United States District Court, D. New Mexico
JANINE LAVIGNE, on behalf of herself and all others similarly situated, Plaintiff,
FIRST COMMUNITY BANCSHARES, INC.; FIRST COMMUNITY BANK; DOES 1-10, inclusive, Defendants.
ORDER GRANTING MOTION FOR LEAVE TO FILE CROSS MOTIONS
FOR SUMMARY JUDGMENT
Fashing United States Magistrate Judge.
MATTER comes before the Court on Defendants First Community
Bancshares, Inc. and First National Bank Texas's Motion
for Leave to Move for Summary Judgment filed on August 31,
2018 (Doc. 141). Plaintiff Janine LaVigne filed her response
on September 14, 2018 (Doc. 143). Defendants did not file a
reply, and one is not necessary. Having reviewed the
parties' submissions and being otherwise fully advised,
the Court finds the motion is well taken and will GRANT it.
deadline to file dispositive motions in this case was March
17, 2017. Doc. 71. In their motion, defendants request leave
to file a motion for summary judgement after the deadline to
file dispositive motions based on ACA Int'l v. Fed.
Commc'ns Comm'n, 885 F.3d 687 (D.C. Cir. 2018).
ACA International was decided by the United States
Court of Appeals for the District of Columbia on March 16,
2018, a year after the deadline for dispositive motions had
passed. Defendants argue that the ACA International
case is dispositive of plaintiff's Telephone Consumer
Protection Act (“TCPA”) claims. Doc. 141 at 3-5.
Plaintiff does not oppose Defendants' motion and requests
that she be permitted to move for summary judgment as well.
schedule may be modified only for good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4). Generally,
“‘good cause' means that scheduling deadlines
cannot be met despite a party's diligent efforts.”
Mann v. Fernandez, 615 F.Supp.2d 1277, 1285 (D.N.M.
2009); Gorsuch, Ltd. v. Wells Fargo Nat'l Bank
Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014) (Good
cause under Rule 16(b)(4) “requires the movant to show
the scheduling deadlines cannot be met despite the
movant's diligent efforts.”). “Carelessness
is not compatible with a finding of diligence and offers no
reason for a grant of relief.” Mann, 615
F.Supp.2d at 1285.
Without attempting a rigid or all-encompassing definition of
good cause, it would appear to require at least as much as
would be required to show excusable neglect, as to which
simple inadvertence or mistake of counsel or ignorance of the
rules usually does not suffice, and some showing of good
faith on the part of the party seeking the enlargement and
some reasonable basis for noncompliance within the time
specified is normally required.
Broitman v. Kirkland, 86 F.3d 172, 175 (10th Cir.
1996) (citations and emphasis omitted).
addition to a party's diligence, courts have considered a
number of other factors in determining whether there is good
cause to reopen case management deadlines. Mann, 615
F.Supp.2d at 1286. These factors include whether trial is
imminent, whether the request to reopen is opposed, whether
the non-moving party would be prejudiced, the explanation for
the party's failure to meet the original deadline, and
the importance of what the court would otherwise be
excluding. Id. Whether the requested extension will
interfere with effective case management or infringe on the
efficient adjudication of the case is also a factor of
considerable significance. C.F. v. Capistrano Unified
Sch. Dist., 656 F.Supp.2d 1190, 1197 (C.D. Cal. 2009).
The decision to modify the Scheduling Order “is
committed to the sound discretion of the trial court.”
Smith v. United States, 834 F.2d 166, 169 (10th Cir.
that good cause exists to permit the parties to file cross
motions for summary judgment based on the recently decided
case ACA Int'l v. Fed. Commc'ns Comm'n,
885 F.3d 687 (D.C. Cir. 2018) which, as the parties explain,
may be dispositive of plaintiff s TCPA claims. First, trial
is not imminent as a trial date has not been set. Second, the
motion for leave to file a motion for summary judgment is not
opposed. Third, the plaintiff will not be prejudiced as she
also will be permitted to file a cross motion for summary
judgment. Fourth, defendants were diligent and could not have
brought a motion based on the ACA International case
prior to the deadline because that case was decided a year
after the deadline had passed. Finally, allowing the parties
to submit motions based on ACA International will
not infringe on the efficient adjudication of the case and
may be dispositive of the issues. An evaluation of the
factors establish that good cause exists to permit the
parties to file motions for summary judgment based on ACA
International and its progeny even though the deadline
for dispositive motions has passed.
THEREFORE ORDERED that,
1. Defendants First Community Bancshares, Inc. and First
National Bank Texas's Motion for Leave to Move for
Summary Judgment filed on August 31, 2018 (Doc. 141) is
2. Plaintiffs request to file a cross motion for summary
judgment (Doc. 143) is also GRANTED;
3. The parties will submit simultaneous motions for summary
judgment no later than October 31, 2018.
Responses and replies will be filed in accordance with
D.N.M.LR Civ. 7.4; and
4. The motions for summary judgment must be based on ACA
International (and subsequent opinions applying the
holding in ACA International) and its ...