United States District Court, D. New Mexico
ORDER GRANTING LEAVE TO FILE MOTION FOR SUMMARY
MATTER comes before the Court on Plaintiff's Motion for
Leave to File Motion for Summary Judgment. Doc. 33.
Having reviewed the parties' submissions and all
pertinent authority, the Court will grant Plaintiff's
case arises from a dispute regarding overtime pay. The Court
entered a Scheduling Order on August 9, 2017, setting May 21,
2018 as the deadline for the parties to file pretrial motions
other than discovery motions. Doc. 11. On May 30,
2018, nine days after the Scheduling Order's pretrial
motion deadline, Plaintiff requested leave to file a motion
for summary judgment. Doc. 33. Plaintiff explains
that his attorney in charge of drafting the motion for
summary judgment, Derek Braziel, was unable to timely file it
due to his wife's illness, which began on May 11, 2018.
Doc. 33 at 1-2.
Rule of Civil Procedure 6(b) provides that “[w]hen an
act may or must be done within a specified time, the court,
may for good cause, extend the time . . . on motion made
after the time has expired if the party failed to act because
of excusable neglect.” “[A] finding of excusable
neglect under Rule 6(b)[(1)(B)] requires both a demonstration
of good faith by the parties seeking the enlargement and also
it must appear that there was a reasonable basis for not
complying within the specified period.”
Stark-Romero v. Nat'l R.R. Passenger Co.
(AMTRAK), 275 F.R.D. 544, 547 (D.N.M. 2011) (citing
In re Four Seasons Sec. Laws Litig., 493 F.2d 1288,
1290 (10th Cir. 1974)). Inadvertence, ignorance of the rules,
and mistake of the rules are not sufficient to show excusable
neglect. Quigley v. Rosenthal, 427 F.3d 1232, 1238
(10th Cir. 2005).
Federal Rule of Civil Procedure 16(b)(4) a scheduling order
may be modified “only for good cause and with the
judge's consent.” See, e.g., Walker v.
THI of New Mexico at Hobbs Ctr., 262 F.R.D. 599, 605
(D.N.M. 2009) (extending the deadline to amend a complaint
after the scheduling order's deadline on a finding of
good cause). “[Rule 16(b)] focuses on the diligence of
the party seeking leave to modify the scheduling order to
permit the proposed amendment.” Trujillo v. Bd. of
Educ. of the Albuquerque Pub. Sch., No. CIV 02-1146
JB/LFG, 2007 WL 2296955, at *3 (D.N.M. June 5, 2007).
“[T]he court may modify the schedule on a showing of
good cause if it cannot reasonably be met despite the
diligence of the party seeking the extension.”
Walker, 262 F.R.D. at 603 (citing Fed.R.Civ.P. 16
advisory committee's notes to 1983 amendment).
“[T]he concepts of good cause, excusable neglect, and
diligence are all related.” Stark-Romero, 275
F.R.D. at 548.
Plaintiff has shown excusable neglect in failing to meet the
dispositive motions deadline and good cause to extend the
Scheduling Order. Plaintiff's attorney responsible for
drafting the motion for summary judgment, Derek Braziel, was
not able to timely file the motion because his wife became
seriously ill. Plaintiff provides ample details of Mrs.
Braziel's illness and the impact of her illness, which
demonstrates that Mr. Barziel had a reasonable basis for
missing the motions deadline and that he is not acting in bad
faith by requesting this extension. See Doc. 33-1.
Accordingly, Plaintiff has demonstrated excusable neglect in
failing to meet the deadline to file his Motion for Summary
Braziel has also demonstrated diligence in attempting to meet
the Scheduling Order's pretrial motions deadline. This
Court previously concluded that Plaintiff did not demonstrate
diligence sufficient to extend the Scheduling Order's
deadlines for discovery or amendment of pleadings. Docs.
37, 42. At that time, Plaintiff failed to show that he
had actually been pursuing discovery and could not reasonably
have finished discovery or amended his Complaint within the
required time. Doc. 37 at 4-6. The present situation
is quite different. Mr. Braziel's wife fell ill ten days
before the dispositive motions deadline and required
care until after that deadline expired on May 27, 2018.
Doc. 33-1. Rather than providing unspecified claims
about needing more time, Mr. Braziel here details why he
could not reasonably comply with this Court's Scheduling
Order. As such, Plaintiff has demonstrated good cause to
extend the deadline for the filing of his motion for summary
Plaintiff moved to amend the dispositive motions deadline
only nine days after it had passed. In Walker, the
court found good cause to allow an amended complaint after
the scheduling order's deadline for amending had passed,
noting that the deadline had only passed by eighteen days and
it was early in the case. Walker, 262 F.R.D. at 605.
In contrast, the court in Trujillo denied amending
the scheduling order, finding that “the good cause
showing required by rule 16(b) was not met when the defendant
filed a motion for leave to amend over a year after the
deadline had expired and only two months before trial.”
Id. at 605 (citing Trujillo, 2007 WL
2296955, at *2.). This case presents a situation much more
similar to Walker than Trujillo.
“rigid adherence to pretrial conference agreements
should not be exacted, especially where to do so will result
in injustice to one party and relaxing of such agreement will
not cause prejudice to the other party.” Id.
at 603 (citing Smith Contracting, Corp. v. Trojan Const.
Co., Inc. 192 F.2d 234, 236 (10th Cir. 1951)).
Defendants will not be prejudiced by this minimal extension.
We are relatively early in these proceedings, as a motion for
class certification is still pending and trial is not set
until January 2019. Moreover, after the class certification
issue is decided, the Court will allow the parties to submit
a provisional discovery plan on any additional needed
discovery. Docs. 37, 42.
also seeks leave to file exhibits in excess of the page
limitations set under Local Rule 10.5. Doc. 33 at 5.
Defendant's failure to respond to this request
constitutes consent to grant it. See D.N.M.LR-CIV
7.1(b). The Court therefore grants Plaintiff leave to file
exhibits in excess of 50 pages.
IT IS HEREBY ORDERED that Plaintiff's
Motion for Leave to File Motion for Summary Judgment
(Doc. 33) is granted. Plaintiff