DESIGN BASICS, LLC et al v. KERSTIENS HOMES & DESIGNS INC., et al

Filing 292

ORDER ON PLAINTIFFS' 271 MOTION FOR EXTENSION OF TIME TO FILE APPEAL - Plaintiffs' Motion for Extension of Time to File Appeal (Filing No. 271 ) is GRANTED. The Motion was timely filed, and excusable neglect exists; therefore, Plaintiffs are granted an extension of time to file their Notice of Appeal of the Court's September 30, 2019 attorney's fee. (See Order.) Signed by Judge Tanya Walton Pratt on 3/26/2020. (NAD) Modified on 3/26/2020 - Edited for administrative purposes(NAD).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DESIGN BASICS, LLC, PLAN PROS, INC.,
and PRIME DESIGNS INC.,
Plaintiffs,
v.
KERSTIENS HOME & DESIGNS, INC.,
T-KERSTIENS HOMES CORP., KERSTIENS
REALTY, INC., KERSTIENS MANAGEMENT
CORP., KERSTIENS LEASING CORP.,
KERSTIENS HOLDING CORP., and
KERSTIENS DEVELOPMENT INC.,
Defendants.

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Case No. 1:16-cv-00726-TWP-DLP

ORDER ON PLAINTIFFS’ MOTION FOR EXTENSION OF TIME TO FILE APPEAL
This matter is before the Court on Plaintiffs Plan Pros, Inc.’s and Prime Designs, Inc.’s
Motion for Extension of Time to File Appeal (Filing No. 271). Plan Pros and Prime Designs ask
the Court pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A) to extend their time to file a
notice of appeal from this Court’s September 30, 2019 Order (Filing No. 263) awarding attorney’s
fees to Defendants against Plaintiffs. For the reasons explained below, the Motion is granted.
I. DISCUSSION
This Court granted summary judgment in favor of the Defendants on September 19, 2018
(Filing No. 232). Plaintiffs Design Basics, LLC, Plan Pros, Inc., and Prime Designs, Inc., all
represented by the same counsel, filed a timely notice of appeal from that decision on October 15,
2018 (Filing No. 238). Defendants then filed a notice of cross-appeal on October 23, 2018 (Filing
No. 244). The Seventh Circuit Court of Appeals consolidated those two appeals and stayed briefing
pending further order.

On September 30, 2019, this Court granted Defendants’ motion for attorney’s fees (Filing
No. 263). On October 25, 2019, Plaintiffs timely filed a Notice of Appeal from the Court’s Order
awarding attorney’s fees (Filing No. 265). The caption of the Notice of Appeal referred to Plaintiffs
collectively as “Design Basics, LLC, et al.,” but Plaintiffs’ counsel neglected to explicitly name
Plan Pros and Prime Designs as appellants in the body of the Notice of Appeal. Then on November
15, 2019, Defendants-Appellees filed their docketing statement in Appeal No. 19-3118, pointing
out that only Design Basics, LLC was named as an appellant in Plaintiffs’ October 25, 2019 Notice
of Appeal. The Seventh Circuit ordered Design Basics, LLC, to file a response addressing the
claim that “[n]ot all plaintiffs appealed the award of attorney’s fee; according to the Notice of
Appeal, Design Basics, LLC is the sole appellant.” Plaintiffs explain that these filings were the
first time that they realized Plan Pros and Prime Designs had been inadvertently omitted from the
body of the October 25, 2019 Notice of Appeal.
Plaintiffs explain,
The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule
4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after
the time prescribed by this Rule 4(a) expires, that party shows excusable
neglect or good cause.
Fed. R. App. P. 4(a)(5)(A). Plaintiffs argue that they satisfy both requirements for an extension of
time to file their Notice of Appeal. The Motion was filed within thirty days of “the time prescribed
by this Rule 4(a).”
Concerning the second prong, Plaintiffs assert “excusable neglect” may include
“instance[s] of an inadvertent or negligent omission.” Pioneer Inv. Servs. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 394 (1993). The Supreme Court explained that deciding whether the

