Opinion
22-CV-1623-WVG
05-01-2023
SHANNON FLYNN, Plaintiff, v. KILOLO KIJAKAZI, Commissioner of Social Security, Defendant.
ORDER ON JOINT MOTION TO STRIKE PLAINTIFF'S MERIT[S] BRIEF AND MODIFY SCHEDULING ORDER
Hon. William V. Gallo, United States Magistrate Judge
Before the Court is the Parties' Joint Motion to Strike Plaintiff's Merit[s] Brief and Modify Scheduling Order (“Joint Motion”). (Doc. No. 18.) By way of Defendant's stipulation, Plaintiff moves the Court to strike her erroneously and late-filed Merits Brief (Doc. No. 17) and continue all deadlines set forth in the operative Scheduling Order by approximately six weeks. Having reviewed and considered the Parties' submissions, the Court GRANTS IN PART and DENIES IN PART the Parties' Joint Motion. Specifically, as to Plaintiff's first request, the Court GRANTS the request and STRIKES from the docket Plaintiff's April 24, 2023-filed Merits Brief. (Doc. No. 17.) As to Plaintiff's second request, the Court DENIES the request and ORDERS as follows:
In relevant part, on February 8, 2023, this Court issued the operative Scheduling Order in this matter. (Doc. No. 14.) The Scheduling Order set forth the following deadlines:
(1) A March 8, 2023, deadline ordering Plaintiff to serve her written settlement proposal to Defendant;
(2) A March 22, 2023, deadline ordering Defendant to confer with Plaintiff regarding her contentions;
(3) A March 29, 2023, deadline ordering the Parties to either file a stipulation disposing of the case or a joint status report advising that resolution has not yet been reached;
(4) An April 5, 2023, deadline ordering Plaintiff to serve her portion of the Joint Motion for Judicial Review to Defendant;
(5) A May 17, 2023, deadline ordering Defendant to serve its portion of the Joint Motion for Judicial Review to Plaintiff;
(6) A May 24, 2023, deadline ordering Plaintiff to incorporate her reply to Defendant's portion of the Joint Motion for Judicial Review; and
(7) A May 31, 2023, deadline ordering Defendant to sign and file the Joint Motion for Judicial Review.
The Joint Motion reveals Plaintiff has missed all of her deadlines to date. In turn, the circumstance has had an adverse cascading effect on this case's progression. Specifically, Plaintiff's dilatory approach to this litigation has hampered Defendant's ability to meet its March 22, 2023, deadline to confer with Plaintiff regarding her contentions in this case as well as the Parties' ability to meet their March 29, 2023, deadline to file a dispositive stipulation or joint status report regarding settlement. Equally glaring, the Joint Motion is bereft of good cause to absolve Plaintiff's counsel of his apparent neglect of this action -something that counsel appears to have made a habit of, given his admitted oversight of both the operative Scheduling Order and the Court's March 7, 2023, Order denying Plaintiff's first continuance request in this case. (Doc. Nos. 14, 16.) Given the circumstance, the Court issues this ORDER TO SHOW CAUSE as to two matters, specifically why (1) this Court should accept Plaintiff's late-filed Merits Brief, despite its untimeliness; and (2) sanctions should not issue against Plaintiff's counsel for his failure to meet existing deadlines and to timely raise continuance requests well in advance of the controlling deadlines in this case.
Given the aforementioned circumstances, the Court ORDERS Plaintiff to file, no later than 4:00 p.m. this Friday, May 5, 2023 , briefing consisting of no more than five (5) pages, excluding exhibits, setting forth all reasons explaining (1) why this Court should accept Plaintiff's Merits Brief notwithstanding its untimeliness; and (2) Plaintiff's repeated failures to meet the operative deadlines for purposes of Plaintiff's request to modify all dates in the operative Scheduling Order. In preparing her Order to Show Cause (“OSC”) briefing, the Court strongly encourages Plaintiff to cite to relevant legal authority and attach any and all documents in support of her position. The Court cautions Plaintiff that its patience for untimeliness in this matter has run its course. Sanctions shall swiftly follow in the event Plaintiff fails to meet the May 5, 2023, OSC briefing deadline.
Finally, Plaintiff's counsel is ORDERED to provide a copy of this Court's instant Order to Plaintiff herself upon issuance of this Order. To that end, the Court ORDERS Plaintiff to file concurrently with her OSC briefing and thus no later than 4:00 p.m. this Friday, May 5, 2023 a declaration dated and signed by Plaintiff averring her receipt and complete review of a copy of this instant Order.
IT IS SO ORDERED.