Murray v. Wal-Mart Stores, Inc.

          MEMORANDUM DECISION AND ORDER ON MOTIONS FOR ACCOMMODATION, CONTINUANCE, AND STAY OF PROCEEDINGS

          JOHN H. RICH, III UNITED STATES MAGISTRATE JUDGE

         Pro 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).^[1] 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 motions.^[2]

         I. Applicable Legal Standards

         “Generally, 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).

         II. Factual Background

         Murray 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, 100, 105.

         Murray's 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.

         Notwithstanding 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.

         Now, more than eight months after his first successor counsel withdrew, Murray is asking for yet more time to engage a second successor counsel.

         III. Discussion

         A. Potential Prejudice to the Non-Moving Party

         Wal-Mart 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.

         It has 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.

         Moreover, 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, ...