United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING DEFENDANT'S MOTION FOR LEAVE TO
FILE MOTION FOR SUMMARY JUDGMENT [DOC. 100] AND SUSPENDING
THE FINAL PRETRIAL AND TRIAL DATES UNTIL FURTHER
Victoria A. Roberts, United States District Judge
to the Court's scheduling order, the deadline to file
dispositive motions was August 12, 2016. Plaintiff Howard
Pittman and Defendant iServe Servicing, Inc., filed cross
motions for summary judgment. The Court granted iServe's
motion and dismissed it from this case, and denied
Pittman's motion. Servis One, Inc. d/b/a BSI Financial
Services (“BSI”) - the sole remaining defendant -
did not file a timely dispositive motion.
moves for leave to file a late motion for summary judgment or
motion for judgment as a matter of law; BSI's motion for
leave (which incorporates BSI's motion/brief for summary
judgment) is before the Court. [Doc. 100]. The motion is
says the Court decided the threshold legal issue in its order
regarding cross motions for summary judgment - i.e.,
“that the loan modification upon which Pittman's
claims were predicated did not conform with the Statute of
Frauds” - such that Pittman's claims fail as a
matter of law, and “[a] trial would not be in the best
interest of either party.” [Doc. 100, PgID 2456-57].
says BSI cannot establish the good cause necessary to warrant
its late filing and modification to the scheduling order
under Federal Rule of Civil Procedure 16(b)(4).
Alternatively, he requests an opportunity to respond to the
motion for summary judgment if the Court grants BSI leave.
[scheduling order] may be modified only for good cause and
with the judge's consent.” Fed.R.Civ.P. 16(b)(4).
“The primary measure of Rule 16's ‘good
cause' standard is the moving party's diligence in
attempting to meet the case management order's
requirements.” Inge v. Rock Fin. Corp., 281
F.3d 613, 625 (6th Cir. 2002) (citation omitted). The Court
should also consider any “possible prejudice to the
party opposing the modification.” Id.
cannot establish good cause. Although it responded to
Pittman's motion for summary judgment and was aware of
the issues and governing law, BSI did not file this motion
until five months after the dispositive motion deadline and
over a month after the Court ruled on the cross motions for
summary judgment. Moreover, trial is scheduled to begin
February 21, 2017. This is carelessness, not diligence.
other hand, entertaining BSI's motion for summary
judgment would not prejudice Pittman. In fact, if BSI is
entitled to judgment as a matter of law, resolving this
matter on summary judgment - rather than proceeding to trial
and ultimately granting BSI judgment as a matter of law after
Pittman presents his case - would save Pittman the time and
expense of preparing for trial (e.g., completing the joint
final pretrial order, briefing motions in limine,
appearing for final pretrial conference, etc.) and appearing
at trial. Nevertheless, because the primary consideration of
the good cause standard is the moving party's diligence,
BSI fails to show it is entitled to a modification of the
scheduling order under Rule 16(b)(4).
this failure, “the Court has the inherent authority to
consider untimely motions for summary judgment even where a
party has not shown good cause for an extension of
time.” Cooper v. Shelby Cnty., Tenn., No.
07-2283-STA-CGC, 2010 WL 3211677, at *3-*4 (W.D. Tenn. Aug.
10, 2010). As the Sixth Circuit held, “it is within the
court's discretion to consider a motion for summary
judgment, even after the time stipulated in the court's
order, where such consideration will eliminate unnecessary
trials which waste the parties' time and money, and allow
the court to give judgment on the issues of law where no
disputed issues of fact are found.” Williams v.
Wilkinson, 134 F.3d 373, 1997 WL 809971, at *2 (6th Cir.
Dec. 18, 1997) (internal quotation marks and brackets
Court will entertain BSI's motion for summary judgment,
because: (1) the Court previously ruled that (i) no signed
permanent loan modification existed, (ii) Michigan law bars
Pittman from arguing estoppel, and (iii) Pittman cannot show
BSI made an error in reporting his loan payments as overdue;
and (2) ruling on the motion may prevent an unnecessary
trial, which would save time, money, and judicial resources.
See id.; Century Indem. Co. v. Aero-Motive
Co., 379 F.Supp.2d 879, 880-81 (W.D. Mich. 2004),
aff'd, 155 Fed.Appx. 833 (6th Cir. 2005).
may file a supplemental response/sur-reply to BSI's
motion for summary judgment and reply brief. The supplemental
response/sur-reply is due FEBRUARY 13, 2017, and may not
exceed 5 pages.
Court is entertaining BSI's motion because it may serve
judicial efficiency by preventing an unnecessary trial, and
may save the parties Court the associated time and expense
that goes with trial. However, BSI's lack of diligence in
bringing this motion only one month before trial is set to
begin is inexcusable and sanctionable. See Chao v. Local
951 United Food & Commercial Workers, No. 1:05-CV-638,
2006 WL 2771771, at *1-*2 (W.D. Mich. Sept. 25, 2006);
16(f) allows the Court to “issue any just orders,
including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if
a party or its attorney . . . fails to obey a scheduling or
other pretrial order.” Fed.R.Civ.P. 16(f)(1)(C).
BSI's inexcusable failure to comply with the scheduling
order justifies a sanction.
Court SANCTIONS BSI's counsel $2, 000, payable to
Pittman; Pittman's counsel is not entitled to any of this
amount. BSI's ...