United States District Court, D. Maryland
UNITED STATES, for the use and benefit of MANGANARO MIDATLANTIC LLC
GRIMBERG/AMATEA JV, JOHN C. GRIMBERG COMPANY, INC., AMATEA, LLC and HARTFORD ACCIDENT AND INDEMNITY COMPANY
MEMORANDUM OPINION AND ORDER
XINIS, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Maganaro Mid-Atlantic,
LLC's (“MMA”) motion for leave to file a
motion for partial summary judgment, ECF Nos. 40 & 41,
which is opposed by Defendants Amatea, LLC
(“Amatea”), John C. Grimberg Co., Inc.
(“Grimberg”), Grimberg/Amatea JV
(“GAJV”) and Hartford Accident and Indemnity
Company (“Hartford) (collectively,
“Defendants”). ECF No. 43. The deadline for
pretrial dispositive motions was July 15, 2017, and MMA's
previous motion for partial summary judgment was denied, ECF
No. 30. MMA now requests leave to file a new motion for
partial summary judgment under Federal Rule of Civil
Procedure 16(b)(4). ECF No. 40. The Court had abstained from
ruling on this motion in light of ongoing settlement
discussions, which proved unsuccessful. The Court now rules
under Local Rule 105.6 because no hearing is necessary. For
the following reasons, the Court DENIES Plaintiff's
motion for leave, ECF No. 40. The Court also DISMISSES as
moot the summary judgment motion, ECF No. 41.
STANDARD OF REVIEW
as here, a party seeks leave to file a dispositive motion
after the deadline established by the scheduling order has
passed, two Federal Rules of Civil Procedure are implicated:
Rules 6(b)(1)(B) and 16(b)(4). Rule 6(b)(1)(B) provides that
“[w]hen an act may or must be done within a specified
time, the court may, for good cause, extend the time . . . on
motion made after the time has expired if the party failed to
act because of excusable neglect.” Rule 16(b)(4) allows
a scheduling order to be modified “only for good cause
and with the judge's consent.” Other courts in this
Circuit have held that “[t]he good cause modification
provision specific to Rule 16(b)(4) takes precedence over the
generally applicable extension provisions of Rule
6(b)(1).” Everhart v. WMATA, No. DKC 11-2155,
2012 WL 6136732, at *2 (D. Md. Dec. 10, 2012); Neighbors
Law Firm, P.C. v. Highland Capital Mgt., L.P., No. 5:09-
CV-352-F, 2011 WL 238605, at *2 (E.D. N.C. Jan. 24, 2011)
(Rule 16(b)(4) governs disposition of a motion for leave to
file a summary judgment motion after expiration of the
scheduling order's dispositive motions deadline);
Richardson v. United States, No. 5:08-CV-620-D, 2010
WL 3855193, at *3 (E.D. N.C. Sept. 30, 2010) (same); see
also LFE Distribution Inc. v. State Farm Lloyds, No.
5:16-cv-116, 2018 WL 2985908 (S.D. Tex. Mar. 2, 2018) (same).
cause” under Rule 16(b)(4) is established when the
moving party shows that it could not meet the deadlines in
the scheduling order despite diligent efforts. Potomac
Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D.
372, 375 (D. Md. 1999) (quoting Dilmar Oil Co., Inc. v.
Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C.
1997), aff'd by unpublished opinion, 129 F.3d
116, 1997 WL 702267 (4th Cir. 1997)). Indeed, although the
Court may consider such factors as the length of the delay
and any prejudice that flows from such delay, Tawwaab v.
Va. Linen Serv., Inc., 729 F.Supp.2d 757, 768-69 (D. Md.
2010), “the primary consideration ... in [determin] ing
whether ‘good cause' has been shown under Rule
16(b) relates to the movant's diligence, ”
Everhart, 2012 WL 6166732, at *2 (quoting
Reyazuddin v. Montgomery Cnty., Md., No. DKC
11-0951, 2012 WL 642838, at *3 (D. Md. Feb. 27, 2012)).
“Lack of diligence and carelessness are the
‘hallmarks of failure to meet the good cause
standard.'” Id. (quoting W.Va. Hous.
Dev. Fund v. Ocwen Tech. Xchange, Inc., 200 F.R.D. 564,
567 (S.D. W.Va. 2001). “If [the moving] party was not
diligent, the inquiry should end.” Marcum v.
Zimmer, 163 F.R.D. 250, 254 (S.D. W.Va.1995).
December 19, 2017, this Court denied, by written Opinion,
MMA's motion for partial summary judgment on Count I, its
breach of contract claim against Defendant GAJV. The Court
addressed the “no damages for delay” clause in
the parties' subcontract and found that a
“reasonable juror” could find that the clause
barred recovery of the damages from GAJV. ECF No. 30 at 8-11.
