Dorsey v. Soucie et al.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY D. DORSEY,
Plaintiff,
v.
POLICE OFFICER SOUCIE, ET AL.,
Defendants.
Case No. 25-CV-2006-JAR-BGS
MEMORANDUM & ORDER ON
DEFENDANTS’ MOTION TO FILE ANSWER OUT OF TIME
NOW BEFORE THE COURT is Defendants’ Motion for Leave to File Answer Out of Time.
(Doc. 84.) Defendants contend that as the result of an oversight, they did not file a formal answer to
Plaintiff’s Amended Complaint (Doc. 66) after it was filed and subsequently unsealed. (Id.) Plaintiff
has responded in opposition to the motion (Doc. 86) and Defendants have replied (Doc. 88). For the
reasons set forth herein, Defendants’ motion is GRANTED.1
FACTUAL BACKGROUND
The present lawsuit was filed on January 3, 2025, bringing a claim for malicious prosecution
under 42 U.S.C. § 1983 against Officers Soucie, Whaley, and Bayless is in their individual capacities.
(See generally Doc. 1.) As discussed below, claims against the City of Shawnee, Kansas and the officers
in their official capacities have been dismissed by the District Court. (Doc. 18.) Plaintiff alleges false
statements and omissions are contained in an affidavit to support probable cause to charge him with
possession of heroin. The affidavit in question was presented to a Johnson County Magistrate Judge
after being prepared by Defendant Sgt. Bayless and based upon police reports and field tests
1 Also pending before the Court is Plaintiff’s Motion to continue the deadline to submit the parties’ proposed Pretrial
Order. (Doc. 89.) Therein, Plaintiff generally argues that it will be difficult to draft the Pretrial Order while issues
surrounding Defendants’ ability to answer out of time are pending. Because the Court grants Defendants’ request to
answer out of time, Plaintiff’s motion (Doc. 89) is DENIED as moot.
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performed by Defendant Officers Soucie and Whaley. Plaintiff contends the affidavit was made with
reckless and deliberate disregard for the truth and resulted in his incarceration and prosecution without
probable cause. (Doc. 1.)
On February 18, 2025, in response to Plaintiff’s Complaint, Defendants filed a Motion to
Dismiss. (Doc. 7.) Then on February 28, 2025, Defendants filed a Motion to Stay Discovery pending
the District Court’s resolution of their dispositive motion (Doc. 14), which was granted by the
undersigned (Doc. 17). The Court notes that Plaintiff did not oppose the requested stay of discovery.
The District Court ultimately granted in part and denied in Defendant’s dispositive motion on
April 16, 2025. (Doc. 18). Defendants’ subsequent request for an interlocutory appeal on the issue
of the potential qualified immunity of the individual Defendants (Doc. 21) was denied by the District
Court on June 18, 2025. (Doc. 26.) Thereafter, the undersigned entered a Scheduling Order on July
31, 2025. (Doc. 34.)
Plaintiff moved for leave to amend his Complaint on October 9, 2026, with the proposed
motion to amend provisionally filed under seal. 	(Docs. 62, 63.) 	Defendants did not oppose the
amendment. The undersigned subsequently entered two orders – the first was an order unsealing the
proposed pleading (Doc. 64) with the second being an order granting the motion to amend and
directing that the Amended Complaint be filed (Doc. 65). The Amended Complaint was then filed
on October 14, 2026. (Doc. 66.) Interestingly, Defendant Soucie was deposed on the day Defendants’
answer to the Amended Complaint would have been due. (See Doc. 47.)
Defendants indicate that because of the nature of the previously sealed filing, a file-stamped
copy of the Amended Complaint remains unavailable to them. 2 (See Doc. 84, at 2, Doc. 84-1.)
Defendants concede, however, that they failed to file a formal Answer to the Complaint
2 The Court has alerted the Clerk’s Office of this issue and it is in the process of being resolved.
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Despite no formal Answer being filed, this litigation progressed in accordance with the
Scheduling Order. The parties continued to conduct written discovery and conducted depositions of
fact and expert witnesses. The parties even participated in a mediation on January 7, 2026. (Doc. 83.)
Pursuant to the original deadline in the Scheduling Order, discovery closed on February 5, 2026. (Doc.
34.) At no point did either party argue that the case was being delayed in a way that would necessitate
extending the discovery deadline (or any other deadlines in this case).
In preparation of a draft Pretrial Order, the parties conferred on February 5, 2026. More than
a week later, on February 13, 2026, Plaintiff’s counsel contacted defense counsel to state that Plaintiff
intended to seek default judgment against Defendants because no answer had been filed and that
Plaintiff would object to Defendants answering out of time. 	Following the filing of the present
motion, Plaintiff has applied for clerks entry of default. (Doc. 85.)
The Pretrial Conference is currently scheduled for March 17, 2026. 	(Doc. 34.) 	The Court
notes that Plaintiff has filed a motion to continue the submission deadline for the draft Pretrial Order,
which is pending before the undersigned. (Doc. 89.)
It is uncontested that Defendants technically have been in default since May 1, 2025, which is
14 days after the Court Order denying the Motion to Dismiss. See Fed. R. Civ. P. 12(a)(4)(A). Even
though Defendants have been in default, Plaintiff has continued to litigate the case and does not
appear to have become aware of Defendants’ failure to file an answer until after the close of discovery.
ANALYSIS
Pursuant to Fed. R. Civ. P. 6(b)(1)(B), a court may excuse a party's failure to act within a
specified time “if the party failed to act because of excusable neglect.” see also Hall v. Life Care Centers
of America, Inc., No. 16-2729-JTM-KGG, 2018 WL 2035966, at *1 (D. Kan. May 1, 2018) (citing Fed.
