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Rich v. Sheppard

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

September 11, 2018

GERALD M. RICH PLAINTIFF
v.
ALEXANDRIA VICTORIA SHEPPARD, JAMES PATRICK SHEPPARD, AND PHILIP THOMAS DEFENDANTS

          ORDER

          DANIEL P. JORDAN, III CHIEF UNITED STATES DISTRICT JUDGE

         This diversity case is before the Court on three dispositive motions and a host of peripheral disputes. Defendant Philip Thomas seeks summary judgment on the claims against him [71], as do Alexandria Victoria Sheppard (“Victoria”) and James Patrick Sheppard (“Bud”) (the “Sheppards”) [73]. Plaintiff Gerald Rich seeks dismissal, or alternatively, summary judgment on the Sheppards' counterclaims [108]. The parties also assert nine other motions related to those dispositive motions [111, 113, 114, 115, 120, 121, 127, 145, 149]. For the reasons that follow, the Court grants Thomas's Motion for Summary Judgment [71]; denies the Sheppards' Motion for Summary Judgment [73]; strikes Rich's Motion to Dismiss/Motion for Summary Judgment [108] without prejudice; and grants some of the remaining motions as more fully discussed herein.

         I. Background

         This is a sad story about the final months of Patricia Sheppard's (“Patricia”) life. She died in May 2014, leaving two children-the Sheppards. She also left Plaintiff Rich, who describes himself as her “life partner” but not her husband. In very basic terms, the Sheppards and Rich face each other in two civil actions that dispute Patricia's intentions as to her estate and her affections. The first is a will contest in chancery court. The second is this case in which Rich says the Sheppards, along with Patricia's attorney Phillip Thomas, influenced Patricia to shut Rich out of her life and remove him from her will. The Sheppards accuse Rich of fraud and conversion, which they assert as counterclaims.

         On February 28, 2017, this Court narrowed the issues, dismissing some claims under Federal Rule of Civil Procedure Rule 12(b)(6) 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. Now Thomas and the Sheppards seek summary judgment on those claims, and Rich seeks dismissal of the counterclaims.

         II. Analysis

         This Order first examines the peripheral motions before turning to the three dispositive motions.

         A. Plaintiff's Motion to Dismiss/Summary Judgment/Supplemental Response [108] and Defendants' Motion to Strike [120, 123]

         On June 1, 2018, Rich filed a document he called: “Plaintiff's Motion to Dismiss the Counterclaims or, in the Alternative, Motions for Summary Judgment on the Counterclaims; Memorandum in Support Thereof; and Supplemental Responses to Defendants' Motions for Summary Judgment” (hereinafter “Motion/Supplemental Response”). He docketed this omnibus submission three times [108, 109, 110], triggering a motion to strike by Thomas [120], to which the Sheppards filed a joinder [123].

         There are numerous substantive and procedural problems with Rich's Motion/Supplemental Response. So for the reasons that follow, the Court will grant Defendants' motion to strike, in part. The Court will not strike Rich's Motion/Supplemental Response to the extent it relates to subject-matter jurisdiction, but that portion of the submission is denied on the merits. Finally, the order striking his pleading will be without prejudice as to his arguments regarding the Sheppards' counterclaims.

         1. Uniform Local Rule 7(b)

         As an initial matter, Rich's Motion/Supplemental Response violates at least six local rules. First, he combined his motion and “memorandum” in the same pleading. Technically speaking, the submission reads more like a motion in that it generally lists Rich's issues without providing the typical legal analysis. Still, there are a few legal citations, so to the extent Rich filed a combined motion and memorandum, he violated Uniform Local Rule 7(b). See L.U. Civ. R. 7(b)(2) (“The memorandum brief must be filed as a separate docket item from the motion or response and the exhibits”); id. R. 7(b)(2)(B) (“[A] motion may not exceed four pages.); id. R. 7(b)(4) (“[C]ounsel for movant must file a memorandum brief in support of the motion.”).

         Second, Rich included with his motion a combined supplemental response to the summary-judgment motions separately filed by Thomas and the Sheppards. That violated three more subparts of Uniform Local Rule 7(b). See L.U. Civ. R. 7(b)(3)(B) (“A separate response must be filed as to each separately docketed motion.”); id. R. 7(b)(3)(C) (“A response to a motion may not include a counter-motion in the same document. Any motion must be an item docketed separately from a response.”); id. R. 7(b)(3)(D) (“A response to a motion may not be included in the body of a pleading, but rather should be a separately docketed item denominated in the record as a response and should be associated by docket number with the motion to which it responds.”).

