[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-10478

Non-Argument Calendar

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D.C. Docket No. 6:15-cv-01143-GAP-TBS

CHELER DESTRA, 

 Plaintiff,

MERIANNE PIERRE, as Personal 

Representative of the Estate of

Cheler Destra,

 Plaintiff-Appellee,

 versus

JERRY L. DEMINGS,

 Defendant,

MICHAEL JOHNSON, 

KEVIN JOHNSON, 

MICHAEL LAPPAS, 

DONALD W. MURPHY, 

 Defendants-Appellants.

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________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(February 23, 2018)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

Defendants Michael Johnson, Kevin Johnson, Michael Lappas, and Donald 

Murphy (collectively, “Defendants”) appeal the district court’s January 18, 2017, 

order striking their motion for summary judgment as untimely, and January 23, 

2017, order denying their subsequent motion for an extension of time to file their 

motion for summary judgment. After careful review, we vacate the January 23 

order and remand for additional fact-finding.

I. BACKGROUND

Defendants are police officers with the Orange County Sheriff’s Office in 

Orange County, Florida. On May 15, 2014, Defendants arrested Plaintiff Cheler 

Destra after a traffic stop in Orlando. The charges against Destra were 

subsequently dismissed, and Destra brought this action against Defendants and the 

Sheriff of Orange County. The claims against the Sheriff were eventually 

dismissed. 

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Destra brought several claims against Defendants under 42 U.S.C. § 1983 

alleging violations of his constitutional rights in connection with his May 2014 

arrest. He also brought several claims under state law regarding the same conduct. 

In November 2015, the district court entered a scheduling order, which it 

later modified at the parties’ request. In modifying the order, the district court 

adopted the deadlines proposed by the parties. It extended the discovery deadline 

to January 9, 2017, and the dispositive motions deadline to January 16, 2017. The 

district court also ordered the parties to engage in mediation by January 10, 2017. 

Defendants filed their motion for summary judgment on January 17, 2017—

one day late. In that motion, Defendants claimed an entitlement to qualified 

immunity with respect to Destra’s § 1983 claims, and individual immunity under 

Florida Statute § 768.28(9)(a) with respect to his state-law claims. The district 

court struck the motion as untimely the following day. The day after that, 

Defendants filed a motion for an extension of time to file their motion for summary 

judgment. 

A. Defendants’ motion for an extension of time

In their motion for an extension of time, Defendants argued that the district 

court should grant them an extension under Rule 6(b) of the Federal Rules of Civil 

Procedure because their delay was due to excusable neglect. Defendants explained 

that, on January 9, 2017, Deputy Norman Lewis was killed in the line of the duty.

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Deputy Lewis was a member of the same unit as Defendants Michael Johnson, 

Kevin Johnson, and Michael Lappas. 

After attending a mediation conference on January 10, Defendants’ counsel 

learned that there would be two funeral services to honor Deputy Lewis: one in 

Orlando, where Lewis and Defendants worked, and one in Port Charlotte, Deputy 

Lewis’s hometown.1

 The Orlando funeral was originally scheduled for Friday, 

January 13, 2017, and the Port Charlotte funeral was originally scheduled for 

Saturday, January 14, 2017.2

 The three Defendants who served on Deputy Lewis’s 

unit planned to participate in both funerals. One of those Defendants, Michael 

Johnson, had been selected to offer a eulogy at the Port Charlotte service. 

Counsel explained that, in order to accommodate Defendants’ plans to 

participate in the funerals, he cancelled an office conference scheduled for Friday, 

January 13, 2017, where he had planned to review the motion for summary 

judgment with Defendants and obtain their affidavits in support of the motion. 

That meeting was rescheduled for Monday, January 16, 2017—the day that the 

motion for summary judgment was due. 

On the morning of January 16, 2017, Defendants’ counsel learned that the 

Port Charlotte funeral had been rescheduled for 2:00 p.m. that day—Monday, 

 1 Port Charlotte is more than 100 miles from Orlando. 

2

 We note that, according to Defendants’ initial brief on appeal, the Port Charlotte funeral was 

originally scheduled for Sunday, January 15, not, as stated in their motion, Saturday, January 14. 

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January 16, 2017—because Deputy Lewis’s mother had taken ill. Because of that 

change, the three Defendants participating in the Port Charlotte funeral were not 

expected to return to Orlando until late in the evening of January 16.3

 Defendants’ 

counsel immediately telephoned Destra’s counsel and informed him of the 

situation. Defendants’ counsel also explained his understanding that, because 

January 16, 2017, was a legal holiday—the day on which Martin Luther King, Jr.’s 

birthday is officially observed—the deadline for Defendants’ motion automatically 

extended to the following day. 

