United States District Court, S.D. Mississippi, Northern Division
KEITH BALL UNITED STATES MAGISTRATE JUDGE
the Court are Plaintiff Genette Davis's Motion to Open
Discovery  and Motion to Continue Trial . For the
reasons described below, the Court finds that the motions
should be granted.
filed this employment discrimination suit on April 26, 2017.
A month later, Peco Foods filed a Motion to Dismiss. . The
Court ruled on the motion on September 6, 2017, granting it
in part and denying it in part. . The Court then entered
a Case Management Order on November 8, 2017, setting a
discovery deadline of May 22, 2018. .
propounded no discovery during the discovery period. On May
29, 2018, Davis and her attorney failed to appear at a
settlement conference before the undersigned. On June 5,
2018, Peco Foods filed a Motion to Dismiss or, Alternatively,
for Summary Judgment , arguing inter alia, that
Davis failed to prosecute her case. On July 6, 2018, Davis
filed a motion requesting an additional sixty days to conduct
discovery. . She has since also requested that the trial
be continued. .
support of her requests, Davis has submitted two affidavits
by her attorney, Charles D. Easley, Jr. Easley explains that
the failure to conduct discovery and attend the settlement
conference was the result of a back injury he suffered that
kept him out of the office from February 26 through May 14,
2018. [25-1]. He states that he believed that his office had
propounded discovery in the case prior to his injury, but
after the expiration of the discovery deadline, he realized
that no written discovery had been served on Peco Foods.
testified in his affidavit that after returning from back
surgery, he continued to suffer medical problems that
inhibited his ability to work on the case. He testifies that
he continues to lack full use of his right leg and foot, has
suffered nerve damage, and has been slow to heal. [28-1]. He
also testifies that he has had difficulty breathing and was
diagnosed in September 2018 with asthma. Further, according
to his affidavit, he underwent surgery on both of his eyes in
September 2018. Easley states that since that surgery, he has
had constant headaches, pain in both eyes, and trouble
Foods opposes the motion. It contends that counsel's
medical problems are an insufficient explanation for the
failure to conduct discovery. Peco Foods also argues that
reopening discovery would be unfairly prejudicial to its
case, as it has already fully briefed a dispositive motion.
 amounts to an out-of-time request for an extension of
the discovery deadline. “Federal Rule of Civil
Procedure 6(b) . . . states that if a request is made to
extend time after the original time has already expired, the
court may ‘for good cause, extend the time ... if the
party failed to act because of excusable neglect.'”
See Deaton v. Kroger Co., No. 4:13-CV-254, 2014 WL
3452486, at *1 (E.D. Tex. July 15, 2014). The Court weighs
four factors in determining whether to permit the out-of-time
request for an extension: (1) the danger of prejudice to the
non-movant, (2) the length of the delay and its potential
impact on the judicial proceedings, (3) the reason for the
delay, including whether it was within the reasonable control
of the movant, and (4) whether the movant acted in good
faith.'” Id. (quoting Rivero v.
Sunbeam Products, Inc., No. SA- 08-CV591-XR, 2010 WL
1752532 (W.D. Tex. Apr. 29, 2010)).
the Court finds that granting Davis's request for an
extension would not prejudice Peco Foods. Although Peco Foods
has already filed a summary judgment motion, one of the
primary grounds for the motion is Davis's failure to
conduct discovery and failure to prosecute her case.  at
4-9. The remaining arguments in Peco Foods's motion will
not be changed by further discovery and should have already
been anticipated by Davis's counsel. In sum, nothing
in Peco Foods's motion would give Davis an unfair roadmap
in conducting discovery. This factor favors Davis.
the request for an additional sixty days to conduct discovery
is reasonable, but will result in a significant delay in the
scheduled trial date. Peco Foods, however, has not given a
substantive explanation as to how the delay itself would
prejudice its case. The Court finds that this factor favors
and fourth, Davis, has shown legitimate reasons for delay
that were out of her control, although the Court is not
convinced that her counsel has acted entirely in good faith.
Easley's undisputed affidavit indicates that on February
25, 2018, he ruptured a disc in his back. Easley testifies
that he was in severe pain and confined to his bed for an
extended time. He further testifies that on April 6, 2018, he
had back surgery and did not go back to work part-time until
May 14, 2018. According to his affidavit, Easley was still
unable to return to work full time by the time of his
affidavit, July 7, 2018, and still did not have full use of
his right leg or foot and continued to suffer pain in his
back, right leg, and right foot.
Court finds that Easley has not acted entirely in good faith
because he provides no explanation for his failure to provide
his initial disclosures or to propound or conduct discovery
before his injury on February 25, 2018.
Nevertheless, the Court should not ignore the unrebutted
evidence regarding Easley's condition on and after
February 25, 2018. Based on the evidence, the Court finds
that the third and ...