UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) CAMEROON WHITERU, Individually ) and as Personal Representative of the ) Estate of Okiemute C. Whiteru, et ux., ) ) Plaintiffs, ) ) v. ) No. 15-cv-0844 (KBJ) ) WASHINGTON METROPOLITAN ) AREA TRANSIT AUTHORITY, ) ) Defendant. ) )

MEMORANDUM OPINION REGARDING THIS COURT’S GRANT OF DEFENDANT’S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT

Before this Court at present is Defendant Washington Metropolitan Area Transit

Authority’s (“WMATA’s”) motion for leave to file a supplemental motion for summary

judgment based on decedent Okiemute Whiteru’s alleged contributory negligence. (See

Def.’s Mot. for Leave to File Supplemental Mot. for Summary Judgment (“Def.’s

Mot.”), ECF No. 71; Def.’s Mem. in Supp. of Def.’s Mot. (“Def.s’ Mem.”), ECF No.

71-1, at 2–3.) 1 Plaintiffs object to WMATA’s motion, arguing that WMATA has not

shown good cause, and that this Court already rejected WMATA’s meritless

contributory negligence argument. (See Pls.’ Opposition to Def.’s Mot. (“Pls.’

Opp’n”), ECF No. 73, at 1.)

On December 6, 2018, this Court issued an order that GRANTED WMATA’s

motion. (See ECF No. 77.) This Memorandum Opinion briefly explains the reasons for

1 Page-number citations to documents the parties have filed refer to the page numbers that the Court’s electronic filing system assigns. that order. In short, the established factors that federal trial courts consider when

determining whether or not to permit an out-of-time filing of a summary judgment

motion under Federal Rule of Civil Procedure 6 weigh heavily in favor of allowing

WMATA to file the instant motion, and given the significance of the proposed filing,

this Court has exercised its considerable equitable discretion to authorize WMATA to

seek summary judgment at this time.

I.

This Court has already written an opinion in this case that details the pertinent

factual background. See Whiteru v. Wash. Metro. Area Transit Auth.,

(D.D.C. 2017). Therefore, only a brief explanation of the relevant procedural

history is necessary here. On January 21, 2016, this Court issued an initial scheduling

order that set deadlines for discovery and for dispositive motions. (See Scheduling

Order, ECF No. 24.) WMATA timely filed its initial motion for summary judgment,

which the Court denied on July 7, 2017. See

. Thereafter, the Court

scheduled pretrial conferences and a trial date. (See Minute Entry of December 21,

2017.)

On May 4, 2018, at the initial pretrial conference, this Court granted Plaintiffs’

request to reopen expert discovery nearly two years after it had closed (over WMATA’s

objection) and vacated the trial date to accommodate Plaintiffs’ request for further

discovery. (See Transcript of Pretrial Conference on May 4, 2018, at 34–41; see also

Minute Entries of May 4, 2018, and May 22, 2018.) On July 25, 2018, WMATA

entered new counsel of record (see ECF No. 69), and on September 28, 2018,

WMATA’s new counsel filed the instant motion for leave to file a supplemental motion

2 for summary judgment (see Def.’s Mot.).

In the motion for leave, WMATA’s new counsel asserts that he acted as

expeditiously as possible to move to file for summary judgment on the potentially

dispositive issue of contributory negligence after discovering prior counsel’s omission.

(See Def.’s Mem. at 2–3; see also Def.’s Reply to Pls.’ Opp’n (“Def.’s Reply”), ECF

No. 75, at 3–4.) Plaintiffs oppose the motion, insisting that the deadline to file

summary judgment motions has long passed, and that there is no reason for the Court to

excuse delay or allow pretrial litigation of contributory negligence. (See Pl.’s Opp’n at

1–2.)

II.

Federal Rule of Civil Procedure 6 allows a Court to permit a party to file an out-

of-time motion for summary judgment if the moving party can demonstrate “excusable

neglect.” Fed. R. Civ. P. 6(b)(1)(B). The Supreme Court has made clear that, in order

to determine whether a party’s delay amounts to “excusable neglect,” courts must

consider “the danger of prejudice to the [opposing party], the length of the delay and its

potential impact on 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.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,

(1993). “‘Excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is not

limited strictly to omissions caused by circumstances beyond the control of the

movant.”

. Furthermore, the district court enjoys “broad discretion” in this

determination. See Wilson v. Prudential Financial,

(D.D.C. 2003); see

also Yesudian v. Howard Univ.,

(D.C. Cir. 2001) (describing the

3 “great deference” owed to district courts in their “case-management decisions” under

Rule 6(b) (internal quotation marks and citation omitted)).

