Opinion
NO. 3-00-CV-2558-R.
June 5, 2003.
MEMORANDUM ORDER
Defendants City of Dallas, Texas, City of Dallas Parks and Recreation Department, City of Dallas Parks Recreation Board, and Park Director Paul Dyer have filed separate motions for: (1) leave to file a second motion for summary judgment less than 90 days before trial; and (2) leave to file a motion to dismiss for failure to join indispensable parties. For the reasons stated herein, both motions are denied.
I.
This is a civil action brought by the heirs of Edward O. Tenison and Annie M. Tenison seeking, inter alia, to enforce their reversionary interest under a deed that conveyed approximately 78 acres of land to the City of Dallas for use as a public park. Succinctly stated, plaintiffs allege that the City's plan to redesign a municipal golf course situated on the property, increase green fees, and rename the property from "Tenison Park" to "Tenison Highlands" is inconsistent with the intent of the grantors-to use the property as a public park "for the use and enjoyment of the people of the City of Dallas."
Plaintiffs filed this lawsuit on November 11, 2000. Shortly thereafter, the court entered a scheduling order establishing certain pretrial deadlines, including an August 27, 2001 deadline for the joint submission of dispositive motions. Defendants timely filed a motion for summary judgment on the grounds that plaintiffs lacked standing to enforce the Tenison deed restrictions and that the City of Dallas and its departments were immune from suit. By order dated October 17, 2001, the motion was denied. Webb v. City of Dallas, 2001 WL 1338348 (N.D. Tex. Oct. 17, 2001). The Fifth Circuit affirmed this decision on direct appeal. Webb v. City of Dallas, 314 F.3d 787 (5th Cir. 2002), reh'g en ban denied, 2003 WL 342374 (5th Cir. Jan. 27, 2003). The case is now set for trial on a four week docket beginning August 4, 2003.
On May 30, 2003, just nine weeks before this trial setting, defendants sought leave to file a second motion for summary judgment and a motion to dismiss for failure to join indispensable parties. As grounds for this belated attempt to obtain summary dismissal, defendants argue that "newly discovered evidence" reveals that the golf course renovations undertaken by the City are consistent with intent of the grantors when they originally conveyed the property. Alternatively, if the case is not dismissed on this ground, defendants suggest that there may be other members of the Tenison family who have not been joined as parties but may have an interest in the subject matter of the suit. Plaintiff's oppose both motions.
II.
Because defendants seek leave to file a second motion for summary judgment and a motion to dismiss after the expiration of the dispositive motion deadline, they must satisfy the requirements of Rule 16(b) of the Federal Rules of Civil Procedure. This rule provides, in pertinent part, that "[a] schedule shall not be modified except upon a showing of good cause . . ." FED. R. Civ. P. 16(b). The "good cause" standard focuses on the diligence of the party seeking a modification of the scheduling order. Dallas Area Rapid Transit v. Foster, 2002 WL 31433295 at *1 (N.D. Tex. Oct. 28, 2002), cited with approval in SW Enterprises, L.L.P. v. Southtrust Bank of Alabama, N.A., 315 F.3d 533, 536 n. 2 (5th Cir. 2003). Mere inadvertence on the part of the movant and the absence of prejudice to the non-movant are insufficient to establish "good cause." Id. Instead, the movant must show that "despite his diligence, he could not have reasonably met the scheduling deadline." Id., citing 6A C. WRIGHT A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1522.1 at 231 (2d ed. 1990).
Judged against this standard, defendants have failed to demonstrate "good cause" for modifying the scheduling order. The "newly discovered evidence" relied on by defendants consists of original plats of the golf course, written correspondence signed by the grantors, historical information pertaining to green fees charged at the golf course, and several newspaper articles. However, all this information was available to defendants when they filed their first motion for summary judgment in July 2001. The fact that defendants recently hired new lawyers who found additional evidence that was overlooked by former counsel does not constitute "good cause" for modifying the scheduling order.
Not only do these documents date back to 1924, but they were found in the archives of the City of Dallas. (See Def. Mot. for Leave to File MSJ at 1-2, ¶ 1).
Accordingly, defendants' motions for leave to file a second motion for summary judgment less than 90 days before trial and for leave to file a motion to dismiss for failure to join indispensable parties are denied. Defendants may reurge their grounds for dismissal in a Rule 50 motion at trial.