Bomkamp v. Hilton Worldwide, Inc.

Filing 30

ORDER: IT IS HEREBY ORDERED that defendants Motion to Reconsider is DENIED. Doc. #27 Signed by District Judge Charles A. Shaw on 11/25/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRIAN BOMKAMP,
Plaintiff,
v.
HILTON WORLDWIDE, INC.,
Defendant.

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No. 4:13-CV-1569 CAS

ORDER
This matter is before the Court on defendant Hilton Worldwide, Inc.’s motion to reconsider
plaintiff’s motion for leave to file plaintiff’s response in opposition to defendant’s motion to dismiss
out of time. Defendant states that plaintiff failed to respond to its first motion to dismiss and filed
his opposition to its second motion to dismiss out of time. Defendant objects that the Court granted
plaintiff leave to file his opposition before allowing the full response time to his motion to pass so
that defendant could oppose it. Defendant argues that plaintiff should not be granted leave to file
his opposition out of time because he has not shown excusable neglect. The motion to reconsider
will be denied.
The Court agrees with defendant that plaintiff offers little excuse for his failure to meet
applicable deadlines. This is not good practice, and the Court expects plaintiff’s counsel to be aware
of and meet all applicable deadlines in the future. The Court also urges both parties to indicate in
future motions whether the motion is consented to or opposed, and refers the parties to the
undersigned’s judge’s requirements and Federal Practice Tips, which are available on the Court’s
Internet website. See http://www.moed.uscourts.gov/sites/default/files/cas.pdf.
The Court finds defendant’s motion to be without merit and bordering on frivolous. This
case is in its early stages. Defendant asserts only that plaintiff twice missed his opposition deadline.

Defendant does not assert that it has suffered any prejudice as a result, and the Court does not
readily see how it could. “[T]he absence of a response to a dispositive motion does not relieve the
Court of its duty to consider the motion on the merits[.]” Country Club Estates, L.L.C. v. Town of
Loma Linda, 213 F.3d 1001, 1006 (8th Cir. 2000). Even if plaintiff did not respond to defendant’s
motion to dismiss, the Court would still be required to determine whether defendant is entitled to
dismissal of this action. Having a response from the plaintiff aids the Court in determining whether
defendant’s motion to dismiss should be granted or not.1
With these considerations in mind, the Court viewed plaintiff’s motion for leave to file his
response out of time to be in the nature of an informal matter, and chose to grant the motion without
benefit of opposition. Having now taken the time to consider defendant’s two-page motion and sixpage memorandum for reconsideration of its order granting leave to file plaintiff’s opposition to the
motion to dismiss, the Court sees absolutely no reason to alter its prior ruling.
Accordingly,
IT IS HEREBY ORDERED that defendant’s Motion to Reconsider is DENIED. [Doc. 27]

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 25th day of November, 2013.

1

The Court notes that defendant’s motion to dismiss plaintiff’s original complaint did not
assert that the Court lacked subject matter jurisdiction over plaintiff’s complaint. The Court ordered
plaintiff to file an amended complaint to allege facts to show the existence of the requisite diversity
of citizenship of the parties, because “[i]n every federal case the court must be satisfied that it has
jurisdiction before it turns to the merits of other legal arguments.” Carlson v. Arrowhead Concrete
Works, Inc., 445 F.3d 1046, 1050 (8th Cir. 2006).
2