United States District Court, D. Kansas
KRYSTAL L. BOXUM-DEBOLT and LISA ANNE MOORE, Plaintiffs,
MIKE KAGAY, in his official capacity as District Attorney for the Third District of the State of Kansas, Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
L. Boxum-Debolt and Lisa Anne Moore bring suit against Mike
Kagay in his official capacity as District Attorney for the
Third Judicial District of the State of Kansas. Plaintiffs
assert claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., for gender
discrimination and retaliation based on complaints of gender
and/or race discrimination. From January 9 to 13, 2017, the
Court held a jury trial which resulted in a verdict in favor
of defendant on all claims. See Verdict (Doc. #147). On
January 17, 2017, the Court entered judgment. Judgment In A
Civil Case (Doc. #151). On February 14, 2017, plaintiffs
filed a motion for new trial. See Plaintiffs' Motion For
New Trial And Supporting Memorandum (Doc. #152). This matter
comes before the Court on defendant's Motion For Leave To
File Response Out Of Time (Doc. #154) filed March 1, 2017.
noted, on February 14, 2017, plaintiffs filed their motion
for new trial. Pursuant to D. Kan. Rule 6.1, defendant had 14
days - or until February 28, 2017 - to file a response.
See D. Kan. Rule 6.1(d)(2). Defendant did not do so.
One day later, on March 1, 2017, defendant filed a motion for
leave to file his response out of time. Defendant asserts
that on February 28, 2017, at approximately 4:46 p.m.,
counsel completed the response and placed it in his office
queue for filing. At 5:20 p.m., counsel received a CM/ECF
notice on his cell phone and believed that the response had
been filed. The text which counsel reviewed, however, did not
include the case name. The next day, on March 1, 2017, when
counsel was en route to a court hearing in Wichita, he
learned that the CM/ECF notice which he viewed the day before
was in another case and that due to interoffice
miscommunication, the response which he had prepared was not
filed this case. Defendant seeks leave to file the response
out of time.
oppose the request, asserting that defendant has not shown
excusable neglect to justify filing the response out of time.
See Plaintiffs' Brief In Opposition To Defendant's
Motion For Leave To File Response Out Of Time (Doc. #156)
filed March 15, 2017. Pursuant to D. Kan. Rule 6.1, a party
must file a motion for extension of time before the specified
time expires and absent a showing of excusable neglect, the
Court will not grant extensions requested after the specified
time expires. Kan. Rule 6.1(a). Here, defendant did not request
an extension of time before the specified time to respond
expired. Thus, he must show excusable neglect. See
neglect is a “somewhat elastic concept and is not
limited strictly to omissions caused by circumstances beyond
the control of the movant.” Pioneer Inv. Servs. Co.
v. Brunswick Assocs. L.P., 507 U.S. 380, 392 (1993). The
determination whether neglect is excusable is at bottom an
equitable one which requires the Court to consider all
relevant circumstances including (1) the danger of prejudice
to the nonmoving party; (2) the length of the delay and its
potential impact on judicial proceedings; (3) the reason for
the delay, including whether it was within the reasonable
control of the movant; and (4) whether movant acted in good
faith. Id. at 395; Bishop v. Corsentino,
371 F.3d 1203, 1206-07 (10th Cir. 2004).
states that counsel inadvertently believed that the response
had been timely filed when in fact, due to interoffice
miscommunication, it was not. Ordinarily, mistakes by counsel
do not constitute excusable neglect. See, e.g.,
Self v. Lansing Unified Sch. Dist. No. 469, No.
13-2487-KHV, 2014 WL 6678632, at *1 (D. Kan. Nov. 25, 2014)
(citing Pioneer Inv., 507 U.S. at 392). In this
case, however, the circumstances weigh in favor of allowing
defendant leave to file his response out of time.
Defendant's response will aid the Court in deciding
plaintiffs' motion on the merits. Moreover, a one-day
delay will not unduly prejudice plaintiffs or the judicial
proceedings. In addition, although the reason for the delay
was entirely within counsel's control, the record does
not suggest that defendant acted in bad faith. Accordingly,
the Court will sustain defendant's motion.
THEREFORE ORDERED that defendant's Motion For Leave
To File Response Out Of Time (Doc. #154) filed March 1,
2017 be and hereby is SUSTAINED. On or before April 12, 2017,
defendant may file his proposed response. On or before April
26, 2017, plaintiffs may file a reply in support of their
motion for new trial.
 Rule 6.1(a) states, in part, as
All motions for an extension of time to perform an act
required or allowed to be done within a specified time must
(1) whether there has been prior consultation with
other parties and the views of other parties;
(2) the date when the act was first due;
(3) if prior extensions have been granted, the number
of extensions granted and the date of expiration of the last