In this Court’s view, each of the Pioneer factors weighs in favor of granting

WMATA’s motion. First of all, it is clear to this Court that, at this phase of the

litigation, a slight delay for consideration of a dispositive motion will not prejudice

Plaintiffs; indeed, in their brief in opposition to WMATA’s motion, Plaintiffs have not

alleged any such prejudice. (See generally Pls.’ Opp’n; see also Def.’s Reply at 1, 6.)

Regarding the length of WMATA’s delay in filing this motion and its potential impact

on the pending judicial proceedings, the Court notes that WMATA’s new attorney

moved to file a supplemental motion just two months after WMATA’s change of

counsel. More important, this Court finds that the tardiness of the instant summary

judgment filing, which comes more than two years after the initial deadline for

dispositive motions, is unlikely to impact the overall proceedings for two reasons: first,

because there are several pending motions in limine related to the legal issue of the

availability of a contributory negligence defense (see Pls.’ Mot. in Limine to Preclude

Argument of Contributory Negligence, ECF No. 45; Pls.’ Mot. in Limine to Preclude

Argument of Assumption of Risk, ECF No. 46 (together, “Pls.’ Contributory

Negligence MILs”)); and second, because another trial date has not yet been set, and

this Court will not be available to try this case for several months—not until the late

summer of 2019, at the earliest.

Turning to the third factor in the excusable neglect analysis, WMATA’s posited

reason for the delay is “oversight by WMATA’s prior counsel.” (See Def.’s Mem. at 3.)

The D.C. Circuit has made clear that “‘excusable neglect’ does not require counsel to

4 have been faultless, and ‘inadvertence, mistake, or carelessness’ can fall within the

rule.” Cohen v. Bd. of Trustees of the Univ. of D.C.,

(D.C. Cir.

2016) (quoting Pioneer,

). Moreover, the Circuit has explicitly declined

“to adopt a per se rule that garden variety attorney inattention can never constitute

excusable neglect.” In re Vitamins Antitrust Class Actions,

(D.C.

Cir. 2003).

This Court is fully aware that judges frequently exercise their discretion to reject

untimely filings where the justification for such a filing is minor attorney error, like

noncompliance with deadlines or filing procedures. See Inst. For Policy Studies v. CIA,

, 384–85 (D.D.C. 2007) (collecting cases). But the error alleged here is

neither minor nor the kind of “mere oversight” that courts may find insufficient to

support excusable neglect, see Gadsden v. Jones Lang Lasalle Americas, Inc.,

(S.D.N.Y. 2002) (quotation marks and citation omitted): instead, it is

a significant legal issue of substantive judgment, the omission of which might well have

bordered on ineffectiveness by prior counsel. In addition, new counsel worked quickly

to prepare a supplemental motion for summary judgment and to ask for leave to file it

under Federal Rule of Civil Procedure 6(b)(1)(B). (See Def.’s Reply at 2–5.)

Notably, there is precedent in this district for the granting of similar WMATA

motions. In a nearly identical situation, when new counsel acted expeditiously, the

court found excusable neglect and granted the motion for a late-filed summary

judgment “supplement[]”—notwithstanding its “reservations” about excusing prior

counsel’s oversight. See McFadden v. Wash. Metro. Area Transit Auth., Case No. 14-

1115 (Walton, J.), Order (“McFadden Order”), ECF No. 153, 3–4 (D.D.C. Feb. 26,

5 2018). Here, this Court further observes that the delay in filing the supplemental

motion appears to be entirely attributable to WMATA’s change of counsel; Plaintiffs

have not offered any evidence that WMATA intentionally withheld this summary

judgment argument or otherwise acted in bad faith.

When weighing the Pioneer factors, courts must remember that the excusable

neglect determination “is at bottom an equitable one, taking account of all relevant

circumstances surrounding the party’s omission.” Pioneer,

. In the

instant case, not only does each factor point toward granting WMATA leave to file the

supplemental motion, but broad equitable considerations also support WMATA’s

contention that its motion should be granted, because this Court previously vacated the

trial it had scheduled in this case in order to give Plaintiffs leave to correct an oversight

of theirs (i.e., leave to conduct additional expert discovery) more than two years after

expert witness discovery had closed. (See Initial Pretrial Conf. Tr., 33–41, May 4,

2018; Min. Order of May 22, 2018; see also Def.’s Reply at 1–2.) Given the potential

significance of the omission by prior WMATA counsel; the swiftness with which new

counsel moved for correction of this oversight; and the flexibility that this Court has

previously extended to Plaintiffs regarding lapsed deadlines, the Court concludes that a

finding of “excusable neglect” within the meaning of Rule 6 is warranted here.

