Gard v. Dooley et al

Filing 187

ORDER denying defendants' 186 Motion to Amend/Correct Scheduling Deadlines. Signed by US Magistrate Judge Veronica L. Duffy on 07/25/17. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

REX GARD,

4:14-CV-04023-LLP
Plaintiff,

vs.
BOB DOOLEY, CHIEF WARDEN,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY; SUSAN JACOBS,
ASSOCIATE WARDEN, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY;
MURIEL NAMINGA, LAUNDRY
SUPERVISOR, INDIVIDUALLY AND IN
HER OFFICIAL CAPACITY; ANDRA
GATES, SUPERVISOR, DOH,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY; KELLY SWANSON,
SUPERVISOR, DOH, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY;
JENIFER BEMBOOM, CBM FOOD
SERVICE, INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY; JOHN
TREWIELLAR, CBM FOOD SERVICE,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY; BARRY SCHROETER, CBM
FOOD SERVICE, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY; JENIFER
STANWICK, DEPUTY WARDEN,
INDIVIDUAL AND OFFICIAL CAPACITY;
REBECCA SCHEIFFER, ASSOCIATE
WARDEN, INDIVIDUAL AND OFFICIAL
CAPACITY; LELAND TJEERDSMA,
MAJOR, INDIVIDUAL AND OFFICIAL
CAPACITY; TRAVIS TJEERDSMA, UNIT
STAFF, INDIVIDUAL AND OFFICIAL
CAPACITY; TAMMY DEJONG, UNIT
STAFF, INDIVIDUAL AND OFFICIAL
CAPACITY; RANDY STEVENS,

ORDER DENYING DEFENDANTS'
MOTION TO EXTEND DEADLINES
DOCKET NO. 186

PROPERTY OFFICER, INDIVIDUAL AND
OFFICIAL CAPACITY; CORPORAL
CROPPER, CORPORAL, INDIVIDUAL
AND OFFICIAL CAPACITY; RANDY
MILNE, CORRECTIONS OFFICER,
INDIVIDUAL AND OFFICIAL CAPACITY;
JESSICA LUKE, OFFICE STAFF, DOH,
INDIVIDUAL AND OFFICIAL CAPACITY;
DOC STAFF, UNKNOWN AT THIS TIME,
INDIVIDUAL AND OFFICIAL CAPACITY;
AND CBM FOOD SERVICES
EMPLOYEES, UNKNOWN AT THIS
TIME, INDIVIDUAL AND OFFICIAL
CAPACITY;
Defendants.

Pending before the court is Rex Gard’s pro se complaint pursuant to Title
II of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.
Mr. Gard is currently serving a 65-year sentence at the Mike Durfee [South
Dakota] State Prison (MDSP) in Springfield, South Dakota. Mr. Gard initially
asserted other claims in his complaint. However, defendants moved for entry
of summary judgment in their favor on all of Mr. Gard’s claims except the ADA
claim. Summary judgment was granted to defendants on those other claims.
See Docket No. 149. Therefore, only the ADA claim, for which summary
judgment was not sought, remains.
The deadline for making dispositive motions was May 5, 2017. See
Docket No. 165. Yesterday, July 24, 2017, defendants moved to extend the
motions deadline to November 6, 2017. See Docket No. 186.

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Rule 16 requires the court to issue an order setting deadlines for various
stages of the litigation. See FED. R. CIV. P. 16(b)(1) (requiring that the court set
deadlines for joining parties, amending pleadings, and filing motions, and
allowing the district court to set additional deadlines). A court may modify the
schedule upon a showing of good cause. FED. R. CIV. P. 16(b)(4).
Rule 6 of the Federal Rules of Civil Procedure controls the granting of an
extension of time. That rule provides in pertinent part as follows:
(b)

Extending Time.
(1)

In General. When an act may or must be done within
a specified time, the court may, for good cause, extend
the time:
(A)

with or without motion or notice if the court
acts, or if a request is made, before the original
time or its extension expires; or

(B)

on motion made after the time has expired if the
party failed to act because of excusable neglect.

See FED. R. CIV. P. 6(b)(1) (emphasis added). Both Rule 6 and Rule 16 must be
interpreted in a manner so as to achieve the Ajust, speedy, and inexpensive
determination of every action.@ See FED. R. CIV. P. 1.
Because the deadline for defendants to file dispositive motions had
already passed by nearly three months prior to defendants filing this motion to
extend the deadline, defendants must demonstrate both Agood cause@ under
Rule 16 and Aexcusable neglect@ under Rule 6, in order for their motion to be
granted.

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Defendants never address the "excusable neglect" standard. In their
brief, they address only the "good cause" standard. They set forth several
reasons in support of their motion to extend: (1) they presumed that
Mr. Gard's motion to extend would be granted and (2) they have been devoting
substantial time since June 30, 2017, to discovery in another case, Scheetz v.
Kaemingk, Civ. No. 13-4144.
As stated above, defendants must show both Agood cause@ and
Aexcusable neglect.@ Excusable neglect is an elastic concept. It has been
described as Athat course of action taken by a reasonably prudent person
under the same or similar circumstances.@ United States ex rel. Davison v.
York Electric Construction Co., 25 F.R.D. 478, 479 (D.N.D. 1960). Whether to
grant a motion to extend a deadline after the deadline has passed is an
equitable determination requiring consideration of Aall relevant circumstances
surrounding the party=s own omission.@ In re Harlow Ray, Inc., 993 F.2d 1351,
1352 (8th Cir. 1993) (quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd.,
507 U.S. 380, 395 (1993)). Such relevant circumstances include Athe danger of
prejudice to the [opposing party], the length of the delay and its potential
impact on judicial proceedings, the reason for the delay, including whether it
was within the reasonable control of the movant, and whether the movant
acted in good faith.@ Pioneer, 507 U.S. at 395. Because the standard is

