By orders dated April 11, 2007, this Court ordered Defendants to file any opposition to

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Plaintiff’s Motion for Summary Judgment and ordered briefs to be filed on the instant motion.

Simultaneous with this filing, Defendants have filed their opposition brief. By doing so, Defendants

do not intend to waive the motion to strike, but had no other method of complying with the Court’s

two orders. 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DONNA DORSEY DAVIS, :

as an individual and derivatively upon :

behalf of I-65 Properties, Inc., :

:

Plaintiff, :

:

vs. : Case No. 2:06-cv-766-MHT

:

RICHARD M. DORSEY, as an individual :

and CD&O, LLC, as a necessary party, :

:

Defendants. :

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT1

COME NOW Richard M. Dorsey and CD&O, LLC, Defendants in the above-styled cause, and

submits this Brief in Support of Defendants’ Motion to Strike Plaintiff’s Motion for Summary

Judgment. 

I. FACTS

On November 2, 2006, this Court entered the Uniform Scheduling Order which set various

deadlines to which the parties are subject during the course of this litigation. This Order was

entered following the filing of the Parties’ Rule 26(f) Planning Meeting.

The Order stated in pertinent part as follows:

Please read this order carefully. These deadlines and

responsibilities may not be changed without leave of the court. All

parties are expected to comply with each and every provision

of this order in a timely manner, and extensions will be granted in

only extraordinary and unforeseeable circumstances.

* * *

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Plaintiff’s rationale for this error was that she “was unaware and mislead of the fact that 2

[Defendants] failed to submit the entire deposition for the Court review”. (Plaintiff’s Motion to

Supplement the Record ¶3)(Emphasis added). Defendants certainly did not intend to mislead

Plaintiff, but rather filed all relevant evidence for the Court’s review. Inasmuch as the entire

deposition is not relevant, same was not filed. 

Plaintiff did not seek leave to file a dispositive motion out of time. 3

2

Section 2. Any dispositive motions, i.e., motions to dismiss or

motions for summary judgment, shall be filed no later than

NINETY (90) DAYS prior to the pretrial hearing. A brief and all

supporting evidence shall be filed with any such motion. In all briefs

filed by any party relating to the motion, the discussion of the

evidence in the brief must be accompanied by a specific reference,

by page and line, to where the evidence can be found in a

supporting deposition or document. Failure to make such specific

reference will result in the evidence not being considered by the

court.

(Emphasis added).

Defendants timely filed their Motion for Summary Judgment on March 19, 2007. Plaintiff

did not file any dispositive motion on or before March 19, 2007. On March 22, 2007, this Court

ordered any brief and evidentiary materials in opposition to Defendants’ Motion for Summary

Judgment be filed no later that April 10, 2007.

On April 10, 2007, Plaintiff filed not only an opposition brief (absent any evidentiary

materials) to the Defendants’ Motion for Summary Judgment, but also filed her own Motion for

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Summary Judgment. On April 11, 2007, Defendants moved to strike Plaintiff’s Motion for 3

Summary Judgment as untimely and, pursuant to this Court’s order dated April 12, 2007, file this

supporting brief.

II. ARGUMENT

In her response to Defendants’ Motion to Strike, Plaintiff still does not provide any rational

explanation for why her Motion for Summary Judgment was filed out of time. She only makes

reference to Defendants’ Answer being “improperly filed” in early February 2007, appearing to

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Plaintiff did not make any motion related to any delay in Defendants’ Answer being filed. 4

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suggest that she was therefore delayed in conducting discovery. (Plaintiff’s Response to

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Defendants’ Motion to Strike ¶8). On the contrary, the filing of the Answer or any delay thereof

could not have prevented Plaintiff from conducting discovery pursuant to the Uniform Scheduling

Order which has been entered since November 2006.