III.

Plaintiffs’ objections center on WMATA’s reasons for failing to raise the

contributory negligence argument earlier. (See Pls.’ Opp’n at 2–5.) Notably, in so

arguing, Plaintiffs rely primarily—and mistakenly—on cases applying Rule 16’s “good

cause” standard (see id.), which differs from the Pioneer factors that a court must

6 consider when determining “excusable neglect” under Rule 6. See Capitol Sprinkler

Inspection, Inc. v. Guest Servs., Inc.,

(D.C. Cir. 2011) (explaining

Rule 16’s “good cause standard requires the party seeking relief to show that the

deadlines cannot reasonably be met despite [its] diligence” (alteration in original)

(internal quotation marks and citations omitted)). Rule 16 governs the modification of

scheduling orders, see Fed. R. Civ. P. 16(b)(4), but here WMATA is not seeking to

modify a scheduling order, nor is it asking for any relief that will require modifications

of a scheduling order in the future. The D.C. Circuit has analyzed similar late-filed

summary judgment motions only under Rule 6’s “excusable neglect” standard even in

cases where a scheduling order has been entered. See, e.g., Smith v. District of

Columbia,

, 456–57 (D.C. Cir. 2005) (reviewing Smith v. Dep’t of Mental

Health, Case No. 2-cv-481, where the district court granted a late-filed summary

judgment motion after issuing scheduling orders). Thus, Plaintiffs’ Rule 16 arguments

and the related authority are inapposite. 2

Plaintiffs also assert that this Court has already resolved the issue of contributory

negligence in this case, and to support this contention, Plaintiffs point to a footnote in

this Court’s prior opinion that explains that the station agent would have had an

affirmative duty to aid decedent Whiteru had she found him. See Whiteru,

It is unclear if Plaintiffs are attempting to equate the “good cause” language in Rule 6(b) with that same phrase in Rule 16. (See Pls.’ Opp’n at 2.) Although Rule 6(b) now contains the term “good cause,” see Fed. R. Civ. P. 6(b)(1) (explaining that a court “may, for good cause” extend deadlines under certain circumstances), when Pioneer explained Rule 6(b)’s “excusable neglect” inquiry, the language of the rule allowed extensions for “cause shown.” See Andrews v. Daughtry,

(M.D.N.C. 2014). The subsequent change in language was “intended to be stylistic only” and did not somehow import Rule 16’s standard into the amended language of Rule 6(b). See 4B Charles Allan Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 n. 9 (4th ed. 2015) (citing Advisory Committee’s Note to the 2007 Amendment to Rule 6). Consequently, Pioneer’s emphasis on “excusable neglect” remains the appropriate standard for the Rule 6(b) analysis. See, e.g., Yesudian,

.

7 3d at 192 n.11. But this footnote does not address, much less resolve, the issue of

whether any alleged contributory negligence by decedent Whiteru eliminates

WMATA’s liability. Rather, the language to which Plaintiffs point merely references

caselaw that suggests that the contributory negligence of a passenger on a common

carrier does not erase the common carrier’s duty to render assistance. See

Finally, to the extent that Plaintiffs object to WMATA’s motion for leave on the

grounds that any such supplemental motion for summary judgment would be meritless

(see Pls.’ Opp’n at 5–8), the parties’ briefs regarding Plaintiffs’ pending motions in

limine belie this contention. These pending briefs expressly raise the contributory

negligence question, and thereby suggest that there is a significant and material legal

dispute to be resolved by the Court. (See Pls.’ Contributory Negligence MILs.) Thus,

“even if a trial is [ultimately] required, the arguments raised . . . are issues the Court

will presumably have to address in any event [before] the trial.” McFadden Order at 6–

7. Consequently, the same concerns of judicial economy that Judge Walton considered

compelling in the substantially similar McFadden case exist here. See

(emphasizing

that allowing a late dispositive motion “could obviate the need for trial, further

conserving judicial resources and the time and money the parties will have to expend if

this case proceeds to trial”).

IV.

This Court is persuaded that the Pioneer factors, as well as the broader gauge of

equitable circumstances more generally, “ultimately tip in favor of finding WMATA’s

neglect excusable.” Id. at 4; see also Yesudian,

. Therefore, as

reflected in its Order of December 6, 2018, WMATA’s motion for leave to file a

8 supplemental motion for summary judgment has been GRANTED, and the parties have

proceeded to propose a schedule for full summary judgment briefing. (See Proposed

Briefing Schedule, ECF No. 78.)

DATE: December 17, 2018 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

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