R. Civ. P. 6(b)(1)(B)). A court looks at the following factors to determine whether the failure to act
was the result of excusable neglect: 	“(1) the danger of prejudice to the [nonmoving party], (2) the
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length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay,
including whether it was within the reasonable control of the movant, and (4) whether the movant
acted in good faith.” 	United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004) (citing Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 1493, 123 L.Ed.2d 74
(1993)); see also Hall, 2018 WL 2035966, at *1 (citation omitted).
“The reason for the delay in filing the answer is an important, if not the most important, factor
in this analysis.” Scott v. Power Plant Maint. Specialists, Inc., No. 09-2591, 2010 WL 1881058, at *4 (D.
Kan. May 10, 2010) (citation omitted). “The decision to permit the late filing of a pleading lies within
the court's discretion, and ‘the preferred disposition of any case is upon its merits and not by default
judgment.’ ” Claimsolution, Inc. v. Claim Solutions, LLC, No. 17-2005-JWL-GEB, 2017 WL 2225225, at
*2 (D. Kan. May 22, 2017) (internal citation omitted).
Here, the factors weigh in favor of finding excusable neglect by Defendants and granting them
leave to answer out of time.
Defendants argue that the “omission [of an Answer] resulted from counsel’s oversight and
confusion during the transition from a sealed to an unsealed pleading.” (Doc. 84, at 2.) Defendants
continue that at the time of this transition,
it was unclear to Defendants whether an Amended Complaint had
actually been filed or whether the proposed pleading was simply
unsealed. Defendants’ counsel neglected to check the docket to
determine whether the Amended Complaint had in fact been filed. The
docket entry for the Amended Complaint [Doc. 66] further confused
the issue as it indicates the document remains sealed. See [Doc. 84-1.]
The failure to file was not intentional or strategic, but the product of
counsel’s oversight.
(Doc. 84, at 2-3.)
Defendants argue that Plaintiff will not be prejudiced because Plaintiff’s counsel failed to
“raise the absence of a formal answer” while conducting discovery for “more than a year following
the filing of the initial Complaint … .” (Id., at 4.) Defendants acknowledge the length of the delay in
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answering but correctly assert that this had no impact on the case proceeding. (Id., at 5.) They contend
the failure to answer was not the result of willful disregard or lack of good faith as evidenced by their
active litigation of this case. (Id., at 5-6.)
Throughout the discovery phase, Defendants have “consistently disputed liability and have
asserted substantive defenses throughout discovery and case preparation” – and this discovery,
including written discovery requests as well as depositions, has addressed Defendants’ defenses such
as qualified immunity. (Id., at 6.) There is no indication that the failure to answer was intended to
create some type of tactical advantage for Defendants.
On the other hand, Plaintiff correctly points out that Defendants’ motion to dismiss and
corresponding requested stay did, technically, delay the proceedings. That stated, the issue before the
Court is whether the lack of an Answer after the District Court decided the dispositive motion delayed
the case, not whether the preceding dispositive motion delayed the case. Clearly, Defendants’ failure
to Answer did not inhibit the timing of the case as discovery proceeded in a timely fashion and the
parties were able to conclude discovery in accordance with the original discovery deadline set in the
Scheduling Order. The Court again notes that Plaintiff voiced no objection to the stay Defendants
requested during the pendency of their dispositive motion. (See Doc. 17, text Order.)
Plaintiff also argues that the dispositive motion “contained additional factual contentions
concerning the Officers’ beliefs [as to the field drug test results at issue] which were misleading given
their current position.” (Doc. 86, at 6.) Plaintiff thus argues that Defendants have “gained a tactical
advantage by delaying to answer either the original Complaint or Amended Complaint by keeping
Plaintiff unsure of the position they will pursue at trial until a pretrial order to be entered next month.”
(Id.)
Defendants reply, however, that their contentions are consistent with the facts and
information they have consistently presented during the discovery process. (Doc. 88, at 1-2.) More
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specifically, Defendants point to the body camera recording, Defendant Soucie’s interrogatory
responses served on September 15, 2025, and Defendant Soucie’s deposition testimony from October
28, 2026, which, according to Defendants, “squarely disputed Plaintiff’s allegation” regarding the test
results. (Id., at 2.) Nothing in Plaintiff’s response to Defendant’s motion substantively contradicts
this. (See generally Doc. 86.)
Defendants thus argue that “[e]ven assuming a formal answer would have alerted Plaintiff to
Defendants’ position, Plaintiff was placed on notice on three separate occasions in September and
October 2025 that Plaintiff’s characterization of the field test results and Soucie’s interpretation were
at issue.” (Doc. 88, at 1.) 	The Court agrees that Plaintiff was on notice of Defendants’ position on
this issue thus the failure to answer caused “no tactical concealment or surprise.”
Further, the Court is satisfied that Defendants’ mistake was the result of an administrative
error. Courts in this District have held that this is a valid basis to find excusable neglect. See e.g. Hall,
2018 WL 2035966, at *2 (granting a motion to file out of time that was the result of an “administrative
error” and the fact that “counsel mistakenly overlooked the deadline”).
As such, Defendants’ motion is GRANTED. The Answer shall be filed, in the form attached
to Defendants’ motion, on or before February __, 2026.
As discussed in n.1, supra, Plaintiff’s motion (Doc. 89) is DENIED as moot.
IT IS SO ORDERED.
Dated February 24, 2026, at Wichita, Kansas.
/s/BROOKS G. S EVERSON
Brooks G. Severson
United States Magistrate Judge
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