The Court further found summary judgment inappropriate
because “genuine disputes of material fact”
existed regarding conditions precedent to payment under the
Subcontract, ECF No. 30 at 11-14, and that additional
questions remained regarding whether the alleged damages were
offset by back charges that GAJV issued to MMA. ECF No. 30 at
seeks anew for summary judgment on Count III against
Defendant Hartford as to liability, arguing that as a matter
of law Hartford, as surety, may not avail itself of the
Subcontract's “no damages for delay” clause,
and thus Hartford is liable to Maganaro in an amount not less
than $113, 532.64. See ECF No. 41-1. MMA explains
that it did not previously raise this argument for two
reasons: (1) the motion is based “in significant
part” on the United States District Court for the
Eastern District of Virginia's decision in United
States o/b/o Kitchens to Gov. John C. Grimberg Co.,
Inc., 283 F.Supp.3d 476 (E.D. Va. 2017), and (2)
MMA's new counsel, retained after the Court issued its
decision on the previous motion for summary judgment,
discovered the grounds for the motion for partial summary
judgment “through diligent review of the record.”
See ECF No. 40.
the parties agree that even if MMA prevailed on this
late-filed motion for summary judgment, the motion at best
accords partial relief. See ECF Nos. 40 at 2-3; 43
at 6-7; 44 at 5-6. Thus, Defendants argue, deciding the
motion will do no more than increase litigation costs and
delay trial. See ECF No. 43 at 5-6. More to the
point, Defendants argue that MMA falls short of showing
“good cause” to permit the delinquent motion
under Rule 16(b). The Court agrees with Defendants.
not shown “good cause” to allow the Plaintiff to
file its second motion for summary judgment submitted seven
months after the dispositive motions deadline. See
Fed. R. Civ. P. 16(b)(5). MMA contends that the Court should
grant the motion because the renewed summary judgment motion
relies on United States o/b/o Kitchens to Go v. John C.
Grimberg Co., Inc., 283 F.Supp.3d 476 (E.D. Va. 2017),
an opinion issued after the previous deadline. But the
arguments raised and resolved in Kitchens to Go, and
all supporting authority, were at MMA's disposal prior to
the original motions filing deadline, and MMA elected not to
raise those arguments. See ECF No. 43 at 3-8;
Kitchens to Go, 283 F.Supp.3d at 481-85. MMA does
not contend that the legal theories asserted in Kitchens
to Go were unavailable to them previously. Nor does MMA
explain why the grounds for its proposed second motion for
summary judgment were unknown to their prior counsel.
See ECF No. 40 at 2; see generally ECF No.
Thus, in large part, it appears that the proposed motion was
spurred by MMA's retention of a new counsel, which does
not satisfy “good cause” under Rule 16(b).
See e.g. Buchanan Cty., Va. v. Blankenship, 434
F.Supp.2d 553 (W.D. Va. 2008); Sall v. Bounassissi,
No. DKC 10-2245, 2011 WL 2791254, at *3 (D. Md. July 13,
2011); see also Patel v. Pandya, No. 14-8127 (WJM),
2016 WL 6902396, at *5 & n.8 (D. N.J. Nov. 22, 2016);
Lyden v. Hogan Dedicated Servs., LLC, No.
15-9289-CM, 2016 WL 6778941, at *2 (D. Kan. Nov. 16,
2016); Kontarines v. Mortg. Elec. Registration Sys.,
Inc., 15-CV-2206 (ARR), 2016 WL 3821310, at *4
(E.D.N.Y.July 12, 2016); accord Robinson v. Wix
Filtration Corp. LLC, 599 F.3d 403, 408-409 (4th Cir.
proposes that the motion “should be entertained absent
a showing of bad faith.” See ECF No. 40 at
1-3; ECF No. 43 at 2-3. This position is untenable. “
‘Rule 16(b)'s good cause standard emphasizes the
diligence of the party seeking amendment;' ” an
important and distinct concept from whether a party operates
in good faith. RFT Management, Co., LLC v. Powell,
607 Fed.Appx. 238, 242 (4th Cir. 2015) (quoting
O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152,
155 (1st Cir. 2004)); Humane Soc'y of the United
States v. Nat'l Union Fire Ins. Co. of Pittsburg,
PA, No. DKC 13-1822, 2016 WL 3668028, at *3-6 (D. Md.
July 11, 2016) (rejecting plaintiff's argument regarding
judicial economy because the argument “fails to address
the proper standard under Rule 16(b)” and did not
demonstrate “diligence and good cause”) (citing
Reyazuddin v. Montgomery Cty, Md., No. DKC 11-0951,
2012 WL 27241, at *6 (D. Md. Jan. 4, 2012); accord
Eclipse Packaging, Inc. v. Stewarts of America, Inc.,
731 Fed.Appx. 168 (4th Cir. 2018); Nourison Rug Corp. v.
Parvizian, 535 F.3d 295, 298 (4th Cir. 2008).
even if the Court were considering judicial economy, allowing
the motion would be decidedly un-economical. Allowing this
late filing requires this Court to credit the notion that any
time a new, non-binding, debatably favorable case is decided,
a renewed motion shall be permitted. This broad license to
re-file would upset reasonable expectations of finality in
milestone scheduling dates and encourage parties to scour
dockets for “new” but otherwise foreseeable
issues. It would also discourage diligence to spot and raise
all related issues at once and in a timely fashion. MMA's
purported “good faith” in bringing their motion
is not sufficient grounds to allow them a second bite at the
summary judgment apple. See Fed. R. Civ. P. 16(b).
Accordingly, the motion for leave to file a second motion for
summary judgment is DENIED.
foregoing reasons, it is this 10th day of August, 2018,
ORDERED by the United States District ...