Thompson v. The Ohio State University et al

Filing 63

ORDER denying 60 Plaintiff's objections and DECLINES to Set Aside Order. Signed by Judge Gregory L Frost on 7/8/14. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TRACY THOMPSON,
Plaintiff,

Case No. 2:12-cv-1087
JUDGE GREGORY L. FROST
Magistrate Judge Deavers

v.
THE OHIO STATE UNIVERSITY, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s objections to the
Magistrate Judge’s June 13, 2014 Opinion and Order granting Defendants’ motion to file an
answer instanter (ECF No. 58, hereinafter “Order”). (ECF No. 60.) For the reasons that follow,
the Court OVERRULES the objections and DECLINES TO SET ASIDE the Order.
I.

BACKGROUND
The facts underlying this dispute are set forth in more detail in the Order. Essentially,

after filing two motions to dismiss in this case (the last of which the Court granted in part and
denied in part), Defendants inadvertently failed to file an answer. A little over three months
later, during which time the parties were actively pursuing discovery, Defendants realized the
error and immediately filed a motion to file answer instanter. (ECF No. 49.) Plaintiff did not
raise the issue of the missed answer with either Defendants or this Court.
In the Order, the Magistrate Judge applied a five-factor test (commonly referred to as the
“Pioneer factors”) to determine whether Defendants’ failure to timely file their answer
constituted “excusable neglect” under Federal Rule of Civil Procedure 6(b)(1)(B). After noting
that the “excusable neglect” standard is elastic and equitable, and finding that the Pioneer factors

1

weighed in favor of permitting the late answer, the Magistrate Judge granted Defendants’
motion.
Plaintiff filed objections to the Order pursuant to Rule 72(a). Those objections constitute,
in large part, the same arguments that Plaintiff made to the Magistrate Judge in her memorandum
in opposition to Defendants’ motion. Compare ECF No. 60 with ECF No. 52. The Court now
considers those objections.
II.

ANALYSIS
A. Standard
Pursuant to 28 U.S.C. § 636, a magistrate judge may hear and determine certain pretrial

matters, such as motions to extend the time in which to file an answer. See 28 U.S.C. §
636(b)(1)(A); see also E. Div. Order No. 91-3. Upon timely objection, the district judge may
reconsider any such matter if a party can show “that the magistrate judge’s order is clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). Review
under this standard “provides considerable deference to the determinations of magistrates.” In re
Search Warrants Issued Aug. 29, 1994, 889 F. Supp. 296, 298 (S.D. Ohio 1995) (quoting 7
Moore’s Fed. Practice ¶ 72.03).
B. Objections
The Court first addresses Plaintiff’s objection that the Magistrate Judge incorrectly
applied the Pioneer factors. Those factors include:
(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 Intern., Inc., 467 F.3d 514, 522 (6th Cir. 2006) (citing Pioneer Inv. Servs.
Co. v. Brunswick Assoc., Ltd. P’ship, 507 U.S. 380,395 (1993)).
2

First, Plaintiff rehashes the same arguments she made to the Magistrate Judge regarding
the first and second factors. Plaintiff suggests that the Magistrate Judge’s finding that Plaintiff
will not suffer prejudice from the delay is clearly erroneous because “counsel for Plaintiff have
adjusted and tailored their approach to the litigation to date based on that failure to file an
answer.” (ECF No. 60, at 7.) The Court, however, agrees with the Magistrate Judge that this
factor weighs in Defendants’ favor. If Plaintiff really based her litigation strategy on the fact that
Defendants admitted every allegation in the Complaint by failing to timely file an answer, then it
remains unclear why Plaintiff was pursuing merits discovery at all. Plaintiffs’ suggestion that
her counsel elected not to pursue certain discovery and investigation strategies based on
Defendants’ failure to answer simply is not compelling.
Regarding the second factor, Plaintiff asserts that a three-month delay “constitutes a
substantial impact on judicial proceedings,” (id. at 9), but does not persuasively refute the
Magistrate Judge’s conclusion that its potential impact on these proceedings is minimal. The
fact that this case is still in the early stages of litigation weighs in Defendants’ favor.
Plaintiff’s arguments regarding the fourth and fifth Pioneer factors are similarly
unpersuasive. As in her memorandum in opposition to Defendants’ motion, Plaintiff again
speculates that bad faith might be at play and asserts that prior conduct by the Ohio Attorney
General’s office in unrelated cases is relevant to this dispute. The Court, however, again agrees
with the Magistrate Judge that the record does not support Plaintiff’s suspicion that Defendants’
failure to timely file their answer was the result of bad faith.
The crux of Plaintiff’s argument appears to be that the Magistrate Judge acted contrary to
law by failing to give the third factor (the reason for the delay) enough deference. Plaintiff
argues that the Magistrate Judge wrongly considered the third factor to be “arguably the most

