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Case 1:13-cv-00698-BAH Document 58 Filed 02/10/15 Page 1 of 8




C.A. No.: 1:13-cv-00698 (BAH)


Plaintiff respectfully submits this consolidated response to the Courts February 3, 2015
order to show cause and Defendants February 9, 2015 motion to dismiss for failure to more
timely reply to the Courts order to show cause. In support of its statement of good cause shown
for accepting submission of (1) Plaintiffs Response to the Order to Show Cause and Opposition
to Defendants Motion to Dismiss, (2) Plaintiffs Opposition to Defendants Motion for
Summary Judgment, with Exhibits 1-15, (3) Plaintiffs Statement of Disputed Material Facts,
and (4) the supporting affidavit of Randolph Renchard, Plaintiff states as follows:
Plaintiffs Counsel Has Been Very Ill
As the Court knows, Plaintiffs counsel has been very ill since mid-January 2015 with
gout and pneumonia. For the week prior to January 16, Plaintiffs counsel was essentially
bedridden because he could not move from the severe gout pain and because the coughing was
physically exhausting. Nevertheless, counsel continued working from bed and managed to
complete Plaintiffs affidavit as of January 15, 2015 and was slowly moving forward with the
response to the statement of facts. When counsel filed Plaintiffs first consent enlargement of
time on January 16, 2015, he only sought a three-day enlargement of time upon returning from

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the emergency room. That forecast for health was wildly optimistic, but as counsel mentioned in
the subsequent consent enlargements of time, counsel had never had pneumonia before, much
less pneumonia with gout.
For the pneumonia and gout, counsel was medicated with a combination of albuterol (an
inhalant for wheezing), indomethacin (a steroid for gout), azithromycin (an antibiotic), Percodan
and Percocet (pain killers for gout pain), and certain home remedies that in retrospect were ill
Counsel was advised that he needed complete bed rest without any work, which counsel
more or less did for January ___ - ____. By ____, counsel was feeling better as was able to
move around his home office with the aid of crutches, but suffered from general exhaustion. As
of this writing, Plaintiffs counsel still suffers from general exhaustion and can only work 2-3
hours and then must nap for generally an equal amount of time. Obviously, there was, and is,
something wrong, and counsel has undertaken additional medical advice, a dietician, and
acupuncture therapy. Percodan and Percocet, while easing the gout pain, made it impossible to
meaningfully work. So, counsel instead relied upon heavier doses of indomethacin and Advil.
Indomethacin, however, causes severe gastrointestinal disturbance that required perpetual
hobbling to and from the restroom, generally interfering with the level of concentration needed
to oppose a motion for summary judgment.
Nevertheless, Plaintiffs counsel was making headway drafting the opposition papers
towards the January 30, 2015 filing deadline. And then a series of bizarre events occurred that,
combined with counsels illness, made it impossible to work steadily in any meaningful manner.


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Alvin the Cat

Counsel is the single father of three young children. Counsel is also currently a solo
practitioner in the strictest sense of the word there is no junior partner, senior associate, junior
associate, legal assistant, secretary, IT specialist or any staff at all. These two points are only
mentioned because it has bearing on what happened next, and then what happened after that and
then what happened after that.
By the Friday morning of January 30, counsel was feeling relatively confident that the
opposition papers would be completed by the submission deadline. Counsels children arrived
home at approximately 4:30p. One of them commented that they had not seen Alvin, the
familys longtime house cat, for about a week. There were also 3 other children in the house a
housemates two children (more on him below) and a neighbors child. A grand, somewhat wild
search of the house with 6 children ensued, and two hours later, Alvin was found dead in a
closet. After considerable effort, involving two shovels and rubber gloves, Plaintiffs counsel
placed Alvin in a box and told the kids that we would bury him tomorrow. Counsel, hobbling
around, is now exhausted. By late Friday evening, it became clear to counsel that the opposition
papers were not going to be completed.
Defense counsel has been genuinely gracious in consenting to the enlargements of time.
Following Plaintiffs counsel third consent enlargement of time, however, Defendants counsel
made clear that he would not consent to any more enlargements of time. Accordingly, counsel
did not think requesting another enlargement of time on Friday evening or early Saturday
morning stemming from illness exhaustion, compounded by a dead housecat, would gain much
traction. Further, as it was Friday evening and the Court was closed, counsel did not file a
motion to further enlarge time based upon something as ridiculous as the foregoing.


