Torres v. Kansas Heavy Construction, L.L.C.

Filing 45

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED BY THE COURT that Plaintiff, or Plaintiff's attorney, shall file a motion on or before June 14, 2018 seeking leave to file a response to Defendant's motion for summary judgment out of time. If Plaintiff fails to do so, or if Plaintiff fails to establish excusable neglect, the Court will proceed to consider and decide Defendant's motion as uncontested pursuant to D. Kan. Rule 7.4. Signed by Chief District Judge Julie A Robinson on 6/1/2018. Mailed to pro se party Marco Torres by regular and certified mail; Certified Tracking Number: 7012 3460 0000 8262 7242. (hl) (Modified on 6/1/2018 to add sent by regular mail also. (hl))

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARCO TORRES,
Plaintiff,
v.

Case No. 2:17-CV-2130-JAR-JPO

KANSAS HEAVY CONSTRUCTION, L.L.C.,

Defendant.

MEMORANDUM & ORDER
On April 23, 2018, Magistrate Judge O’Hara issued a Notice and Order to Show Cause
(Doc. 43) directing Plaintiff Marco Torres to show cause to the undersigned, on or before May
11, 2018, why this action should not be dismissed in its entirety with prejudice for lack of
prosecution under Fed. R. Civ. P. 41(b). Judge O’Hara found that Plaintiff had stopped
participating in the case, was not responding to his now former attorney’s attempts to reach him,
and failed to attend the scheduled mediation. Judge O’Hara also noted Defendant Kansas Heavy
Construction, L.L.C.’s pending motion for summary judgment.
On May 23, 2018—nearly two weeks after the May 11 deadline—the Court received a
letter from Plaintiff in response to Judge O’Hara’s order.1 In that letter, Plaintiff states that he
misplaced his cell phone in January and, although he obtained a new phone by January 7, 2018,
his email communication was not restored until early February. Plaintiff claims that this
disruption in his ability to communicate by email caused him to miss the mediation scheduled for
January 19, 2018, but that he never stopped participating in his case. Plaintiff states that he has

1

Doc. 44.

opted to take his former attorney’s advice to hire new counsel, and that he has managed to find a
new attorney who is “guiding [him] through this process until given the opportunity to possibly
take over [his] case.”2 Plaintiff states that the “helping attorney” he is “speaking with”3 has
advised him to request a hearing on his former counsel’s motion to withdraw. Finally, Plaintiff
requests the Court’s guidance on how to proceed.
Although Plaintiff’s response to the show-cause order is late, the Court will grant him
one final chance to avoid the dismissal of his case. As noted by Judge O’Hara, Defendant has
filed a motion for summary judgment.4 Pursuant to D. Kan. Rule 6.1(d)(2), Plaintiff’s response
to that motion was due on May 11, 2018. D. Kan. Rule 7.4(b) provides that “[a]bsent a showing
of excusable neglect, a party or attorney who fails to file a responsive brief or memorandum
within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or
memorandum.” Thus, Plaintiff or his attorney must file a motion establishing excusable neglect
and seeking leave to respond out of time pursuant to D. Kan. Rule 7.4(b) and Fed. R. Civ. P.
6(b)(1)(B).
The relevant factors in considering whether a party seeking leave to respond out of time
has established excusable neglect are: “(1) the danger of prejudice to the opposing party, (2) the
length of delay caused by the neglect and its impact on judicial proceedings, (3) the reason for
the delay and whether it was in the reasonable control of the moving party, and (4) the existence
of good faith on the part of the moving party.”5

2

Id. at 1.

3

Id.

4

Doc. 38.

5

Scott v. Power Plant Maint Specialists, Inc., Civil Action No. 09-CV-2591-KHV, 2010 WL 1881058, at
*2 (D. Kan. May 10, 2010) (citing Hamilton v. Water Whole Intern. Corp., 302 F. App’x 789, 798 (10th Cir. 2008));
see also A.H. ex rel. Hohe v. Knowledge Learning Corp., Civil Action No. 09-2517-DJW, 2011 WL 1344146, at *1

2

The Court will grant Plaintiff leave to oppose Defendant’s motion for summary judgment
out of time only if Plaintiff, on his own behalf or through counsel, can make a showing of
excusable neglect in a motion filed on or before June 14, 2018. Further, the Court urges Plaintiff
to carefully read Fed. R. Civ. P. 56, D. Kan. Rule 56.1, and the Notice to Pro Se Litigant Who
Opposes a Motion for Summary Judgment,6 which Defendant filed contemporaneously with its
summary judgment motion as required by Local Rule 56.1(f).7 The Court cannot grant Plaintiff
a hearing on his former counsel’s motion to withdraw, as that motion has already been granted.8
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff, or Plaintiff’s
attorney, shall file a motion on or before June 14, 2018 seeking leave to file a response to
Defendant’s motion for summary judgment out of time. If Plaintiff fails to do so, or if Plaintiff
fails to establish excusable neglect, the Court will proceed to consider and decide Defendant’s
motion as uncontested pursuant to D. Kan. Rule 7.4.
IT IS SO ORDERED.
Dated: June 1, 2018
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

(D. Kan. Apr. 8, 2011) (quoting Pro Fit Mgmt., Inc. v. Lady of Am. Franchise Corp., No 08-CV-2662-JAR-DJW,
2011 WL 939182, at *2 (D. Kan. Feb. 25, 2011)).
6

Doc. 40.

7

When mailing this Order to Plaintiff, the Court has included a copy of the Notice to Pro Se Litigant Who
Opposes a Motion for Summary Judgment.
8

Doc. 42.

3