Defendants’ counsel then informed Defendants that the meeting scheduled 

for January 16, 2017, would be cancelled so they could participate in the funeral 

services. On Tuesday, January 17, 2017, Defendants met with their counsel, 

reviewed the motion for summary judgment, and executed their affidavits. The 

motion was filed the same day. 

B. Destra’s response to Defendants’ motion for an extension of time

Destra opposed Defendants’ motion for an extension of time. In Destra’s

response to that motion, Destra’s counsel acknowledged receiving Defendants’ 

counsel’s phone call on January 16, but emphasized that he did not consent to the 

late filing or otherwise agree that Defendants’ motion for summary judgment 

would be timely if filed on January 17. In arguing that Defendants could not show 

 3

 In their brief on appeal, Defendants note that some of them did not return to Orlando until after 

10:00 p.m. 

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excusable neglect, Destra noted that Defendants could have filed their motion for 

summary judgment at any time before the January 16, 2017, deadline, and 

contended that there was “no indication that counsel could not meet or confer with 

the Defendants on January 11, January 12, January 13, January 14, or January 15, 

2017, or at any date prior to those dates.” He further noted that Defendants’ 

counsel could have electronically filed the motion even on days when the 

courthouse was closed, as it was on January 16. 

Destra then argued that Defendants had not only failed to show excusable 

neglect, but that excusable neglect was not the correct standard to apply to their 

motion. Instead, the proper standard was “good cause” under Rule 16(b)(4) of the 

Federal Rules of Civil Procedure. 

C. The district court’s ruling on Defendants’ motion for an extension 

of time

In a paperless endorsed order entered on January 23, 2017, the district court 

denied Defendants’ motion for an extension of time. The district court did not 

explain its reasoning. Defendants then took this appeal from the district court’s 

January 18 order striking their motion for summary judgment and its January 23 

order denying their motion for an extension of time.4

 

 4 We have jurisdiction to review a district court’s refusal to hear a defendant’s claim of qualified 

immunity on timeliness grounds. See McElroy v. City of Macon, 68 F.3d 437, 437–38, 438 n.*

(11th Cir. 1995); Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1182–84, 1184 n.15 (11th 

Cir. 1994), overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002). In the 

circumstances presented here, this jurisdiction extends to the district court’s January 23, 2017, 

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II. DISCUSSION

A. Standard of review

We review a district court’s decision to enforce the deadlines in its 

scheduling order for an abuse of discretion. Sosa v. Airprint Sys., Inc., 133 F.3d 

1417, 1418 (11th Cir. 1998). Under the abuse-of-discretion standard, we will leave 

undisturbed a district court’s ruling unless the district court has made a clear error 

of judgment or has applied the wrong legal standard. Josendis v. Wall to Wall 

Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011). 

B. The district court’s January 18 order striking Defendants’ motion 

for summary judgment

The district court did not abuse its discretion when it initially struck 

Defendants’ motion for summary judgment as untimely. Defendants’ motion for 

summary judgment was one day late. That the deadline fell on a legal holiday is 

irrelevant. The advisory committee notes to Rule 6 indicate that Rule 6(a), which 

provides that a deadline that falls on a legal holiday is automatically extended to 

the next day that is not a Saturday, Sunday, or legal holiday, does not apply when 

 

order denying Defendants’ motion for an extension of time, which effectively denied Defendants 

review of their claim of qualified immunity. See Bouchard Transp. Co. v. Fla. Dep’t of Envtl. 

Prot., 91 F.3d 1445, 1447–48 (11th Cir. 1996) (concluding that this Court had jurisdiction to 

review a district court’s order compelling mediation and deferring consideration of a defendant’s 

claim of Eleventh Amendment immunity because the order “effectively denied” the defendant’s 

right not to participate in the litigation).

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the district court sets a deadline on a date certain. Fed. R. Civ. P. 6 advisory 

committee note (2009).

Because Defendants’ motion for summary judgment was filed late without 

any explanation, the district court’s initial decision to strike that motion was not an 

abuse of its discretion. Accordingly, the only remaining issue is whether the 

district court abused its discretion in denying Defendants’ motion for an extension 

of time.