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The next day, Saturday, January 31, there was a ceremony and funeral for Alvin, with all
six kids present. Plaintiffs counsel actually managed to dig a hole for the cat. There were then
discussions about the nature of life and death, where would Alvin go after he died, et cetera,
which took some time. Late that evening, counsel dug Alvin back up and disposed of him out of
the backyard. In doing so, counsel hit his foot on the shovel the wrong way, thereby triggering
another gout attack. Saturday night and into Sunday, and on Monday morning after the children
had been driven to their schools, Plaintiff was back on Percodan and Percocet, which, as
mentioned above, makes working impossible.
The Distraught Housemate
Nevertheless, that Monday morning, February 2, 2015, Plaintiffs counsel still believed
he might be able to get the papers finalized and scanned by midnight, although much of the
momentum had been broken, and frankly, the opposing papers did not look as good as they did
while on pain killers. After driving the children to school, Plaintiff arrived back home to finalize
the papers and the supporting documents. Bear in mind that Plaintiffs counsel, as now, can still
only work 2-3 hours at a stretch and then must rest for generally, an equal amount of time.
Plaintiffs counsel has taken in a close friend that is going through a divorce. For reasons
wholly unclear, that morning he was in need of counseling concerning the state of his marriage,
to the point where I was concerned for his immediate wellbeing. I think Alvins funeral and
ceremony with the kids triggered something. In any event, we spoke for several hours, following
which Plaintiffs counsel was exhausted and his foot on fire. At this point on Monday evening, it
was clear the opposition was not getting filed that day, and counsel assumed, with concern, that
he was going to get a call from Defendants counsel, an order from the Court, or both, which is
exactly what happened. The Courts February 3, 2015 gave Plaintiff until Friday, February 6,


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2015 to respond to the order to show cause and submit the papers opposing Defendants motion
for summary judgment. Counsel took it as a sign to get some bed rest, which he did.
The Lexmark Scanner and the Canon Scanner
On Friday afternoon, February 6, 2015, Plaintiffs counsel decided that before finishing
the brief and response to Defendants separate statement of facts, he should scan in the exhibits,
which were voluminous, in order to avoid any last minute filing crises.
Plaintiffs counsel has a commercial grade, Lexmark scanner. The Lexmark scanner
always works. On Friday evening, the Lexmark scanner did not work. Plaintiffs counsel
determined that during the great search for Alvin the cat, certain wires had been jostled and
disconnected underneath counsels desk. Counsel attempted to correct the wiring situation, but
then realized that its a wireless scanner and that perhaps other functions on the printer had been
disturbed. Plaintiffs counsel then placed a telephone call to Lexmark, who, unbeknownst to
Plaintiffs counsel, closed at 9:00p EST.
At this point, counsel is generally alarmed at the prospect of missing the February 6
deadline and specifically alarmed about what to do about the volume of exhibits the needed to be
scanned for filing. One of counsels children reminds him that he has a portable Canon scanner
somewhere in the basement. Nobody knows where it is though. After an hour-long search, it is
uncovered, dusted off and brought to the office.
Plaintiffs counsel does not recall exactly how to use the Canon scanner, but it appeared
easy enough. It is now the very late Friday night, and counsel is exhausted. Nevertheless, he
decides to begin scanning documents. Turning to the first exhibit, excerpts from the deposition
transcript of Randolph Renchard, it becomes apparent that the Canon scanner is a very, very,


