Opinion
Civil Action No. 3:01-CV-0709-R
April 5, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference, filed April 2, 2002, Defendant Southwestern Bell Telephone Company's Motion for Leave to File Supplemental Brief in Support of Motion for Summary Judgment and Supplemental Appendix to Motion for Summary Judgment, filed March 15, 2002, is before this Court for hearing, if necessary, and for recommendation. Having carefully considered the applicable authorities and the pleadings now on file, the Court RECOMMENDS that the motion for leave to file be DENIED with prejudice.
The Defendant seeks leave to file a supplemental brief and appendix to its motion for summary judgment. (D.'s Mot. at 3.) The supplemental brief and appendix purport to cure filing deficiencies in the original brief and appendix, which deficiencies compelled this Court to recommend on April 2, 2002, that the motion for summary judgment be stricken. (Id. at 2.) The Plaintiff objects to the motion for leave to file on four grounds: (1) that the motion for leave to file is not accompanied by a brief or certificate of conference, as required by Local Rule 7.1(h); (2) that the motion for leave to file does not offer grounds for excusable neglect, as required by Rule 6(h)(2) of the Federal Rules of Civil Procedure; (3) that the motion for leave to file was filed one day after the deadline for filing joint submissions on dispositive motions; and (4) that the Plaintiff has not had an opportunity to respond to the supplemental brief and appendix. (P.'s Resp. at 1-4.)
Although the supplemental brief and appendix appear to comply with the filing requirements of the District Court's Scheduling Order and of the Local Rules, the Court finds each of the Plaintiff's objections to the motion for leave to file to be persuasive. First, Local Rule 7.1(h) expressly requires a brief and a certificate of conference to be included with all motions for leave to file. L.R. 7.1(h). The Defendant includes neither in the instant motion for leave to file.
Second, Rule 6(b)(2) of the Federal Rules of Civil Procedure requires a showing of excusable neglect for failing to file the compliant brief and appendix within the specified time. Fed.R.Civ.P. 6(b)(2). Therefore, before permitting the Defendant to file the compliant brief and appendix weeks after the March 14, 2002, deadline for filing joint submissions on dispositive motions, the Court must determine whether the Defendant has demonstrated excusable neglect for failing to file the compliant brief and appendix by the specified deadline. The Defendant has failed to do so. The Defendant's motion for leave to file is devoid of any reason for the late filing of the compliant brief and appendix.
Third, the Defendant filed its motion for leave to file one day after the expiration of the March 14, 2002, deadline for filing joint submissions on dispositive motions and thirty-six days after the expiration of the February 7, 2002, deadline for filing dispositive motions. This late-filing is particularly egregious where, as here, the Defendant had already successfully moved for an extension of the dispositive motion deadline.
Fourth, the Plaintiff has not had an opportunity to respond to the compliant motion for summary judgment. If the Court were to grant the Defendant's motion for leave to file, the Plaintiff would be entitled to respond to the compliant motion for summary judgment. With a May 2002 trial setting in this case, the burden upon the Plaintiff to respond to the motion during trial preparation, as well as the burden upon the District Court to consider the motion before trial, would be too great. The burden is properly placed upon the parry that has twice filed deficient motions.
Moreover, the Court notes that the compliant brief and appendix are attached to the Joint Motion Submission, which submission also includes the original, deficient brief and appendix that this Court recommended be stricken. Because the Court cannot dismantle joint submissions to remove stricken portions, to grant the motion for leave to file would be to allow the entire Joint Motion Submission — including those portions recommended to be stricken — to be filed.
For the foregoing reasons, the Court RECOMMENDS that the Defendant's motion for leave to file be DENIED with prejudice.
SO RECOMMENDED, April 5, 2002.