United States District Court, D. Kansas
MEMORANDUM & ORDER
A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE.
April 23, 2018, Magistrate Judge O'Hara issued a Notice
and Order to Show Cause (Doc. 43) directing Plaintiff Marco
Torres to show cause to the undersigned, on or before May 11,
2018, why this action should not be dismissed in its entirety
with prejudice for lack of prosecution under Fed.R.Civ.P.
41(b). Judge O'Hara found that Plaintiff had stopped
participating in the case, was not responding to his now
former attorney's attempts to reach him, and failed to
attend the scheduled mediation. Judge O'Hara also noted
Defendant Kansas Heavy Construction, L.L.C.'s pending
motion for summary judgment.
23, 2018-nearly two weeks after the May 11 deadline-the Court
received a letter from Plaintiff in response to Judge
O'Hara's order. In that letter, Plaintiff states that
he misplaced his cell phone in January and, although he
obtained a new phone by January 7, 2018, his email
communication was not restored until early February.
Plaintiff claims that this disruption in his ability to
communicate by email caused him to miss the mediation
scheduled for January 19, 2018, but that he never stopped
participating in his case. Plaintiff states that he has opted
to take his former attorney's advice to hire new counsel,
and that he has managed to find a new attorney who is
“guiding [him] through this process until given the
opportunity to possibly take over [his]
case.” Plaintiff states that the “helping
attorney” he is “speaking
with” has advised him to request a hearing on
his former counsel's motion to withdraw. Finally,
Plaintiff requests the Court's guidance on how to
Plaintiff's response to the show-cause order is late, the
Court will grant him one final chance to avoid the dismissal
of his case. As noted by Judge O'Hara, Defendant has
filed a motion for summary judgment. Pursuant to D. Kan. Rule
6.1(d)(2), Plaintiff's response to that motion was due on
May 11, 2018. D. Kan. Rule 7.4(b) provides that
“[a]bsent a showing of excusable neglect, a party or
attorney who fails to file a responsive brief or memorandum
within the time specified in D. Kan. Rule 6.1(d) waives the
right to later file such brief or memorandum.” Thus,
Plaintiff or his attorney must file a motion establishing
excusable neglect and seeking leave to respond out of time
pursuant to D. Kan. Rule 7.4(b) and Fed.R.Civ.P. 6(b)(1)(B).
relevant factors in considering whether a party seeking leave
to respond out of time has established excusable neglect are:
“(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 the 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
Court will grant Plaintiff leave to oppose Defendant's
motion for summary judgment out of time only if Plaintiff, on
his own behalf or through counsel, can make a showing of
excusable neglect in a motion filed on or before June 14,
2018. Further, the Court urges Plaintiff to carefully read
Fed.R.Civ.P. 56, D. Kan. Rule 56.1, and the Notice to Pro Se
Litigant Who Opposes a Motion for Summary Judgment,
which Defendant filed contemporaneously with its summary
judgment motion as required by Local Rule
56.1(f). The Court cannot grant Plaintiff a hearing
on his former counsel's motion to withdraw, as that
motion has already been granted.
IS THEREFORE ORDERED BY THE COURT that Plaintiff, or
Plaintiff's attorney, shall file a motion on or before
June 14, 2018 seeking leave to file a response to
Defendant's motion for summary judgment out of time. If
Plaintiff fails to do so, or if Plaintiff fails to establish
excusable neglect, the Court will proceed to consider and
decide Defendant's motion as uncontested pursuant to D.
Kan. Rule 7.4.
IS SO ORDERED.
 Doc. 44.
 Id. at 1.
 Doc. 38.