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excusable neglect, the basis for granting an extension may, by definition,
include acts of negligence. Id. at 394. It is a matter of degree. 1
In United States ex rel. Yankton Sioux Tribe v. Gambler=s Supply, Inc.,
925 F. Supp. 658, 661-662 (D.S.D. 1996), the plaintiffs filed a motion to extend
their deadline for responding to defendant=s summary judgment motion,
alleging that they had timely placed their response in opposition to the motion
in the mail, but that the brief had never arrived at the courthouse. This took
place before this court instituted electronic docketing in its cases. Thus, only a
physical inspection of the court's file (or a phone call to the clerk's office) would
have revealed the fact that plaintiff's brief had never been received and
docketed.
Plaintiffs claimed they did not know their brief had never arrived until
defendants renewed their motion for summary judgment on November 1.
Yankton Sioux Tribe, 925 F. Supp. at 661. Plaintiffs' request for the extension
of time was made approximately 30 days after the deadline for filing the
response to the summary judgment motion had passed. Id. However, the
plaintiff filed their motion for extension of time on November 3, within two days
of defendants' pointing out that the original brief had never been filed. Id. A
further ameliorating fact was that plaintiffs had filed their own motion for
summary judgment shortly after defendants' motion was filed. Id. The district
1The

Aexcusable neglect@ standard is more stringent that the Agood cause@
standard. Accordingly, if defendants meet the Aexcusable neglect@ standard,
the court deems them to have also met the Agood cause@ standard and will not
discuss both standards separately.
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court viewed plaintiffs' motion as a response in opposition to defendants'
motion. Id. For all these reasons, the court found that the plaintiff=s allegation
that they had timely mailed their brief, but that it had never been received,
plus their prompt remedying the situation and the filing of their own motion for
summary judgment established excusable neglect. Id. The district court
therefore granted the motion to extend. Id.
In the Davison case, the defendant had been served with a complaint and
summons that told the defendant in unequivocal and clear, plain language that
an answer to the complaint must be filed within 20 days of receipt of the
summons or a default judgment would be entered against the defendant.
Davison, 25 F.R.D. at 479-480. The defendant did nothing for six months, not
even contacting legal counsel. Id. When defendant=s lawyer made a notice of
appearance and moved for an extension of time to file an answer, the court
denied the request, noting that doing absolutely nothing for six months was
not Aexcusable neglect@ in view of the advisement contained in the summons.
Id. at 481.
In the Bradford case, the plaintiff=s lawyer moved to withdraw 18 months
after the case had first been filed. Bradford, 249 F.3d at 809. The attorney=s
affidavit in support of the motion to withdraw stated that the plaintiff had told
her attorney that she had already secured substitute counsel. Id. The court
allowed the attorney to withdraw, and instructed the plaintiff to identify her
new counsel or indicate to the court her decision to proceed pro se. Id. at 808.
The plaintiff did not comply with the court=s direct order to her. Id. Six
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months later, the defendant moved for summary judgment. Id. A trial date
was set. Id. Three months after the summary judgment motion was filed and
two weeks prior to the scheduled trial date, a new attorney made an
appearance for the plaintiff and simultaneously requested an extension of time
to respond to the summary judgment motion and to move the trial date. Id.
The district court denied the request and the Eighth Circuit affirmed. Id. at
808-810.
In the present case, defendants have sat on their hands. Mr. Gard filed a
motion to extend the deadlines on April 5, 2017, to which defendants filed no
response whatsoever. See Docket No. 179. Thereafter, Mr. Gard filed a motion
to compel discovery on April 21, 2017, to which defendants made no response
whatsoever. See Docket No. 181. The deadline for defendants to file
dispositive motions was May 5, 2017, almost three months ago. See Docket
No. 165 at 2.
Unlike the plaintiff in Bradford, the defendants herein never ignored a
direct order from the court requiring them to file a motion for summary
judgment on Mr. Gard's ADA claim. However, the court pointed out in
numerous orders that defendants had not moved for summary judgment on
Mr. Gard's ADA claim and that the ADA claim remained outstanding. See, e.g.
Docket No. 134 at 4, n.3, 89; Docket No. 149 at 2; 155 at 2; and Docket No.
172 at 2. In addition, although defendants indicate they believed Mr. Gard's
pending motions for extension of deadlines and to compel discovery would be
granted, defendants never responded to either one of those motions. After all
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these reminders of the outstanding claim remaining, when the dispositive
motions deadline passed and defendants filed no motion, the court and
Mr. Gard could reasonably have assumed defendants intended to go to trial on
that claim.
This case resembles the facts of Davison, where the defendant did
absolutely nothing for six months—defendants' last filing in this case was
February 7, 2017, nearly six months ago. See Docket No. 175. In addition,
this case has been pending for over three years, similar to the plaintiff=s case in
Bradford which had been pending for over two years. Finally, it has been over
two years since defendants made their motion for summary judgment on
Mr. Gard's § 1983 claims. See Docket No. 86 (filed April 7, 2015). They have
had ample time and ample warning about the necessity of preparing for trial on
the remaining ADA claim or making another dispositive motion as to that
claim. That they did not do so for over two years is neglect, but not "excusable
neglect."
CONCLUSION
The defendants= motion to extend the dispositive motions deadline
[Docket No. 186] is denied as discussed more fully above.
NOTICE TO PARTIES
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
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of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1), unless
an extension of time for good cause is obtained. See FED. R. CRIM. P. 58(g)(2).
Failure to file timely objections will result in the waiver of the right to appeal
questions of fact. Objections must be timely and specific in order to require
review by the district court.
DATED July 25, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge

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