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Birdsong v. Unified Government of Wyandotte County/Kansas City

United States District Court, D. Kansas

July 9, 2014

JEROME BIRDSONG, Plaintiff,
v.
UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS, et al., Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

This matter is before the Court on Plaintiffs' Motion for Leave to File Out of Time (Doc. 82) and Defendant Gorman's Motion to Dismiss (Doc. 74). The response to the motion to dismiss is fully briefed. As described more fully below, Plaintiffs' motion for leave to file out of time is denied. Thus, Defendant's motion to dismiss is granted as unopposed, and is further granted because Plaintiffs' claims against Defendant Gorman are time-barred and because he is protected by qualified immunity.

I. Factual and Procedural Background

Defendant Gorman filed the motion to dismiss at issue on March 25, 2014.[1] Plaintiffs requested an unopposed extension of time to respond to Defendant's motion to dismiss on April 8, 2014, [2] which was granted; the deadline was extended to May 8, 2014.[3] On May 7, 2014, at 10:14 p.m., Plaintiffs' counsel requested from Defendant's counsel via email another extension of one week to complete the response.[4] Defendant's counsel agreed "provided the motion and proposed order state that it is the last request for an extension." Plaintiffs' counsel requested a second unopposed extension of time to respond to Defendant's motion to dismiss on May 8, 2014, [5] which was granted and the deadline was extended to May 15, 2014.[6] On May 19, 2014, four days after the deadline passed, Plaintiffs filed the instant Motion for Leave to File Memorandum in Opposition to Defendant Gorman's Motion to Dismiss Out of Time.[7]

Plaintiffs requests leave to file out of time because of "delays caused by [counsel's] personal and professional responsibilities" including obligations in "other pending cases" and "personal obligations surrounding a daughter's graduation from the University of Kansas and to out of town guests."[8] Plaintiffs also do not believe "that any party will be prejudiced if the Court grants leave."[9] Defendant argues in response that there is a danger of prejudice from the substantial delay, that the reason for the delay was within the control of Plaintiffs' counsel, and that there is an absence of good faith stemming from Plaintiffs' counsel not consulting Defendant's counsel about the motion for leave to file out of time.[10] Plaintiffs, in reply, cite counsel's commitments to a jury trial and difficulty properly allocating time.[11]

Plaintiffs' counsel has an established pattern of missing filing deadlines set by the Court in this case. The Court previously granted Plaintiffs four extensions of time to respond to previously-filed motions to dismiss, [12] over the course of four months. Although the Court granted the first four motions for extension of time, Plaintiffs filed the third and fourth motions for an extension of time after the deadlines passed.[13] The Court denied Plaintiffs' fifth request because it was filed eight days out of time and did not seek leave.[14] Upon Plaintiffs' motion for reconsideration, [15] the Court reluctantly granted an extension to August 26, 2013, and declared it would not favorably entertain further requests for extension of time.[16] Nonetheless, the response deadline lapsed and Plaintiffs filed the response to Defendants' motions to dismiss one day late on August 27, 2013, without leave.[17]

On September 18, 2013, after the motions to dismiss were fully briefed, Plaintiffs filed a motion for leave to file Second Amended Complaint, with an attached proposed Second Amended Complaint.[18] The proposed Second Amended Complaint replaced the John Doe Defendants with Detective Patrick Greeno and Jerome Gorman, who is the district attorney for Wyandotte County. The Court ultimately granted Plaintiffs' motion to amend as to several claims and denied as futile their motion to amend as to other claims. In ruling on the motions to dismiss and motion to amend, the Court ordered Plaintiffs to pay the reasonable attorney fees incurred by Defendants Bell and Mill in filing their reply given the prejudice caused by "the Plaintiffs' decisions to seek leave to amend so long after delaying their response to the motions to dismiss, not to file their response along with a proposed amendment to aid in the parties' and Court's analysis, and not to file the proposed amendment until after the reply deadline had elapsed."[19] Plaintiffs timely filed their Second Amended Complaint on February 7, 2013, which added Defendants Greeno and Gorman.[20]

II. Discussion

A. Motion For Leave to File Response Out of Time

Plaintiffs argue the Court should grant their motion for leave to file out of time and allow the untimely-filed response because of delays "caused by personal and professional responsibilities."[21] Plaintiffs also argue there is no risk of prejudice to any party if allowed to file.[22]

Under D. Kan. Rule 6.1(a):

All motions for an extension of time to perform an act required or allowed to perform an act required or allowed to be done within a specified time must show:
(1) whether there has been prior consultation with other parties and the ...

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