Opinion
Civil Action No. 3:00-CV-0913-D
December 4, 2001
ORDER
The following motions that are before the court for decision are decided by this order: (1) defendant Dr. Herman Smith's ("Dr. Smith's") August 30, 2001 motion for leave to file amended pleading; (2) plaintiff Karen Jo Barrow's ("Barrow's") September 4, 2001 motion for leave to file plaintiff's second amended original complaint; (3) Dr. Smith's September 7, 2001 motion for court to establish reasonable hourly rate; (4) Dr. Smith's September 17, 2001 motion for leave to file two motions for summary judgment; (5) Dr. Smith's September 19, 2001 motion to extend deadline for submission of motion for summary judgment; and (6) Dr. Smith's November 2, 2001 motion for automatic substitution of new superintendent.
I
The court will consider together Dr. Smith's August 30, 2001 motion for leave to file amended pleading and Barrow's September 4, 2001 motion for leave to file plaintiff's second amended original complaint.
The court denies these motions without prejudice to the parties' moving anew for such relief after the court decides the pending summary judgment motions. Although the motions for leave to amend were timely filed under the court's May 18, 2001 order granting joint agreed motion to extend pretrial deadlines, both parties waited to file them until the eve of the last, or the last, allowable day. The May 18, 2001 order established October 1, 2001 as the deadline for filing summary judgment motions. Because of the briefing deadlines provided by local civil rules, the parties had no opportunity to know before filing their respective summary judgment motions whether the opposing party's motion for leave to amend would be granted. Concerning Dr. Smith's motion for leave, he filed his reply brief on September 28, 2001, the Friday before the October 1, 2001 Monday deadline for Barrow to file a summary judgment motion. As to Barrow's motion for leave, she filed her reply brief on October 11, 2001, ten days after Dr. Smith's summary judgment motion was due.
This court will "carefully scrutinize a party's attempt to raise new theories of recovery by amendment when the opposing party has filed a motion for summary judgment." Parish v. Frazier, 195 F.3d 761, 764 (5th Cir. 1999) (per curiam). In deciding whether to grant leave, the court may consider such factors as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.[.]" Overseas Inns S.A. P.A. v. United States, 911 F.2d 1146, 1150-51 (5th Cir. 1990) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The court concludes that it would unduly prejudice Dr. Smith and Barrow if the court allowed either to amend after the opposing party's summary judgment motion was already on file. See id. at 1151 (holding that "[t]o grant . . . leave to amend is potentially to undermine [a party's] right to prevail on a motion that necessarily was prepared without reference to an unanticipated amended complaint. . . . A party should not, without adequate grounds, be permitted to avoid summary judgment by the expedient of amending its complaint." (quoting this court's opinion below)).
II
The court denies without prejudice as premature Dr. Smith's September 7, 2001 motion for court to establish reasonable hourly rate.
Because Dr. Smith appears to seek this relief, however, to assist in settlement negotiations, see D. Mot. at 3 (contending that "Plaintiff's expectation of receiving such compensation has distorted any reasonable evaluation of this case and hampered the parties' ability to bring about any resolution of the litigation short of trial."), and since settlement is to be encouraged under this court's Civil Justice Expense and Delay Reduction Plan, the court observes that it is doubtful that Barrow's counsel can demonstrate a basis to recover attorney's fees anywhere near the rate of $525.00 per hour under the lodestar formulation or under an adjustment warranted by one or more of the factors of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
III
The court grants Dr. Smith's September 17, 2001 motion for leave to file two motions for summary judgment. At a minimum, N.D. Tex. Civ. R. 56.2(b) contemplates that the court will allow a defendant who raises the defense of qualified immunity to move first for summary judgment on that basis and, if unsuccessful, to move anew for summary judgment on the merits since qualified immunity is immunity from suit rather than merely immunity from liability.
Accordingly, after the court decides Dr. Smith's October 1, 2001 motion for partial summary judgment, he may, if appropriate, file a second motion for summary judgment within 20 days of the date the court's decision is filed or, if the court later permits Barrow to amend, no later than the date the court sets by order.
IV
Dr. Smith's September 19, 2001 motion to extend deadline for submission of motion for summary judgment is denied as moot. Dr. Smith timely filed a motion for partial summary judgment by the October 1, 2001 deadline established by court order. The court has today granted him leave to file a second summary judgment motion after that deadline. See supra § III.V
Dr. Smith's November 2, 2001 motion for automatic substitution of new superintendent is granted as follows based on Rule 25(d)(1). Barrow's official capacity claims against Dr. Smith are now asserted against William Smith, in his official capacity. The court declines, however, to change the style of the case.
SO ORDERED.