Powell v. Rescare et al

Filing 8

OPINION AND ORDER The Court GRANTS Plaintiffs motion for an extension of time to file an amended complaint DE 7 , and affords her to and including November 19, 2018, to file an amended complaint. Signed by Magistrate Judge Susan L Collins on 11/9/18. cc: pro se pltf(kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BONITA POWELL,
Plaintiff,
v.
RESCARE, et al.,
Defendants.

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Case No. 1:18-cv-00161-TLS-SLC

OPINION AND ORDER
Before the Court is a motion for an extension of time to file an amended complaint, filed
by pro se Plaintiff Bonita Powell on November 7, 2018. (DE 7). Chief District Court Judge
Springmann previously denied Plaintiff’s motion to amend her complaint, and afforded her up to
October 25, 2018, to file an amended complaint stating a claim for relief. (DE 6; see generally
DE 3). Therefore, Plaintiff’s motion is not timely.
Federal Rule of Civil Procedure 6(b) provides: “When an act may or must be done
within a specified time, the court may, for good cause, extend the time . . . on motion made after
the time has expired if the party failed to act because of excusable neglect.” Excusable neglect is
a somewhat “elastic concept,” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.
380, 391 (1993), demanding an equitable determination that can “encompass situations in which
the failure to comply with a filing deadline is attributable to negligence,” Robb v. Norfolk & W.
Ry. Co., 122 F.3d 354, 355-56 (7th Cir. 1997) (emphasis omitted) (quoting Pioneer, 507 U.S. at
394). In doing so, the Court takes “account of all relevant circumstances surrounding the party’s
omission,” including “the danger of prejudice to the [nonmoving 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.”
Commodity Futures Trading Comm’n v. Lake Shore Asset Mgmt. Ltd., 646 F.3d 401, 404-05 (7th
Cir. 2011) (quoting Pioneer, 507 U.S. at 395); see also Raymond v. Ameritech Corp., 442 F.3d
600, 606 (7th Cir. 2006).
Here, in an order dated September 25, 2018, Chief Judge Springmann dismissed
Plaintiff’s complaint because it did not identify the statute under which she brought her suit, and,
assuming that she was bringing a cause of action under the Americans with Disabilities Act,
Plaintiff’s complaint failed to state a claim. (DE 6 at 3). Chief Judge Springmann afforded
Plaintiff up to October 25, 2018, to file an amended complaint that properly pleads a claim for
relief and identifies a statute under which she brought her claim. (DE 6 at 3). Chief Judge
Springmann also warned Plaintiff that if she did not amend her complaint by October 25, 2018,
her case would be dismissed without further notice. (DE 6 at 4-5).
In the instant motion, Plaintiff does not explain why she missed the October 25, 2018,
deadline, and simply states that she “would like an extension concerning [her] case” because she
wants an individual to come forward with information regarding what she must do in her case.
(DE 7). Accordingly, Plaintiff has failed to establish a reason for delay and whether such reason
was within her reasonable control. See Commodity Futures Trading Comm’n, 646 F.3d at 40405 (7th Cir. 2011) (citations omitted). Moreover, to cure the errors in Plaintiff’s complaint, as
identified by Chief Judge Springmann, Plaintiff need not information on what she must do in her
case (see DE 7); rather, she need only file an amended complaint stating a claim for which the
Court can grant relief. (See DE 6).
However, the length of the delay is minimal as Plaintiff’s motion for an extension was

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filed just 13 days after the deadline. See Ruiz v. Carmeuse Lime, Inc., No. 2:10-cv-21, 2011 WL
3290376, at *2 (N.D. Ind. July 14, 2011) (stating that the danger of prejudice was minimal when
the response was filed 17 days after it was originally due). Further, there is no indication that
Plaintiff acted in bad faith. See Edwards-Brown v. Crete-Monee 201-U Sch. Dist., 491 F. App’x
744, 747 (7th Cir. 2012) (“Excusable neglect . . . covers unintentional omissions, such as missed
filing deadlines; it does not apply to plaintiff’s deliberate actions.”); Castillo v. Nurnberg, No.
3:12-cv-525, 2014 WL 1607386, at *2 (N.D. Ind. Apr. 21, 2014) (finding excusable neglect
where there was no suggestion of bad faith on the part of the attorney).
Therefore, being duly advised, and because the Court should freely give leave when
justice so requires, Fed. R. Civ. P. 15(a)(2), the Court GRANTS Plaintiff’s motion for an
extension of time to file an amended complaint (DE 7), and affords her to and including
November 19, 2018, to file an amended complaint.
SO ORDERED.
Entered this 9th day of November 2018.
/s/ Susan Collins
Susan Collins
United States Magistrate Judge

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