Jarrett v. Michigan Department of Corrections et al

Filing 74

ORDER DENYING 53 Motion to Strike, VACATING 69 Order to Show Cause. Signed by Magistrate Judge R. Steven Whalen. (Ciesla, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CLARENCE JARRETT,
Plaintiff,

No. 14-10410

v.

District Judge Stephen J. Murphy
Magistrate Judge R. Steven Whalen

MICHIGAN DEPT. OF CORRECTIONS,
ET AL.,
Defendants.
/
ORDER VACATING ORDER TO SHOW CAUSE
AND DENYING PLAINTIFF’S MOTION TO STRIKE [Doc. #53]
On July 23, 2014, Plaintiff filed a Motion to Strike Defendant Stieve’s Response to
Plaintiff’s Cross-Motion for Summary Judgment [Doc. #53], premised on Defendant
Stieve having filed said response untimely. On September 24, 2014, I ordered Defendant
Stieve to show cause why this Court should not strike his responsive pleading [Doc. #49]
as untimely.
On October 8, 2014, Defendant Stieve filed a response to the show cause order
[Doc. #72]. He concedes that his response to the Plaintiff’s Cross-Motion for Summary
Judgment was three days late, but, citing Fed.R.Civ.P. 6(b)(1)(B), asks that the time for
filing be extended based on excusable neglect.
As Defendant Stieve correctly states, a finding of excusable neglect involves
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balancing five factors: “(1) the danger of prejudice to the nonmoving party, (2) the length
of the delay and its potential impact on judicial proceedings, (3) the reason for the delay,
(4) whether the delay was within the reasonable control of the moving party, and (5)
whether the late-filing party acted in good faith.” Nafziger v. McDermott Int’l Inc., 467
F.3d 514, 522 (6th Cir. 2006)(citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 395 (1993). A district court has “broad discretion to grant or deny
an extension.” Charles Alan Wright, Arthur R. Miller, et al., 4B Federal Practice and
Procedure § 1165 (3d ed. 2011).
A balancing of these factors weighs in favor of granting Defendant Stieve an
extension for filing his response. The length of the delay–three days–is short. Moreover, I
have previously granted Plaintiff additional time, beyond the 21-days set forth in the
Court Rules, to file responsive pleadings. Plaintiff received Defendant Stieve’s response,
and there would be no discernable prejudice to him or to the judicial proceedings if a
short extension were granted. I also find that Defendant Stieve has acted in good faith.
Therefore, I will grant the extension nunc pro tunc, and deny Plaintiff’s motion to
strike Defendant Stieve’s response. I will also give Plaintiff 28 days from the date of this
Order to file a reply brief.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Strike Defendant
Stieve’s Response to Plaintiff’s Cross-Motion for Summary Judgment [Doc. #53] is
DENIED.

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IT IS FURTHER ORDERED that the previously entered Order to Show Cause
[Doc. #69] is VACATED.
IT IS FURTHER ORDERED that Plaintiff may file a reply to Defendant Stieve’s
response to his cross-motion for summary judgment no later than 28 days from the date of
this Order.

Dated: October 15, 2014

s/R. Steven Whalen
HON. R. STEVEN WHALEN
United States Magistrate Judge

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record
on October 15, 2014, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen

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