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. :

DEFENDANTS’ RESPONSE TO 

PLAINTIFF’S MOTION TO RECONSIDER

THE EXTENSION OF DISCOVERY DEADLINE

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

respond to Plaintiff’s Motion to Reconsider the Extension of Discovery Deadline as follows:

1. The scheduling order in this matter was entered on November 2, 2006, setting a

dispositive motions deadline of March 19, 2007 and a discovery deadline of April 3,

2007.

2. Counsel for the parties, respectively, deposed the opposing party on March 12 and

13, 2007—after depositions had to be rescheduled due to Plaintiff’s unavailability.

3. Thereafter, Defendants timely filed their Motion for Summary Judgment on March

19, 2007 pursuant to the scheduling order.

4. As to Defendants’ “premature Motion for Summary Judgment”, counsel can only

assume that the movant is referring to the fact that same was filed prior to the

discovery deadline. 

5. On the contrary, while all parties would welcome as much discovery and evidence

as possible prior to filing a summary judgment, said motion was timely filed as

ordered by this Court, despite Defendant’s substantial difficulty in doing so only six

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days after taking the parties’ depositions.

6. Additionally, it is well-settled that Middle District practices dictate dispositive motions

being filed prior to the discovery deadline:

The judges try to resolve summary judgment motions in

advance of pretrial hearings. Neither moving the summary

judgment deadline to the cutoff of discovery nor cutting

off discovery at the earlier summary judgment deadline

would be appropriate. Any attorney viewing a case as one

appropriate for summary judgment should schedule

discovery to allow the deadline to be met. Setting the

dispositve motion deadline prior to the end of the discovery

also recognizes the realities of litigation. Often factual issues

which should be developed for trial are not necessary for

resolution of summary judgment issues. If summary

Judgment is denied, a discovery cut-off after the time for

filing dispositive motions allows discovery to proceed without

the necessity of a motion to reopen discovery. The court

encourages lawyers to conduct discovery in a manner

constitute with “just, speedy and inexpensive” procedures.

United States Middle District of Alabama Website, Attorney FAQ (citing Fed.R.Civ.P 1)(Emphasis

added).

7. Irrespective of the six-day delay in receiving the parties’ depositions or Plaintiff’s

inability to read and sign her own deposition, Plaintiff, Plaintiff’s counsel and her cocounsel were all present for all deposition testimony from both parties, which was

taken more than three weeks prior to the discovery deadline. 

8. More importantly, as to the Plaintiff’s claims that she only learned the names of

certain non-party witnesses during the Defendant’s March 12, 2007 deposition,

there can be no dispute that the three persons whom Plaintiff seeks to depose have

been involved with the subject corporation for several years and that Plaintiff has

been well aware of their identities.

9. The Uniform Scheduling Order is used to control the course of litigation and should

be even-handedly enforced, absent a showing of good cause. Failure to enforce

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the deadlines to which all parties are subject to would render the scheduling 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

10. As to Plaintiff’s counsel being “newly out of law school”, it should be noted that she

was licensed by the State of Alabama in September 2004. 

11. That being said, her co-counsel who actually took the Defendant’s deposition,

James E. Roberts, has been licensed by the State of Alabama since 1969.

12. As to Plaintiff’s counsel’s difficulties due to her move in location and the pace of her

practice, again, same is no justification for the instant motion.

13. As stated succinctly in Pinero Schroeder v. Federal National Mortgage Ass’n, 574

F.2d 1117, 1118 (1 Cir. 1978) and cited repeatedly by courts throughout the nation, st

“[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.” 

14. 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.

***

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

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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).

15. Additionally, Plaintiff’s counsel has still failed to explain why this motion is made at

the “eleventh-hour” as noted by this Court’s April 2, 2007 Order denying Plaintiff’s

initial motion to extend discovery.

16. As to Plaintiff’s claim that her request to extend discovery by sixty days will not

“effect [sic] the date of the trial in this matter”, so that she can “adequately defend

Defendant’s premature Motion for Summary Judgment...[when] discovery is

complete”, Defendant does not believe same is accurate as granting Plaintiff’s

motion would extend discovery until approximately June 3, 2007.

17. Given the pretrial date of June 15, 2007 and a trial date of July 23, 2007,

Defendants do not believe the Court would have adequate opportunity to consider

Defendant’s timely filed Motion for Summary Judgment or any response thereto.

18. Finally, Defendants would be prejudiced by the granting of this motion. t is unfair

for Defendants to be subject to the orders of the Court while Plaintiff is permitted to

lag behind. Such failure to hold attorneys accountable to the courts in which they

practice will compromise the integrity of courts and the litigation process to which

all parties must abide.

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

deny Plaintiff’s Motion to Reconsider the Extension of Discovery Deadline.

Respectfully Submitted this 3 day of April, 2007. rd

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RICHARD M. DORSEY, as an individual, and

CD&O, LLC, as a necessary party,

/s/ Clifford W. Cleveland 

CLIFFORD W. CLEVELAND 

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 Defendants’ Response to

Plaintiff’s Motion to Reconsider the Extension of Discovery Deadline 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 3rd

day of April, 2007.

/s/ Clifford W. Cleveland 

OF COUNSEL

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