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Kane v. Finance of America Reverse, LLC

United States District Court, S.D. Indiana, Indianapolis Division

April 30, 2018

Brian Kane, Plaintiff,
v.
Finance of America Reverse, LLC, Defendant.

          ORDER

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Plaintiff Brian Kane brings this action pursuant to Title VII of the Civil Rights Act of 1964, alleging that Defendant Finance of America Reverse, LLC (“Finance of America”) discriminated against him because of his race following remarks he made on social media criticizing the Black Lives Matter movement. Mr. Kane further alleges that Finance of America retaliated against him for complaining about this discrimination, and that he was subjected to a hostile work environment. Presently pending and ripe for the Court's consideration are: (1) Finance of America's Motion for Judgment on the Pleadings, [Filing No. 20]; and (2) Mr. Kane's Motion for Nunc Pro Tunc Order Accepting His Opposition Motion as Timely, [Filing No. 25].

         I.

         Mr. Kane's Motion for Nunc Pro Tunc Order

         The Court first considers Mr. Kane's Motion for Nunc Pro Tunc Order[1] requesting that the Court accept his response to Finance of America's Motion for Judgment on the Pleadings as timely. Mr. Kane filed his Response in Opposition to Finance of America's Motion for Judgement on the Pleadings sixteen days late, and moves the Court, pursuant to Rule 6(b)(1)(B), to excuse his delay for good cause.

         A. Standard of Review

         Federal Rule of Civil Procedure 6(b)(1)(B) provides that “[w]hen an act may or must be done within a specified time, the court may, for good cause, 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). Excusable neglect is “at bottom an equitable [notion], taking account of all relevant circumstances surrounding the party's omission.” Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir. 2006). Courts consider “the danger of prejudice to [the nonmovant], the length of the delay and its potential impact on judicial proceedings, the reasons for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. (citing Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd P'Ship, 507 U.S. 380, 395 (1993)). However, context matters in determining excusable neglect, including whether the movant exhibited dilatory behavior. Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 593-94 (7th Cir. 2012).

         A district court is granted discretion in accepting late filings, for it “best knows the impact the error has on the court's operation and calendar. It knows the attorney and his motives, the circumstances of the case and the judicial economy of excusing the neglect.” United States v. Brown, 133 F.3d 993, 997 (7th Cir. 1998). Nonetheless, “district courts have an interest in States v. Taylor, 841 F.2d 1300, 1308 (7th Cir. 1988). Mr. Kane's motion does not argue any clerical mistake or inadvertence on the Court's part; rather, he requests that the Court accept his untimely Opposition to Defendant's Motion for Judgment on the Pleadings. [Filing No. 23.] Accordingly, the Court will consider Mr. Kane's motion under Federal Rule of Civil Procedure 6(b)(1)(B), which allows the Court to accept a late motion for excusable neglect. keeping litigation moving forward and…maintaining respect for set deadlines is essential to achieving that goal.” Blue, 698 F.3d at 593-94 (citing Spears v. City of Indianapolis, 74 F.3d 153, 157-58 (7th Cir. 1996)).

         B. Background

         On January 23, 2018, Finance of America filed its Motion for Judgment on the Pleadings, a copy of which was electronically sent to Mr. Kane's counsel. [Filing No. 20.] Pursuant to Local Rule 7-1(c)(2)(A), Mr. Kane's response was due within fourteen days. Mr. Kane filed his Response in Opposition on February 22, 2018, sixteen days late. [Filing No. 23.] On March 1, 2018, Finance of America timely filed its Reply in Support of Motion for Judgment on the Pleadings. [Filing No. 24.] In its Reply, Finance of America requested that the Court disregard Plaintiff's untimely Response in Opposition. [Filing No. 24 at 1-2.] On March 6, 2018, Mr. Kane filed this Motion for Nunc Pro Tunc Order. [Filing No. 25.]

         C. Discussion

         Mr. Kane admits that his Response in Opposition was submitted sixteen days late and states that “[u]ndersigned counsel simply mis-calendared the deadline, and the responsibility for the delay is his alone.” [Filing No. 25 at 2.] He argues, however, that the late filing poses no danger of prejudice to Finance of America because this case is only nine months old and still in the early stages of discovery. [Filing No. 25 at 2.] Mr. Kane also asserts that consideration of his delayed filing will not significantly impact the proceedings moving forward. [Filing No. 25 at 2.] Finally, Mr. Kane argues that “the delay does not represent the pattern of abuse or presence of bad faith which normally predicates judicial rebuke.” [Filing No. 25 at 2.]

         Finance of America argues that miscalculation of time cannot serve as a basis for excusable neglect. [Filing No. 27 at 1.] It claims that, even if Mr. Kane's counsel mistakenly believed his response was due based upon the thirty (30) day deadline set forth in Indiana Trial Rule 56(C) rather than the rules of this Court, such an excuse does not constitute excusable neglect. [Filing No. 27 at 2.]

         Although Finance of America's frustration with Mr. Kane's late response is understandable, the Court finds that, following the factors set forth by the Supreme Court in Pioneer, such delay is neglect that may be excused. There is little danger of prejudice to Finance of America if the Court accepts Mr. Kane's Response in Opposition, particularly given the fact that Finance of America has already filed its Reply. Further, this delay, while bothersome, was minimal and does not impact this case moving forward. Moreover, there is no evidence that Mr. Kane's delay was made in bad faith or that he has exhibited similar dilatory tactics in the past. The Court finds that, in the interests of justice, this case should be resolved on the merits, and allowing Mr. Kane's late submission furthers that objective. See Long v. Steepro, 213 F.3d 983, 986 (7th Cir. 2000) (the interests of justice are best served by resolving cases on their merits). Pursuant to Rule 6(b)(1)(B), and for the reasons set forth above, Mr. Kane's Motion for Nunc Pro Tunc Order, [Filing No. 25], is GRANTED. Accordingly, the Court will consider Mr. Kane's Response in Opposition to Finance of America's Motion for Judgment on the Pleadings, [Filing No. 23].

         II.

         Finance of America's Motion for Judgment ...


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