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Pio Rodriguez v. Michael J. Astrue


May 10, 2011


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge


On May 6, 2011, the parties filed a stipulation regarding an extension of time within which Defendant would be permitted to file its opposition no later than June 3, 2011. (Doc. 15.) Before addressing the parties stipulation, the Court will address Plaintiff's filing an Amended Opening Brief some twenty-eight days past the relevant deadline and, without leave of Court. This Court once again takes note of Plaintiff's counsels disregard of deadlines and procedural formalities.

Relevant Background

Plaintiff Pio Rodriguez filed a Complaint in this Court on July 13, 2010. (Doc. 2.) A scheduling order was issued on July 14, 2010. (Doc. 6.) Following service of the summons and complaint, Defendant Michael J. Astrue, Commissioner of Social Security, lodged the administrative record on December 9, 2010. (Doc. 10.)

On April 7, 2011, following an earlier stipulation for an extension of time, Plaintiff timely filed an Opening Brief in this matter. (Doc. 13.) Thus, Defendant's opposition became due on or before May 9, 2011.

However, on May 4, 2011, Plaintiff filed an Amended Opening Brief. Plaintiff's filing was not accompanied by a request or motion for leave of Court, nor did the amended pleading address the necessity for the filing. (See Doc. 14.)

Thereafter, on May 6, 2011, the parties filed a "Stipulation Extend Time [sic]," wherein Defendant sought an extension of thirty days, through and including June 3, 2011, within which to file its opposition "[i]n light of the amended brief filed [by Plaintiff] May 4, 2011." (Doc. 15.)


The Scheduling Order issued on July 14, 2010, does not expressly address the matter of amended pleadings or briefs. It does however provide as follows:

12. The court will allow a single thirty (30) day extension of any part of this scheduling order by stipulation of the parties. Court approval is not required for this extension. However, the stipulation shall be filed with the court.

13. Request for modification of this briefing schedule will not routinely be granted.

14. With the exception of the single thirty day extension, requests to modify this order must be made by written motion and will be granted only for good cause.

(Doc. 6 at 4, emphasis in original.) The Federal Rules of Civil Procedure do address amended or supplemental pleadings:

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion . . ..

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Because Plaintiff had previously received a thirty day extension of time prior to filing the original opening brief, Plaintiff should have moved to modify the scheduling order or otherwise sought leave of court to file his amended opening brief. Instead, Plaintiff waited twenty-eight days after filing the opening brief before filing an amended brief. This was done in the absence of a request for leave, motion to modify the scheduling order, or any other explanation for tardiness. Notably, the parties have not entered into a stipulation permitting Plaintiff to file an amended opening brief.

A review or comparison of the opening brief and the amended opening brief reveals a single change*fn1 at page thirteen of the amended opening brief, lines nine and ten, it appears Plaintiff has now provided citations to the administrative record that were missing in the original brief filed April 7, 2011. (Cf. Doc. 14 at 13:9-10 to Doc. 13 at 13:9-10 ["A.R. 24-37, 42-44, 46-47, 50"].)

Because the change appears not to be substantive - in other words, because the amended opening brief does not seek to add arguments - and because Defendant has not yet received an extension of time, the parties' stipulation is hereby GRANTED. Nevertheless, the parties are advised that they are expected to adhere to and comply with this Court's Local Rules, the Federal Rules of Civil Procedure, and other orders of this Court. In the future, Plaintiff's counsel is admonished that, when applicable, to seek leave of court before filing an amended opening brief, explaining the necessity for the brief, and a showing of good cause.

Finally, the parties are reminded that the Court - rather than the parties - controls its docket.



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