Stanberry v. World Way, Inc. et al

Filing 23

ORDER AND OPINION entered by Chief Judge James E. Shadid on 1/4/2018. IT IS ORDERED: Plaintiff's Motion 15 to Vacate is GRANTED, Defendants Enev and World Way are REINSTATED, and this action is REMANDED to the Circuit Court for the Tenth Judicial Circuit in Peoria County, Illinois for further proceedings.This matter is now terminated. SEE FULL WRITTEN ORDER AND OPINION.(SAG, ilcd)

E-FILED

Thursday, 04 January, 2018 04:16:43 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
KEVIN W. STANBERRY,
Plaintiff,
v.
WORLD WAY, INC., IVAN ENEV,
and HIRERIGHT, LLC.,
Defendants.

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Case No. 17-1477

ORDER AND OPINION
Now before the Court is Plaintiff’s Motion (Doc. 15) to Vacate the Court’s November 21,
2017 Order granting unopposed Motions to Dismiss by Defendants Enev (Doc. 10) and World
Way, Inc. (Doc. 11). For the reasons set forth below, Plaintiff’s Motion (Doc. 15) to Vacate is
GRANTED, Defendants Enev and World Way are REINSTATED, and this action is
REMANDED to the Circuit Court for the Tenth Judicial Circuit in Peoria County, Illinois for
further proceedings.
BACKGROUND
On September 11, 2017, Plaintiff, Kevin Stanberry, commenced this action against
Defendants World Way, Inc. (“World Way”), World Way’s president, Ivan Enev, and HireRight,
LLC (“HireRight”) in the Circuit Court for the Tenth Judicial Circuit in Peoria County, Illinois.
See Doc. 1-1. Plaintiff’s Complaint contains four counts. Counts one through three assert state
law claims of defamation, defamation per se, and tortious interference with prospective business
relationship against World Way and Enev. Count four asserted a claim against HireRight for
violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. On October 25,
2017, Defendant HireRight removed the case to the United States District Court for the Central
District of Illinois under this Court’s federal question jurisdiction. See 28 U.S.C. §§ 1331, 1441.
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On November 1, 2017, Defendants Enev and World Way filed Motions to Dismiss (Docs.
10, 11) under Federal Rule of Civil Procedure 12(b)(6). On November 21, 2017, the Court
granted Defendants’ motions because Plaintiff failed to file a response and the time for doing so
had passed. See Local Rule 7.1(B)(2) (“If no response is timely filed, the presiding judge will
presume there is no opposition to the motion and may rule without further notice to the parties.”).
The next day, Plaintiff filed responses to the motions (Docs. 12, 13), and on December 1, 2017,
Plaintiff filed a Motion to Vacate (Doc. 15) the Court’s November 21, 2017 Order granting
Defendants’ motions, to which Defendants Evev and World Way responded. Doc. 19. On
December 19, 2017, Plaintiff and Defendant HireRight filed a Stipulation of Dismissal informing
the Court that Plaintiff had dismissed all claims against HireRight with prejudice. Doc. 20.
LEGAL STANDARD
Rule 60(b)(1) of the Federal Rules of Civil Procedure provides, “[o]n motion and just
terms, the court may relieve a party or its legal representative from a final judgment, order, or
proceeding for … mistake, inadvertence, surprise, or excusable neglect….” Fed. R. Civ. P.
60(b)(1). “[T]here is not a “hard and fast” rule in this circuit which bars a trial judge from
exercising discretion to determine whether attorney negligence in missing a filing deadline may
be deemed “excusable neglect.” Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 361 (7th Cir. 1997).
Accordingly, “trial judges are vested with discretion when determining whether an attorney’s
neglect in missing a deadline is “excusable” for purposes of Rule 60(b)(1).” Id. at 363.
DISCUSSION
(1) Plaintiff has Demonstrated Excusable Neglect
“ ‘Excusable neglect’ can include omissions through carelessness and mistake.” Robb,
122 F.3d at 357. “The determination of what sorts of neglect will be considered ‘excusable’ is an

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equitable one, taking account of all relevant circumstances.” Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 381 (1993). These circumstances include “the danger of
prejudice to the [defendant], 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. at 395.
Here, Plaintiff’s counsel has represented in his Motion to Vacate that the failure to timely
file a response to the Motions to Dismiss by Defendants Enev and World Way was the result of
neglect and the untimely departure of a former attorney of counsel’s law firm. Taking into
account the circumstances identified supra, the Court finds that counsel’s neglect should be
excused. Defendants Enev and World Way will not be prejudiced by having their Motions to
Dismiss determined on the merits, this Court’s timely resolution of the issue minimizes any
delay, and there is no indication that Plaintiff’s counsel has acted in bad faith. Accordingly, the
Motion to Vacate is granted, and Defendants Enev and World Way are reinstated.
(2) The Court Declines to Exercise Supplemental Jurisdiction Over the Remaining Claims
Title 28 of the United States Code, Section 1367 provides:
(a) Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution …
(c) The district courts may decline to exercise supplemental jurisdiction over a
claim under subsection (a) if-(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.

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28 U.S.C. § 1367. Here, the sole claim giving rise to this Court’s federal question jurisdiction
was Plaintiff’s claim against HireRight under the FCRA. Thereafter, Plaintiff and Defendant
HireRight filed a Stipulation of Dismissal informing the Court that Plaintiff had dismissed all
claims against HireRight with prejudice. Doc. 20. The three remaining counts in Plaintiff’s
Complaint assert state law claims of defamation, defamation per se, and tortious interference
with prospective business relationship against World Way and Enev. In other words, “the district
court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Thus, the Court finds that declining to exercise jurisdiction over the remaining state law claims is
proper, and remands this action to the Circuit Court for the Tenth Judicial Circuit in Peoria
County, Illinois for further proceedings. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635,
640–41 (2009).
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion (Doc. 15) to Vacate is GRANTED,
Defendants Enev and World Way are REINSTATED, and this action is REMANDED to the
Circuit Court for the Tenth Judicial Circuit in Peoria County, Illinois for further proceedings.

This matter is now terminated.
Signed on this 4th day of January, 2018.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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