Nelson v. Bitters

• Decision Date: 24 January 2017
• Docket Number: No. 15-CV-4077-CJW,15-CV-4077-CJW
• Parties: CLARENCE G. NELSON, Jr., and VALORA L. NELSON, Plaintiffs, v. WILLIAM E. BITTERS (d/b/a United Financial Information Services), Defendant.
• Court: U.S. District Court — Northern District of Iowa

CLARENCE G. NELSON, Jr., and VALORA L. NELSON, Plaintiffs, v. WILLIAM E. BITTERS (d/b/a United Financial Information Services), Defendant.

No. 15-CV-4077-CJW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

January 24, 2017

ORDER

I. INTRODUCTION

This matter is before the Court pursuant to defendant's Motion for Summary Judgment (Doc. 41), plaintiffs' Motion to Dismiss Without Prejudice (Doc. 46), and plaintiffs' Motion for Leave of Court for Plaintiffs to Designate Experts Out of Time (Doc. 47). On January 13, 2017, the Court heard argument on the motions. During the hearing, the Court orally denied plaintiffs' Motion for Leave of Court for Plaintiffs to Designate Experts Out of Time (Doc. 47), but will explain in more detail the basis for its ruling herein. The Court now deems all motions fully submitted.

For the reasons that follow, the Court: (1) grants defendant's Motion for Summary Judgment (Doc. 41); (2) denies plaintiffs' Motion to Dismiss Without Prejudice (Doc. 46); and denies plaintiffs' Motion for Leave of Court for Plaintiffs to Designate Experts Out of Time (Doc. 47).¹

II. PROCEDURAL BACKGROUND

On September 21, 2015, plaintiffs filed a five-count complaint against defendant and Robert W. Boland. (Doc. 2). Count I alleged a breach of trust. Count II alleged gross negligence. Count III alleged breach of contract. Count IV alleged federal securities violations, and Count V alleged state securities violations.

On November 3, 2015, defendant Bitters filed a motion to dismiss the complaint. (Doc. 11). On November 24, 2015, defendant Boland filed a motion to dismiss the complaint. (Doc. 15).

On December 8, 2015, plaintiffs filed a motion for leave to file an amended complaint, with a proposed amended complaint attached. (Doc. 16). On the same day, plaintiffs filed a resistance to both motions to dismiss. (Doc. 17).

On December 22, 2015, defendants filed a joint resistance to plaintiffs' motion for leave to file an amended complaint. (Doc. 20).

On January 6, 2016, the Court granted plaintiffs' motion for leave to file an amended complaint. (Doc. 21). In its order, the Court held that defendants' pending motions to dismiss would be deemed to apply to plaintiffs' amended complaint, but indicated the parties could file supplemental briefs on or before January 25, 2016.

On the same day, plaintiffs filed their amended complaint. (Doc. 22).

On February 9, 2016, the Court adopted the parties' Proposed Scheduling Order and Discovery Plan. (Doc. 25). The Scheduling Order provided that plaintiffs' deadline for disclosing expert witnesses was May 6, 2016. (Id., at 1). It further provided that the "trial ready date" was December 12, 2016. (Id.). By consent of theparties, this case was assigned to a United States Magistrate Judge for final disposition. (Doc. 25). The Court set this case for a bench trial on December 19, 2016. (Doc. 26, at 1).

On March 18, 2016, the Court granted defendant Boland's motion to dismiss, but denied defendant Bitters' motion to dismiss. (Doc. 27).

On April 6, 2016, plaintiffs filed an unresisted motion to amend the scheduling order to extend the deadline to May 26, 2016, for filing motions to amend the pleadings. (Doc. 29). The next day the Court granted plaintiffs' motion. (Doc. 30).

On May 26, 2016, plaintiffs filed a second unresisted motion to amend the scheduling order to extend the deadline again for filing motions to amend the pleadings, this time asking the deadline be extended to June 27, 2016. (Doc. 31). The Court granted plaintiffs' motion the following day. (Doc. 32).

On June 27, 2016, plaintiffs filed a third unresisted motion to amend the scheduling order to extend the deadline for filing motions to amend the pleadings, this time requesting an extension to July 25, 2016. (Doc. 33). The following day the Court granted plaintiffs' motion. (Doc. 34). Plaintiffs never have since filed a motion to amend the pleadings.

On July 21, 2016, defendant filed a motion to continue the trial. (Doc. 36). Plaintiffs filed a response in which they consented to the continuance of the trial date, so long as other deadlines were also continued. (Doc. 37). On August 2, 2016, the Court held a telephonic hearing on the pending motion to continue the trial. (Doc. 39). The following day the Court entered an order continuing the trial to February 21, 2017. (Doc. 40). The Court granted an extension of the deadline for conducting discovery, but denied plaintiffs' request to extend deadlines for amending pleadings or disclosing expert witnesses, and explained why.

