Johnson v. Missouri Department of Corrections et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTONIO JOHNSON, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 4:24-CV-135-ZMB
)
MISSOURI DEPARTMENT OF 	)
CORRECTIONS, et al., 	)
)
Defendants. 	)
MEMORANDUM AND ORDER
Before the Court is Defendants Missouri Department of Corrections, David Vandergriff,
Anne L. Precythe, Kurt Weiss, and Gary Fenwick’s (“MDOC Defendants”) Motion for Leave to
File Motion for Judgment on the Pleadings out of Time. Doc. 107. In light of MDOC Defendants
self-admitted lack of diligence, the Court cannot find good cause and thus denies their motion.
BACKGROUND
I. 	Background
The docket reveals an ongoing lack of diligence on the part of a string of former attorneys
for the MDOC Defendants. Johnson filed his initial complaint in January 2024. Doc. 1. MDOC
Defendants chose not to file a potentially viable motion to dismiss, instead answering the complaint.
Doc. 5. Later, following the filing of the First Amended Complaint in late 2024, Doc. 46, MDOC
Defendants again chose to answer, Doc. 60. After the close of discovery, Johnson filed a partial
motion for summary judgment against Weiss on his Eighth Amendment and state-law negligence
claims. Doc. 83. Despite multiple extensions, Docs. 92, 94, 102, MDOC Defendants’ ultimate
opposition barely qualified as such, as it raises only superficial arguments against Johnson’s Eighth
Amendment claim and entirely ignores the substance of the negligence claim, see Doc. 103.
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After the motion for summary judgment was fully briefed, but prior to this Court’s
decision, new counsel entered in the case for MDOC Defendants. Doc. 105. Shortly afterwards,
and to her credit, the new attorney sought leave to file a motion for judgment on the pleadings out
of time. Doc. 107. Given the rapidly approaching trial date, the Court set an expedited briefing
schedule and hearing on the issue. Doc. 109. The matter is now ripe for resolution. Docs. 110, 111.
LEGAL STANDARD
In order to assist with the orderly disposition of cases, courts are required to enter a
scheduling order. FED. R. C IV. P. 16(b)(1). “A scheduling order is not a frivolous piece of paper,
idly entered, which can be cavalierly disregarded by litigants without peril.” Hayes v. Daniel, 2021
WL 4304702, at *2 (W.D. Ark. Aug. 25, 2021) (internal modifications omitted). The Eighth
Circuit has emphasized that it “do[es] not take case management orders lightly, and will enforce
them.” Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001). To modify a scheduling order,
a party must show “good cause” and get the “judge’s consent.” FED. R. C IV. P. 16(b)(4).
The application of the “good-cause standard is not optional.” Cheeks v. Belmar, 162 F.4th
899, 907 (8th Cir. 2025) (citation omitted). “The primary measure of good cause is the movant’s
diligence in attempting to meet the order’s requirements.” Sherman v. Winco Fireworks, 532 F.3d
709, 716 (8th Cir. 2008). A moving party may fail to show “good cause when there has been no
change in the law, no newly discovered facts, or any other changed circumstance . . . after the
scheduling deadline for amended pleadings.” Id. at 718 (quotation omitted); see also Ellingsworth
v. Vermeer Mfg. Co., 949 F.3d 1097, 1100 (8th Cir. 2020). Further, the Court may consider
“prejudice to the nonmovant resulting from modification of the scheduling order” but generally
will not do so “if the movant has not been diligent.” Sherman, 532 F.3d at 717.
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DISCUSSION
As a threshold matter, the Court finds that MDOC Defendants have not been diligent with
respect to the deadlines in this case, including the dispositive-motion deadline. To their credit, they
admitted as much in their motion for leave and at the status conference. See Doc. 107 ¶ 6; Doc. 113.
Most significantly, they have had access to both the factual and legal bases for their newfound
defenses since this case was filed 2 years ago. Nonetheless, they waited to assert these pleading
deficiencies until after the completion of discovery and briefing on summary judgment.
In an effort to meet their burden of showing good cause for this delay, MDOC Defendants
cite only the “changed circumstance” of a new Assistant Attorney General taking over the case.
Doc. 107 ¶¶ 3–4. But “retention of new counsel by itself is not sufficient to establish good cause.”
Signa Dev. Servs. v. Am. Int’l Materials, 2025 WL 2201092, at *4 (D. Neb. Aug. 1, 2025)
(collecting cases); Structural Polymer Grp. v. Zoltek Corp., No. 4:05-CV-321-CEJ, 2007 WL
1083758, at *2 (E.D. Mo. Apr. 11, 2007) (same). The good-cause standard is predicated on “the
movant’s diligence” and not the attorney’s, see Sherman, 532 F.3d at 716, which is perhaps why
it is unsurprising that MDOC Defendants have not cited a single case accepting this excuse as a
basis for good cause. In fact, courts have found even negligence on the part of a previous attorney
does not justify untimely modifications of a scheduling order. Hussain v. Nicholson, 435 F.3d 359,
364 (D.C. Cir. 2006). Thus, while the Court is sympathetic to the new attorney, second guessing
prior counsel’s strategic decisions does not equate to good cause. See Austin Prop. Assocs. v.
Huntington Beach 2, L.L.C., 747 F. App’x 1000, 1002 (5th Cir. 2019).
Moreover, while the Court need “not consider prejudice if the movant has not been diligent
in meeting the scheduling order’s deadlines,” see Sherman, 532 F.3d at 717, Johnson would be
severely prejudiced if the Court granted this motion. Johnson has gone through the expense of
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discovery and fully briefing a summary judgment motion on the question of Weiss’s liability. See
Docs. 83, 103, 104. Despite that, MDOC Defendants ask the Court to set aside that ripe motion to
rule on their own dispositive motion they seek to file 3 months after the deadline. In contrast,
MDOC Defendants likely will have the opportunity to assert at least some of these defenses down
the road, see, e.g., FED. R. C IV. P. 50, even if it would have been preferable for everyone had they
streamlined this case sooner.
CONCLUSION
Accordingly, the Court DENIES MDOC Defendants’ [107] Motion for Leave to File
Motion for Judgment on the Pleadings out of Time.
So ordered this 22nd day of January 2026.
ZACHARY M. BLUESTONE
UNITED STATES DISTRICT JUDGE
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