Absent any credible explanation, Defendants may only assume that her failure to comply

with this Court’s Uniform Scheduling Order was a result of Plaintiff’s previously made assertion that

summary judgment was not ripe for submission or consideration (Plaintiff’s Motion to Extend

Discovery Deadline ¶5; Plaintiff’s Motion to Reconsider the Extension of Discovery Deadline ¶11),

was caused by the usual rigors of the practice of law (Plaintiff’s Motion to Reconsider the Extension

of Discovery Deadline ¶12) or both.

To the extent that Plaintiff asserts that this matter was not ripe for summary judgment, as

previously noted in another filing on this issue, dispositive motions were not only ripe, but due

pursuant to the rules of this district and the Uniform Scheduling Order. (Defendants’ Response to

Plaintiff’s Motion to Reconsider the Extension of Discovery Deadline ¶¶4-6). Plaintiff’s wish to have

more time to conduct discovery before submitting dispositive motions is understandable as is

Plaintiff’s discomfort with having to file a dispositive motion a mere six days after the completion

of the parties’ depositions. However, it should be noted that Defendants were under the same

constraints, particularly as it related to the extremely limited time between the taking of the

depositions and the deadline for dispositive motions. Defendants submitted a fifty-two page brief,

with complete evidentiary support, addressing all of its issues, six days after the depositions were

taken. This time does not take into account how long it took to receive the depositions from the

court reporter. The task was arduous to say the least. Nevertheless, being well aware of the abovequoted sections of the Uniform Scheduling Order, Defendants felt they had no choice but to move

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Plaintiff simultaneously filed a dispositive motion and an opposition brief, purportedly 5

pursuant to this Court’s Order dated March 22, 2007, and purportedly “in the alternative” to her to

her opposition brief. (Plaintiff’s Response to Defendants’ Motion to Strike ¶5). To the extent

Plaintiff asserts that her dispositive motion was filed pursuant to that Order, such would be

disingenuous as best. The order clearly indicates that the anticipated filing is an opposition brief

to Defendants’ Motion for Summary Judgment, not a new deadline for new dispositive motions.

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forward with the dispositive motions or waive their opportunity to do so. Because Plaintiff may have

chosen differently, she should not be rewarded by being permitted to move for summary judgment

now.

Alternatively, to the extent that Plaintiff’s counsel asserts that she was too busy with her

previously mentioned relocation or her case load to comply with the orders of this Court, again,

such is not justification for her failure. First of all, Plaintiff’s delay in submission was not one of a

few hours, a day or even two days. It was apparently not the result of crashed computer or a slight

miscalculation on the calendar. Plaintiff attempted to file dispositive motions some three weeks

after the dispositive motion deadline. This constitutes more than simply running out of time. This 5

is a disregard of the order to which we are all subject.

The undersigned is well aware of the difficult and busy life of a practicing attorney with its

multiple and competing deadlines and strict requirements. That being said, as stated succinctly

in Pinero Schroeder v. Federal National Mortgage Ass’n, 574 F.2d 1117, 1118 (1 Cir. 1978) and st

cited repeatedly by courts throughout the nation, “[m]ost attorneys are busy most of the time and

they must organize their work so as to be able to meet the time requirements of matters they are

handling or suffer the consequences.” The Middle District of Alabama stated as follows when an

attorney failed to comply with a deadline in bankruptcy court:

The only excuse which is offered for Appellant’s failure to meet all

deadlines is a heavy work schedule of its attorney. This is not an

acceptable reason. If a lawyer’s being busy were an acceptable

reason for not complying with deadlines of the court, this would

mean that no one had to comply except litigants whose lawyers were

not busy. That is not a policy which this court cares to establish.

Case 2:06-cv-00766-MHT-TFM Document 41 Filed 04/27/2007 Page 4 of 7
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***

The Eleventh Circuit has rejected a lawyer’s busy schedule as

excusable neglect [the standard used in bankruptcy court], and has

required excusable neglect to be based upon a finding that any

inadvertence was due to something beyond the control of the person

sought to be excused.

YMR Fashions Corp. v. McGregor, 173 B.R. 750, 753 (Internal citations excluded); See

also Negron v. Celebrity Cruises, Inc., 316 F.3d 60, 61-62 (1 Cir. 2003)(busy schedule and st

confusion over filing dates by counsel is inadequate justification to establish excusable neglect).

