Smith v. Smith

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
WILLARD E. SMITH, 3:22-CV-03011-RAL
Plaintiff,
vs.
KATHLEEN J. SMITH,
OPINION AND ORDER GRANTING
LEAVE TO FILE A LATE OPPOSITION TO
RULE 12(B)(6) MOTION
Defendant.
Willard E. Smith (Plaintiff) filed a motion to extend his deadline to file a response to a
motion to dismiss filed by Kathleen J. Smith (Defendant). Doc. 8. Plaintiff claims the deadline
was missed due to the excusable neglect of Plaintiffs attorney and requests leave to file a late
opposition to Defendant's motion under Federal Rule of Civil Procedure 6(b)(1)(B). For the
reasons set forth below,this Court grants Plaintiffs motion to file a late opposition to Defendant's
12(b)(6) motion.
I. Facts
In May 2022, Plaintiff filed suit against Defendant in the Sixth Judicial Circuit Court in
South Dakota. Doc. 1-1 at 2. Defendant then removed the case to the United States District Court
for the District of South Dakota based on diversity of citizenship jurisdiction on June 14, 2022,
Doc. 1 at 1-2, and filed a 12(b)(6) motion to dismiss the same day, Doc. 4; see also Fed. R. CiV.
P. 12(b)(6)(failure to state a claim). Plaintiff received proper notice of the removal and of the
motion to dismiss. Doc. 1 at 3; Doc.4 at 2; Doc. 15-1 at 1-2. Having not practiced in federal court
1
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for several years and not having consulted the local civil rules of the District of South Dakota,
Plaintiffs attorney "missed . . . the time guideline for filing the Opposition Motion to Dismiss,
assuming thirty (30) days." Doc. 9 at 1. Defendant then filed a Notice of Non-Opposition for
Motion to Dismiss on July 7, 2022,two days after Plaintiffs deadline to file a brief in opposition
had passed. Doc. 6 at 1; see also D.S.D. Cir. LR 7.1(B)(requiring a response within twenty-one
calendar days). On July 15, 2022, Plaintiffs attorney filed a notice of appearance. Doc. 7, and a
brief in opposition to Defendant's motion to dismiss. Doc. 10. Defendant was served with the
Plaintiffs brief in opposition via email on July 12, 2022. Doc. 15-3 at 1. The three-day filing
delay was caused by Plaintiff having to set up an account to use the Court's electronic filing
system. Doc. 9 at 2.
Despite Defendant's email on July 7, 2022, giving Plaintiffs attorney notice of the non-
opposition, Doc. 15-2 at 1, Plaintiffs attorney did not see the notice until he received the same
document in the U.S. Mail after he had filed his opposition. Doc. 9 at 2. Upon getting notice of
the untimely filing,Plaintiffs attorney filed a motion for extension oftime.Doc. 8, and an affidavit
in support of his motion. Doc. 9. The documents at issue were not filed or communicated to
Defendant until after one ofthe secretaries at Plaintiffs attorney's firm had returned to work. Doc.
7; Doc. 8; Doc. 9 at 1; Doc. 10.
Plaintiff alleges that his missing the deadline to file a response was due to excusable
neglect. Doc. 8. Plaintiffs attorney states in his supporting affidavit that he is an attorney "in a
small rural Law Firm, in a small tovm, in a sparsely populated county, with one partner." Doc. 9
at 1. During the time to reply. Plaintiffs attorney was without the support of his firm's partner
and their two secretaries. Id Specifically, the absences in the firm "left [Plaintiffs attorney], the
old man in a firm, 76 years old, to struggle." Id Based on these facts. Plaintiff moved "for an
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extension of time, after the time has expired," to file his brief in opposition to the Defendant's
motion to dismiss. Doc. 8 at 1. Defendant then filed a memorandum. Doe. 13, and an affidavit.
Doc. 15, in opposition to Plaintiffs motion.
II. Discussion
The District of South Dakota's local civil rules require that "[o]n or before 21 calendar
days after service of a motion and brief, unless otherwise specifically ordered by the court, all
opposing parties must serve and file a responsive brief containing opposing legal arguments and
authorities in support thereof." D.S.D. Civ. LR 7.1(B). Under this rule, the deadline to file a
response in opposition to Defendant's motion to dismiss was July 5,2022. Id; Doc.6 at 1. Though
the deadline was missed. Federal Rule of Civil Procedure 6 allows a court, "for good cause, [to]
extend the time ... on motion made after the time has expired if the party failed to act because of
excusable neglect." Fed. R. Civ. P. 6(b)(1)(B). "Whether a party's neglect of a deadline is
excusable 'is at bottom an equitable' inquiry." Spirit Lake Tribe v. Jaeger. 5 F.4th 849, 854 (8th
Cir. 2021)(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395
ri993JJ: see also Janis v. United States, No. 5:20-CV-5047,2022 WL 1555015, at *3(D.S.D. May
17, 2022)(stating that this question is "ultimately analyzed under principles of equity."). Thus,
where appropriate, the court can choose to accept "late filings caused by inadvertence, mistake, or
carelessness, as well as by intervening circumstances beyond the party's control." Pioneer Inv.
