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Fabrick v. Acumen Assessments, LLC

United States District Court, D. Kansas

August 21, 2019

KC FABRICK, Plaintiff,
v.
ACUMEN ASSESSMENTS, LLC et al., Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This matter comes before the court on plaintiff KC Fabrick's three motions for extension of time.[1] Docs. 48, 49, and 51. Plaintiff seeks more time to address three docket items: defendant John R. Whipple's Motion to Dismiss (Doc. 33); Magistrate Judge James P. O'Hara's July 23, 2019, Text Order granting in part and denying in part plaintiff's earlier motion for extension of briefing deadlines (Doc. 36); and Judge O'Hara's other July 23, 2019, Order denying plaintiff's Motion for Leave to Proceed Anonymously and Seal Documents (Doc. 37).

         Both of plaintiff's first two motions address Dr. Whipple's Motion to Dismiss (Doc. 33) filed on July 17, 2019. Plaintiff contends that filing anomalies on the docket warrant more time to respond. Because Dr. Whipple has filed a second Motion to Dismiss (Doc. 38)-which incorporates and expands the arguments included in the first Motion to Dismiss-the court denies as moot the first Motion to Dismiss without prejudice to the court's consideration of the arguments incorporated into Dr. Whipple's second Motion to Dismiss. Plaintiff's time to respond to Dr. Whipple's second motion to dismiss has not expired. So, plaintiff must respond to the second Motion to Dismiss by August 28, 2019, Plaintiff's third motion seeks an extension of time to respond to Judge O'Hara's July 23, 2019, Order denying plaintiff's Motion for Leave to Proceed Anonymously and Seal Documents (Doc. 37). The court concludes that plaintiff has shown excusable neglect, and so the court permits plaintiff an extension-also until August 28, 2019-to file any objections to Judge O'Hara July 23, 2019, Order.

         I. Analysis

         A. Motion for Extension of Time to File Response to Dr. Whipple's Motion to Dismiss (Doc. 48) and Motion for Extension of Time to File Response to Order on Sealed Motion (Doc. 49).

         On July 12, 2019, plaintiff filed a Motion for Leave to Proceed Anonymously and Seal Documents. Doc. 28. In response, Dr. Whipple filed a Memorandum in Opposition and Motion to Dismiss. Doc. 33. Dr. Whipple's filing asserted the court lacked jurisdiction over plaintiff because he filed his case using a pseudonym. Judge O'Hara then denied plaintiff's motion. Doc. 37. On July 31, 2019, Dr. Whipple filed a second Motion to Dismiss, ambiguously titled “Motion to Dismiss And/Or Supplemental Motion to Dismiss.” Doc. 38.

         Plaintiff asserts an extension is warranted because the docket did not inform plaintiff that Dr. Whipple's Memorandum in Opposition also was a Motion to Dismiss. The docket reflects that on July 23, 2019-six days after Dr. Whipple filed his motion-the Clerk of the Court adjusted the docket to reflect that Mr. Whipple's filing also constituted a Motion to Dismiss. See Docket Annotation (“The docket text has been updated and the Motion to Dismiss event was added to the entry per Chambers.”).

         A simpler solution exists. Dr. Whipple's second Motion to Dismiss incorporates the argument contained in the first Motion to Dismiss-i.e., the court lacks subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).[2] And the response deadline for the second Motion to Dismiss has not expired. The court will address the subject matter jurisdiction argument in the second Motion to Dismiss. So, the court denies the first Motion to Dismiss as moot and without prejudice to Dr. Whipple raising the same arguments in his second Motion to Dismiss. Plaintiff must file a response to Dr. Whipple's second Motion to Dismiss by August 28, 2019. If this amount of time is insufficient, plaintiff should “publicly file his motion for extension.” In his current motions, plaintiff has asked for clarification about the deadlines and meaning of this phrase. The court cannot give plaintiff advice or render advisory opinions. Instead, the court directs plaintiff to District of Kansas Local Rule 6.1.

         The court now turns to plaintiff's second motion, which requests more time to respond to Judge O'Hara's July 23, 2019, Text Order. Docket Entry No. 36. The Order granted in part and denied in part plaintiff's Motion for Extension of Briefing Deadlines. The court granted the motion to the extent it addressed plaintiff's time to respond to Dr. Whipple's Motion to Dismiss (Doc. 33). That is, the court applied the standard 21-day deadline for plaintiff to respond- plaintiff's response thus was due August 7, 2019. But, the court denied plaintiff's motion seeking an extension of time to file a reply to his Motion to Proceed Anonymously. Doc. 28.

         Plaintiff's second motion reiterates a request for more time to respond to Dr. Whipple's first Motion to Dismiss. Based on the court's reading of plaintiff's motion, plaintiff challenges the court's Order setting his deadline to respond to Dr. Whipple's Motion to Dismiss as August 7, 2019. See Doc. 50 at 2. To the extent plaintiff requests an extension of time to address Dr. Whipple's first Motion to Dismiss, the court denies the motion as moot. The court directs plaintiff to file a response to Dr. Whipple's second Motion to Dismiss (Doc. 38) by August 28, 2019.

         II. Motion for Extension of Time to File Objections to Judge O'Hara's July 23, 2019, Order (Doc. 51).

         Plaintiff's third motion asks the court to grant him more time to respond to Judge O'Hara's July 23, 2019, Order denying plaintiff's Motion for Leave to Proceed Anonymously and Seal Documents. Doc. 37. Plaintiff had until August 6, 2019, to file objections with the district court. See Doc. 37 at 7 (citing Fed.R.Civ.P. 72 and D. Kan. Rule 72.1.4(a)). Plaintiff attempted to file a motion for extension of time one day late-on August 7, 2019. See Doc. 46; Doc. 47 (striking Doc. 46 for failure to seek leave to file as sealed motion).

         Under D. Kan. Rule 6.1, parties generally must file a motion for an extension of time before the specified time expires. “Absent a showing of excusable neglect, the court will not grant extensions requested after the specified time expires.” D. Kan. Rule 6.1. Excusable neglect exists as “a somewhat elastic concept and is not limited to strictly 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) (citations and internal quotation marks omitted). But, a party's “inadvertence, ignorance of the rules, or mistakes concerning the rules do not usually constitute ‘excusable' neglect.” Id.

         Determining whether neglect is excusable “is at bottom an equitable [decision], taking account of all relevant circumstances surrounding the party's omission.” Id. at 395. The factors to consider when making this determination include “the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. “[P]erhaps the most important single factor” to determine whether neglect is excusable is “[f]ault in the delay.” Jennings v. Rivers, 394 F.3d 850, 857 (10th Cir. 2005) (citations omitted). Though these factors guide the court's inquiry, the excusable-neglect determination, ultimately, ...


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