United States District Court, S.D. Mississippi, Northern Division
GERALD M. RICH PLAINTIFF
ALEXANDRIA VICTORIA SHEPPARD, JAMES PATRICK SHEPPARD, AND PHILIP THOMAS DEFENDANTS
P. JORDAN, III CHIEF UNITED STATES DISTRICT JUDGE
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 ,
as do Alexandria Victoria Sheppard (“Victoria”)
and James Patrick Sheppard (“Bud”) (the
“Sheppards”) . Plaintiff Gerald Rich seeks
dismissal, or alternatively, summary judgment on the
Sheppards' counterclaims . 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 ; denies the Sheppards' Motion for Summary
Judgment ; strikes Rich's Motion to Dismiss/Motion
for Summary Judgment  without prejudice; and grants some
of the remaining motions as more fully discussed herein.
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
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  at 16-17. Now Thomas and the Sheppards seek
summary judgment on those claims, and Rich seeks dismissal of
Order first examines the peripheral motions before turning to
the three dispositive motions.
Plaintiff's Motion to Dismiss/Summary
Judgment/Supplemental Response  and Defendants'
Motion to Strike [120, 123]
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 , to which the Sheppards filed a joinder .
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.
Uniform Local Rule 7(b)
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.”).
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.”).
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.
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 . While Rich met that deadline with
his first responses [101, 103], he filed a supplement on May
24 (that was not disputed)  and then the disputed
Motion/Supplemental Response on June 1. In neither instance
did he seek leave to file his supplements out of time.
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).
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. ; Pl.'s Resp. . 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.
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
 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.
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.  ¶
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
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.
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
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).
to Rich, the parties are not diverse. See Pl.'s
Mot.  ¶¶ 12, 13. As he correctly notes, the
Sheppards' original Answer  averred that Bud is
“a permanent resident citizen of Louisiana.”
Defs.' Joint Answer  ¶ 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 . 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. ; Mot. to Amend . Rich
did not oppose the motion, see Pl.'s Resp. ,
and the Court granted it, see Feb. 28, 2017 Order
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.  ¶ 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 . Rich has not shown otherwise.
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.  ¶ 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.
Substance of Rich's Motion/Supplemental Response
Supplemental Responses to Summary-Judgment Motions
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
(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. . . .
Civ. P. 56(c)(1) (emphasis added).
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.  ¶ 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.
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).
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.  ¶ 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).
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 .
claims appear to be new, like the civil-conspiracy
allegations Rich makes against Thomas and the Sheppards.
See Pl.'s Mot.  ¶¶ 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 ...