Kruis v. Tamko Building Products, Inc. et al

Filing 70

ORDER DENYING MOTION TO EXTEND TIME FOR PLAINTIFF TO RESPOND TO MOTION FOR SUMMARY JUDGMENT: the Court ORDERS that the Motion to Extend Time for Plaintiff to Respond to Defendant Allmine Paving, LLCs 69 Motion for Summary Judgment is DENIED. Signed by District Judge Gina M. Groh on 10/6/2014. (cwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

LESLIE KRUIS, t/o/u & t/u/o
American Zurich Insurance,
Plaintiff,
v.

CIVIL ACTION NO: 3:13-CV-25
(JUDGE GROH)

ALLMINE PAVING, LLC,
Defendant/Third-Party Plaintiff.
ORDER DENYING MOTION TO EXTEND TIME FOR PLAINTIFF TO RESPOND
TO MOTION FOR SUMMARY JUDGMENT
On October 2, 2014, the above-named parties filed with this Court a document titled
“Stipulation to Extend Time for Plaintiff to Respond to Defendant Allmine Paving, LLC’s
Motion for Summary Judgment.” ECF 69. This is the second such stipulation agreement
that the parties have filed with the Court. Allmine Paving, LLC’s Motion for Summary
Judgment was filed on August 29, 2014. ECF 66. Therefore, the last day the Plaintiff could
have timely filed its Response to that motion was September 22, 2014, absent this Court
granting an extension. The parties filed their first stipulation agreement on September 17,
2014, and stated that they had agreed to extend the deadline for the Plaintiff to file its
Response until October 3, 2014. ECF 68. The second stipulation agreement stated that
the parties had agreed to extend that deadline again, this time from October 3, 2014 to
October 10, 2014.
The Federal Rules of Civil Procedure require court approval to make this type of

stipulation effective. Orange Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185,
187 (3d Cir. 1942). Rule 6(b) of the Federal Rules of Civil Procedure provides as follows:
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.
Interpreting the most recent stipulation agreement filed with this Court as a motion
requesting an extension of time, the motion is made after the original time has expired.
Thus, in order for the Court to grant an extension, the party seeking the extension must
show that it failed to act because of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B).
Here, the parties have not sought and the Court has not provided the approval
necessary to make their stipulations effective. Furthermore, neither of the two stipulation
agreements submitted to the Court include any grounds for finding good cause or
excusable neglect. See Way v. Barr, Civil Action No. HAR 94-2519, 1995 WL 418578, at
*1 n.1 (D. Md. June 22, 1995) (stating that the court had construed a stipulation for an
extension of time as a request under Rule 6(b) and denied it, in part because the stipulation
failed “to advance any reason whatsoever for the requested extension”). The parties’ most
recent filing fails because it does not state any facts indicating excusable neglect, but it
would also fail if the original time had not expired because the filing does not state any facts
indicating good cause for an extension. The parties have failed to comply with the
requirements of Rule 6(b).
Accordingly, the Court ORDERS that the Motion to Extend Time for Plaintiff to
Respond to Defendant Allmine Paving, LLC’s Motion for Summary Judgment, ECF 69, is
DENIED.
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It is so ORDERED.
The Clerk is directed to send a copy of this Order to all counsel of record herein.
DATED: October 6, 2014

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