C. The district court’s January 23 order denying Defendants’ motion 

for an extension of time

When a deadline appears in a scheduling order and a motion is filed after the 

deadline, “Rule 16 is the proper guide for determining whether a party’s delay may 

be excused.” Sosa, 133 F.3d at 1418 n.2. In Sosa, we rejected the argument that 

the excusable-neglect standard in Rule 6(b) governs such extensions. Id.; cf. Perez 

v. Wells Fargo N.A., 774 F.3d 1329, 1338 n.8 (11th Cir. 2014) (“Rule 6(b)(1)(B) 

applies generally, when a more precise rule does not govern the situation.”).

Accordingly, in order to receive an extension of time to file their motion for 

summary judgment, Defendants were required to show “good cause” for missing 

the deadline. See Fed. R. Civ. P. 16(b)(4); Sosa, 133 F.3d at 1418–19, 1418 n.2. 

Rule 16(b)’s good-cause standard “precludes modification unless the schedule 

cannot ‘be met despite the diligence of the party seeking the extension.’” Sosa, 

133 F.3d at 1418 (quoting Fed. R. Civ. P. 6 advisory committee note (1983)).

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We cannot discern from the existing record whether Defendants and their 

counsel exercised the diligence necessary to establish good cause for their delayed 

filing. The motion for an extension of time indicates that Defendants’ counsel 

“began to diligently prepare” Defendants’ motion for summary judgment on 

January 10, 2017, and that he planned to review that motion with Defendants and 

obtain their affidavits in support of it on Friday, January 13—three days before the 

deadline—at a conference previously scheduled for that purpose. That counsel’s 

plans to finalize Defendants’ motion for summary judgment on January 13 were 

thwarted by the tragic and unexpected death of an officer on Defendants’ unit 

earlier that week does not indicate a lack of diligence on the part of either 

Defendants or their counsel. Furthermore, we cannot say that counsel’s decision to 

reschedule the January 13 conference for January 16 reflects a lack of diligence 

given the information known to counsel when he made that decision. Moreover, 

because the district court did not explain its reasoning, we do not know whether it 

considered counsel’s initial decision to finalize the motion three days before the 

deadline to be indicative of a lack of diligence.

However, we are also mindful of Destra’s assertion that “there is no 

indication that counsel could not meet or confer with the Defendants on 

January 11, January 12, January 13, January 14, or January 15, 2017, or at any date 

prior to those dates.” Although Defendants’ counsel did not learn until the 

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morning of January 16, 2017, that the Port Charlotte funeral had been rescheduled 

for that afternoon, there is no indication in the record as to when Defendants 

learned of that change. Defendants’ knowledge in these circumstances may not be 

conclusive of the issue, but it may be an important factor bearing on whether 

Defendants and their counsel could not meet the January 16 deadline “despite 

the[ir] diligence.” See Sosa, 133 F.3d at 1418 (quoting Fed. R. Civ. P. 6 advisory 

committee note (1983)).

The district court neither found any facts nor explained its reasons for 

denying Defendants’ motion. Given the particular circumstances of this case, and 

the importance of resolving claims of qualified immunity before trial, we think 

additional fact-finding is called for before Defendants’ motion is ruled upon by the 

district court.

5

 See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[W]e 

repeatedly have stressed the importance of resolving immunity questions at the 

earliest possible stage in litigation.”); Mitchell v. Forsyth, 472 U.S. 511, 526 

(1985) (“The entitlement is an immunity from suit rather than a mere defense to 

liability; and like an absolute immunity, it is effectively lost if a case is erroneously 

permitted to go to trial.”); Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 

 5 Defendants, of course, have the burden of establishing good cause. See Fed. R. Civ. P. 6 

advisory committee note (1983). Nevertheless, given the Supreme Court’s repeated 

“instruct[ion] that claims of qualified immunity must be determined pretrial or the doctrine 

would be meaningless and this protection effectively would be denied,” Hill, 40 F.3d at 1184 

n.15, we decline to resolve Defendants’ motion for an extension of time solely on the contents of 

the motion without the benefit of a factual record.

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1182–84, 1184 n.15 (11th Cir. 1994) (concluding that a pretrial determination of 

qualified immunity was important enough to merit this Court’s consideration of the 

merits of a summary judgment motion raising the issue when the district court had 

denied the motion as untimely without considering the merits), overruled in part 

on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002).

III. CONCLUSION

For the reasons set forth above, we VACATE the district court’s January 23, 

2017, order denying Defendants’ motion for an extension of time and REMAND

for additional fact-finding with respect to that motion. 

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