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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MAXIE MCNABB, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06cv664-MHT

)

SANDERS LEAD COMPANY, INC., )

)

Defendant. )

DEFENDANT’S RESPONSE TO PLAINTIFF’S 

MOTION TO LEAVE EVIDENTIARY RECORD OPEN 

PENDING PRODUCTION OF PERSONNEL FILES

COMES NOW, Defendant Sanders Lead Company, Inc., by and through the

undersigned counsel of record, and does hereby respond to Plaintiff’s Motion to Leave

Evidentiary Record Open Pending Production of Personnel Files. In response thereto,

Defendant states the following:

1. It is Defendant’s position that Plaintiff’s Motion was filed after the expiration

of his original and extended time period to respond and that Plaintiff has

failed to show any excusable neglect that would allow for the granting of his

request.

2. On July 3, 2007, Plaintiff filed a Motion to Leave Evidentiary Record Open

Pending Production of Personnel Files, hereinafter referred to as Motion to

Leave the Record Open.

3. In said motion, Plaintiff fails to state any Federal Rule of Civil Procedure

under which he is requesting this court to take action.

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4. However, it seems that the Plaintiff is asking for an enlargement of a specific

time period, which would fall under Rule 6(b) of the Federal Rules of Civil

Procedure.

5. Plaintiff here is essentially requesting that the time period for him to fully

respond to the Defendant’s Motion for Summary Judgment be extended

again.

6. Under Rule 6(b), the court may “order the period enlarged if request therefor

is made before the expiration of the period originally prescribed or as

extended by a previous order, or (2) upon motion made after the expiration

of the specified period permit the act to be done where the failure to act was

the result of excusable neglect.”

7. By order of the court, the time period for the Plaintiff to respond to

Defendant’s Motion for Summary Judgment was extended from an original

date of June 18, 2007 until July 2, 2007. However, despite Plaintiff’s

request, the time period for Discovery was not extended and remained June

29, 2007. (See Doc. # 18, Order Regarding Motion for Reconsideration)

8. On June 18, 2007, Plaintiff filed a Motion to Compel certain discovery

documents. Nowhere in his Motion to Compel does he request an

enlargement of the time period to respond to the Defendant’s Motion for

Summary Judgment. (See Doc. # 19, Plaintiff’s Motion to Compel)

9. The Court ruled on the Motion to Compel on the morning of July 2, 2007.

(See Doc. # 24, Order Granting Motion to Compel)

10. Again, Plaintiff filed his Motion to Leave the Record Open on July 3, 2007,

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after the expiration of his time period for filing his Response to the Motion for

Summary Judgment and the expiration of the Discovery period.

11. Plaintiff failed to request an enlargement of the time period to respond prior

to the expiration of his time period to respond. Therefore the only way to

have the time period enlarged is to show unto this Court excusable neglect.

12. Nowhere in Plaintiff’s Motion to Leave the Record Open is any excusable

neglect explained or even mentioned.

13. It is Defendant’s position that the Motion to Leave the Record Open was filed

after the expiration of his original and extended time period to respond and

that Plaintiff has failed to show any excusable neglect that would allow for

the granting of his request.

WHEREFORE, for the above stated reasons, the Defendant respectfully requests

that this Court deny Plaintiff’s Motion to Leave the Record Open.

Respectfully submitted this the 16th day of July, 2007.

s/ N.J. Cervera 

N.J. Cervera (CER001)

Frank P. Ralph (RAL002)

Grady A. Reeves (REE042)

Matthew M. Baker (BAK017)

Attorneys for the Defendant

OF COUNSEL:

CERVERA, RALPH, & REEVES, LLC

914 South Brundidge Street

P.O. Box 325

Troy, Alabama 36081

phone (334) 566-0116

fax (334) 566-4073

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CERTIFICATE OF SERVICE

I hereby certify that I have this date electronically filed the foregoing with the Clerk

of Court using the CM/ECF system and served a copy of same by CM/ECF on this the 16th

day of July, 2007:

Roderick T. Cooks, Esq.

WINSTON COOKS, LLC

The Penick Building

319 17th Street North

Birmingham, Alabama 35203

this the 16th day of July, 2007.

s/ N.J. Cervera 

OF COUNSEL

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