United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
“Requests for Extension of Time, ” Record Doc.
No. 30, are pending before me. Defendant filed a timely
opposition memorandum. Record Doc. No. 33. Having considered
the motion papers, the record and the applicable law, IT IS
ORDERED that the motion is DENIED IN PART AND DEFERRED IN
PART as follows.
motion requests the extension of three deadlines, two of
which have already been extended twice to accommodate him:
(1) the previously extended April 25, 2017 deadline to
provide responses to defendant's outstanding discovery
requests as required in the court's prior order, Record
Doc. No. 20; (2) the previously extended April 25, 2017
deadline to file written opposition to defendant's
pending motion for summary judgment; and (3) the discovery
completion deadline of February 9, 2017. Record Doc. No. 6.
the court has entered a scheduling order setting a deadline,
the schedule “may be modified only for good cause and
with the judge's consent.” Fed.R.Civ.P. 16(b)(4).
“In determining whether the movant has met its burden
under Rule 16(b)(4), the court considers four factors: (1)
the party's explanation, (2) the importance of the
requested relief, (3) potential prejudice in granting the
relief, and (4) the availability of a continuance to cure
such prejudice.” Choice Hotels Int'l, Inc. v.
Goldmark Hospitality, LLC, No. 3:12-CV-0548-D, 2014 WL
80722, at *2 (N.D. Tex. Jan. 9, 2014) (quotation omitted)
(citing S&W Enters., L.L.C. v. SouthTrust Bank of
Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003)); accord
Borden v. United States, 537 F. App'x 570, 574 (5th
Cir. 2013) (citing Reliance Ins. Co. v. La. Land &
Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997);
Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir.
1990)). The good cause standard applies to discovery
deadlines established by the court, Colonial Freight
Sys., Inc. v. Adams & Reese, L.L.P., 542 F.
App'x 142, 145 (5th Cir. 2013); Paz v. Brush
Engineered Materials, Inc., 555 F.3d 383, 390 (5th Cir.
2009), and “require[s] the movant ‘to show that
the deadlines cannot reasonably be met despite the diligence
of the party needing the extension.'” Puig v.
Citibank, N.A., 514 F. App'x 483, 487-88 (5th Cir.
2013) (quoting S & W Enters., 315 F.3d at 535).
these four factors in this case weighs heavily
against a finding of good cause as to two of the
requested extensions; i.e., the April 25th deadline
to respond to the court's prior discovery order and
defendant's pending motion for summary judgment.
Plaintiff's explanation for the requested extensions is
his lawyer's “sudden withdrawal and lack of proper
representation.” Record Doc. No. 30. The withdrawal was
not sudden. Counsel represented plaintiff for the entire ten
months from the date the case was filed until he withdrew at
the discovery deadline. The stated reason for counsel's
withdrawal was “counsel and client can no longer agree
on the way this matter is to be litigated and the best
strategies going forward.” Record Doc. No. 17 at p. 1.
The record contains no evidence of “lack of proper
representation.” On the contrary, plaintiff has twice
appeared before this court in person to report on the status
of his representation, and he has never previously complained
of deficient representation. Plaintiff himself, not his
lawyer, is the source of the information necessary to meet
these deadlines. Both the overdue summary judgment opposition
and the court-ordered discovery responses concern information
and materials that should be within plaintiff's own
knowledge, possession, custody or control. Both deadlines
have already been extended twice previously to accommodate
plaintiff himself upon his counsel's withdrawal. Record
Doc. Nos. 23 and 26.
ample time and opportunity to complete these required tasks,
including two extensions of the deadline to do so, has
already been provided. As the Fifth Circuit has held, neither
lack of diligence nor a pro se litigant's lack of
knowledge or familiarity with court rules excuses
non-compliance with court orders, rules and deadlines.
Puig, 514 F. App'x at 487-88 (5th Cir. 2013)
(quoting S & W Enters., 315 F.3d at 535);
Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981);
Edwards v. Harris County Sheriff's Office, 864
F.Supp. 633, 637 (S.D. Tex. 1994). A pro se litigant who
fails to comply with procedural rules has the burden of
establishing excusable neglect, which is a strict standard
requiring proof of more than mere ignorance. Kersh v.
Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988);
Birl, 660 F.2d at 593. Plaintiff has not met this
burden. For these reasons, plaintiff's explanation for
his need for extension of these two deadlines is
the second factor, the requested extensions do not appear
important. The deadline by which plaintiff was required to
provide defendant with discovery responses that comply with
the court's order compelling plaintiff to do so has
lapsed. Defendant nevertheless has been able to submit a
fully supported motion for summary judgment. Like these
discovery responses, defendant should have all the
information within his own knowledge, possession, custody and
control to respond to the pending motion for summary
judgment, which is based primarily on proof of
plaintiff's own poor work performance. Plaintiff's
position and evidence as to whether defendant's proffered
reasons for its job actions against him are legitimate and
non-discriminatory or merely pretext are matters that ought
to be largely and already a matter of plaintiff's own
knowledge and testimony.
will be prejudiced by the requests by having to spend
additional time and money in defending itself, when ample
time has already been permitted. Defendant has prepared its
defenses, as its pending motion demonstrates. There is no
good reason why plaintiff should not have already done the
same. As pointed out above, two extensions of these deadlines
have previously been granted, together with ample opportunity
for plaintiff to obtain new representation. No further
unspecified extensions of the sort sought by plaintiff are
the motion is denied insofar as it seeks an extension of the
deadline for plaintiff to provide full and complete responses
to defendant's discovery requests and a written
opposition to defendant's motion for summary judgment.
Plaintiff is hereby provided with one final opportunity to do
both, including one final opportunity to file a written
response to defendant's motion for summary judgment. IT
IS ORDERED that plaintiff must respond in writing to the
motion for summary judgment and provide the previously
ordered responses to defendant's discovery requests no
later than May 17, 2017. Plaintiffs response to the summary
judgment motion should include sworn affidavits, including
his own, or other evidentiary materials that set forth
specific facts demonstrating that there is a genuine issue of
material fact for trial in this case. If no response is filed
by that date, the motion for summary judgment will be deemed
motion is DEFERRED insofar as it seeks an extension of the
discovery deadline. That part of the motion will be addressed
as part of the court's overall assessment of all aspects