United States District Court, D. Maine
DAVID E. MURRAY, Plaintiff
WAL-MART STORES, INC., and WAL-MART STORES EAST, L.P., Defendants
MEMORANDUM DECISION AND ORDER ON MOTIONS FOR
ACCOMMODATION, CONTINUANCE, AND STAY OF PROCEEDINGS
H. RICH, III UNITED STATES MAGISTRATE JUDGE
se plaintiff David E. Murray moves for an
“Accommodation due to Disabilities, ” a
continuance, and a stay of proceedings to allow him more time
to find successor counsel. See [Motion for
Accommodation, Motion[s] for Continuance and Stay of All
Deadlines] (“Motions”) (ECF No.
124). Defendants Wal-Mart Stores, Inc., and
Wal-Mart Stores East, L.P. (together, “Wal-Mart”)
oppose the motions on the bases that Murray has been given
adequate time and has failed to demonstrate the
“exceptional circumstances” that I previously
stated would be necessary to justify a further extension.
See Defendants' Opposition to Plaintiff's
Motion for Continuance (“Opposition”) (ECF No.
126) at 1 (quoting ECF No. 93). Despite Murray's
sympathetic plight, I agree, and, accordingly, I deny the
Applicable Legal Standards
in evaluating whether to issue a stay, a court will consider
three factors: (1) potential prejudice to the non-moving
party; (2) hardship and inequity to the moving party without
a stay; and, (3) judicial economy.” Good v. Altria
Grp., Inc., 624 F.Supp.2d 132, 134 (D. Me. 2009).
However, “[t]he suppliant for a stay must make out a
clear case of hardship or inequity in being required to go
forward, if there is even a fair possibility that the stay
for which he prays will work damage to some one else.”
Dellinger v. Mitchell, 442 F.2d 782, 786 (D.C. Cir.
1971) (citation and internal quotation marks omitted).
filed his initial complaint in state court on August 26,
2015. See Complaint and Demand for Jury Trial (ECF
No. 1-1), attached to Notice of Removal (ECF No. 1). He was
represented by counsel. See id. at 13. Wal-Mart
removed the action to this court on November 24, 2015.
See Notice of Removal. In the intervening years, the
parties jointly or separately requested and were granted 22
extensions. See ECF Nos. 6, 10, 16, 20, 23, 33, 40,
48, 50, 56, 60, 62, 67, 72, 78, 84, 88, 93, 100, 105, 117,
123. Six of those extensions stemmed from Murray's search
for successor counsel. See ECF Nos. 72, 78, 84, 93,
original counsel withdrew on May 11, 2017. See ECF
No. 72. Murray was afforded two extensions, for a total of 60
days, to secure successor counsel. See ECF Nos. 72,
78. Murray's successor counsel entered his appearance on
July 6, 2017. See ECF No. 79. Murray then sought and
received a 90-day extension to accommodate his successor
counsel. See ECF No. 84. On October 17, 2017, the
court entered a stay to facilitate settlement discussions,
see ECF No. 88, and, on November 30, 2017,
Murray's successor counsel withdrew, see ECF No.
93. At that time, I gave Murray 30 days to retain counsel and
warned him that he “should not expect any further
extensions to retain new counsel, absent a showing of
exceptional circumstances, and will be deemed to be
proceeding pro se if successor counsel does not
appear by January 2[, 2018].” Id.
this admonition, I gave Murray a further extension of time,
until February 28, 2018, to find counsel, warning him again
that no further extension would be given. See ECF
No. 100. Murray then requested and was granted a judicial
settlement conference, which was scheduled for April 9, 2018.
See ECF Nos. 101, 102. At Murray's request, I
amended ECF No. 100 to provide a further extension until
April 10, 2018, the day after the scheduled settlement
conference. See ECF Nos. 103, 105. Proceedings
subsequently were stayed until June 29, 2018, to provide the
parties further time to explore the possibility of
settlement. See ECF No. 117. When that effort proved
unsuccessful, I denied Murray's request for a further
extension of time to find successor counsel, but extended the
parties' discovery deadline to August 31, 2018.
See ECF No. 123.
more than eight months after his first successor counsel
withdrew, Murray is asking for yet more time to engage a
second successor counsel.
Potential Prejudice to the Non-Moving Party
protests that the grant of the motions would
“unreasonably delay the resolution of what is already
protracted litigation[.]” Opposition at 1. Wal-Mart
does not elaborate on the prejudice it expects would result
from a further stay; however, against the backdrop of the
history of this litigation, it need not.
been eight years since some of the alleged events occurred.
See [PROPOSED] Second Amended Complaint and Demand
for Jury Trial (ECF No. 85-1), attached to Plaintiff's
Motion for Leave to File Second Amended Complaint (ECF No.
85), ¶ 16. It has been three years since Murray
allegedly was “constructively discharged[, ]”
id. ¶ 3, and nearly two years since his
employment was officially terminated, see Id. ¶
3A. This is a sufficient passage of time to pose an
appreciable risk that witnesses' memories have dimmed and
evidence might otherwise become stale or even lost.
Wal-Mart has repeatedly indicated its intention to file for
summary judgment, filing its first such notice more than two
years ago, on June 16, 2016, see ECF No. 15, and
renewed notices on October 3, 2016, see ECF No. 27,
and July 26, 2017, see ECF No. 80. A further stay
would postpone, ...