response to mtd and show cause (p0468378xabc80)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RANDOLPH W. RENCHARD, ) ) Plaintiff, ) ) v. ) ) PRINCE WILLIAM MARINE SALES, INC. ) C.A. No.: 1:13-cv-00698 (BAH) and PRINCE WILLIAM MARINA, INC., ) ) Defendants. ) __________________________________________)

PLAINTIFF’S CONSOLIDATED RESPONSE TO

ORDER TO SHOW CAUSE AND DEFENDANTS’ MOTION TO DISMISS

Plaintiff respectfully submits this consolidated response to the Court’s February 3, 2015

order to show cause and Defendants’ February 9, 2015 motion to dismiss for failure to more

timely reply to the Court’s order to show cause. In support of its statement of good cause shown

for accepting submission of (1) Plaintiff’s Response to the Order to Show Cause and Opposition

to Defendants’ Motion to Dismiss, (2) Plaintiff’s Opposition to Defendant’s Motion for

Summary Judgment, with Exhibits 1-15, (3) Plaintiff’s Statement of Disputed Material Facts,

and (4) the supporting affidavit of Randolph Renchard, Plaintiff states as follows:

Plaintiff’s Counsel Has Been Very Ill

As the Court knows, Plaintiff’s counsel has been very ill since mid-January 2015 with

gout and pneumonia. For the week prior to January 16, Plaintiff’s counsel was essentially

bedridden because he could not move from the severe gout pain and because the coughing was

physically exhausting. Nevertheless, counsel continued working from bed and managed to

complete Plaintiff’s affidavit as of January 15, 2015 and was slowly moving forward with the

response to the statement of facts. When counsel filed Plaintiff’s first consent enlargement of

time on January 16, 2015, he only sought a three-day enlargement of time upon returning from

Case 1:13-cv-00698-BAH Document 58 Filed 02/10/15 of 8

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the emergency room. That forecast for health was wildly optimistic, but as counsel mentioned in

the subsequent consent enlargements of time, counsel had never had pneumonia before, much

less pneumonia with gout.

For the pneumonia and gout, counsel was medicated with a combination of albuterol (an

inhalant for wheezing), indomethacin (a steroid for gout), azithromycin (an antibiotic), Percodan

and Percocet (pain killers for gout pain), and certain home remedies that in retrospect were ill

advised.

Counsel was advised that he needed complete bed rest without any work, which counsel

more or less did for January ___ - ____. By ____, counsel was feeling better as was able to

move around his home office with the aid of crutches, but suffered from general exhaustion. As

of this writing, Plaintiff’s counsel still suffers from general exhaustion and can only work 2-3

hours and then must nap for generally an equal amount of time. Obviously, there was, and is,

something wrong, and counsel has undertaken additional medical advice, a dietician, and

acupuncture therapy. Percodan and Percocet, while easing the gout pain, made it impossible to

meaningfully work. So, counsel instead relied upon heavier doses of indomethacin and Advil.

Indomethacin, however, causes severe gastrointestinal disturbance that required perpetual

hobbling to and from the restroom, generally interfering with the level of concentration needed

to oppose a motion for summary judgment.

Nevertheless, Plaintiff’s counsel was making headway drafting the opposition papers

towards the January 30, 2015 filing deadline. And then a series of bizarre events occurred that,

combined with counsel’s illness, made it impossible to work steadily in any meaningful manner.


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Alvin the Cat

Counsel is the single father of three young children. Counsel is also currently a solo

practitioner in the strictest sense of the word – there is no junior partner, senior associate, junior

associate, legal assistant, secretary, IT specialist or any staff at all. These two points are only

mentioned because it has bearing on what happened next, and then what happened after that and

then what happened after that.

By the Friday morning of January 30, counsel was feeling relatively confident that the

opposition papers would be completed by the submission deadline. Counsel’s children arrived

home at approximately 4:30p. One of them commented that they had not seen Alvin, the

family’s longtime house cat, for about a week. There were also 3 other children in the house – a

housemate’s two children (more on him below) and a neighbor’s child. A grand, somewhat wild

search of the house with 6 children ensued, and two hours later, Alvin was found dead in a

closet. After considerable effort, involving two shovels and rubber gloves, Plaintiff’s counsel

placed Alvin in a box and told the kids that we would bury him tomorrow. Counsel, hobbling

around, is now exhausted. By late Friday evening, it became clear to counsel that the opposition

papers were not going to be completed.