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neglect is “excusable” is an equitable determination, and courts consider “the danger of prejudice
to the [opposing 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.” Id. at 395.
Regarding these factors, Plaintiffs argue that their failure to specifically list Plan Pros and
Prime Designs in the body of the Notice of Appeal qualifies as “excusable neglect” because it was
inadvertent and an obvious oversight by Plaintiffs’ counsel. Plaintiffs argue there is no prejudice
to Defendants because Plan Pros and Prime Designs, as well as Design Basics, LLC, appealed the
underlying judgment in this matter and will ask the Seventh Circuit to vacate that judgment, which
would also vacate the September 30, 2019 fee award (the subject of this Motion and Notice of
Appeal).
Plaintiffs contend that they learned of their inadvertent omission on Friday, November 15,
2019, and then immediately sought an extension of time on the next business day, November 18,
2019. Plaintiffs assert the length of the small delay is insignificant to any proceedings before this
Court or the Seventh Circuit. The appeal in question is an appeal on the collateral issue of
attorney’s fees, and the Seventh Circuit already has consolidated it with the earlier appeal on the
merits and the Defendants’ cross-appeal, which already includes Plan Pros and Prime Designs as
parties. Further, the briefing schedule on the consolidated appeal is stayed pending further order.
Thus, the only difference if this Court grants the Motion for Time will be that Plan Pros and Prime
Designs are included on the docket for this appeal as well as the consolidated appeal. In addition,
Plaintiffs argue there is no possible suggestion that Plan Pros and Prime Designs acted in anything
other than good faith. They had no reason not to appeal the attorney’s fee award against both them

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and Design Basics, LLC to challenge the award and the calculation of reasonable fees. It was an
excusable neglect.
Defendants briefly respond that the Plaintiffs’ Motion fails to establish any excusable
neglect, and, furthermore, the Motion is not accompanied by any declaration or affidavit by
Plaintiffs or their counsel establishing any facts. In reply, Plaintiffs assert that their error amounts
to a scrivener’s error by Plaintiffs’ counsel that creates an inconsistency between the caption and
the body of the Notice of Appeal, which courts often determine to be an “excusable neglect.”
Plaintiffs also submitted a sworn declaration from their counsel to support the facts asserted in the
Motion (Filing No. 277-1).
The Court is persuaded that Plaintiffs’ Motion for Extension of Time to File Appeal (Filing
No. 271) should be granted. The reason for the requested extension of time is an inadvertent
oversight by Plaintiffs’ counsel in failing to list Plan Pros and Prime Designs separately in the
body of the Notice of Appeal. Plaintiffs did not overlook the thirty-day appeal deadline and the
Notice of Appeal was timely. Both Plan Pros and Prime Designs license their plans through Design
Basics and Design Basics has taken the lead in litigating this matter. Plaintiffs’ counsel has
routinely referred to all Plaintiffs in this matter as “Design Basics” and there is no evidence of bad
faith. The arguments presented by Plaintiffs are well-taken, and the facts noted above concerning
each of the factors to show excusable neglect support the Court’s finding.
II. CONCLUSION
Plaintiffs’ Motion for Extension of Time to File Appeal (Filing No. 271) is GRANTED.
The Motion was timely filed, and excusable neglect exists; therefore, Plaintiffs are granted an
extension of time to file their Notice of Appeal of the Court’s September 30, 2019 attorney’s fee

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Order. Plaintiffs are ordered to file their Notice of Appeal within seven (7) days of the date of
this Order.
SO ORDERED.
Date:

3/26/2020

Distribution:
John A. Conway
LADUE CURRAN KUEHN LLC
[e-mail]

Paul B. Overhauser
OVERHAUSER LAW OFFICES, LLC
[e-mail]

Mark F. Criniti
LADUE CURRAN KUEHN LLC
[e-mail]

April M. Jay
OVERHAUSER LAW OFFICES, LLC
[e-mail]

Paul E. Harold
LADUE CURRAN & KUEHN
[e-mail]

Eric M. Wilkins
HUNT SUEDHOFF KALAMAROS
[e-mail]

John David LaDue
LADUE CURRAN & KUEHN LLC
[e-mail]

Sean Joseph Quinn
LADUE CURRAN KUEHN LLC
[e-mail]

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