         The Court is not attempting to pick nits and typically would not deny a motion for these technical issues alone. But rules exist for a purpose, and in this case, they help the Court differentiate the issues. By combining everything in one document and failing to provide an actual memorandum of law as to each motion he addressed, Rich made it considerably more difficult to follow his arguments and match them to the correct parties and motions. As discussed below, the motion to strike will be granted (in part) for other reasons, and if Rich reasserts any of these issues again, he will be expected to follow the rules.

         2. Timing

         Because Rich combined his motion, memorandum, and supplemental responses, different rules and procedural histories apply. To the extent he is filing a dispositive motion regarding the Sheppards' counterclaims, the extended deadline to do so was October 27, 2017. See Oct. 2, 2017 Text Order. Rich never sought leave to file his motion out of time, making it approximately seven months past due. To the extent his submission attempts to supplement his response to the two pending summary-judgment motions, the deadline for his summary-judgment responses was May 21, 2018. See Apr. 9, 2018 Order [100]. While Rich met that deadline with his first responses [101, 103], he filed a supplement on May 24 (that was not disputed) [107] and then the disputed Motion/Supplemental Response on June 1. In neither instance did he seek leave to file his supplements out of time.

         The Federal Rules of Civil Procedure contemplate missed deadlines. As a general matter, Rule 6(b)(1)(B) states that when, as in this case, “an act may or must be done within a specified time, the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.” (Emphasis added.) Relevant factors for excusable neglect include “the danger of prejudice to the non-movant, the length of the delay and its potential impact on the judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 n.8 (5th Cir. 2006) (citation and quotation marks omitted); see also Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 237 (5th Cir. 2015) (addressing factors for extending scheduling order deadlines-like the dispositive-motions deadline here-under Rule 16(b)(4)). Finally, “[e]ven if good cause and excusable neglect are shown, it nonetheless remains a question of the [district] court's discretion whether to grant any motion to extend time under Rule 6(b).” McCarty v. Thaler, 376 Fed.Appx. 442, 443-44 (5th Cir. 2010).

         In this case, Rich never filed the required motion seeking an extension of time to file his Motion/Supplemental Response, and his responses to Defendants' motions to strike do not fully address the relevant factors. See Defs.' Mem. [125]; Pl.'s Resp. [132]. Rich does address the cause factor in his responses, mentioning the earlier delays in the case, but he does not explain why he could not fully respond to the summary-judgment motions on time or file his dispositive motion earlier.

         It should be noted that Rich made the same type arguments when previously seeking more time to respond to Defendants' summary-judgment motions. The Court rejected those arguments and further found that the other good-faith factors did not warrant another extension. See Apr. 9, 2018 Order [100] at 4. Nevertheless, the Court gave Rich 40 additional days to respond. Id. at 10. Here, Rich never made a motion, but assuming he had, he would need to show excusable neglect because he missed the deadline. See Fed. R. Civ. P. 6(b)(1)(B). And given the Court's prior analysis of Rich's earlier request for an extension, plus the 40 extra days that were given, Rich should have filed a motion offering something more than the conclusory arguments in the present record regarding cause. Plus, the other relevant factors are largely unexplored.

         Rich does, however, make the legal argument that he was not required to seek leave. According to him, “Rule 56(e) provides the Plaintiff with an opportunity to supplement their [sic] responses, ” Pl.'s Resp. [132] ¶ 7, and “Rule 56 does not require the party supplementing their responses to seek leave of Court, ” id. ¶ 13. Rich is mistaken. Rule 56(e) expressly states that the “court may” grant relief when a party fails to support factual assertions. (Emphasis added.) It does not allow a party to supplement after an expired deadline without complying with Rule 6(b).

         Moreover, the very problem Rule 56(e) is designed to address is apparent throughout the Motion/Supplemental Response. Rule 56(e) exists to remedy a party's failure to support factual assertions in the way Rule 56(c) requires. And the Motion/Supplemental Response fails in that regard-it is replete with assertions for which Rich offers no citation to the record. So what Rich really needs is a Rule 56(e) order allowing him to file yet another supplement to fix the problems in his unauthorized Motion/Supplemental Response. That would only compound the delay.

         The Court recognizes that Rich's new attorney first appeared February 16, 2018, and the Court would anticipate some catching up. It was primarily for that reason that an additional 40 days were provided. But the Court has a responsibility to keep cases moving. See Leza v. City of Laredo, 496 Fed.Appx. 375, 376-77 (5th Cir. 2012) (noting that “district court judges have power to control their dockets by refusing to give ineffective litigants a second chance to develop their case”) (internal quotation marks and citation omitted). The instant case is way off track. Moreover, the failure to first seek leave to file this delinquent Motion/Supplemental Response merely adds weight to the other reasons it should be stricken.

