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Cox v. Northwestern Corp.

United States District Court, D. Montana, Great Butte Division

July 16, 2018

REECE COX and JODY HERTZOG, Plaintiffs,
v.
NORTHWESTERN CORPORATION d/b/a NORTHWESTERN ENERGY and DOES 1-25, Defendants.

          ORDER

          Brian Morris United States District Court Judge

         I. INTRODUCTION

         Plaintiffs Reece Cox and Jody Hertzog own a house located at 132 Shirley Way in Anaconda, Montana. (Doc. 13 at 2.) Defendant Northwestern Corporation, d/b/a Northwestern Energy (“Northwestern”), operates powerlines that run adjacent and “in close proximity” to Plaintiffs' house. Id. Plaintiffs' Amended Complaint contains eight counts against Northwestern alleging various acts of trespass, negligence, private nuisance, takings, strict liability, and failure to warn. Id. at 4-21. Plaintiffs seek compensatory and punitive damages. Id. at 21.

         Northwestern moves the Court for summary judgment on Counts 1-8. (Docs. 52; 53 at 2.) For the reasons below, the Court will deny the motion.

         II. BACKGROUND

         Shortly after Plaintiffs purchased their house, Plaintiffs “discovered very high voltage and [electric and magnetic fields] were intruding the exterior and interior of their house.” (Doc. 13 at 3, ¶ 7.) Northwestern verified that the powerlines were emitting high voltage on the exterior of the house. Id. at 3, ¶ 8. An independent electrician verified that “irregular high voltage” from the powerlines was passing through to the interior of Plaintiffs' house. Id. at 3, ¶¶ 8-9.

         III. TIMELINESS

         Northwestern moves the Court to consider its Motion for Summary Judgment timely filed. (Doc. 56.) Plaintiffs oppose the motion. (Doc. 57.)

         This Court issued a Scheduling Order on July 12, 2017. (Doc. 22.) The Scheduling Order required the parties to file and fully brief all pretrial motions by May 4, 2018. Id. at 2. The Scheduling Order mandated that the parties file motions within enough time that the brief in support of the motion and the opposing party's response would be filed before the deadline. Id. at 3-4.

         Responses to motions for summary judgment must be filed within twenty-one days after the filing of the motion. D. Mont. L.R. 7.1(d)(1)(B)(i). To meet the Court's “fully briefed” deadline, Northwestern should have filed its motion for summary judgment by April 11, 2018. Northwestern filed its motion for summary judgment on May 4, 2018. (Doc. 52.) Plaintiffs responded on May 25, 2018. (Doc. 59.)

         Northwestern argues that the Court should excuse its tardy filing because Northwestern acted diligently. (Doc. 56-1 at 5.) In support, Counsel submitted an affidavit regarding Northwestern's attempts to access Plaintiffs' property to procure updated data regarding the component parts and function of the electrical transmission line running through Plaintiffs' property. (Doc. 56-1.) Plaintiffs initially declined to allow Northwestern's employees access to their property because discovery had closed. Id. at 3. Plaintiffs ultimately agreed to allow Northwestern to examine their property. Id. at 4. Northwestern examined Plaintiffs' property on April 26, 2018. Id.

         Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge's consent.” Plaintiffs argue that Northwestern's failure to move to modify the July 12, 2017, Scheduling Order in advance of the tardy filing prevents Northwestern from so moving now. Northwestern relies on Federal Rule of Civil Procedure 6(b)(1)(B), which affords the Court the ability to extend time “on motion made after the time has expired if the party failed to act because of excusable neglect.”

         The Court notes that Northwestern failed to move for an extension of time to file pretrial motions. The Court further acknowledges that discovery had closed at the time Northwestern sought to re-examine Plaintiff's property, and that Northwestern's reason for the re-examination-that an employee had left the company-did not confer upon Plaintiffs the responsibility to accommodate out-of-time discovery requests.

         The Court finds, however, that Northwestern's tardy filing caused only minor delay. The parties have now fully briefed the motion for summary judgment, and the Court finds no indication of prejudice because of the ...


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