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Badgerow v. REJ Properties, Inc.

United States District Court, E.D. Louisiana

July 24, 2019


         SECTION: "A" (2)



         The following motions are before the Court: Motion for New Trial or Relief From Judgment (Rec. Doc. 163) filed by Plaintiff, Denise A. Badgerow; Motion to Strike Supplemental Expert Report (Rec. Doc. 173) filed by defendant REJ Properties, Inc. d/b/a Walters, Meyer, Trosclair & Associates (“WMT” or “Defendant”). Both motions are opposed. The motions, noticed for submission on July 10, 2019, and July 24, 2019, respectively, are before the Court on the briefs without oral argument.[1]

         On June 3, 2019, the Court entered a final judgment dismissing Badgerow's employment-related claims against WMT with prejudice. (Rec. Doc. 160). The judgment was based on the Court's determination that WMT's motion for summary judgment should be granted as to all of Badgerow's claims against WMT, her former employer. (Rec. Doc. 159).[2]

         Badgerow now moves for reconsideration of the adverse summary judgment ruling and relief from the resulting final judgment pursuant to Rules 59 and 60. And should the Court not be inclined to revisit its determination that judgment as a matter of law was appropriate on the prior record, Badgerow moves to reopen discovery in order to depose Evan Weibel, Kylie Kern, and Demetria Perry. Badgerow contends that the depositions of these witnesses would be essential to defeating summary judgment, and Badgerow attributes her inability to properly oppose summary judgment to the Court's order staying all discovery pending the ruling on the motion for summary judgment. (Rec. Doc. 123).

         Moreover, well after this Court entered its reasons for summary judgment and final judgment on May 29, 2019, and June 3, 2019, respectively, Badgerow obtained a supplemental accounting expert report (dated June 13, 2019). This supplemental report was filed as an exhibit to Badgerow's motion for reconsideration, and it forms the basis of WMT's motion to strike.

         The Court begins with the accounting report that Badgerow obtained on June 13, 2019-which was 15 days after the Court entered its Order and Reasons granting summary judgment and 10 days after the Court entered a final judgment in favor of WMT-and produced for the first time as an attachment to the motion for reconsideration that she filed on June 14, 2019. (Rec. Doc. 163-3). Badgerow commissioned this report to specifically address a deficiency that the Court identified in her opposition evidence. (Rec. Doc. 159, Order and Reasons at 25). The report is not based on new evidence and it is grossly untimely.

         Pursuant to the original scheduling order entered in this case Badgerow's expert report deadline was set for July 11, 2018. (Rec. Doc. 24, Scheduling Order). No. expert reports were produced on that date and the colloquy between counsel captured on the record that day during Badgerow's deposition casts doubt on whether Badgerow would even retain a damages expert. (Rec. Doc. 59, Opposition at 1-5). In lieu of timely producing her expert reports on July 11, 2018, Badgerow filed a contested motion to extend the deadline. (Rec. Doc. 56). Over Defendant's objection the Court granted Badgerow an extension until August 8, 2018 to produce her expert reports, which was the full length of the extension that she had requested. (Rec. Doc. 60). On August 29, 2018, the parties jointly moved to be relieved of the remaining pretrial deadlines but Badgerow's expert report deadline had already expired. (Rec. Doc. 61). As such, even ignoring that Badgerow's report is nothing more than an improper attempt to rebut this Court's reasons for judgment, it is untimely nonetheless by about 10 months.

         Badgerow has not demonstrated any justification for the extraordinary relief that she seeks. Rule 59 motions for new trial cannot be used to present evidence or arguments that should have been presented earlier in the proceedings. See Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990). None of the factors that could militate in favor of accepting untimely evidence benefit Badgerow. See Templet v. HydroChem, Inc., 367 F.3d 473, 482 (5th Cir. 2004) (Dennis, J., dissenting). Defendant's motion to strike the untimely and improper report is granted.[3]

         Next, Badgerow contends that she was unable to properly oppose the motion for summary judgment because the Court prohibited her from conducting necessary discovery-discovery that the magistrate judge previously had concluded was relevant.

