King v. Wetzel County Commission et al
Filing
28
MEMORANDUM OPINION AND ORDER DENYING 21 DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S RESPONSES TO EACH DEFENDANTS' MOTION TO DISMISS, GRANTING 27 PLAINTIFF'S MOTION FOR ENLARGEMENT OF TIME TO FILE RESPONSE AND DENYING AS MOOT 24 DEFENDANTS' MOTION TO STAY TIMEFRAME TO FILE REPLY BRIEFS. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/17/2013. (copy to counsel of record via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
NITA JEAN KING,
Plaintiff,
v.
Civil Action No. 5:13CV102
(STAMP)
WETZEL COUNTY COMMISSION
and SCOTT LEMLEY,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANTS’ MOTION TO
STRIKE PLAINTIFF’S RESPONSES TO
EACH DEFENDANTS’ MOTION TO DISMISS,
GRANTING PLAINTIFF’S MOTION FOR ENLARGEMENT
OF TIME TO FILE RESPONSE AND
DENYING AS MOOT DEFENDANTS’ MOTION TO
STAY TIMEFRAME TO FILE REPLY BRIEFS
I.
Background
On August 7, 2013, the defendants in the above-styled civil
action removed this case from the Circuit Court of Wetzel County,
West Virginia pursuant to 28 U.S.C. § 1331.
Thereafter, the
defendants filed motions to dismiss the plaintiff’s complaint. The
plaintiff then filed a timely amended complaint. Accordingly, this
Court denied the defendants’ motions to dismiss the original
complaint.
On September 17, 2013, after the plaintiff filed her
amended complaint, the defendants filed separate motions to dismiss
the amended complaint. The plaintiff responded to these motions on
October 7, 2013, 21 days after the motions were originally filed.
On October 8, 2013, the defendants filed a motion to strike
the plaintiff’s responses as untimely.
In support of this motion
the defendants assert that Federal Rule of Civil Procedure 15(a)(3)
and Local Rule of Civil Procedure 7.02(b)(1) require that the
responsive pleadings at issue be filed and served within fourteen
days from the date of the service of a motion.
The defendants
assert that the plaintiff served her responsive pleadings seven
days after this deadline had passed.
Therefore, the defendants
believe that this Court should strike her responses.
Thereafter,
the defendants also filed a motion to stay the timeframe to file
reply briefs in regard to the defendants’ motions to dismiss.
The
defendants request that they be permitted to file such replies
after this Court rules on their motion to strike the plaintiff’s
responses.
The plaintiff then responded in opposition to the defendants’
motion to strike. The plaintiff asserts that the late response was
the
result
excusable
of
a
neglect.
clerical
The
calendaring
plaintiff
error,
also
filed
and
a
amounts
motion
to
for
enlargement of time to file responses to the defendants’ motions to
dismiss, so as to allow for her responses to be considered timely.
This Court finds that the plaintiff’s response to the defendants’
motion to strike and the plaintiff’s motion for enlargement of time
to file responses provided it with sufficient information to rule
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on all of the above-mentioned motions without requiring any further
briefing from the defendants.
II.
Federal
Rule
of
Discussion
Civil
Procedure
6(b)(1)(B)
governs
determinations of whether to extend the time for filing responsive
pleadings and provides, in relevant part: “When an act may or must
be done within a specified time, the court may, for good cause,
extend the time . . . on a motion made after the time has expired
if the party failed to act because of excusable neglect.”
The
Supreme Court has developed factors that courts should consider
when determining whether a moving party has established excusable
neglect.
The factors for consideration are: (1) “the danger of
prejudice to [the non-moving party],” (2) “the length of the delay
and its potential impact on judicial proceedings,” (3) “the reason
for the delay, including whether it was in the reasonable control
of the movant, and” (4) “whether the movant acted in good faith.”
Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
395 (1993).
First, this Court does not believe that any prejudice will
result from denying the defendants’ motion to strike and therefore
considering the plaintiff’s responses to the defendants’ motions to
dismiss.
The defendants have not asserted that they will be
prejudiced in any way, but only assert that because the plaintiff
violated the federal and local rules concerning response times, the
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responses should not be considered.
The plaintiff, however, will
be prejudiced by not being permitted to defend against the motions
to dismiss.
Further, the plaintiff filed her responses just seven
days late, and this matter is only in the early stages of the
litigation.
Therefore, the first two factors certainly weigh in
favor of finding excusable neglect on behalf of the plaintiff.
In the plaintiff’s response to the motion to strike and again
in her motion for an enlargement of time to file the responses, she
explains that the late filing occurred as a result of a clerical
error by her attorneys.
She asserts that the due date for the
response was calendered wrong and, due to a busy litigation
schedule, the plaintiff’s counsel did not notice this error.
This
excuse is not the most persuasive excuse to show excusable neglect,
as
it
was
clearly
in
the
plaintiff’s
counsel
control.
The
plaintiff, however, does not seem to have acted with any bad faith.
Thus, in weighing the factors, this Court finds that the plaintiff
has established excusable neglect, and as such this Court will
consider
plaintiff’s
responses
in
making
regarding the defendants’ motions to dismiss.
any
determination
A motion to dismiss
should be considered on its merits and not by default.
III.
Conclusion
For the reasons stated above, the plaintiff’s motion for an
enlargement of time to file her response (ECF No. 27) is GRANTED,
and the defendants’ motion to strike (ECF No. 21) is DENIED.
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Further, defendants’ motion to stay the timeframe to file reply
briefs (ECF No. 24) is DENIED AS MOOT.
This Court, however, will
allow the defendants additional time to file replies, as the time
for filing such pleadings has expired. Accordingly, the defendants
are DIRECTED to file any replies in support of their motions to
dismiss on or before Friday, October 25, 2013 by 5:00 p.m.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
October 17, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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