The Uniform Scheduling Order is used to control the course of litigation and should be evenhandedly enforced, absent a showing of good cause. Failure to enforce the deadlines to which all

parties are subject would render the order, as well as the interests it seeks to protect, meaningless.

See White v. Volvo Trucks of North America, Inc., 211 F.R.D. 668, 669-70 (M.D. Ala. 2002)(citing

Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11 Cir. 1998). th

As in this case, “[t]here is no ambiguity about the Court’s Scheduling order, it clearly spells

out what must be [filed] and the dates by which these [filings] must take place.” Quoting Robinson

v. Ford Motor Co., 967 F.Supp. 482, 487 (M.D.Ala. 1997). As it was incumbent upon Defendants

to timely and adequately comply with the Uniform Scheduling Order, no matter its difficulty, so

should it be incumbent upon Plaintiff. It is unfair for Defendants to be subject to that order while

Plaintiff is permitted to lag behind with no consequence. Such failure to hold attorneys accountable

to the courts in which they practice will compromise the integrity of the courts and the litigation

process to which all parties must abide.

Plaintiff does offer that Defendants would suffer no prejudice by permitting the late filing of

her Motion for Summary Judgment. (Plaintiff’s Response ¶¶7, 8). On the contrary, both

Defendants and the Court have and will suffer prejudice as a result of Plaintiff’s disregard of the

Court’s order. Aside from the obvious strategic considerations, Defendants had to expend

unanticipated resources to respond to this late motion. Additionally, whether or not the parties can

be “prepared to move forward” for the remainder of the deadlines and dates is only half the

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question. Defendants are aware that the Court needs sufficient time between the submission date

for motions and the date set for trial to rule on dispositive motions. This ability clearly has a direct

impact on the Defendants preparing for trial. 

That being said, it should be noted that courts in this district have stricken late filing absent

prejudice to the non-offending party. The White Court disallowed a late filing, even though the

moving party would not suffer prejudice by permitting the submission. As noted by the White Court,

“[i]f this court were to allow such late [filing] under the facts in this case, it would be most difficult

for the court to insist on compliance with deadlines set in its many other cases.” White, supra, 211

F.R.D. at 669. 

Irrespective of what justification Plaintiff does or does not offer, Defendants are not asking

for some cruel or unusual punishment be brought to bear upon Plaintiff. On the contrary,

Defendants seek only to be subject to the same rules as Plaintiff. There is no question that those

rules are contained squarely within the orders of this Court, and specifically, the Uniform

Scheduling Order. Unfortunately, where error occurs without justifiable excuse, the cost of that

mistake should be borne by the party making the mistake. Otherwise, the benefit of having orders

is lost.

III. CONCLUSION

Wherefore the premises having been considered, Defendants respectfully request the Court

to strike Plaintiff’s Motion for Summary Judgment as untimely.

Respectfully Submitted this 27 day of April, 2007. th

RICHARD M. DORSEY, as an individual, and

CD&O, LLC, as a necessary party,

/s/ Clifford W. Cleveland 

CLIFFORD W. CLEVELAND 

Case 2:06-cv-00766-MHT-TFM Document 41 Filed 04/27/2007 Page 6 of 7
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OF COUNSEL:

CLEVELAND & COLLEY, P.C.

744 East Main Street

Prattville, AL 36067

(334) 365-1500 phone

(334) 365-1601 fax

CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the foregoing Brief in Support of Defendants’

Motion to Strike Plaintiff’s Motion for Summary Judgment with the Clerk of the Court for the United

States District Court, for the Middle District of Alabama, Northern Division, using the CM/ECF

system which will send notification of such filing to Lindsay B. Erwin, Esquire

(lindsayerwin@gmail.com) and James Edward Roberts, Esquire (attyjuris@aol.com) this the 27th

day of April, 2007.

/s/ Clifford W. Cleveland 

OF COUNSEL

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