Opinion
Civil Action No. 02-481 (JMF).
May 10, 2006
MEMORANDUM ORDER
In this case, I previously granted the defendant's, District of Columbia's ("the District"), motion for summary judgment although the motion was filed well past the deadline for filing such motions and was not accompanied by a motion pursuant to Rule 6(b) of the Federal Rules of Civil Procedure. The court of appeals held that my doing so was an abuse of discretion and remanded the case. Smith v. District of Columbia, 430 F.3d 450 (D.C. Cir. 2005). At a recent pre-trial conference, the District asked me to set a new schedule for the filing of dispositive motions, intending to re-file the motion for summary judgment that I had once granted. Under this stratagem, the District, by meeting the new deadlines, would accomplish the summary adjudication of plaintiff's claim, avoiding what the District characterizes as a meaningless trial. Defendant District of Columbia's Memorandum of Points and Authorities in Response to this Court's Scheduling Order of March 7, 2005 at 4 ("Requiring this case to go to trial would be futile because [the] District would be entitled to a judgment as a matter of law."). But, to consider the District's motion for summary judgment now would be to nullify what the court of appeals intended to accomplish: to prohibit the summary adjudication of plaintiff's claim without any showing whatsoever of a good reason for the District's failure to file for that summary adjudication when it was due. Nothing has changed since the District filed its belated motion. Yet, the District would have me do exactly what the court of appeals said I should not have done: grant an untimely summary adjudication without any showing of any reason by the District for its failure to file its motion for summary judgment in a timely manner.
Moreover, even though the District failed to move for leave to file its untimely motion pursuant to Rule 6(b) of the Federal Rules of Civil Procedure, the court of appeals explained that the District met, at best, only one of the criteria that would have been applicable had it moved for leave to file. Smith, 430 F.3d at 457 n. 5. That determination is the law of the case and thus would prohibit the granting of the District's motion were it re-filed now.
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995) (law of the case is a prudential rule that a court involved in later phases of a lawsuit should not re-open questions decided by that court or a higher one in earlier phases).
The more difficult question presented is whether, once the case proceeds to trial, the District may proffer at trial evidence that plaintiff failed to exhaust her administrative remedies and seek judgment in its favor on that basis. But, there is nothing in the federal rules (or elsewhere) that authorizes a court to preclude a party from seeking judgment on the basis of a defense it has pled because that party did not move for summary judgment on that basis prior to trial. Indeed, had I done what I was supposed to do, and denied the District's motion for summary judgment on the grounds that it was untimely and not accompanied by a motion for leave to file pursuant to Rule 6(b), the case would have proceeded to trial and the defendant would have presented its exhaustion defense at trial. If the defense were to be presented now at the trial, plaintiff would be in the same exact position she would have been had I done what the court of appeals found I should have done. I am hard pressed to understand why the court of appeals' opinion grants plaintiff a greater benefit or advantage than the one she would have secured had I denied the District's motion in the first place.
It would thus appear, at first glance, that the District should be able to present the defense at trial. There is, however, another concern. The pre-trial procedures order I issued in this case required the District to state its defenses in the Joint Pre-Trial Statement and the District did not indicate that it would assert the exhaustion defense when it filed that Statement. Plaintiff points out that the federal courts have held that the failure to assert a defense at the pre-trial stage constitutes a waiver of that defense even though the defense was pled in the answer. There is certainly authority supporting that assertion.E.g., Gorlikowski v. Tolbert, 52 F.3d 1439, 1444 n. 3 (7th Cir. 1995). I have decided therefore that, before I resolve this issue, I need additional briefs from the parties addressed to this issue: should the District of Columbia be permitted to assert at trial the defense of failure to exhaust administrative remedies when it did not list that defense in the Joint Pre-Trial Statement. The District's brief is due on May 22, 2006 and the plaintiff may reply thereto on May 30, 2006.
SO ORDERED.