Opinion
02-CV-0620E(Sr)
March 25, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiffs Joseph and Gail Raimond filed this personal injury action on August 29, 2002. Defendant filed a motion for summary judgment on January 12, 2004 — the deadline established by this Court's Scheduling Order dated December 17, 2002. Plaintiffs' counsel, John Lloyd Egan, Esq., received the defendant's motion on January 13. By letter dated January 15, Egan moved to vacate the defendant's motion on the ground that it was not received by Egan until the day after the January 12 deadline. On February 3, plaintiffs filed a cross-motion for summary judgment, which the defendant opposes on grounds of untimeliness. This matter was argued and submitted on February 13. For the reasons set forth below, plaintiffs' motions will be denied.
Plaintiffs alleged that Joseph Raimond ("Raimond") slipped and fell at Veterans Hospital on December 25, 2001. Gail, Raimond's wife, seeks damages for loss of consortium.
As the defendant correctly and concisely noted in its opposing Memorandum of Law, Rule 5(b)(1) of the Federal Rules of Civil Procedure ("FRCvP") permits service upon a party by serving the party's attorney. Furthermore, FRCvP 5(b)(2)(B) permits service by "[m]ailing a copy to the last known address of the person served." FRCvP 5(b)(2)(B) further provides that "[s]ervice by mail is complete on mailing." Indeed, as the Seventh Circuit Court of Appeals has noted:
"Service is deemed complete at the instant the documents are placed into the hands of the United States Post Office or a Post Office Box. The critical event in the service procedure under Rule 5 is the mailing, not receipt, of the papers sought to be served. Nonreceipt or nonacceptance of the envelope containing the papers is insignificant and has no effect on the validity of service."
Russell v. City of Milwaukee, 338 F.3d 662, 667 (7th Cir. 2003) (quoting Moore's Federal Practice § 5.04[2][a][ii] at 5-29 to 5-30) (emphasis added).
Consequently, the defendant's motion for summary judgment was timely filed and served when it was placed in the mail on January 12. Accordingly, plaintiffs' motion to vacate the defendant's motion for summary judgment will be denied.
As noted above, plaintiffs filed a cross-motion for summary judgment on February 3 — several weeks after the January 12 deadline established by this Court's Scheduling Order dated December 17, 2002. FRCvP 16(b) provides in relevant part that a scheduling order "shall not be modified except upon a showing of good cause and by leave of the district [court] judge ***." In applying this standard, this Court has indicated that good cause may be shown by, inter alia, the diligence of the party seeking an extension.
Woolcott v. E.I. DuPont de Nemours Co., 1996 WL 685735, at *2 (W.D.N.Y. 1996).
Plaintiffs have failed to satisfy this standard. Indeed, Egan indicated at oral argument and in correspondence that plaintiffs did not file a motion for summary judgment because they had not received the defendant's motion for summary judgment by January 12. First, plaintiffs have no right to cross-move for summary judgment in response to the defendant's motion. If plaintiffs wanted to file a motion for summary judgment, they should have filed one by January 12 — regardless of whether they expected the defendant to file a motion for summary judgment. Second, plaintiffs failed to request an extension before the January 12 deadline — which is not to say that such extensions are routinely granted. Accordingly, plaintiffs' cross-motion for summary judgment will be denied.
Accordingly, it is hereby ORDERED that plaintiffs' motion to vacate the defendant's motion for summary judgment is denied, that plaintiffs' cross-motion for summary judgment is denied, that a scheduling order will subsequently issue with respect to defendant's motion for summary judgment and that plaintiffs shall file a statement of "material facts as to which it is contended that there exists a genuine issue to be tried" in compliance with Rule 56.1(b) of this Court's Local Rules of Civil Procedure by April 23, 2004.
It should be noted that plaintiffs' Statement of Material Facts as to Which There is No Genuine Issue to be Tried filed on February 3, by definition, does not comply with the requirements set forth by Rule 56.1(b), as opposed to Rule 56.1(a).