United States District Court, D. Kansas
A. ROBINSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Cathy Parkes'
Motion for Extension of Time (Doc. 30) to file Memorandum in
Opposition to Plaintiff Assessment Technologies Institute,
LLC, (ATI)'s Motion for Preliminary Injunction (Doc. 13).
ATI does not oppose the motion.
response deadline for the Preliminary Injunction Motion was
October 10, 2019. But Defendant filed the Response on October
11, 2019, two hours after the midnight filing deadline. On
October 11, Defendant filed its Memorandum in Opposition at
12:01 a.m., associated exhibits at 12:45 a.m., and Amended
Memorandum in Opposition at 1:50 a.m. At 2:22 a.m., Defendant
filed a Motion for Extension of Time now before the
Court. In its Motion, Defendant requested a
120-minute extension of time to encompass the three filings.
must file a motion to extend time “before the specified
time expires.” Because the time for filing a response had
expired, Defendant was not entitled to seek an extension of
time under D. Kan. Rule 6.1(a). Instead, Defendant should
have sought leave to file a response out of time, which
required Defendant to (1) file a concise statement of the
leave sought, (2) attach the proposed document, and (3)
comply with the other requirements of D. Kan. Rules 7.1
through 7.6. Defendant incorrectly filed a motion for
extension of time in lieu of a motion for leave to file out
of time given that the deadline to file a response had
already passed. The applicable standard when a party fails to
file a responsive pleading within the time specified is
excusable neglect, not good cause.
neglect is an equitable determination, taking into account
all relevant circumstances surrounding the party's
failure to timely file including: (1) the danger of
prejudice; (2) the length of the delay and its potential
impact on judicial proceedings; (3) the reasons for the
delay, which includes whether it was within the reasonable
control of the party seeking to show excusable neglect; and
(4) whether that party acted in good faith.
the Court finds Defendant's conduct meets the excusable
neglect standard. Because the motion is unopposed, and the
Defendant missed the Deadline by less than two hours, the
Court finds there is no prejudice to ATI. The length of delay
was brief: Defendant's Memorandum in Opposition to
ATI's Motion for Preliminary Injunction was due on
October 10, and all relevant documents were filed within two
hours of the deadline. The Court is also satisfied that the
motion was made in good faith because Defendant seeks only an
extension to include its filings made within two hours of the
deadline, and is amenable to extending ATI's reply
deadline by 24 hours.
although it was within reasonable control of Defendant to
file by the October 10 deadline, the Court is lenient in
analyzing this element because the motion is uncontested.
Defendant cites “technical filing difficulties”
that took longer than expected to upload given that the
documents contained “a number of graphic
exhibits” that made it “impossible to get the
full filing in by midnight.” The Court disagrees that the
time it takes to file documents that contain graphics makes
it “impossible” to comply with deadlines and
encourages Defendant in the future to account for the time it
takes to upload documents to comply with filing deadlines.
Similarly, that Defendant received an error message in
generating its final table of authorities and table of
contents for its brief is not outside Defendant's
reasonable control to ensure its word processor is properly
operating to timely comply with filing deadlines. Yet, the
Court is satisfied that a California wildfire that threatened
a paralegal working on behalf of Defendant with evacuation is
outside the reasonable control of Defendant.
in considering all relevant circumstances surrounding the
party's failure to timely file its Memorandum in
Opposition to Plaintiff's Motion for Preliminary
Injunction, the Court deems Defendant's conduct excusable
neglect, and grants the motion.
IS THEREFORE ORDERED BY THE COURT that Defendant
Cathy Parkes' Motion for Extension of Time (Doc. 30),
which the Court construes as a Motion for Leave to File Out
of Time, is GRANTED. Defendant's Memorandum in Opposition
(Doc. 27) filed on October 11, 2019, is deemed timely.
Plaintiff ATI shall have an additional day to file the reply
brief now due on October 18, 2019.
IS SO ORDERED.
 Doc. 32.
 Doc. 30.