Kelley v. Billings Clinic
| Decision Date | 21 January 2014 |
| Docket Number | CV 12-74-BLG-SEH-CSO |
| Court | U.S. District Court — District of Montana |
| Parties | MARK J. KELLEY, Plaintiff, v. BILLINGS CLINIC, Defendant. |
FINDINGS AND
RECOMMENDATIONS OF
After Plaintiff Mark J. Kelley ("Kelley") was fired from his employment with Defendant Billings Clinic ("Billings Clinic"), he filed this action asserting the following claims: (1) hostile work environment sexual harassment under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.; (2) hostile work environment sexual harassment under the Montana Human Rights Act ("MHRA"), Mont. Code Ann. § 49-2-101, et seq.; (3) quid pro quo sexual harassment under Title VII; (4) quid pro quo sexual harassment under the MHRA; (5) retaliation under Title VII; (6) retaliation under the MHRA; and (7) tortious interference with his employment with another employerunder Montana law. Second Am. Cmplt. (ECF 31) at 5-8.1
Two separate but interrelated motions are pending: (1) Billings Clinic's motion for summary judgment on all claims, ECF 63; and (2) Kelley's motion for leave to supplement his response to Billings Clinic's summary judgment motion, ECF 71. By Order filed May 7, 2013, this matter was reassigned to Judge Haddon. It has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). ECF 47 at 3.
Having reviewed the record, together with the parties' arguments and submissions, the Court grants Kelley's motion and makes the following Findings and Recommendations with respect to Billings Clinic's motion for summary judgment.
On July 31, 2013, Billings Clinic filed its summary judgment motion, supporting brief, statement of undisputed facts ("SUF"), and supporting exhibits. ECFs 63, 64, and 65. Under Local Rule 7.1(d)(1)(B), Kelley had 21 days to file his response brief. Under Local Rule 56.1(b) and (d), Kelley also was required to file a statement of disputed facts ("SDF").
On August 19, 2013, Kelley timely filed an unopposed motion for additional time to respond to Billings Clinic's summary judgment motion. ECF 66. On August 20, 2013, the Court extended the deadline for filing his response to September 6, 2013. ECF 67.
On September 6, 2013, Kelley filed his response brief and exhibits in opposition to Billings Clinic's summary judgment motion. ECF 68. Kelley did not file a SDF.
On September 20, 2013, Billings Clinic filed its reply brief. ECF 70. In it, Billings Clinic argued, in part, that its SUF must be deemed undisputed because Kelley failed to file a SDF. Id. at 2-3.
On September 24, 2013, Kelley filed his motion and supporting brief seeking leave to supplement his response to Billings Clinic's summary judgment motion by filing a SDF. ECFs 71 and 72. On October 8, 2013, Billings Clinic filed its opposition to Kelley's motion. ECF 73. On October 22, 2013, Kelley replied. ECF 74.
Kelley seeks permission to supplement his response to Billings Clinic's summary judgment motion by filing his SDF.2 Mtn. to Supplement (ECF 71). He argues that, due to a "technical error in preparing the response for e-filing[,]" he failed to file his SDF at the time he electronically filed his brief and other materials in response to Billings Clinic's summary judgment motion. Kelley's Br. (ECF 72) at 2. His mistake, Kelley argues, was inadvertent and is "unrelated to the merits of the litigation." Id. Kelley claims that he "immediately provided a copy of the [SDF] to Defendant when it was discovered that such document had not otherwise been provided." Id. And Kelley argues that Billings Clinic will not suffer unfair prejudice if he is allowed to file his SDF because he will not object if Billings Clinic seeks to file a supplement of its own. Id. at 3. As an attachment to his motion and brief, Kelley has filed the SDF he did not include in his original opposition to Billings Clinic's summary judgment motion andwhich he now wishes to make part of the record. ECF 71-1.