Regarding the request to extend discovery deadlines, the Court finds that the parties have acted with reasonable diligence and have shown good cause for extending some deadlines in this case. As noted, the Court has extended the deadlines for filing motions to amend pleadings and add parties on three occasions and will not do so again. Either party may, of course, file a motion seeking leave to add parties or amend pleadings out of time, setting forth the justification for the untimely motion, and the Court will consider it. Similarly, the Court will not extend the deadlines for expert witness disclosures. The deadlines for those disclosures have long since passed; and, during the hearing, the parties were unable to articulate any reason why they were unable to comply with those deadlines. Again, either party may file a motion seeking leave to disclose expert witnesses out of time, setting forth the justification for the untimely motion, and the Court will consider it.

(Doc. 40, at 4). The Court did, however, extended the deadlines for completing discovery and for filing dispositive motions. (Id.).

On November 21, 2016, defendant filed a timely motion for summary judgment. (Doc. 41). Pursuant to Local Rule 56:

b. Resisting Party's Documents. A party resisting a motion for summary judgment must, within 21 days after service of the motion, file contemporaneously all of the following:

1. A brief that conforms with the requirements of Local Rule 7.e in which the resisting party responds to each of the grounds asserted in the motion for summary judgment;

2. A response to the statement of material facts in which the resisting party expressly admits, denies, or qualifies each of the moving party's numbered statements of fact, filed as an electronic attachment to the brief under the same docket entry;

3. A statement of additional material facts that the resisting party contends preclude summary judgment, filed as an electronic attachment to the brief under the same docket entry; and

4. An appendix that conforms with the requirements of section "e" of this rule, filed as an electronic attachment to the brief under the same docket entry.

A response to an individual statement of material fact that is not expressly admitted must be supported by references to those specific pages,paragraphs, or parts of the pleadings, depositions, answers to interrogatories, admissions, exhibits, and affidavits that support the resisting party's refusal to admit the statement, with citations to the appendix containing that part of the record. The failure to respond, with appropriate citations to the appendix, to an individual statement of material facts constitutes an admission of that fact.

Each individual statement of additional material fact must be concise, numbered separately, and supported by references to those specific pages, paragraphs, or parts of the pleadings, depositions, answers to interrogatories, admissions, exhibits, and affidavits that support the statement, with citations to the appendix containing that part of the record.

c. Unresisted Motion. If no timely resistance to a motion for summary judgment is filed, the motion may be granted without prior notice from the court. If a party does not intend to resist a motion for summary judgment, the party is encouraged to file a statement indicating the motion will not be resisted.

LR 56(b) & (c).

Allowing for the three-day mailing rule (which no longer exists for documents filed electronically), plaintiffs' resistance to the motion for summary judgment was due December 15, 2016. On December 22, 2016, the Court entered a text order, noting that plaintiffs had failed to timely file a resistance, pointed out Local Rule 56(c), and indicated that if plaintiffs intended to resist the motion for summary judgment, they were, by December 30, 2016, to "file a motion seeking leave to file an untimely resistance, showing cause for failing to file a timely resistance." (Doc. 42).

On December 28, 2016, plaintiffs filed an unresisted motion for an extension of time to file a resistance to defendant's motion for summary judgment, asking for a two-week extension and citing the holiday season as the reason for needing additional time. (Doc. 43). Plaintiffs did not file a motion for leave to file a resistance out of time, as ordered, nor did their motion provide any explanation for their failure to file a timelyresistance. Nevertheless, on January 4, 2017, the Court granted in part plaintiffs' motion, extending to January 6, 2017, the deadline for filing a resistance. (Doc. 44).

On January 6, 2017, plaintiffs filed the following with the Court: a two-page "Resistance" to the motion for summary judgment (Doc. 45); a Motion to Dismiss Without Prejudice (Doc. 46); a Motion for Leave of Court for Plaintiffs to Designate Experts Out of Time (Doc. 47); and a brief purportedly in support of each of these motions (Doc. 48).

As noted, on January 13, 2017, the Court held a telephonic hearing on all pending motions. (Doc. 55). During the hearing, the Court pointed out that plaintiffs' brief in resistance to defendant's motion for summary judgment (Doc. 48) was identical to their resistance to defendant's motion to dismiss filed in December 2015. Plaintiffs replied that they had refiled that prior brief in error and had actually prepared a resistance to the motion for summary judgment. The Court therefore granted plaintif...