3

important,” rather than the “most important,” but the term “arguably” does not appear to have
played any role in the Magistrate Judge’s analysis. Instead, the Magistrate Judge correctly
weighed the third factor against the other factors, while recognizing that the excusable neglect
standard is elastic and equitable in nature. Plaintiff does not persuasively explain why that
analysis is clearly erroneous or contrary to law.
Having found that Plaintiffs’ first objection does not warrant a modification of the Order,
the Court next considers Plaintiff’s objection that the Magistrate Judge incorrectly considered
evidence presented for the first time in Defendants’ reply. Specifically, Plaintiff argues that
Defendants failed to attach any evidence in their motion, such that the Magistrate Judge acted
contrary to law by considering an affidavit attached to Defendants’ reply. The Court rejects this
argument for three reasons.
First, although evidence outside the record might be necessary to prove excusable neglect
in some cases, it is not required in every case. Compare Amick v. Ohio Dep’t of Rehab. &
Corrections, No. 2:09-cv-812, 2011 WL 4055246, at *2 (S.D. Ohio Sept. 8, 2011) (denying a
motion for leave to file answer and crossclaim instanter filed over a year after the litigation
begun because, inter alia, the moving party provided no evidence to support his claim that he
was unable to file the documents earlier because he feared retaliation while in prison) with
Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-cv-00904, 2008 WL 545018, at *1 (S.D. Ohio
Feb. 25, 2008) (permitting a defendant to file a late answer and citing only the record without
reference to outside evidence). Second, the Magistrate Judge’s conclusion that the record
suggests good faith in this case did not depend on Defendants’ affidavit. See ECF No. 58, at 5.
Indeed, it cannot be disputed that Defendants have actively defended and participated in this case
since its inception. Cf. Tolliver, 2008 WL 545018, at *1 (finding excusable neglect at least in

4

part because “there is no evidence that [the defendant] did not act in good faith”). And finally,
Plaintiff had adequate time to respond to Defendants’ assertion in their motion that they acted in
good faith by filing the answer immediately upon recognizing the error. The affidavit in the
reply brief merely corroborated that assertion. Accordingly, the Court declines to set aside the
Magistrate Order on this ground.
For her third objection, Plaintiff argues that the Magistrate Judge acted contrary to law by
ignoring Defendants’ failure to solicit consent for the proposed extension pursuant to Southern
District of Ohio Civil Rule 7.3(b). But Plaintiff cites no authority for the proposition that a
party’s failure to comply with Local Rule 7.3(b) before filing a motion mandates denial of that
motion. Accordingly, Plaintiff failed to explain how the Magistrate Judge’s omission of Local
Rule 7.3(b) renders the Order clearly erroneous or contrary to law.
Finally, Plaintiff argues that analogous case law supports her position, but that argument
is not persuasive given the case-by-case analysis pursuant to Federal Rule of Civil Procedure 6
that courts must employ. Absent any binding precedent that is directly analogous and
contradictory to the Order, Plaintiff’s discussion of similar cases does not render the Order
clearly erroneous or contrary to law.
III.

CONCLUSION
For the foregoing reasons, the Court OVERRULES Plaintiff’s objections (ECF No. 60)

and DECLINES TO SET ASIDE the Order (ECF No. 58).
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

5