United States District Court, D. Montana, Great Butte Division
Morris United States District Court Judge
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.
moves the Court for summary judgment on Counts 1-8. (Docs.
52; 53 at 2.) For the reasons below, the Court will deny the
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,
moves the Court to consider its Motion for Summary Judgment
timely filed. (Doc. 56.) Plaintiffs oppose the motion. (Doc.
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.
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.)
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.
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.”
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.
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 ...