Gapen v. Bobby

Filing 150

DECISION AND ORDER DENYING MOTION TO STRIKE - Accordingly, the Court sua sponte extends the Petitioners time to file his Motion for Leave to File a Third Amended Petition to and including July 2, 2012. Respondents Motion to Strike is accordingly denied. Signed by Magistrate Judge Michael R Merz on 7/3/2012. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LARRY GAPEN,
Petitioner,

:

Case No. 3:08-cv-280

- vs District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
DAVID BOBBY, Warden,
Respondent.

:

DECISION AND ORDER DENYING MOTION TO STRIKE
This case is before the Court on the Warden’s Motion to Strike (Doc. No. 149)
Petitioner’s Motion for Leave to File a Third Amended Petition (Doc. No. 148).
The Court agrees with Respondent’s analysis that Fed. R. Civ. P. 6 does not apply to
extend the time for performing an act from Sunday to the following Monday when a court sets
Sunday as the specific date. Indeed, the undersigned has on occasion expressly and intentionally
set matters for Sunday, often when needed to coerce recalcitrant deponents into being reasonable
about their availability. But that is not what happened here. The undersigned chose July 1st
simply because it was an upcoming beginning of a month, a convenient date for planning
purposes, and not to impose a Sunday-filing deadline.
Of course, Petitioner’s counsel were not free to disregard the set date. They could have
avoided working on Sunday to comply with it by completing the Motion on Saturday or by
asking for a one-day extension. Nevertheless, the intervening time causes no prejudice to the
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Warden.
Accordingly, the Court sua sponte extends the Petitioner’s time to file his Motion for
Leave to File a Third Amended Petition to and including July 2, 2012. Respondent’s Motion to
Strike is accordingly denied.
July 3, 2012.
s/ Michael R. Merz
United States Magistrate Judge

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