United States District Court, D. Maryland
BEATRICE KOON, as mother and next friend of Elijah Glay, et al.
CORPORAL TAVARRAS EDWARDS
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
pending and ready for resolution in this civil rights action
is the motion to continue trial filed by Plaintiffs, Beatrice
Koon, as mother of the deceased Elijah Glay, and N.G., Mr.
Glay's daughter. (ECF No. 61). The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. For the following reasons, the
motion to continue will be denied and the case will be
dismissed for failure to prosecute.
case stems from Defendant Officer Tavarras Edwards's
shooting of Mr. Glay, who was unarmed.
September 30, 2016, Plaintiffs filed a complaint in the
Circuit Court for Prince George's County, Maryland
asserting negligence and wrongful death claims. (ECF No. 2).
On July 31, 2017, Plaintiffs filed an amended complaint to
include excessive force claims under 42 U.S.C. § 1983.
(ECF No. 30). Defendants then removed this action to the
United States District Court for the District of Maryland.
(ECF No. 1).
February 16, 2018, discovery closed and the parties'
status report was due. (ECF No. 42). Defendants filed a
status report, but Plaintiffs did not provide input. (ECF No.
43). On March 15, 2018, Defendants filed a motion for summary
judgment. (ECF No. 44). On April 25, 2018, after Plaintiffs
failed to file a timely response to Defendants' motion,
the court issued a paperless notice to counsel requesting
that Plaintiffs “file a response or advise the court if
no opposition will be filed[.]” (ECF No. 45). On May 1,
2018, Plaintiffs filed their response, (ECF No. 46), and on
May 16, 2018, Defendants replied (ECF No. 47). On March 22,
2019, the court denied in part and granted in part
Defendants' motion. (ECF Nos. 48, 49). The remaining
claim alleges that Defendant Edwards used excessive force in
violation of § 1983.
April 16, 2019, the parties participated in a telephone
conference with the court. (ECF No. 50, at 1). During the
telephone conference, the parties agreed to a July 29, 2019
deadline for the pretrial order, motions in limine,
joint proposed voir dire questions, joint proposed
jury instructions, and joint proposed special verdict form.
(Id.). The parties scheduled the pretrial conference
for August 5, 2019. (Id.). On July 29, 2019,
Defendant Edwards filed a proposed pretrial order and noted
that “Plaintiff[s] did not submit a draft pretrial
order 14 days before July 29, 2019, as required by [Local
Rule] 106.3” and “ha[ve] not submitted a draft
pretrial order or any other documents required[.]” (ECF
No. 56). The court again issued a paperless notice requesting
that Plaintiffs advise the court and opposing counsel
“[i]f [they] do not intend to prosecute this case, or
if there is a good reason for [their] failure to comply with
the schedule[.]” (ECF No. 58). Plaintiffs submitted
their proposed pretrial statement on the day of the pretrial
conference. (ECF No. 59). During the pretrial conference,
Plaintiffs' counsel conceded that they were not ready for
trial. (ECF No. 61, at 1-2; ECF No. 64, at 4-5). The court
directed Plaintiffs' counsel to file a motion to postpone
trial. (ECF No. 60). The court cautioned counsel that if it
denied the motion to postpone, it would dismiss the case for
failure to prosecute. (ECF No. 61, at 2; ECF No. 64, at 4).
September 6, 2019, Plaintiffs filed the presently pending
motion to continue. (ECF No. 61). Defendant responded on
September 20, 2019, (ECF No. 64), and Plaintiffs replied on
September 27, 2019 (ECF No. 65).
Motion to Continue
seek a continuance, and a modification of the scheduling
order, under Fed.R.Civ.P 16(b). “A schedule may be
modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). “Good cause
requires the party seeking relief to show that the deadlines
cannot reasonably be met despite the party's diligence,
and whatever other factors are also considered, the
goodcause standard will not be satisfied if the district
court concludes that the party seeking relief (or that
party's attorney) has not acted diligently in compliance
with the schedule.” McMillan v. Cumberland Cty. Bd.
of Educ., 734 Fed.Appx. 836, 846 (4th Cir.
2018) (alterations, citations, and quotations omitted);
see also 6A Charles A. Wright, Arthur R. Miller,
& Mary Kay Kane, Federal Practice and Procedure §
1522.2 (3d ed.). “A party's assertion that further
discovery is needed, without more, will not suffice.”
6A Charles A. Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice and Procedure § 1522.2 (3d ed.).
“Similarly, the failure to explain satisfactorily
delays that led to the need for modification will result in a
refusal to modify the order.” Id.
argue that good cause exists to modify the scheduling order
and postpone trial for three reasons. First, Plaintiffs'
counsel experienced technology issues resulting in a complete
system crash and the subsequent loss of the “entire
case including possible leads for witnesses and the
like[.]” (ECF No. 61, at 2). Second, Plaintiffs'
“efforts to secure an expert witness [were]
futile.” (Id.). Third, the continuance would
afford Plaintiffs “the opportunity to find more
resources that will allow [them] [to] locate witnesses and
perhaps add to [their] legal team.” (Id.).
Plaintiffs' lack of financial resources underlies the
second and third grounds for postponement. (Id.,
questions the applicability of the good cause standard
“in view of the posture of this case.” (ECF No.
64, at 5). Instead, Defendant argues that the “case
should be dismissed because Plaintiff[s] ha[ve] failed to
prosecute it with any degree of diligence from its
inception.” Id. Section III of this opinion
addresses Plaintiffs' failure to prosecute.
failed to show good cause to postpone trial. Plaintiffs'
first argument is unavailing. The system crash occurred in
July 2019. (ECF No. 65, at 3). While the crash may explain
Plaintiffs' failure to provide materials for the pretrial
conference promptly, it does not explain Plaintiffs'
counsel's failures and lack of diligence up to that
point. Plaintiffs contend that the crash caused them to lose
“possible leads for witnesses[.]” (ECF No. 61, at
2). This suggests that Plaintiffs failed to contact or
develop witnesses prior to July 2019. Indeed, at the pretrial
conference, Plaintiffs conceded that they had not prepared
witnesses, issued subpoenas, obtained the necessary documents
to present their case, or secured an expert witness. (ECF No.
64, at 4). These preparatory obligations existed years before
July 2019. (ECF No. 42).
second and third arguments for postponement are similarly
unconvincing. The discovery deadline in this case was
February 16, 2018. (ECF No. 42). Plaintiffs did not file any
requests for extensions of time to continue discovery.
Moreover, Plaintiffs have not articulated how they would
remedy their lack of preparedness with a postponement. The
United States Court of Appeals for the Fourth Circuit
addressed a similar situation in Krodel v.
Houghtaling, 468 F.2d 887 (4thCir. 1972). In
Krodel, the Fourth Circuit affirmed a district
court's denial of a plaintiff's motion for a
continuance to contact material witnesses when “the
record reveal[ed] that [the plaintiff] had neither
interviewed nor subpoenaed any of the individuals”
and “further indicate[d] that [the] ...