         3. Jurisdiction

         One aspect of the Motion/Supplemental Response is not untimely-Rich says the Court lacks jurisdiction. Objections to subject-matter jurisdiction “may be raised at any time.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).[1]

         According to Rich, the parties are not diverse. See Pl.'s Mot. [108] ¶¶ 12, 13. As he correctly notes, the Sheppards' original Answer [8] averred that Bud is “a permanent resident citizen of Louisiana.” Defs.' Joint Answer [8] ¶ 3. If so, then he and Rich reside in the same state. But the Court spotted this issue when the Sheppards answered the Complaint. It therefore entered a sua sponte order directing them to show cause why the case should not be remanded. See Jan. 30, 2017 Order [26]. Defendants responded on February 9, 2017, and on that same day moved to amend their Answer to state that Bud was a Mississippi resident at the time suit was filed and at the time of Defendants' removal. See Defs.' Resp. [27]; Mot. to Amend [28]. Rich did not oppose the motion, see Pl.'s Resp. [30], and the Court granted it, see Feb. 28, 2017 Order [31].

         Despite this history, Rich now argues that “Defendant, James Patrick [“Bud”] Sheppard, never proved he was a Mississippi resident at the time the Complaint was filed.” Pl.'s Mot. [108] ¶ 13. Rich is again mistaken. In support of their motion to amend, the Sheppards attached Bud's unrebutted affidavit factually establishing diversity jurisdiction. See Sheppard Aff. [27-1]. Based on that record, the Court concluded that subject-matter jurisdiction existed. See Feb. 28, 2017 Order [31]. Rich has not shown otherwise.

         Rich also says remand is appropriate for the additional reason that “Thomas, a Mississippi resident, without any authority, removed the case to Federal Court.” Pl.'s Mot. [108] ¶ 13. Rich apparently relies on 28 U.S.C. § 1441(b)(2), which states: “A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” But “removal in violation of § 1441(b) [is] a defect in removal procedure, ” which can be waived if “the plaintiff[] fail[s] to move for remand within the requisite 30-day period.” In re 1994 Exxon Chem. Fire, 558 F.3d 378, 393 (5th Cir. 2009); accord Menendez v. Wal-Mart Stores, Inc., 364 Fed.Appx. 62, 64 (5th Cir. 2010). Rich missed that deadline. Jurisdiction is proper.

         4. Substance of Rich's Motion/Supplemental Response

         a. Supplemental Responses to Summary-Judgment Motions

         To the extent the Motion/Supplemental Response supplements Rich's summary-judgment responses, Rich was required to comply with Rule 56(c). That rule states in relevant part:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials. . . .

         Fed. R. Civ. P. 56(c)(1) (emphasis added).

         Yet the Motion/Supplemental Response offers few record citations in its 21 additional pages of assertions. As just one of many examples, Rich writes that the Sheppards “chose to once again, at the suggestion of and direction from Philip Thomas, (Gerald Rich's attorney), instructed [sic] someone to write a holographic Will in the State of Minnesota.” Pl.'s Mot. [108] ¶ 7. He offers no record citation to support the assertion, much less a cite to the particular parts of the record as Rule 56(c)(1)(A) requires.

         In fairness, Rich does cite various documents-many of which he has also moved to strike as constituting hearsay or lacking authentication. But those documents do not substantively alter his original responses to the summary-judgment motions. The only testimony he cites is one passage from his deposition and one from Bud's. But neither passage affects the Court's analysis. Beyond that, the supplemental response fails to comply with Rule 56(c)(1)(A). And as a result, the Court may simply ignore the assertions. See Fed. R. Civ. P. 56(c)(3).

         Similarly, Rich's Motion/Supplemental Response is replete with speculation and conclusory allegations. For example, he states that Thomas was “his (Rich's) attorney” with respect to Patricia's estate. Pl.'s Mem. [108] ¶ 6. He offers neither record citation nor legal authority for that contention. The non-movant must offer more than conclusory allegations to avoid summary judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

         Rich's Motion/Supplemental Response fails on another front as well-it addresses claims that were dismissed or were never made. For example, he continues to dispute Thomas's conduct with respect to Patricia's estate. This Court has already dismissed those claims under Federal Rule of Civil Procedure 12(b)(6), and there has not been a proper motion to alter or amend. See Feb. 28, 2017 Order [31].

         Other claims appear to be new, like the civil-conspiracy allegations Rich makes against Thomas and the Sheppards. See Pl.'s Mot. [108] ¶¶ 6, 29. There are two approaches for addressing new claims raised in response to a dispositive motion-ignore the new theory or treat it as a motion to amend. Compare Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (“A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.”), with Debowale v. U.S. Inc., No. 95-20031, 1995 WL 450199, at *1 (5th Cir. July 3, 1995) (per curiam) (“The district court should have construed [the plaintiff's] Bivens claim, raised for the first time in his response to the summary judgment motion, as a motion to amend the complaint under [Rule] 15(a) and granted it.”). This case is too old, and the deadline to amend is too far ...


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