Lavite v. Dunstan et al

Filing 143

ORDER, granting 133 MOTION for Leave to File Dispositive Motion Out of Time filed by Defendants. Defendants shall file their motion for summary judgment on or before August 10, 2018. This necessitates removing the case from the trial do cket on July 23, 2018. Therefore, the Court vacates the upcoming July 23, 2018 trial date and this case will be reset for trial and a meaningful final pretrial conference after the motions have been ruled upon. Signed by Judge David R. Herndon on 7/12/2018. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRADLEY A. LAVITE,
Plaintiff,
v.
ALAN J. DUNSTAN,
JOSEPH D. PARENTE,
JOHN D. LAKIN,
THOMAS GIBBONS, AND
MADISON COUNTY, ILLINOIS,
Defendants.

No. 16-cv-00882-DRH-RJD

MEMORANDUM and ORDER
HERNDON, District Judge:
Before the Court is defendants’ motion for leave to file dispositive motion
out of time (Doc. 133). The Court directed plaintiff to respond to the motion, and
plaintiff filed his opposition to the motion July 9, 2018 (Doc. 139). For the
reasons stated below, the Court grants defendant’s motion.
In their motion, defendants assert that they recently learned “the majority, if not
all, of the issues contained in Counts I-VII of the First Amended Complaint can be
resolved via Summary Judgment,” and in light of the expired deadline for filing
dispositive motions, defendants seek leave to file a motion for summary judgment
out of time (Doc. 133).1 Further, “defendants affirm this request is not meant to
cause undue delay and/or prejudice, but rather is in the interest of judicial
1

Defendants also have a motion to dismiss Count VIII pending before this Court (Doc. 129).

economy.” It is not surprising that defendants only just learned about the extent of
undisputed facts. Plaintiff urges the Court to deny defendants’ motion because
defendants failed to establish the good cause required to file a motion for
summary judgment after the dispositive motions deadline has passed (Doc. 139).
The Court has discretion, under Federal Rule of Civil Procedure 6(b), to
extend time to file a motion where that party shows that his or her failure was due
to excusable neglect. In evaluating whether a party's omission constitutes
excusable neglect, the Court must balance all relevant circumstances. See
Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir.2006). The relevant
circumstances include “the danger of prejudice to the [opposing party], the length
of the delay and its potential impact on judicial proceedings, the reasons for the
delay, including whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Id. (quoting Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d
74 (1993)); Simstad v. Scheub, 816 F.3d 893, 899 (7th Cir. 2016). Plaintiffs’
counsel has, throughout this litigation, employed a complete lack of civility, a
tactic rejected by the Seventh Circuit and the Illinois State Bar Association. His
actions have been obstructive and at times contumacious. So if there is to be
blame placed for this late discovery of undiputed facts and, as a consequence, the
delay in this case relative to the seeming untimely filing of the subject motions is
due to the plaintiffs’ counsel obstructive actions.

Upon consideration of the circumstances in this case, and based on
defendants’ assertions, and in the interest of judicial economy, the Court believes
good cause has been shown to allow defendants to file a motion for summary
judgment out of time.
Therefore, the Court GRANTS defendants’ motion for leave to file
dispositive motion out of time (Doc. 133) and VACATES the upcoming trial date.
The Court will notify the parties of a new trial date, if necessary, in due course.

Defendant shall file their motion for summary judgment on or before
August 10, 2018. This necessitates removing the case from the trial docket on
July 23, 2018. The case will be reset for trial and a meaningful final pretrial
conference after the motions discussed have been ruled upon.
IT IS SO ORDERED.

Judge Herndon
2018.07.12
04:03:35 -05'00'
United States District Judge