff advised in this conference that the current referenced exhibits attached to this motion, (Doc. 40) are incorrect.” ((Doc. 48.) Plaintiff requested that she be given permission to substitute the correct exhibits. There was also some discussion about additional exhibits which Plaintiff wanted to submit in opposition to Defendant's summary judgment motion.

         At the conference, the Court granted Plaintiff's Motion to Amend and Supplement (Doc. 40), and “granted [Plaintiff] leave to file [the] correct exhibits into the record, and the Clerk of Court is directed to accept Plaintiff's substituted exhibits, which shall be filed on or before 5 PM on Monday, June 6, 2016.” (Doc. 48 (emphasis in the original).) While not specifically reflected in the minute entry (but implicit in the Court's ruling), the Court specifically stated that no new exhibits would be allowed to be filed by Plaintiff. In addition, “[P]laintiff was informed that no further extensions and no additional briefing will be authorized by this Court.” (Doc. 48.)

         The Court also advised the parties that it was considering Defendant's Motion to Strike. Also discussed at the status conference, although not reflected in the minute entry, was the Court's concern regarding Plaintiff's repeated motions for extension of various deadlines and the reasons expressed by counsel for Plaintiff in those motions. Specifically, the Court advised counsel for Plaintiff that if her personal and physical problems were preventing her from adequately representing her client, she should either get additional help or withdraw and allow another attorney to substitute for her client. She assured the Court that she understood.

         Despite the Court's admonition to Plaintiff in its order of June 1, 201 that “no additional briefing will be authorized by this Court [on the pending motion for summary judgment], ”on June 6, 2016, Plaintiff made eight additional separate filings: first, a Notice of Filing Exhibits Manually in Clerk's Office (Doc. 49); second, a Motion to Amend Response in Opposition to Motion For Summary Judgment, (Doc. 50); third, Plaintiff's Amended and Supplemental Response to Defendant's Motion for Summary Judgment (Doc. 51.); fourth and fifth, two identical pleadings each entitled Motion and Notice of Impossible Condition (to which were appended seven attachments), (Docs. 52 and 53); and finally, three separate filings of additional exhibits, (Docs. 54, 55 and 56). Attached to Plaintiff's Motion to Amend Response in Opposition to Motion for Summary Judgment (Doc. 50) was a twenty-seven (27) page pleading entitled “The Plaintiff's Amended and Supplemental Statement of Controverted Material Facts.” (Doc. 50-1.) Attached to Plaintiff's last filing was a duplicate of the supplemental and amending statement of controverted material facts (Doc. 51-1) and a Memorandum in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment (Doc. 51-2), twenty-three (23) pages long.

         On June 7, 2016, Defendant filed a Memorandum in Opposition to Plaintiff's Motion to Amend and Supplement Response in Opposition to Motion for Summary Judgment, Motion to Strike and Motion for Fees and Costs. (Doc. 57.) A separate briefing schedule was ordered. (Doc. 58.) Plaintiff opposed the motion, (Doc. 63) and Defendant replied (Doc. 64.)

         On August 22, 2016, Plaintiff filed a twenty-six (26) Response to the Defendant's Motion to Strike Recordings (Doc. 68).

         On August 29, 2016, Plaintiff filed a Motion to Correct Record or in the Alternative Motion to Amend and Supplement Document (Doc. 69) seeking that the “trial court record be corrected to properly reflect the document and exhibits that [Plaintiff's] counsel filed on June 14, 2016.” (Doc. 69 (citing Docs. 59, 60, and 61.)) In Plaintiff's memorandum in support, (Doc. 69- 1), counsel for Plaintiff further explained her difficulty in correctly uploading exhibits to her “timely response to Defendant's motion to strike recordings.” (Doc. 69-1 at 1.) Plaintiff's counsel represented:

Counsel believes that her computers have been hacked and that many of the anomalies that have occurred in filing documents with the Court, and accessing and attaching and emailing documents to opposing counsel has been compromised by outside parties. It has been only recently that counsel has had to spend hours (two hours or more) in uploading multiple documents to the Court's website. That had not been the case with filings made in previous years.

(Doc. 69-1 at 2.) Plaintiff's counsel also described other problems she has had in different cases. (Id.) Plaintiff's counsel concluded that she “made a valid attempt to file a proper response to the Defendant's motion[, ] [but] [t]hat filing was marred by unusual buffering and a failure of the first filed portion of the response to ‘register' and a failure of that document to be transmitted.” (Doc. 69-1 at 3.) Plaintiff sought an opportunity to submit his evidence “despite the unusual internet problems that have besieged his counsel's computer.” (Doc. 69-1 at 4.)

         On August 29, 2016, Plaintiff also filed with his motion three separate docket entries (Docs. 70, 71, ad 72) consisting of “Additional Exhibits” to the Motion to Correct Record (Doc. 69). Plaintiff submitted a total of twelve (12) attachments in these three entries.

         On August 31, 2016, the Court denied as moot the most recently filed Motion to Correct Record (Doc. 69). The Court also struck Docs. 70, 71, and 72 and removed them from the record “as they [were] already filed into the record and included as exhibits to document 68.” (Doc. 73.)

         II. The Parties' Arguments in the Instant Motions

         A. Plaintiff's Motion to Amend and Supplement Response Filed to Defendant's Motion for Summary Judgment (Doc. 50)

         Plaintiff's argument is as follows:

Pursuant to order of the Court [doc. text entry 41] the following audio recordings are filed conventionally: Exhibits L, M, N, and O. Additionally, pursuant to the grant of the Plaintiff's request during the status conference of June 1, 2016, to correct the exhibits filed with his response. The memorandum has been amended and supplemented to reflect the correction of the exhibits, and for the sake of clarity. The changes to the response neither expand nor narrow the arguments set forth. Corrections in punctuation, grammar and style were made on the following pages: 2, 3, 4, 5, 8, 9, 12, 13, 17, 18, and 20. Changes to the references to exhibits were made to the statement of controverted facts to cite the proper exhibits.

(Doc. 50 at 3.) Plaintiff attaches a twenty-seven (27) page document entitled “The Plaintiff's Amended and Supplement Statement of Controverted ...


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