United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
Danah Lee Bethscheider brings this case against defendant
Westar Energy, Inc., claiming she was terminated in violation
of the Americans with Disabilities Act (“ADA”).
Defendant's Motion for Summary Judgment (Doc. 29) is
currently pending. The matter is now before the court on
plaintiff's Motion to Amend the Pretrial Order, For Leave
to Respond to Defendant's Motion for Summary Judgment Out
of Time, and to Re-Open Discovery for a Limited Purpose (Doc.
40). For the reasons set forth, the court grants
plaintiff's motion in part and denies it in part.
January 29, 2016, plaintiff filed a pro se complaint against
defendant alleging “disability discrimination and
retaliation, specifically failed to accommodate my disability
and terminated my employment (took away another position) for
asking for an accommodation for my disability and terminated
because of my disability.” (Doc. 1, at 3.) Nearly a
month later, plaintiff, still proceeding pro se, filed an
amended complaint consisting of two counts against
defendant-(1) a claim for wrongful termination of employment
on the basis of disability in violation of the Americans with
Disabilities Act (ADA), and (2) a claim for wrongful
termination of employment on the basis of disability in
violation of the Kansas Acts Against Discrimination (KAAD).
(Doc. 8, at 7.)
29, 2016, attorney Curtis Holmes entered his appearance on
behalf of plaintiff. Discovery commenced after this court
denied defendant's motion to dismiss. According to
plaintiff, Holmes did not conduct any discovery on her
behalf. Defendant filed its motion for summary judgment on
October 6, 2017. Plaintiff filed her response one month after
the response deadline, providing no explanation for the tardy
filing. Defendant timely filed its reply.
18, 2017, Holmes filed a motion to withdraw (Doc. 33). Holmes
had recently received a one-year suspension of his license to
practice law from the Kansas Bar. The court granted his
motion to withdraw and, finding it had been filed past the
deadline, struck his response to defendant's summary
judgment motion. The court also granted plaintiff 30 days to
hire new counsel and instructed that, upon retaining new
counsel, the court would consider a motion to file a response
to defendant's summary judgment motion out of time. On
July 16, 2018, attorney Katherine Myers entered her
appearance on behalf of plaintiff. Myers promptly filed the
present motion requesting an extension of time to file a
response to defendant's summary judgment motion as well
as requesting leave to amend the pretrial order and to reopen
discovery. Defendant opposes plaintiff's requests.
court recognizes the unique circumstances of this case.
Plaintiff's attorney was forced to withdraw from her case
due to the suspension of his law license. Prior to
withdrawing, plaintiff's attorney filed a late summary
judgment response with no explanation for the tardiness. The
court, therefore, struck the response, leaving plaintiff in
the difficult position of having no counsel, and no response
to defendant's summary judgment motion on file. In the
interest of fairness, the court allowed plaintiff time to
retain new counsel.
court, however, must balance this with fairness to defendant,
who has followed the rules so far and should not be penalized
for unfortunate circumstances out of its control.
parties cannot use their attorneys as a basis for excusable
neglect to justify, for example, setting aside a judgment.
See Klein-Becker USA, LLC v. Collagen Corp., No.
2:07-CV-873 TS, 2010 WL 1816240, at *2 (D. Utah, May 5, 2010)
(citing Pelican Prod. Corp. v. Marino, 893 F.2d
1143, 1146 (10th Cir. 1990) (finding “[c]arelessness by
a litigant or his counsel does not afford a basis for relief
under Rule 60(b)(1).”)). In our “‘system of
representative litigation,' attorney negligence is an
insufficient basis for a party to ‘avoid the
consequences of the acts or omissions of [a] freely selected
[attorney].'” S.E.C. v. Fox, 529,
Fed.Appx. 947, 950 (10th Cir. 2013) (citing Link v.
Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)). Parties
must “be held accountable for the acts and omissions of
their chosen counsel, ” and “the proper focus is
upon whether the neglect of respondents and their
counsel was excusable.” Pioneer Inv. Servs.
Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380,
considering this, and the fairness to both parties, the court
must determine whether to 1) allow plaintiff to file a
response to defendant's summary judgment motion out of
time, 2) allow plaintiff to amend the pretrial order, and 3)
Summary Judgment Response
Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, a
court may, for good cause, extend the time to file a pleading
“on motion made after the time has expired if the party
failed to act because of excusable neglect.” Excusable
neglect “encompasses both simple, faultless omissions
to act and, more commonly, omissions caused by
carelessness.” Pioneer, 507 U.S. at 388. A
court, therefore, may accept late filings caused by
“inadvertence, mistake, or carelessness, as well as by
intervening circumstances beyond the party's
control.” Id. In determining whether neglect
is “excusable, ” a court must “take account
of all relevant circumstances surrounding the party's
omission.” City of Chanute v. Williams Natural Gas
Co., 31 F.3d 1041, 1046 (10th Cir. 1994). A court may
consider 1) the danger of prejudice, 2) the length of the
delay and its potential impact on judicial proceedings, 3)
the reason for the delay, and 4) whether the movant acted in
good faith. Id.
the circumstances in the present case are unique in that
plaintiff's new counsel seeks leave for an extension of
time to file a response due to the actions of plaintiff's
former counsel. Plaintiff's former counsel filed a
response a month after the deadline without any explanation
for the tardiness. Plaintiff's new counsel admits that
there is no explanation for why plaintiff's ...