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Gard v. Dooley
United States District Court, D. South Dakota, Southern Division
July 25, 2017
REX GARD, Plaintiff,
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, 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.
ORDER DENYING DEFENDANTS' MOTION TO EXTEND
DEADLINES DOCKET NO. 186
VERONICA L. DUFFY United States Magistrate Judge
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,
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.
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.
of the Federal Rules of Civil Procedure controls the granting
of an extension of time. That rule provides in pertinent part
(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 “just, speedy, and inexpensive
determination of every action.” See
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 “good cause” under Rule 16 and
“excusable neglect” under Rule 6, in order for
their motion to be granted.
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.
stated above, defendants must show both “good
cause” and “excusable neglect.” Excusable
neglect is an elastic concept. It has been described as
“that 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 “all 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 “the 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
excusable neglect, the basis for granting an
extension may, by definition, include acts of negligence.
Id. at 394. It is a matter of degree.
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 ...