Young v. City of Palm Bay, Fla.

Decision Date02 February 2004
Docket NumberNo. 02-16154.,02-16154.
Citation358 F.3d 859
PartiesWilliam Dwayne YOUNG, Plaintiff-Appellant, v. CITY OF PALM BAY, FLORIDA, Paul Rumbley, in his individual capacity, Dante Cristofaro, in his individual capacity, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

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 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 bronchial infection, which made it impossible for her to assist him. Mr. Tietig is blind, and his wife helps him review documents and exhibits.

On 29 July 2002, the district court granted the motion in part, extending the deadline to serve and to file responses to the defense summary judgment motions until 23 August 2002, but denied the motion to extend any other date. In addition, the district court wrote, in bold letters, that "[p]laintiff's counsel are warned: upon pain of sanctions, they had better start meeting deadlines in this and other cases." The court noted that it "has grown weary of accommodating this law firm's seeming inability or unwillingness to meet court-imposed deadlines."1 Also, the district court required Mr. Tietig to show cause in writing why he should not be sanctioned for representing that his co-counsel was too ill to work on this case "prior to, and since, 15 July 2002": she had appeared for a pretrial conference in another case on 18 July 2002.

On 7 August 2002, Mr. Tietig filed his response to the order to show cause. He explained that his wife had been too sick to perform thought-intensive work (except for relatively mechanical tasks) since 10 July 2002, although she attempted to do so, including attending the pretrial conference for the other case. Mr. Tietig stated that he did not mislead the court and that, to the contrary, "it seems that any law firm wishing to mislead this Court would have been superficially consistent, smooth, and covert by using the same reason throughout and by not appearing at the courthouse." He said that "many traumatic and catastrophic events have happened in the lives of Mr. and Mrs. Tietig over the last year, and it is their sincere hope that with these events behind them, they will not be required to request a significant number of extensions in the future." Also, Mr. Tietig suggested that he be given an automatic extension of time for his filings or that the mediator be given the power to grant extensions if the parties think that the case is close to being settled.

On 16 August 2002, the district court determined that no sanctions would be imposed against Mr. Tietig because of the "many traumatic and catastrophic events." But, the district court noted that Mr. Tietig came "perilously close to being sanctioned" and that he should take greater care in the future not to create a misleading impression. The district court rejected Mr. Tietig's procedural suggestions; the court said "the undersigned judge has learned through hard experience that an overly liberal policy of extending case management deadlines, even with the consent of all counsel, unnecessarily prolongs final resolution of lawsuits and complicates trial scheduling."

Despite the clear indication that the district court intended to enforce its deadlines, Mr. Tietig in a night-box filing again moved to extend the time to reply to defendants' motions for summary judgment on Friday, 23 August 2002: the last day of the extension the court had already granted. He requested an extension until Monday, 26 August 2002: a 3-day...

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