D-J Engineering, Inc. v. 818 Aviation, Inc.

Filing 96

MEMORANDUM AND ORDER granting 92 Motion for Leave to File. Plaintiff may file a response on or before May 16, 2018. Defendant may file a reply on or before May 21, 2018. The reply brief is limited to 5 pages. Signed by District Judge John W. Broomes on 5/2/2018. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D-J ENGINEERING, INC.,
Plaintiff,
v.

Case No. 14-1033-JWB

818 AVIATION, INC.,
Defendant.

MEMORANDUM AND ORDER
This case comes before the court on Defendant 818 Aviation’s motion for leave to file out of
time. (Doc. 92). The motion has been fully briefed and is ripe for decision. (Docs. 93, 94).
Defendant’s motion is granted for the reasons stated herein.
I.

Facts and Procedural History

On March 2, Judge Robinson entered an order setting deadlines and vacating the trial date in
this case due to a contention raised by Defendant that was not included in the pretrial order. Judge
Robinson set a deadline of March 19, 2018, for Defendant to file its motion to modify the pretrial
order. A notification of the order was sent out by CM/ECF. Defendant’s counsel received the
email notification but “failed to appreciate that new deadlines were being set.” (Doc. 92 at 1).
Defendant’s assistant correctly inputted the new deadline on his calendar but Defendant’s counsel
overlooked the deadline and believed that it was a date that had been vacated by Judge Robinson’s
March 2 order.
On March 23, Defendant’s counsel became aware of the missed deadline and contacted
Plaintiff’s counsel to request an extension. Plaintiff’s counsel did not agree to the request as it was
not made prior to the deadline. Additionally, Defendant’s counsel had previously missed a status

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conference in January when he was travelling to the Tenth Circuit and missed a status report
deadline when he was in trial with Judge Marten.
Defendant filed this motion on March 23, four days after the deadline. Defendant’s motion to
modify the pretrial order is attached to the motion for leave to file out of time.
II.

Analysis

Fed. R. Civ. P. 6(b) governs motions for extensions of time. It provides that:
When an act may or must be done within a specified time, the court may, for good cause,
extend the time:
...
(B) on motion made after the time has expired if the party failed to act because of excusable
neglect.
Id.
In considering whether Defendant has established excusable neglect, the court considers
the following factors: “(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 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.” BNSF Ry. Co. v. Zook, No. 15-CV-4956-DDC-KGS, 2016 WL 5371861, at
*2 (D. Kan. Sept. 26, 2016); see also Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507
U.S. 380 (1993)(discussing excusable neglect).
With respect to the first factor, Plaintiff has acknowledged that there is little to no prejudice
in allowing Defendant to file the motion out of time. Therefore, this factor weighs in favor of
granting the motion. The second factor also weighs in favor of granting the motion as four days
is a short delay and would not impact judicial proceedings. See id. (citing Welch v. Centex Home
Equity Co., LLC, No. 03-2132-JWL-DJW, 2004 WL 2348295, at *1 (D. Kan. Apr. 23, 2004)(two

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months delay is “relatively innocuous”); see also Blake v. Transcommc'ns, Inc., No. 01-2073-CM,
2005 WL 4705098, at *3 (D. Kan. Sept. 30, 2005) (seven days after the deadline).
As to the third factor, Defendant’s counsel’s reason for the delay is essentially due to his
own carelessness in not carefully reviewing Judge Robinson’s order and in failing to realize the
calendar deadline was “live.” Plaintiff contends that this reason is not sufficient for excusable
neglect. This court has recognized, however, based on the Supreme Court decision in Pioneer,
that excusable neglect may also “extend to delays caused by inadvertence, mistake, carelessness,
or ignorance of court rules, not just to delays caused by circumstances beyond a party’s control.”
Deutsch v. Robro Royalty Partners, Ltd., No. 15-1092-MLB, 2015 WL 3504435, at *1 (D. Kan.
June 3, 2015); see Pioneer, 507 U.S. at 392 (“Although inadvertence, ignorance of the rules, or
mistakes construing the rules do not usually constitute ‘excusable’ neglect, it is clear that
‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is not limited strictly to
omissions caused by circumstances beyond the control of the movant.”) Defendant’s counsel’s
actions, while not beyond his control, can be characterized as a mistake or carelessness.
Additionally, there is no indication that Defendant’s counsel acted in bad faith. The final factor
therefore weighs in favor of granting the motion.
After considering all four factors, the court finds that Defendant has met its burden to show
excusable neglect. Defendant's motion for leave to file out of time (Doc. 92) is granted. Plaintiff
may file a response on or before May 16, 2018. Defendant may file a reply on or before May 21,
2018. The reply brief is limited to 5 pages.
IT IS SO ORDERED.
_s/ John W. Broomes_______________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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