Defense counsel has been genuinely gracious in consenting to the enlargements of time.

Following Plaintiff’s counsel third consent enlargement of time, however, Defendants’ counsel

made clear that he would not consent to any more enlargements of time. Accordingly, counsel

did not think requesting another enlargement of time on Friday evening or early Saturday

morning stemming from illness exhaustion, compounded by a dead housecat, would gain much

traction. Further, as it was Friday evening and the Court was closed, counsel did not file a

motion to further enlarge time based upon something as ridiculous as the foregoing.


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The next day, Saturday, January 31, there was a ceremony and funeral for Alvin, with all

six kids present. Plaintiff’s counsel actually managed to dig a hole for the cat. There were then

discussions about the nature of life and death, where would Alvin go after he died, et cetera,

which took some time. Late that evening, counsel dug Alvin back up and disposed of him out of

the backyard. In doing so, counsel hit his foot on the shovel the wrong way, thereby triggering

another gout attack. Saturday night and into Sunday, and on Monday morning after the children

had been driven to their schools, Plaintiff was back on Percodan and Percocet, which, as

mentioned above, makes working impossible.

The Distraught Housemate

Nevertheless, that Monday morning, February 2, 2015, Plaintiff’s counsel still believed

he might be able to get the papers finalized and scanned by midnight, although much of the

momentum had been broken, and frankly, the opposing papers did not look as good as they did

while on pain killers. After driving the children to school, Plaintiff arrived back home to finalize

the papers and the supporting documents. Bear in mind that Plaintiff’s counsel, as now, can still

only work 2-3 hours at a stretch and then must rest for generally, an equal amount of time.

Plaintiff’s counsel has taken in a close friend that is going through a divorce. For reasons

wholly unclear, that morning he was in need of counseling concerning the state of his marriage,

to the point where I was concerned for his immediate wellbeing. I think Alvin’s funeral and

ceremony with the kids triggered something. In any event, we spoke for several hours, following

which Plaintiff’s counsel was exhausted and his foot on fire. At this point on Monday evening, it

was clear the opposition was not getting filed that day, and counsel assumed, with concern, that

he was going to get a call from Defendants’ counsel, an order from the Court, or both, which is

exactly what happened. The Court’s February 3, 2015 gave Plaintiff until Friday, February 6,


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2015 to respond to the order to show cause and submit the papers opposing Defendants’ motion

for summary judgment. Counsel took it as a sign to get some bed rest, which he did.

The Lexmark Scanner and the Canon Scanner

On Friday afternoon, February 6, 2015, Plaintiff’s counsel decided that before finishing

the brief and response to Defendants’ separate statement of facts, he should scan in the exhibits,

which were voluminous, in order to avoid any last minute filing crises.

Plaintiff’s counsel has a commercial grade, Lexmark scanner. The Lexmark scanner

always works. On Friday evening, the Lexmark scanner did not work. Plaintiff’s counsel

determined that during the great search for Alvin the cat, certain wires had been jostled and

disconnected underneath counsel’s desk. Counsel attempted to correct the wiring situation, but

then realized that it’s a wireless scanner and that perhaps other functions on the printer had been

disturbed. Plaintiff’s counsel then placed a telephone call to Lexmark, who, unbeknownst to

Plaintiff’s counsel, closed at 9:00p EST.

At this point, counsel is generally alarmed at the prospect of missing the February 6

deadline and specifically alarmed about what to do about the volume of exhibits the needed to be

scanned for filing. One of counsel’s children reminds him that he has a portable Canon scanner

somewhere in the basement. Nobody knows where it is though. After an hour-long search, it is

uncovered, dusted off and brought to the office.

