358 F.3d 859 (11th Cir. 2004), 02-16154, Young v. City of Palm Bay, Fla.

Docket Nº:02-16154.
Citation:358 F.3d 859
Party Name:William Dwayne YOUNG, Plaintiff-Appellant, v. CITY OF PALM BAY, FLORIDA, Paul Rumbley, in his individual capacity, Dante Cristofaro, in his individual capacity, Defendants-Appellees.
Case Date:February 02, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 859

358 F.3d 859 (11th Cir. 2004)

William Dwayne YOUNG, Plaintiff-Appellant,


CITY OF PALM BAY, FLORIDA, Paul Rumbley, in his individual capacity, Dante Cristofaro, in his individual capacity, Defendants-Appellees.

No. 02-16154.

United States Court of Appeals, Eleventh Circuit

February 2, 2004

Page 860

Mark Tietig, Lisa Kuhlman Tietig, Tietig & Tietig, Merritt Island, FL, for Plaintiff-Appellant.

Jeffrey S. Weiss, Erin J. O'Leary, Brown, Ward, Salzman & Weiss, Ernest H. Kohlmeyer, III, Michael J. Roper, Bell, Leeper & Roper, P.A., Orlando, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON, Chief Judge, COX, Circuit Judge, and PAUL [*], District Judge.

EDMONDSON, Chief Judge:

Plaintiff-appellant William D. Young appeals the district court's order granting defendants' motions for summary judgment on all counts. After four extensions of time, plaintiff's counsel still failed to submit timely memoranda in opposition to the motions. The district court refused to grant a fifth extension of time or to accept plaintiff's untimely filings. After a thorough review of defendants' motions and supporting affidavits and of the record properly before it, the district court concluded that defendants were entitled to summary judgment. We affirm.


We review a district court's grant of summary judgment de novo, viewing the facts--as supported by the evidence in the record--and reasonable inferences from those facts in the light most favorable to the nonmoving party. Info. Sys. and Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). Summary judgment is only proper where no genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If a reasonable jury could not find in favor of the nonmoving party, no genuine issue of material fact does exist; and summary judgment is proper. Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994). A mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). As Fed.R.Civ.P. 56(e) states, "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."

A review of the record properly before the district court convinces us that summary judgment for defendants was warranted on all counts. Excluding consideration of the untimely memoranda in opposition to summary judgment, plaintiff has failed to meet his burden of showing genuine issues exist for trial. We now turn to whether the district court properly excluded said memoranda or whether it abused its discretion in doing so.


Before we examine whether the district court abused its discretion by not granting plaintiff a fifth extension of time and by not considering plaintiff's untimely memoranda and supporting evidence, a discussion of the relevant procedural posture,

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including the earlier extensions of time, is useful.


The Case Management and Scheduling Order issued by the district court on 27 March 2001, set a due date of 31 May 2002 for all dispositive motions, with trial scheduled to begin 1 October 2002. It cautioned that "[i]n light of the district court's heavy felony trial calendar, at least four months are required before trial to receive memoranda in opposition to a motion for summary judgment, and to research and resolve the dispositive motion sufficiently in advance of trial." On 31 May 2002, all defendants timely moved for summary judgment.

On 10 June 2002, plaintiff's counsel, Mr. Tietig, requested his first motion for enlargement of time in which to respond to defendants' motions until 8 July 2002. It was unopposed. He gave three reasons for the extension request. First, he said that the reporting service would not be able to transcribe the depositions required for plaintiff's response until 17 June 2002: three days after the response would be due. Second, plaintiff's counsel "would have several quiet and uninterrupted weekends and Independence Day, besides regular workdays, to devote to the lengthy and complex statements of fact and memoranda of law in Mr. Young's responses." Third, "because of repetitive motion syndrome/arthritis, [he] must pace himself on using the computer keyboard needed for his reading, writing, and researching." On 12 June 2002, the district court gave a stamp of approval to the extension.

On 21 June 2002, Mr. Tietig requested an additional (again unopposed) extension until 22 July 2002. He said that the parties had reached a tentative settlement on 14 June 2002, subject to certain prerequisites, but that he would not know if the settlement would be firm until the end of June or early July. Because the response to defendants' motions "would require over 150 hours of time," and Mr. Tietig did not want to devote that amount of time to a response that could become moot, he made the request. On 2 July 2002, the district court again granted approval of the extension request.

On 12 July 2002 plaintiff's counsel requested his third unopposed motion for an enlargement of time until 3 August 2002. He said that further mediation was needed, and the earliest they could reconvene would be 17 July 2002. Again, because Mr. Tietig did not want to devote time to working on the response to defendants' motions for summary judgment until it was clear no settlement would arise, he asked for another extension. On 15 July 2002, the district court granted an extension in part, but only until 24 July 2002, because "[t]he extension requested will not afford the court sufficient time to review the submissions and research the issues presented prior to the trial term." The district court stated that "[n]o further extensions of any deadlines will be granted in this matter."

In spite of the district court's warnings, Mr. Tietig filed a fourth motion on 23 July 2002. He sought a continuance of 30 days for all dates in the case, including trial. He said he did so given the district court's indication that no additional extensions to respond to the motion for summary judgment would be granted because that would leave insufficient time for review before trial. Counsel, acknowledging that the district court said no further extension was to be granted, claimed that a further extension was needed because mediation was still ongoing and--chiefly--because his wife (also his co-counsel) was ill with kidney stone pains, a flu, and a...

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