Servs. Co.. 507 U.S. at 388. But see Kaubisch v. Weber. 408 F.3d 540, 543 (8th Cir. 2005)
("[Mjisapplication or misreading of the plain language of[the rule] does not establish excusable
neglect."); Brenden v. Walter. No. 07-4007, 2008 WL 410113, at *6 (D.S.D. Feb. 12, 2008)
(same).
In making its determination, this Court must consider:
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(1) the possibility of prejudice to [the non-moving party]; (2) the length of the
[moving party's] delay and the possible impact of that delay on judicial
proceedings;(3)[the moving party's] reason for delay, including whether the delay
was within their reasonable control; and (4) whether [the moving party] acted in
good faith.
Chorosevic v. MetLife Choices. 600 F.3d 934, 946 (8th Cir. 2010) (cleaned up and citations
omitted). While these four factors are the most important, the court should weigh all relevant
circumstances when making its decision. Id.(citing Pioneer Inv. Servs. Co., 507 U.S. at 395); see
also Hawks v. J.P. Morgan Chase Bank. 591 F.3d 1043,1048(8th Cir. 2010)(stating that the court
should consider all relevant circumstance); Kaubisch. 408 F.3d at 543 (same).
The first two factors weigh in favor of allowing the late response. Plaintiff filed his brief
in opposition to the motion to dismiss only ten days past the initial deadline. Doc. 10; D.S.D. Civ.
LR 7.1(B). Thus, any prejudice to Defendant is minimal, especially as the brief in opposition has
already been filed by Plaintiff, Doc. 10, and responded to by Defendant, Doc. 14. For similar
reasons,the progression ofthis matter is not substantially impacted by the delay. As such,the first
and second factors weigh in favor of granting Plaintiffs motion.
The third factor does not weigh in favor of allowing the late response. As discussed below,
the record reflects that Plaintiffs attorney is not adept with technology and relies on younger
members of his firm to help him with that aspect of practice. Nevertheless, technology is essential
for a modem legal practice. Even for those who only have a basic understanding of technology,
the goveming rules are widely available and easily accessible. The local mles are available on the
United States Distriet Court for the District of South Dakota's public website at
https://www.sdd.uscourts.gov/LocalRulesCivik and the Federal Rules of Civil Procedure,
including the advisory committee notes, are available for free at
https://www.law.comell.edu/rules/ffcp. The late filing of the response was within Plaintiffs
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counsel's control, notwithstanding his inexperience with federal civil litigation, as the local rule is
clear on its face and easily located.
The same facts that weigh against Plaintiff in analyzing the third factor do become an
equitable consideration favoring grant of Plaintiffs motion. After all. Plaintiffs attorney has not
practiced in federal court in several years, to the point where an account needed to be created for
his firm to file with the court. Doc. 9 at 1-2. He was further challenged by staffing shortages
caused by family illness. National Guard training, and employee travel. Doc. 9 at 1; such
circumstances weigh in favor of granting Plaintiffs motion.
The parties debate how the fourth factor might apply. However, there is no evidence to
show that Plaintiffs attorney was acting in bad faith. As mentioned above. Plaintiffs attorney is
unfamiliar with technology. In fact, the only electronic communication received from Plaintiffs
firm was an email from one of the firm's two secretaries. Doc. 15-3 at 1, and all electronic filings
in this case occurred after one of the secretaries had returned to the office and appear to have first
been printed and then scanned in. Doc.9 at 1; see also Doc. 7; Doc. 8; Doc. 9; Doc. 10(appearing
to have been printed out, scanned, and then electronically filed). Plaintiffs attomey, though
mistaken about the time he had to respond and hampered by his limited familiarity with
technology, took actions to meet the deadline he believed was in place based on his experience in
state court. Doc. 9 at 1. Thus,the fourth factor weighs in favor of Plaintiff.
Three ofthe four Chorosevic v. MetLife Choices factors, as well as other relevant equitable
considerations, weigh in favor of Plaintiffs motion to extend. As such, this Court finds that
Plaintiffs failure to meet the deadline to file a briefin opposition to Defendant's motion to dismiss
was because ofexcusable neglect, and good cause exists to extend the filing deadline under Federal
Rule of Civil Procedure 6(h)(1).
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III. Conclusion and Order
For the reasons explained above, it is hereby
ORDERED that Plaintiffs Motion for Extension of Time granting the late filing of the
Plaintiffs Opposition to Motion to Dismiss, Doc. 8, is granted.
DATED this day of August, 2022.
BY THE COURT:
ROBERTO A. LANGI
CHIEF JUDGE
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