         This lawsuit was filed in September 2017, and every claim that was challenged in Defendants' motion for summary judgment was part of the original complaint. When the scheduling order was entered, the discovery cutoff date was set for September 11, 2018, which was about ten months from the date when the scheduling conference was held. (Rec. Doc. 24). By consent of the parties the Court agreed to extend the discovery cutoff date to October 5, 2018. (Rec. Doc. 60). On August 30, 2018, the Court granted the parties' joint motion to stay all pretrial deadlines pending the outcome of a mediation. (Rec. Doc. 62, Order). While this order relieved the parties of the governing discovery deadline while they attempted to mediate the case, contrary to Badgerow's suggestion, this order did not enjoin discovery.[4] In fact, it was not until March 28, 2019, nearly 7 months after the order on the joint motion was entered, that the Court actually stepped in to stay all discovery in this case. (Rec. Doc. 123, Order).

         Badgerow's claims of prejudice in conjunction with the March 28, 2019 stay are stripped of all credibility when one considers the facts surrounding that stay. On January 24, 2019, Defendant filed its motion for summary judgment on all claims alleged in the original complaint. (Rec. Doc. 73). Under the Local Rules of this district Badgerow's opposition was due to be filed on February 12, 2019. On February 7, 2019, Badgerow moved to continue the submission date. (Rec. Doc. 84). The basis of Badgerow's motion to continue the motion for summary judgment was that discovery was ongoing and therefore the motion for summary judgment was premature. Of course, a motion for summary judgment is not premature simply because discovery is ongoing so it was incumbent upon Badgerow to identify the specific additional discovery that she needed to oppose the motion. The only discovery mentioned in Badgerow's motion to continue are the depositions of Ray Trosclair, Kylie Kern, and a 30(b)(6) designee, depositions that Badgerow noticed and served on Defendant on the same day that she moved to continue Defendant's motion for summary judgment, and depositions that she failed to tether in any way to the issues she was called upon to defend in conjunction with the motion for summary judgment. Evan Weibel, who plays so prominently in Badgerow's motion for reconsideration, and Demetria Perry are not even mentioned in the motion to continue. It appears to the Court that Badgerow had been seeking that discovery not to oppose summary judgment but rather in conjunction with new claims that she had hoped to assert via an amended complaint.[5]

         When the Court ultimately denied Badgerow's motion to continue the submission date, it had by that point a firm grasp on the issues in this case, having reviewed Defendant's pending motion for summary judgment, in addition to the entirety of Badgerow's discovery deposition, which the Court specifically ordered Defendant to produce. (Rec. Doc. 72, 110). Badgerow fails to acknowledge that she was relieved from having to file an opposition to Defendant's motion for summary judgment for over a month while the Court studied the record to determine if her motion to continue should be granted over Defendant's objection. (Rec. Doc. 88). When the Court denied her motion to continue the Court generously set her opposition deadline for March 29, 2019, in order to give her counsel ample time to file the opposition (which was ultimately untimely). In all Badgerow had the benefit of studying Defendant's motion for summary judgment a full two months before her opposition became due. To this day the Court remains at a loss to understand how the depositions of any of the cited witnesses would have aided Badgerow in defeating summary judgment on the issues that ultimately proved fatal to her case.

         Further, when the Court granted Defendant's motion to stay discovery on March 28, 2019 (Rec. Doc. 123), the Court specifically stated in its order that “[i]f Plaintiff is persuaded that the additional discovery she seeks will affect the outcome of the motion for summary judgment then she can argue that in her opposition . . . .” (Rec. Doc. 123) (emphasis added). But the only references to additional discovery mentioned in the opposition pertain to irrelevant issues (see note 5 above). And again, additional discovery with respect to Weibel is not mentioned in the opposition. Badgerow's efforts ...

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