Billings Clinic opposes Kelley's motion. Billings Clinic's Resp. Br. (ECF 73). It argues that: (1) because Kelley received an extension of time, he had 37 days to prepare and file his response to Billings Clinic's summary judgment motion rather than the 21 days provided by Local Rule ("L.R.") 7.1(d)(1)(B), id. at 2; (2) L.R. 56.1(b) requires that a party responding to a summary judgment motion file a separate SDF and Kelley did not file one, id.; (3) after receiving Kelley's response brief and other documents, Billings Clinic filed its reply brief supporting its summary judgment motion, id.; (4) Billings Clinic argued in its reply brief, in part, that its SUF is, in fact, undisputed because Kelley did not file a SDF and did not cite or refer to his SDF in his response brief, id. at 2-3; (5) Kelley's counsel's claim that he did not realize his SDF was not filed until he received Billings Clinic's reply brief is not credible because: (a) the Court's ECF system gives counsel redundant notices of what has been filed; (b) even after the filing was complete, Kelley's counsel had two weeks to review the filing to discover the absence of his SDF; © although Kelley's counsel claims the SDF was already preparedat the time he filed his response and there is no way he could have prepared it in the time between receiving Billings Clinic's reply brief and his email seeking an extension of time, about 35 minutes actually elapsed from the filing of the reply brief and the email, which was enough time to draft the 4-page SDF; and (d) there are no references in Kelley's response brief to the SDF, id. at 4-5; and (6) Kelley's counsel has provided no basis to allow a supplemental filing here because he cannot show excusable neglect, Billings Clinic will suffer prejudice because it has been deprived of Kelley's SDF while preparing its reply brief, and Kelley's counsel has not acted in good faith because Kelley's response brief contains no mention of his SDF, id. at 6-8.
In reply, Kelley argues that his counsel's failure to notice the absence of his SDF until Billings Clinic raised the issue in its summary judgment reply brief is the type of excusable neglect contemplated by Rule 6(b).3 Reply Br. (ECF 74) at 1-2. He adds that Billings Clinic's claim that he acted in bad faith is unfounded. Id. at 2-4. Finally, Kelley argues that the Court should permit him to file his SDF so thatthis matter can be resolved on its merits rather than on an unintentional, technical violation of the rules that has no bearing on the substance of the case. Id. at 4-5.
Rule 6(b)(1) governs motions for enlargement of time. Subject to certain exceptions not applicable here, the Court may, for "good cause," extend deadlines imposed by one of the Federal Rules of Civil Procedure. Whether to grant an enlargement of time is committed to the Court's discretion. See In re Veritas Software Corp. Sec. Litig., 496 F.3d 962, 974 (9th Cir. 2007). Such a motion filed before a deadline has passed should "normally ... be granted in the absence of bad faith on the part of the party seeking relief or prejudice to the adverse party." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). But if a party files a motion for enlargement of time after a deadline has passed, the "good cause" standard becomes more stringent and a court should grant the motion only when the moving party missed the deadline because of "excusable neglect." Rule 6(b)(1)(B).
The Ninth Circuit has noted that "good cause" is not a highhurdle. "'Good cause' is a non-rigorous standard that has been construed broadly across procedural and statutory contexts." Ahanchian v. Xenon Pictures, Inc., 624 F.3d at 1259 (citations omitted).
Respecting the "excusable neglect" requirement, the Ninth Circuit applies a more rigorous standard that requires courts to "apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Id. at 1261 (). The test "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer, 507 U.S. at 395. Weighing Pioneer's equitable factors is left to the district court's discretion. Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004) (en banc).
The Ninth Circuit has stated that a court errs in failing "to engage in the equitable analysis mandated by Pioneer and Briones[.]"Ahanchian, 624 F.3d at 1261 (citing Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000)). And, in applying the analysis, courts "cannot create or apply any 'rigid legal rule against late filings attributable to any particular type of negligence[ ]'" by "impermissibly adopting a per se rule in applying the Pioneer/Briones balancing test." Id. at 1261-62 (citing Bateman, 231 F.3d 1220 and Pincay, 389 F.3d 853).
Conducting the required equitable analysis, the Court first finds that allowing Kelley to file his SDF will result in minimal prejudice to Billings Clinic. "Prejudice requires greater harm than simply that relief would delay resolution of the case." Lemoge v. U.S., 587 F.3d 1188, 1196 (9th Cir. 2009) (). Billings Clinic was aware that Kelley opposed its summary judgment motion on the merits. Including his responsive brief, Kelley filed more than 200 pages of documents — includingexhibits, affidavits, and deposition excerpts — in...
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