Plaintiff’s counsel does not recall exactly how to use the Canon scanner, but it appeared

easy enough. It is now the very late Friday night, and counsel is exhausted. Nevertheless, he

decides to begin scanning documents. Turning to the first exhibit, excerpts from the deposition

transcript of Randolph Renchard, it becomes apparent that the Canon scanner is a very, very,


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very slow scanner. Given that it is now the weekend and the Court closed, Plaintiff’s counsel

decides to rest for a few hours and scan all exhibits later that Saturday morning, February 7.

At approximately 6:00 a.m. on Saturday morning, February 7, Plaintiff’s counsel begins

scanning in the exhibits. As mentioned before, the Canon scanner is excruciatingly slow and

involves doing single exhibits in more than one batch, as the Canon cannot accommodate more

than 25 pages at a time. By 2:00 p.m., all of the scans are done, Plaintiff’s counsel combines

them into complete, single exhibits, and goes to rest.

Upon returning Saturday evening, counsel cannot find any of the scans on his computer.

Plaintiff’s counsel spends several hours trying to locate the scanned exhibits, doing online

research, checking every file he can possibly check, to no avail.

On Sunday, February 8, counsel realizes that he has no alternative but to re-scan

everything. As before, each exhibit is scanned in sections and then combined into a single PDF.

Plaintiff then realizes that the Canon has scanned everything into massive MB sizes. Excerpts

from the deposition of Randolph Renchard alone were 647 MB’s and could never be filed. In

fact, every file was too large to be filed with the Court. Accordingly, Plaintiff’s counsel located

software to compress the size of each exhibit, except that the exhibits were too large for the

compression software to accommodate. So – the exhibits were each re-divided into separate

documents, each of those portions were compressed separately, and then each reincorporated

back together into a single exhibit. Counsel learned how to do all this on Sunday, February 8,

and by the time it was done, it was 3:00 a.m. Monday morning, February 9, and Plaintiff’s

counsel was utterly exhausted and needed some rest.

At approximately 6:30 a.m. Monday morning, Plaintiff’s counsel left a message for the

Court’s law clerk to advise that he would be forwarding all responsive papers due on February 6


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that day. Having become intimately acquainted with the deposition transcripts in the course of

the scanning crises, however, Plaintiff’s counsel realized that the response to Defendants’

statement of facts needed to be amplified. Working in 2-3 hour increments that took up all of

Monday - well longer than expected - bringing us to today, Tuesday, February 10.

It is now the early morning hours of Tuesday, February 10, and Plaintiff will be filing all

responsive papers this morning.

Conclusion

In nineteen years of practice, Plaintiff’s counsel has drafted many oppositions to a motion

for summary judgment. He has never drafted anything like the foregoing memorandum and has

never been as ill as he currently is now.

The furthest thing from Plaintiff’s counsel’s intention was to act as if the deadlines

imposed by this Court do not matter, because obviously they do, and counsel has been working

virtually around the clock (albeit in 2-3 hour spurts followed by equal doses of napping and

convalescence) through two illnesses that were exacerbated a bizarre confluence of events that,

but for those illnesses, would have been manageable and of no moment. Given the limited

windows of time to work, and the medication and pain and exhaustion involved, it has proven

nearly impossible to gauge when the opposition and supporting papers would be completed.

Plaintiff guessed wrong throughout this entire episode.

The Court’s February 3, 2015 minute order directed that all papers in relation to

Plaintiff’s opposition to Defendants’ motion for summary judgment be submitted herewith, and

they are. Plaintiff respectfully submits that given the sheer amount of discovery and briefing that

has already occurred in this case, and that three requests for enlargement of time were sought,

and that Defendants’ counsel knew that Plaintiff was ill, that Defendants did not actually believe


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Plaintiff was conceding to their motion for summary judgment. The attached opposition and

statement of disputed facts makes clear that there are significant disputes of material facts

sufficient to deny Defendants’ motion for summary judgment.

Dated: February 9, 2015 Respectfully submitted,

THE LAW OFFICE OF JAMES FOURNIER By:__/s/ James Fournier______________________ James J. Fournier

D.C. Bar No. 462429 69 Bryant Street, N.W. Washington, DC 20001 Tel: (202) 518-0059 Fax: (202) 518-0059 E-mail: [email protected] Counsel for Plaintiff Randolph W. Renchard


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