United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES, UNITED STATES DISTRICT JUDGE.
case comes before the court on Defendant 818 Aviation's
motion for leave to file out of time. (Doc. 92). The motion
has been fully briefed and is ripe for decision. (Docs. 93,
94). Defendant's motion is granted for the reasons stated
Facts and Procedural History
March 2, Judge Robinson entered an order setting deadlines
and vacating the trial date in this case due to a contention
raised by Defendant that was not included in the pretrial
order. Judge Robinson set a deadline of March 19, 2018, for
Defendant to file its motion to modify the pretrial order. A
notification of the order was sent out by CM/ECF.
Defendant's counsel received the email notification but
“failed to appreciate that new deadlines were being
set.” (Doc. 92 at 1). Defendant's assistant
correctly inputted the new deadline on his calendar but
Defendant's counsel overlooked the deadline and believed
that it was a date that had been vacated by Judge
Robinson's March 2 order.
March 23, Defendant's counsel became aware of the missed
deadline and contacted Plaintiff's counsel to request an
extension. Plaintiff's counsel did not agree to the
request as it was not made prior to the deadline.
Additionally, Defendant's counsel had previously missed a
status conference in January when he was travelling to the
Tenth Circuit and missed a status report deadline when he was
in trial with Judge Marten.
filed this motion on March 23, four days after the deadline.
Defendant's motion to modify the pretrial order is
attached to the motion for leave to file out of time.
Civ. P. 6(b) governs motions for extensions of time. It
When an act may or must be done within a specified time,
the court may, for good cause, extend the time:
(B) on motion made after the time has expired if the party
failed to act because of excusable neglect.
considering whether Defendant has established excusable
neglect, the court considers the following factors:
“(1) the danger of prejudice to the opposing party, (2)
the length of delay caused by the neglect and its impact on
judicial proceedings, (3) the reason for delay and whether it
was in the reasonable control of the moving party, and (4)
the existence of good faith on the part of the moving
party.” BNSF Ry. Co. v. Zook, No.
15-CV-4956-DDC-KGS, 2016 WL 5371861, at *2 (D. Kan. Sept. 26,
2016); see also Pioneer Inv. Servs. Co. v. Brunswick
Assoc. Ltd. P'ship, 507 U.S. 380 (1993)(discussing
respect to the first factor, Plaintiff has acknowledged that
there is little to no prejudice in allowing Defendant to file
the motion out of time. Therefore, this factor weighs in
favor of granting the motion. The second factor also weighs
in favor of granting the motion as four days is a short delay
and would not impact judicial proceedings. See Id.
(citing Welch v. Centex Home Equity Co., LLC, No.
03-2132-JWL-DJW, 2004 WL 2348295, at *1 (D. Kan. Apr. 23,
2004)(two months delay is “relatively
innocuous”); see also Blake v. Transcommc'ns,
Inc., No. 01-2073-CM, 2005 WL 4705098, at *3 (D. Kan.
Sept. 30, 2005) (seven days after the deadline).
the third factor, Defendant's counsel's reason for
the delay is essentially due to his own carelessness in not
carefully reviewing Judge Robinson's order and in failing
to realize the calendar deadline was “live.”
Plaintiff contends that this reason is not sufficient for
excusable neglect. This court has recognized, however, based
on the Supreme Court decision in Pioneer, that
excusable neglect may also “extend to delays caused by
inadvertence, mistake, carelessness, or ignorance of court
rules, not just to delays caused by circumstances beyond a
party's control.” Deutsch v. Robro Royalty
Partners, Ltd., No. 15-1092-MLB, 2015 WL 3504435, at *1
(D. Kan. June 3, 2015); see Pioneer, 507 U.S. at 392
(“Although inadvertence, ignorance of the rules, or
mistakes construing the rules do not usually constitute
‘excusable' neglect, it is clear that
‘excusable neglect' under Rule 6(b) is a somewhat
‘elastic concept' and is not limited strictly to
omissions caused by circumstances beyond the control of the
movant.”) Defendant's counsel's actions, while
not beyond his control, can be characterized as a mistake or
carelessness. Additionally, there is no indication that
Defendant's counsel acted in bad faith. The final factor
therefore weighs in favor of granting the motion.
considering all four factors, the court finds that Defendant
has met its burden to show excusable neglect. Defendant's
motion for leave to file out of time (Doc. 92) is granted.
Plaintiff may file a response on or before May 16, 2018.
Defendant may ...