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Mann v. XPO Logistics Freight, Inc.

United States District Court, D. Kansas

March 21, 2019

ANTHONY MANN, DANA MOYE, & KATINA MCGEE, Plaintiffs,
v.
XPO LOGISTICS FREIGHT, INC., f/k/a CON-WAY TRANSPORTATION SERVICES, INC., f/k/a CON-WAY FREIGHT INC., Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE

         Plaintiffs Anthony Mann, Dana Moye, and Katina McGee filed the present action against their former employer, defendant XPO Logistics Freight, Inc., for employment discrimination. The matter is now before the court on plaintiffs' Motion for Leave to File Exhibit #34 Out of Time (Doc. 221) and Motion for Sanctions (Doc. 223).

         a. Motion for Leave

         Defendant filed its motion for summary judgment (Doc. 202) on June 8, 2018. Plaintiffs filed three requests for extensions of time to respond to the summary judgment motion. The first two requests were granted as unopposed; however, the court granted the third request over defendant's objection. All three of plaintiffs' extension requests were due to plaintiffs' need for more time to procure witness affidavits. The third request, granted on August 7, 2018, extended plaintiffs' deadline to respond until August 10, 2018. The court instructed plaintiff that it would not grant any further requests for extension of time.

         On August 10, 2018, plaintiffs filed their response. Plaintiffs' counsel emailed chambers to report that a technical error prevented her from uploading the exhibits in support of the response. On August 14, 2018, plaintiffs filed a motion for leave to file one exhibit under seal, which the court granted. Plaintiffs filed the sealed exhibit on the same day. On August 15, plaintiffs filed the remainder of their exhibits. Defendant claims that upon review of the exhibits, it was discovered that Exhibit 34 had not been filed or served. Defendant contacted plaintiffs; and, on the following day, plaintiffs responded that they intended to supplement the record with Exhibit 34.

         On August 16, 2018, plaintiffs filed the present motion, claiming they were unable to provide Exhibit 34-Affidavit of Anthony Mann-because plaintiff Mann had been out of town on a shipping route during the days leading up to the August 10 deadline. Upon his arrival in Missouri on August 15, 2018, Mann returned his executed affidavit to counsel.

         Plaintiffs argue that the court should grant their motion to file the exhibit out of time because they had a legitimate reason for the delay and because it would not substantially prejudice defendant, as the exhibit was provided only five days after the deadline.

         Defendant, however, argues that plaintiff knew ahead of time that plaintiff Mann was out of town and would not be able to return the affidavit, and therefore, plaintiffs should have informed the parties- on or before the deadline-that one exhibit was outstanding. Further, defendant notes that plaintiffs were granted three extensions of time, amounting to more than two months, to prepare their response to defendant's motion for summary judgment. Their failure to obtain the needed affidavit does not, therefore, amount to excusable neglect to warrant a leave to file the exhibit out of time. Defendant infers that plaintiff simply chose to disregard the August 10 deadline, relying on an assumption the court would allow them to file the exhibit out of time.

         Under Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, a district court has the discretion, when good cause is shown, to extend the time “on a motion made after the time has expired if the party failed to act because of excusable neglect.” In deciding whether a party has shown excusable neglect, a court may consider “1) the danger of prejudice to the opposing party, 2) the length of delay caused by the neglect and its impact on judicial proceedings, 3) the reason for delay, and whether it was in the reasonable control of the moving party, and 4) the existence of good faith on the part of the moving party.” Hamilton v. Water Whole Intern. Corp., 302 Fed. App'x. 789, 798 (10th Cir. 2008). “The reason for delay is an important, if not the most important, factor in this analysis.” Id. (citing U.S. v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004)).

         The court believes that, considering the amount of time that was granted to respond to the summary judgment motion, plaintiffs' counsel should have been more forthcoming regarding the affidavit issue. If plaintiffs' counsel knew ahead of time that there was going to be a delay in filing Exhibit 34, they should have made the court aware either on or before the deadline. Parties should not assume or rely on the court granting a post-deadline motion for leave.

         The court, however, finds that defendant was not prejudiced by the delay, as they were granted an extension of time to file their reply, which gave them time to consider the late-submitted exhibit. And the exhibit was submitted six days after the deadline, which is not an unreasonable length of time. The court therefore grants plaintiffs' motion but with the forewarning that missed deadlines will not be tolerated as this case proceeds.

         b. Motion for Sanctions

         Plaintiffs also filed a motion for sanctions against defendant, claiming defendant failed to produce and/or disclose adversarial witness statements, unlawfully paid money to these adversarial witnesses for their testimony, and took the adversarial witnesses testimony under false pretenses. Plaintiffs argue that when also considering defendant's history of withholding evidence, this court should sanction defendant by striking the pleadings and entering default judgment on plaintiffs' behalf.

         At issue are witness declarations taken by defendant's counsel. Plaintiffs claim that defendant issued subpoenas to two of defendant's employees who were identified by plaintiffs as potential witnesses. The subpoenas were served to these two witnesses with instructions to appear for a deposition and with checks for mileage. One of the witnesses, ...


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