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very slow scanner. Given that it is now the weekend and the Court closed, Plaintiffs counsel
decides to rest for a few hours and scan all exhibits later that Saturday morning, February 7.
At approximately 6:00 a.m. on Saturday morning, February 7, Plaintiffs counsel begins
scanning in the exhibits. As mentioned before, the Canon scanner is excruciatingly slow and
involves doing single exhibits in more than one batch, as the Canon cannot accommodate more
than 25 pages at a time. By 2:00 p.m., all of the scans are done, Plaintiffs counsel combines
them into complete, single exhibits, and goes to rest.
Upon returning Saturday evening, counsel cannot find any of the scans on his computer.
Plaintiffs counsel spends several hours trying to locate the scanned exhibits, doing online
research, checking every file he can possibly check, to no avail.
On Sunday, February 8, counsel realizes that he has no alternative but to re-scan
everything. As before, each exhibit is scanned in sections and then combined into a single PDF.
Plaintiff then realizes that the Canon has scanned everything into massive MB sizes. Excerpts
from the deposition of Randolph Renchard alone were 647 MBs and could never be filed. In
fact, every file was too large to be filed with the Court. Accordingly, Plaintiffs counsel located
software to compress the size of each exhibit, except that the exhibits were too large for the
compression software to accommodate. So the exhibits were each re-divided into separate
documents, each of those portions were compressed separately, and then each reincorporated
back together into a single exhibit. Counsel learned how to do all this on Sunday, February 8,
and by the time it was done, it was 3:00 a.m. Monday morning, February 9, and Plaintiffs
counsel was utterly exhausted and needed some rest.
At approximately 6:30 a.m. Monday morning, Plaintiffs counsel left a message for the
Courts law clerk to advise that he would be forwarding all responsive papers due on February 6


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that day. Having become intimately acquainted with the deposition transcripts in the course of
the scanning crises, however, Plaintiffs counsel realized that the response to Defendants
statement of facts needed to be amplified. Working in 2-3 hour increments that took up all of
Monday - well longer than expected - bringing us to today, Tuesday, February 10.
It is now the early morning hours of Tuesday, February 10, and Plaintiff will be filing all
responsive papers this morning.
In nineteen years of practice, Plaintiffs counsel has drafted many oppositions to a motion
for summary judgment. He has never drafted anything like the foregoing memorandum and has
never been as ill as he currently is now.
The furthest thing from Plaintiffs counsels intention was to act as if the deadlines
imposed by this Court do not matter, because obviously they do, and counsel has been working
virtually around the clock (albeit in 2-3 hour spurts followed by equal doses of napping and
convalescence) through two illnesses that were exacerbated a bizarre confluence of events that,
but for those illnesses, would have been manageable and of no moment. Given the limited
windows of time to work, and the medication and pain and exhaustion involved, it has proven
nearly impossible to gauge when the opposition and supporting papers would be completed.
Plaintiff guessed wrong throughout this entire episode.
The Courts February 3, 2015 minute order directed that all papers in relation to
Plaintiffs opposition to Defendants motion for summary judgment be submitted herewith, and
they are. Plaintiff respectfully submits that given the sheer amount of discovery and briefing that
has already occurred in this case, and that three requests for enlargement of time were sought,
and that Defendants counsel knew that Plaintiff was ill, that Defendants did not actually believe


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Plaintiff was conceding to their motion for summary judgment. The attached opposition and
statement of disputed facts makes clear that there are significant disputes of material facts
sufficient to deny Defendants motion for summary judgment.

Dated: February 9, 2015

Respectfully submitted,
By:__/s/ James Fournier______________________
James J. Fournier
D.C. Bar No. 462429
69 Bryant Street, N.W.
Washington, DC 20001
Tel: (202) 518-0059
Fax: (202) 518-0059
Counsel for Plaintiff Randolph W. Renchard