Adams Bank & Trust v. FirsTier Bank, Kimball, Nebraska et al

Filing 54

ORDER denying 49 Motion to Strike; granting 53 Motion for Leave Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ADAMS BANK & TRUST,
Plaintiff,
v.
FIRSTIER BANK, KIMBALL,
NEBRASKA, and FIRSTIER BANK,
LOUISVILLE, COLORADO,
Defendants.

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4:11CV3027

MEMORANDUM AND ORDER

On November 17, 2011, the plaintiff filed its brief in opposition to the motion to change
venue filed by defendant Federal Deposit Insurance Corporation as Receiver for Defendant FirsTier
Bank, Louisville Colorado (“FDIC”). The plaintiff’s brief was served using the court’s CM/ECF
system. FDIC filed its reply brief on December 1, 2011.

The plaintiff moved to strike the reply brief as untimely (filing no. 49); FDIC has responded
by moving to untimely file its reply brief (filing no. 53).

Pursuant to Nebraska Civil Rule 7.0.1(c), a moving party may file a reply brief within 7 days
after the opposing party files and serves its opposing brief.. NECivR 7.0.1(c). Counsel for the FDIC
acknowledges the reply brief was untimely, but explains that the brief was due on Thanksgiving, and
the due date was incorrectly calendared.

The following is provided as clarification for the parties’ future filings. The FDIC’s reply
brief was not due on Thanksgiving. November 24, 2011, seven days after the plaintiff’s opposing
brief was filed, was Thanksgiving--a federal holiday. If the calculation of a deadline lands on a
Saturday, Sunday, or federal holiday, the filing deadline is extended to the next day the court is
open. Fed. R. Civ. P. 6(a)(1)(C); NECivR 6.1(c). In addition, the three-day mailing rule applies to
electronically served documents. Fed. R. Civ. P. 5.2(b)(2)(E); Fed. R. Civ. P. 6(d); NECivR 6.1(b).

Therefore, FDIC’s reply brief was due seven days (NECivR 7.0.1(c)), plus three days
(NECivR 6.1(b)), after November 17, 2011. Ten days after November 17, 2011 was November 27,
2011. Since November 27, 2011 was a Sunday, the reply brief was due on November 28, 2011, the
next day the court was open.

Although the FDIC’s reply brief was filed three days late, there was apparent confusion over
the filing deadline, the deadline was incorrectly calendared, and the plaintiff has cited no prejudice
resulting from the untimely filing of the reply brief.

Accordingly,

IT IS ORDERED:
1)

2)

The motion for leave to file a reply brief out of time, (filing no. 53), is granted, and
the reply brief filed by the Federal Deposit Insurance Corporation as Receiver for
Defendant FirsTier Bank, Louisville Colorado, (filing no. 48), is deemed timely filed
.
The plaintiff’s motion to strike the reply brief, (filing no. 49), is denied.

DATED this 5th day of December, 2011.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility
for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work
or directs the user to some other site does not affect the opinion of the court.
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