GRANT v. VAN NATTA et al

Filing 120

ORDER denying 118 Motion for Extension of Time to File Response re 113 MOTION for Summary Judgment. Signed by Magistrate Judge Mark J. Dinsmore on 2/6/2013. c/m (TMA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARK GRANT,

)
)
Plaintiff,
)
vs.
) NO. 1:10-cv-01220-MJD-LJM
)
TODD A. VAN NATTA,
)
OKSANA INTERNATIONAL LLC,
)
VAN NATTA ASSET MANAGEMENT, LLC, )
)
Defendants.
)

ORDER ON MOTION FOR ENLARGEMENT OF TIME
TO RESPOND TO MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant Todd Van
Natta's motion for enlargement of time to respond to Plaintiff's
motion for Summary Judgment.

[Dkt. 118.]

The Court must

address several issues with Defendant's motion.

First,

Defendant's response to Plaintiff's motion for summary judgment
was due to be served on or before August 24, 2012.
1.]

[Dkt. 116 at

Plaintiff's motion for enlargement of time was not received

by the Court until October 1, 2012.

[Dkt. 118 at 1.]

Consequently, the Court must first address the timeliness of
Plaintiff's request.
First, the Court takes judicial notice that Van Natta is a
pre-trial detainee awaiting trial in federal court.

See United

States v. Van Natta, 1:12-cr-99-WTL-DKL (S.D. Ind.).

Second,

Van Natta's motion contains handwritten notations that suggest

it was prepared on August 16, 2012, more than a week before Van
Natta's response to the motion for summary judgment was due to
be served.

[Dkt. 118 at 1-2.]

Third, the envelope in which the

motion was received by the Court demonstrates that Van Natta
transmitted the motion though authorities at the Marion County,
Indiana Jail, where he is being held, and that the motion
followed a circuitous route through the Marion County, Indiana
Clerk's Office before making its way to this Court.
Under Federal Rule of Appellate Procedure 4(c)(1), a pro se
prisoner's appeal is deemed filed on the date it is delivered to
prison authorities for mailing.

Fed. R. App. P. 4(c)(1); see

Houston v. Lack, 487 U.S. 266, 275-76 (1988); Ingram v. Jones,
507 F.3d 640, 643 (7th Cir. 2007).

There is no comparable rule

in the Federal Rules of Civil Procedure.

The rules governing

Van Natta's response to Plaintiff's motion for summary judgment
required his response to be filed by the date set forth for such
response.

Van Natta failed to respond or move to enlarge the

time to respond by that date, therefore, his request is
untimely.

The Court further notes that Fed. R. App. P. 4(c)(1)

requires a party seeking to invoke the rule to confirm under
oath that first class postage for the pleading was prepaid.
Fed. R. App. P. 4(c)(1).

Van Natta cannot make that showing

here, as the envelope in which he originally placed the motion
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clearly shows that it was returned for lack of postage.
118-1.]

[Dkt.

Thus, Van Natta would not have been protected even by

the more favorable appellate rule.
Because Van Natta's motion was filed after his time to
respond had expired, a request for enlargement must demonstrate
excusable neglect.

Fed. R. Civ. P. 6(b)(1)(B).

Natta's motion is devoid of any such showing.

Once again, Van

Plaintiff's

motion for summary judgment was filed, pro se on July 13, 2012.
In an effort to guarantee proper notice to Van Natta and ensure
he was aware of his need to respond, on July 19, 2012, the Court
issued a notice to Van Natta advising him of his need to respond
and enlarging the time for that response to August 24, 2012.
[Dkt. 116.]

Van Natta's motion is devoid of any reasoning as to

why it was not timely filed, accordingly that motion will be
denied.
Furthermore, even if Van Natta's motion had been timely
filed, it would have been denied.

