Boudreaux v. Holloway (In re Holloway)

SUSAN D. BARRETT

Before the Court is the Second Motion for Summary Judgment filed by D. Duston Tapley, Jr. and Jay Tapley (collectively, the "Tapleys"). In this adversary proceeding, the Chapter 7 Trustee, Todd Boudreaux ("Trustee") seeks under 11 U.S.C. §547 and §548 to avoid certain real estate transfers made to the Tapleys. These are core proceedings pursuant to 28 U.S.C. §157 and the Court has jurisdiction under 28 U.S.C. §1334. Because the second motion for summary judgment is filed after the deadline to file civil motions, the Tapleys' motion is denied as untimely.

This adversary proceeding has been pending for several years. Upon the request of the parties, this Court has revised its scheduling order several times. The Amended Scheduling Order entered November 15, 2012 extended the time for filing civil motions to January 31, 2013 and extended the time for submission of a proposed consolidated pre-trial order to February 28, 2013. Dckt. No. 287. A notice to show cause was issued on March 6, 2013 due to the failure of the parties to submit a proposed consolidated pre-trial order. Dckt. No. 293. Mr. D. Duston Tapley, Jr. filed a motion to extend the time to file the consolidated pre-trial order until May 9, 2013. This Court granted the motion and extending the time to file the consolidated pre-trial order to May 9, 2013. Dckt. No. 302. Importantly, the order does not extend the time to file civil motions, nor was such a request made. On May 2, 2013, the Tapleys filed their second motion for summary judgment. No consolidated pre-trial order has been submitted.

A scheduling order limits "the time to join other parties, amend the pleadings, complete discovery, and file motions." Fed. R. Civ. P. 16(b) made applicable to adversary proceedings by Fed. R. Bankr. P. 7016. The order may be modified "only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "This good cause standard precludes modification unless the schedule cannot 'be met despite the diligence of the party seeking the extension.'" Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998); see also Enwonwu v. Fulton-Dekalb Hosp. Auth., 28 6 F. App'x 586, 595 (11th Cir. 2008) (holding district court did not abuse its discretion in denying untimely motion for summary judgment). No request for an extension of time to file the summary judgment motion has been made and no order extending the deadline to file civil motions has been entered. It also is important to note this adversary proceeding has been pending for several years, with numerous extensions already having been previously granted.

For these reasons, the Second Motion for Summary Judgment is untimely, the motion is ORDERED DENIED. The Clerk is directed to set a continued show cause hearing for failure to file a proposed consolidated pre-trial order.

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SUSAN D. BARRETT

CHIEF UNITED STATES BANKRUPTCY JUDGE
Dated at Augusta, Georgia
this 8th day of August, 2013.