UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTICT OF MICHIGAN 

SOUTHERN DIVISION 

HOWARD PITTMAN, 

 

 Plaintiff, Case No. 14-13591 

 Honorable Victoria A. Roberts 

v. 

 

EXPERIAN INFORMATION 

SOLUTIONS, INC., et al., 

 

 Defendants. 

_____________________________/ 

ORDER REGARDING DEFENDANT’S MOTION FOR LEAVE TO FILE 

MOTION FOR SUMMARY JUDGMENT [Doc. 100] AND SUSPENDING 

THE FINAL PRETRIAL AND TRIAL DATES UNTIL FURTHER NOTICE 

Pursuant to the Court’s scheduling order, the deadline to file dispositive motions 

was August 12, 2016. Plaintiff Howard Pittman and Defendant iServe Servicing, Inc., 

filed cross motions for summary judgment. The Court granted iServe’s motion and 

dismissed it from this case, and denied Pittman’s motion. Servis One, Inc. d/b/a BSI 

Financial Services (“BSI”) – the sole remaining defendant – did not file a timely 

dispositive motion. 

BSI now moves for leave to file a late motion for summary judgment or motion for 

judgment as a matter of law; BSI’s motion for leave (which incorporates BSI’s 

motion/brief for summary judgment) is before the Court. [Doc. 100]. The motion is fully 

briefed. 

BSI says the Court decided the threshold legal issue in its order regarding cross 

motions for summary judgment – i.e., “that the loan modification upon which Pittman’s 

claims were predicated did not conform with the Statute of Frauds” – such that Pittman’s 

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claims fail as a matter of law, and “[a] trial would not be in the best interest of either 

party.” [Doc. 100, PgID 2456-57]. 

Pittman says BSI cannot establish the good cause necessary to warrant its late 

filing and modification to the scheduling order under Federal Rule of Civil Procedure 

16(b)(4). Alternatively, he requests an opportunity to respond to the motion for 

summary judgment if the Court grants BSI leave. 

“A [scheduling order] may be modified only for good cause and with the judge’s 

consent.” Fed. R. Civ. P. 16(b)(4). “The primary measure of Rule 16’s ‘good cause’ 

standard is the moving party’s diligence in attempting to meet the case management 

order’s requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) 

(citation omitted). The Court should also consider any “possible prejudice to the party 

opposing the modification.” Id. 

BSI cannot establish good cause. Although it responded to Pittman’s motion for 

summary judgment and was aware of the issues and governing law, BSI did not file this 

motion until five months after the dispositive motion deadline and over a month after the 

Court ruled on the cross motions for summary judgment. Moreover, trial is scheduled to 

begin February 21, 2017. This is carelessness, not diligence. 

On the other hand, entertaining BSI’s motion for summary judgment would not 

prejudice Pittman. In fact, if BSI is entitled to judgment as a matter of law, resolving this 

matter on summary judgment – rather than proceeding to trial and ultimately granting 

BSI judgment as a matter of law after Pittman presents his case – would save Pittman 

the time and expense of preparing for trial (e.g., completing the joint final pretrial order, 

briefing motions in limine, appearing for final pretrial conference, etc.) and appearing at 

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trial. Nevertheless, because the primary consideration of the good cause standard is 

the moving party’s diligence, BSI fails to show it is entitled to a modification of the 

scheduling order under Rule 16(b)(4). 

Despite this failure, “the Court has the inherent authority to consider untimely 

motions for summary judgment even where a party has not shown good cause for an 

extension of time.” Cooper v. Shelby Cnty., Tenn., No. 07-2283-STA-CGC, 2010 WL 

3211677, at *3-*4 (W.D. Tenn. Aug. 10, 2010). As the Sixth Circuit held, “it is within the 

court’s discretion to consider a motion for summary judgment, even after the time 

stipulated in the court’s order, where such consideration will eliminate unnecessary 

trials which waste the parties’ time and money, and allow the court to give judgment on 

the issues of law where no disputed issues of fact are found.” Williams v. Wilkinson, 

134 F.3d 373, 1997 WL 809971, at *2 (6th Cir. Dec. 18, 1997) (internal quotation marks 

and brackets omitted). 

The Court will entertain BSI’s motion for summary judgment, because: (1) the 

Court previously ruled that (i) no signed permanent loan modification existed, (ii) 

Michigan law bars Pittman from arguing estoppel, and (iii) Pittman cannot show BSI 

made an error in reporting his loan payments as overdue; and (2) ruling on the motion 

may prevent an unnecessary trial, which would save time, money, and judicial 

resources. See id.; Century Indem. Co. v. Aero-Motive Co., 379 F. Supp. 2d 879, 880-

81 (W.D. Mich. 2004), aff’d, 155 Fed. Appx. 833 (6th Cir. 2005). 

Pittman may file a supplemental response/sur-reply to BSI’s motion for summary 

judgment and reply brief. The supplemental response/sur-reply is due FEBRUARY 13, 

2017, and may not exceed 5 pages. 

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 The Court is entertaining BSI’s motion because it may serve judicial efficiency by 

preventing an unnecessary trial, and may save the parties Court the associated time 

and expense that goes with trial. However, BSI’s lack of diligence in bringing this 

motion only one month before trial is set to begin is inexcusable and sanctionable. See 

Chao v. Local 951 United Food & Commercial Workers, No. 1:05-CV-638, 2006 WL 

2771771, at *1-*2 (W.D. Mich. Sept. 25, 2006); Fed. R. Civ. P. 16(f). 

 Rule 16(f) allows the Court to “issue any just orders, including those authorized 

by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to obey a scheduling or 

other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C). BSI’s inexcusable failure to comply 

with the scheduling order justifies a sanction. 

The Court SANCTIONS BSI’s counsel $2,000, payable to Pittman; Pittman’s 

counsel is not entitled to any of this amount. BSI’s counsel must pay Pittman by 

FEBRUARY 24, 2017. 

 Moreover, Rule 16(f)(2) provides that: “Instead of or in addition to any other 

sanction, the court must order the party, its attorney, or both to pay the reasonable 

expenses – including attorney’s fees – incurred because of any noncompliance with this 

rule, unless the noncompliance was substantially justified or other circumstances make 

an award of expenses unjust.” Fed. R. Civ. P. 16(f)(2). BSI’s noncompliance was not 

substantially justified, and no other circumstance makes an award of expenses unjust. 

The Court AWARDS Pittman its reasonable costs and attorney fees incurred in 

briefing BSI’s late motion, capped at $2,500. Pittman’s counsel is entitled to this award, 

not Pittman. By FEBRUARY 13, 2017, Pittman’s counsel must submit a statement of 

expenses that sets forth the costs and fees incurred in briefing this matter. Unless 

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objected to in writing, BSI’s counsel must pay Pittman’s counsel the amount of those 

expenses by FEBRUARY 24, 2017. 

The Court SUSPENDS all final pretrial dates and the February 21 trial; these 

dates will be rescheduled if necessary. 

IT IS ORDERED. 

 /s/ Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

Dated: January 31, 2017 

The undersigned certifies that a copy of this 

document was served on the attorneys of 

record by electronic means or U.S. Mail on 

January 31, 2017. 

s/Linda Vertriest 

Deputy Clerk 

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