Cain v. Osborne et al

Filing 28

ORDER: Defendant Matthew Osborne's 22 Motion for an Extension of Time to Answer Complaint and to Deem Answer on File as Timely is GRANTED and the 21 Answer is accepted as timely filed; and Plaintiff's 26 Motion to Compel Discovery is DENIED AS MOOT. Signed by District Judge Kenneth D. Bell on 2/7/2024. (Pro se litigant served by US Mail.)(mek)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:23-cv-117-KDB

ACQUILLA BOOZE CAIN, JR.,

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Plaintiff,
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vs.
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MATTHEW OSBORNE, et al.,
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Defendants.
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___________________________________ )

ORDER

THIS MATTER is before the Court on Defendant Matthew Osborne’s Motion for an
Extension of Time to Answer Complaint and to Deem Answer on File as Timely [Doc. 22] and on
the Plaintiff’s Motion to Compel Discovery [Doc. 26].
The pro se Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 addressing
incidents that allegedly occurred at the Iredell County Detention Center. [Doc. 1]. The Complaint
passed initial review against Defendant Osborne for the use of excessive force, and the Court
exercised supplemental jurisdiction over the Plaintiff’s North Carolina assault and battery claims
against him. [Doc. 16]. The United States Marshals Service returned an executed summons
indicating that Defendant Osborne had been served on December 1, 2023. [Doc. 19]. On January
12, 2024, the Court issued an Order requiring the Plaintiff to take further action to prosecute this
case within 14 days. [Doc. 20]. On January 18, 2024, Defendant Osborne filed an Answer and the
instant Motion. [Docs. 21, 22].
Here, the Defendant explains that the U.S. Marshal attempted to serve the Defendant by
going to the Iredell County Sheriff’s Office where an officer signed a form indicating that he was
accepting service on behalf of the Defendant. Through inadvertence, the package was not actually

delivered to the Defendant. Therefore, the Defendant did not know that he had purportedly been
served until January 17, 2024, when the Court’s January 12 Order was delivered to the Sheriff and
a Sheriff’s Office attorney. [Doc. 22]. The Defendant, therefore, asks the Court to deem his January
18 Answer timely filed due to excusable neglect, or because he was never properly served. The
Plaintiff objects, arguing that Defendant Osborne was served the moment that the summons was
signed on his behalf. [Doc. 25].
A court may extend the time when an act may or must be done, for good cause, on a motion
made after the time has expired if the party failed to act because of excusable neglect. Fed. R. Civ.
P. 6(b)(1)(B). Excusable neglect requires consideration of equitable factors such as “danger of
prejudice … the length of delay and its potential impact on the judicial proceedings, the reason for
the delay, including whether it was in the control of the movant, and whether the movant acted in
good faith.” Pioneer Inv. Serv. Co. v. Brunswick Assoc., 507 U.S. 380, 395 (1993).
The Court finds that Defendant Osborne has shown good cause to extend the deadline to
answer due to excusable neglect and improper service. Defendant Osborne’s Motion is granted,
and the Answer is accepted as timely filed.
The Plaintiff’s Motion to Compel Discovery [Doc. 26] is denied as moot, as the discovery
period had not yet opened when the Plaintiff filed his Motion. See LCvR 26.1 (“Official Courtordered and enforceable discovery does not commence until issuance of the scheduling order.”);
see also LCvR 26.2 (as a general matter, discovery should not be filed with the Court).
IT IS, THEREFORE, ORDERED that:
1. Defendant Matthew Osborne’s Motion for an Extension of Time to Answer
Complaint and to Deem Answer on File as Timely [Doc. 22] is GRANTED and
the Answer [Doc. 21] is accepted as timely filed.

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2. Plaintiff’s Motion to Compel Discovery [Doc. 26] is DENIED AS MOOT.
IT IS SO ORDERED.

Signed: February 7, 2024

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