First, Van Natta's motion

purports to have been made pursuant to Rule 56(d), which
provides:
If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts
essential to justify its opposition [to a motion for
summary judgment], the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or
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to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).
Van Natta's motion suggests he requires time to conduct
additional discovery prior to responding to the motion.
118.]

[Dkt.

There are a number of problems with Van Natta's request.

First, discovery in this matter is closed.

Pursuant to the

Court's original Case Management Plan, non-expert witness
discovery and discovery relating to liability issues was to be
completed by July 16, 2011 and expert witness discovery and
discovery relating to damages was to be completed by November
27, 2011.

[Dkt. 33 at 3.]

Those deadlines were subsequently

extended several times, [see Dkt. 55 at 3; Dkt. 84 at 2], and
were finally extended by order dated March 30, 2012 so that nonexpert witness discovery and discovery relating to liability
issues was to be completed by June 29, 2012 and expert witness
discovery and discovery relating to damages was to be completed
by August 1, 2012. [Dkt. 88 at 1.]

Accordingly, even assuming

Van Natta's motion was prepared on August 16, 2012 as it is
dated, such was two weeks after the close of all discovery in
this matter. Therefore, no relief pursuant to Rule 56(d) would
be available.

Furthermore, Rule 56(d) requires such application

be made by "affidavit or declaration" and, while Van Natta's

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motion contains a section labeled "Affidavit", [Dkt. 118 at 2],
Van Natta's signature on the document was neither sworn and
notarized nor made pursuant to the penalties for perjury as
required to satisfy Rule 56(d). Accordingly, even if timely, Van
Natta's motion pursuant to Rule 56(d) must be denied.
Finally, again even if it was timely and was treated as a
simple motion for enlargement of time, Van Natta's motion would
be denied.

Motions for enlargement of time are governed by

Local Rule 6-1, which provides that such motion must "state the
original deadline and the requested deadline" and "provide the
reasons why an extension is requested."

S.D. Ind. L.R. 6-1(a).

Van Natta's motion fails to articulate either the date his
response was due or the date to which an enlargement was sought.
While the motion purports to articulate a reason for the
extension, as discussed above, that reason is unpersuasive, as
discovery closed prior to the request being made.

Even though

he is unrepresented by counsel, Van Natta is still required to
comply with all Court rules governing the litigation of this
matter.

Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th

Cir. 2008) (“it is ... well established that pro se litigants
are not excused from compliance with procedural rules.”) (citing
McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 124
L. Ed. 2d 21 (1993) (noting that the Supreme Court has “never
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suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who
proceed without counsel”)); see, e.g., Greer v. Bd. of Educ. of
the City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001); Members
v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) (stating that
procedural rules “apply to uncounseled litigants and must be
enforced”); Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233
F.3d 524, 527 (7th Cir. 2000); Waldridge v. Am. Hoechst Corp.,
24 F.3d 918, 922 (7th Cir. 1994) (collecting numerous cases).
Van Natta has not done so here.

Accordingly, even if Docket No.

118 had been timely filed and had been treated by the Court as a
motion for enlargement of time, that motion would have been
denied.
This case has been pending for more than two years and is
replete with examples of Mr. Van Natta's refusal to participate
in the litigation of the case.

[See. e.g., Dkt. 48.]

Mr. Van

Natta's most recent attorney moved to withdraw as counsel for
Van Natta based upon his refusal to cooperate with that counsel
in his defense of this matter. [Dkt. 71.]

The instant motion

appears to be yet another attempt by Mr. Van Natta to delay this
proceeding.

Plaintiff is entitled to enforcement by the Court

of its rules and procedures.

Van Natta's motion for enlargement

of time, [Dkt. 118], is DENIED.
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Dated: 02/06/2013
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Distribution:

MARK GRANT
32 Crolley Lane
White, GA 30184
TODD A. VAN NATTA
Jail ID T00649787
MJ 4S
MARION COUNTY JAIL
Inmate Mail/Parcels
40 South Alabama Street
Indianapolis, IN 46204

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