United States District Court, S.D. Mississippi, Northern Division
GERALD M. RICH PLAINTIFF
ALEXANDRIA VICTORIA SHEPPARD, JAMES PATRICK SHEPPARD, PHILLIP THOMAS, AND JOHN DOES 1-10 DEFENDANTS
P. JORDAN III, CHIEF UNITED STATES DISTRICT JUDGE
tort action is before the Court on Plaintiff Gerald
Rich's Motion for an Extension of Time  and Motion to
Re-Open Discovery . 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.
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.
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  at 16-17.
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
. 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. ; Sheppard Mot. .
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. . 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  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. ; Defs.' Joinder in
Doc. . Neither side supported their positions with legal
memoranda or legal authority.
motions collectively seek to amend the scheduling order so he
can retain experts and reopen discovery before responding to
Defendants' pending summary-judgment motions.
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).
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).
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