Chapter 7




Bankruptcy No. 12-01006






Adversary No. 12-9113


















This matter came before the Court for a telephonic hearing on Plaintiff’s Motion to Strike Defendant’s Summary Judgment Motion.  Eric Lam appeared on behalf of Plaintiff, German American Capital Corporation.  Christine Skilton appeared for Defendant, Val O. Lyons.

            Plaintiff argues Defendant’s Motion for Summary Judgment is untimely.  Federal Rule of Bankruptcy Procedure 7056 states that Federal Rule of Civil Procedure 56 applies in adversary proceedings.  Fed R. Bankr. P. 7056.  Federal Rule of Civil Procedure 56(b) states:

(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.


Fed. R. Civ. P. 56 (emphasis added).


          The Court’s scheduling order states:


The deadline for filing of dispositive motions such as motion for judgment on the pleadings or motion for summary judgment shall be thirty (30) days after the close of discovery. A dispositive motion will be denied without hearing if it is filed after the deadline.


CM/ECF Doc. # 13 (emphasis added).  The scheduling order also states:  “The deadline for the completion of discovery (including depositions of all experts) is February 17, 2013.”  Id.  On March 28, 2013, the Court granted an extension of discovery until June 14, 2013. 

          Plaintiff argues that under the plain terms of the Court’s scheduling order and Rule 56(b), the deadline for a Motion for Summary Judgment was July 14, 2013.   Plaintiff asserts that Defendant’s Motion for Summary Judgment, filed on November 18, 2013, is thus untimely and should not be considered. 

          Defendant argues in his resistance to the Motion to Strike that although the discovery deadline set by the extension expired on June 14, 2013, discovery did not actually close until 30 days after October 22, 2013 — the date Plaintiff handed over the last discovery documents.  Plaintiff provided the documents only after the Courted ordered it to do so in response to Defendant’s Motion to Compel.  Defendant argues that since he filed his Motion to Compel before the close of discovery, and the Court did not issue its ruling on that Motion until after the close of discovery, discovery did not close until the compelled documents were turned over.  Defendant argues that he filed his Motion for Summary Judgment within 30 days of the last discovery document exchange.  Defendant also argues that he relied on Federal Rule of Civil Procedure 56(b), which specifically states: “Motions for Summary Judgment are due 30 days after the close of all discovery.”  Fed. R. Civ. P. 56(b) (emphasis added).

          The Court finds that the Defendant’s Motion for Summary Judgment is timely.  Although the scheduling order and subsequent extension set the close of discovery as June 14, 2013, the last discovery documents were not provided to Defendant until October 22, 2013—after the Court issued its order compelling Plaintiff to produce those documents.  Defendant filed that Motion to Compel before the close of discovery.  He then filed his Motion for Summary Judgment within 30 days of the last exchange of documents (i.e., the end of discovery).

          Even if the Court found the Defendant’s Motion for Summary Judgment to be untimely under the scheduling order, the Court would still find Defendant has shown “cause” for the late filing.  As a general rule, scheduling ordered deadlines should be enforced unless a party shows cause for extending the deadlines.  Bankr. Rule 9006(b)(1).  “[S]cheduling orders are intended, in part, to assist the parties in preparing their case.”  In re Agriprocessors, Inc., BR 08-2751, 2013 WL 5502962 (Bankr. N.D. Iowa Oct. 2, 2013) (quoting Rahn v. Hawkins, 464 F.3d 813 (8th Cir. 2006), overruled on other grounds by Avichail ex rel. T.A. v. St John's Mercy Health System, 686 F.3d 548 (8th Cir. 2012)).  “Compliance with scheduling orders is vital because, ‘such orders and their enforcement are regarded as the essential mechanism for cases becoming trial-ready in an efficient, just, and certain manner.’”  Id. (quoting Rouse v. Farmers State Bank of Jewell, Iowa, 866 F.Supp. 1191, 1198 (N.D. Iowa 1991)).  Courts generally define “good cause” as a change in law, change in facts, or some other change in circumstances.  Id.  In addition, as the Eighth Circuit explained, “[t]he primary measure of good cause is the movant’s diligence in attempting to meet the order's requirements.” Id. (quoting Rahn, 464 F.3d at 822).  However, it is “within the district court's considerable discretion to consider the motion outside of the time set by the case progression order.” W.F.M., Inc. v. Cherry Cnty., Nebraska, 279 F.3d 640, 643 (8th Cir. 2002) (quoting Silberstein v. IRS, 16 F.3d 858, 860 (8th Cir. 1994)).  See also Bankr. Rule 9006(b)(1) (allowing the court to extend time for cause).

          Applying these standards, the Court finds that good cause exists to allow Defendant’s Motion for Summary Judgment outside the scheduling order.  Although the scheduling order set the close of discovery for June 14, 2013, there were still discovery issues pending with the Court.  The last discovery documents were not exchanged until October 22, 2013.  Defendant then filed his Motion for Summary Judgment on November 18, 2013—within 30 days of the functional end of discovery.  The Court finds this to be sufficient diligence by Defendant to comply with this Court’s orders.

          For all these reasons, Plaintiff’s Motion to Strike is DENIED.  Plaintiff shall have 21 days from the date of this Order to file its resistance.  Defendant will then have 7 days after Plaintiff’s filing to file his reply.

Dated and Entered:  December 27, 2013.



                                                  THAD J. COLLINS

                                                  CHIEF BANKRUPTCY JUDGE