Whiteman v. Wardlaw Consulting Services, Inc. et al

Western District of Texas, txwd-6:2016-cv-00312

RESPONSE by TIMOTHY WHITEMAN. (O'Brien, Kerry)

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Case 6:16-cv-00312-RP-JCM Document 21 Filed 05/05/17 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION TIMOTHY D. WHITEMAN, § individually, and on behalf of others § similarly situated, § § CIVIL ACTION NO. 6:16-cv-312-RP-JM Plaintiffs, § § v. § § WARDLAW CONSULTING § SERVICES, INC., WILLIAM F. § Collective Action under WARDLAW, MICHAEL N. § 29 U.S.C. § 216(b) WARDLAW and REBECCA W. § MEADOWS, § Defendants. RESPONSE TO SHOW CAUSE ORDER IN DKT. NO. 17 Per the Court’s order in Dkt. No. 16 ("Order"), the parties were required to hold their FRCP 26 conference on what turned out to be April 21, 2017. The parties did not hold the conference until May 5, 2017. The Court’s order in Dkt. No. 17 required the parties to "show cause" for such failure, hence this Response filed by plaintiffs’ counsel Kerry O’Brien. The Order required that the parties confer within 14 days of the date-of-close of the opt-in period. The Notices were first "mailed" on February 21, 2017, through an email to each potential class member, on February 21, 2017. Therefore, the opt-in period closed on April 7, 2017, making April 21 the deadline for the FRCP 26 conference. The parties were further required to file a proposed Joint Case Management Plan and proposed Scheduling Order ("Proposed CMP/SO") within 14 days of the FRCP 26 conference. Based on a hypothetical April 21, 2017 FRCP 26 conference date, the deadline for the filing of the Proposed CMP/SO would Case 6:16-cv-00312-RP-JCM Document 21 Filed 05/05/17 Page 2 of 3 be May 5 (today). Therefore, while the conference was not held timely, the proposed CMP/SO were arguably filed timely. The failure of the parties to timely hold the FRCP 26 conference was the sole error and responsibility of the undersigned attorney Kerry O'Brien. Following a jury trial in Dallas the week of April 3, 2017, O'Brien returned to his Austin office but failed to timely shift his focus to this case, or timely respond to Defendants’ counsel’s requests to hold the FRCP 26. With regret, as well as an apology to the Court and Defendants’ counsel, O’Brien has no "good cause" reason to present to the Court for the delay in holding the FRCP 26 conference. Submitted this 5th day of May 2017. Respectfully submitted, Kerry V. O’Brien Texas Bar No. 24038469 1011 Westlake Drive Austin, Texas 78746 phone: (512) 410-1960 fax: (512) 410-6171 email: ko@obrienlawpc.com LEAD COUNSEL FOR PLAINTIFFS Whiteman v. Wardlaw Consulting Services, Inc. et al./Advisory to the Court 2 Case 6:16-cv-00312-RP-JCM Document 21 Filed 05/05/17 Page 3 of 3 CERTIFICATE OF SERVICE I certify that on the 5th day of May 2017, a true and correct copy of this document was served via the CM/ECF electronic filing system on the following counsel of record: Philip E. McCleery David Mathews Counsel for Defendants/s/Kerry V. O'Brien Kerry O’Brien