United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter comes before the court on plaintiff KC Fabrick's
three motions for extension of time. 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).
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.
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
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.
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.”).
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). 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.
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.
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.
Motion for Extension of Time to File Objections to Judge
O'Hara's July 23, 2019, Order (Doc. 51).
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
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.
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, ...