United States District Court, S.D. Indiana, Indianapolis Division
JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT
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].
Kane's Motion for Nunc Pro Tunc Order
Court first considers Mr. Kane's Motion for Nunc Pro
Tunc Order 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
Standard of Review
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).
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)).
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.]
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
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.]
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].
of America's Motion for Judgment ...