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Gard v. Dooley

United States District Court, D. South Dakota, Southern Division

July 25, 2017

REX GARD, Plaintiff,
v.
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

         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.

         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 “just, 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 “good cause” under Rule 16 and “excusable neglect” under Rule 6, in order for their motion to be granted.

         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 “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.[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 ...


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