1

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

DONNA L. EARLY, ) 

 ) 

 Plaintiff, ) 

 ) 

vs. ) CASE NO.: 2:06cv727 

 ) 

RHEEM MANUFACTURING ) JUDGE KEITH WATKINS 

COMPANY, a corporation and CAL ) 

MEARS, an individual, ) 

 ) 

 Defendants. ) 

DEFENDANTS’ MOTION FOR LEAVE TO FILE A MEMORANDUM OF 

LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

 COME NOW Defendants Rheem Manufacturing Company and Cal Mears (hereinafter, 

collectively “Rheem” or Defendants) and respectfully submit the following Motion for Leave to 

File a Memorandum of Law in Support of Their Motion for Summary Judgment based on 

principles of judicial estoppel. The Memorandum of Law in Support of Defendants’ Motion for 

Summary Judgment is being filed simultaneously herewith. 

1. Counsel for Defendants took the Plaintiff’s deposition on May 24, 2007. 

2. Defendants filed their Motion for Summary Judgment on May 25, 2007 (Doc. no. 

17). In this Motion for Summary Judgment, Defendants informed the Court that they would “file 

a memorandum of law in support thereof upon receipt of Plaintiff’s transcript of her deposition 

taken on May 24, 2007.” 

3. Rheem discovered that Plaintiff was in Chapter 13 bankruptcy in March of 2006 

shortly after Plaintiff filed an EEOC charge against Rheem. After discovering the bankruptcy, 

Rheem waited fourteen (14) months to depose Plaintiff and file its motion for summary judgment 

Case 2:06-cv-00727-WKW-CSC Document 19 Filed 06/06/2007 Page 1 of 3
2

on judicial estoppel grounds. Rheem waited in large measure to afford the Plaintiff a lengthy 

opportunity to voluntarily amend her bankruptcy pleadings on her own accord. Rheem did 

immediately proceed to file its motion for summary judgment on May 25, 2007 (Doc. no. 17), 

the day following Plaintiff’s deposition because, in Rheem’s view, Plaintiff did not under the law 

or notions of fairness deserve an opportunity to amend her bankruptcy filings to attempt to avoid 

judicial estoppel after being questioned about her bankruptcy. 

4. Counsel for Defendants received a transcript of Plaintiff’s deposition the 

afternoon of May 29, 2007 and have since been diligently drafting the accompanying 

Memorandum of Law. As evident on its face, it was necessary to make numerous references to 

Plaintiff’s deposition in the Memorandum of Law to dispel any alleged genuine issues of fact. 

5. The Court entered a Briefing Order on June 1, 2007 (Doc. no. 18) that provides 

that Plaintiff shall file a response on or before June 22, 2007. In light of the fact that Defendants 

are filing this Motion and their Memorandum of Law on June 6, 2007 and that the Briefing Order 

further instructs the parties that the opponent’s response brief shall be due 21 days after the 

motion is filed (Doc. no. 18 at ¶ 2), Defendants respectfully move the Court to adjust the briefing 

schedule accordingly. 

 6. Defendants apologize to the Court for any inconvenience caused by their filing 

this Memorandum of Law after the Motion for Summary Judgment, but feel that it was 

warranted under the circumstances. 

 7. The dispositive motion cut off established in the Scheduling Order is not until 

July 31, 2007, and the discovery deadline is October 31, 2007. No party will be prejudiced by 

the Court granting this order. 

Case 2:06-cv-00727-WKW-CSC Document 19 Filed 06/06/2007 Page 2 of 3
3

Respectfully submitted, 

s/Henry C. Barnett, Jr. 

HENRY C. BARNETT, JR. (BAR037) 

ATTORNEY FOR DEFENDANTS 

OF COUNSEL: 

CAPELL & HOWARD, P. C. 

150 South Perry Street 

Post Office Box 2069 

Montgomery, Alabama 36104 

(334) 241-8000 

(334) 323-8888 

CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of June, 2007, I electronically filed the foregoing with 

the Clerk of the Court using the CM/ECF system, which will send notification of such filing to 

the following: 

Trina S. Williams 

Vicky U. Toles 

TOLES & WILLIAMS, LLP 

1015 South McDonough Street 

Montgomery, Alabama 36104 

s/Henry C. Barnett, Jr. 

OF COUNSEL 

Case 2:06-cv-00727-WKW-CSC Document 19 Filed 06/06/2007 Page 3 of 3