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Rich v. Sheppard

United States District Court, S.D. Mississippi, Northern Division

April 9, 2018

GERALD M. RICH PLAINTIFF
v.
ALEXANDRIA VICTORIA SHEPPARD, JAMES PATRICK SHEPPARD, PHILLIP THOMAS, AND JOHN DOES 1-10 DEFENDANTS

          ORDER

          DANIEL P. JORDAN III, CHIEF UNITED STATES DISTRICT JUDGE

         This tort action is before the Court on Plaintiff Gerald Rich's Motion for an Extension of Time [81] and Motion to Re-Open Discovery [85]. For the reasons that follow, the Court denies both motions to the extent they seek to amend the scheduling order but grants Rich an extension of time to respond to the pending summary-judgment motions.

         I. Background

         Patricia Sheppard died in May 2015, leaving two children-Defendants Victoria and Bud Sheppard. She also left Plaintiff Gerald Rich, who describes himself as her “life partner” but not her husband. In very basic terms, the Sheppard Defendants and Rich have disputed the final months of Patricia's life in two civil suits. The first is a will contest in chancery court. The second is this case in which Rich says Victoria and Bud, along with Patricia's attorney Phillip Thomas, influenced Patricia to shut Rich out of her life and remove him from her will. The Sheppard Defendants accuse Rich of fraud and conversion, which they assert as counterclaims.

         On February 28, 2017, the Court narrowed the issues in the present suit, dismissing some claims under Federal Rule of Civil Procedure Rule 12(c) while allowing Rich to proceed on claims for intentional infliction of emotional distress (“IIED”) and negligent infliction of emotional distress (“NIED”). See Feb. 28, 2017 Order [31] at 16-17.

         After resolving the Rule 12(c) issues, the Court entered a Case Management Order setting Plaintiff's expert-disclosure deadline for May 3, 2017. See Mar. 7, 2017 Order [33]. The Court also set discovery and motion deadlines but later extended them to October 13 and 27 respectively. During the discovery period, the parties participated in written discovery and deposed Rich, the Sheppard Defendants, and Thomas. Once discovery closed, Defendants filed separate summary-judgment motions on October 27. See Thomas Mot. [71]; Sheppard Mot. [73].

         Rich initially requested two short extensions of time to respond to these motions, but on December 7, 2017, his attorney sought leave to withdraw due to health concerns. See Pl.'s Mot. [77]. The Court granted that request on December 21, 2017, and gave Rich 60 days to retain new counsel. See Dec. 21, 2017 Text-Only Order. Then, on February 16, 2018, Wayne Ferrell, Jr., filed a Notice of Appearance [80] on Rich's behalf. Immediately afterwards, Rich filed two motions seeking 30 days to designate experts, 60 days of additional discovery, and 90 days to respond to Defendants' dispositive motions. See Pl.'s Mots. [81, 85]. Defendants oppose these requests. See Def.'s Resp. [88]; Defs.' Joinder in Doc. [89]. Neither side supported their positions with legal memoranda or legal authority.

         II. Standards

         Rich's motions collectively seek to amend the scheduling order so he can retain experts and reopen discovery before responding to Defendants' pending summary-judgment motions.

         The Fifth Circuit faced the same issue in Leza v. City of Laredo, observing that

[u]nder [Federal] Rule [of Civil Procedure] 16(b)(4), “[a] schedule may be modified only for good cause and with the judge's consent.” The good cause standard requires the party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension. Specifically, courts consider four factors in determining whether to allow a scheduling modification for good cause under Rule 16(b): (1) the explanation for the failure to complete discovery on time, (2) the importance of the amendment, (3) the potential prejudice in allowing the amendment, and (4) the availability of a continuance to cure such prejudice.

496 Fed.Appx. 375, 376 (5th Cir. 2012).

         Rule 56(d) raises similar issues as to requests for additional discovery before responding to summary-judgment motions. The rule states, “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may . . . allow time to obtain affidavits or declarations or to take discovery.” Fed.R.Civ.P. 56(d).[1]

Rule 56(d) motions for additional discovery are broadly favored and should be liberally granted because the rule is designed to safeguard non-moving parties from summary judgment motions that they cannot adequately oppose. Nevertheless, non-moving parties requesting Rule 56(d) relief may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts. Instead, the non-moving party must set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion.

Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013) (internal citations and ...


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