United States District Court, N.D. Indiana, Fort Wayne Division
DANIEL C. AGUILAR, Plaintiff,
DEPARTMENT OF VETERANS AFFAIRS, AGENCY, Defendant.
OPINION AND ORDER
Collins United States Magistrate Judge.
the Court is Defendant the Department of Veterans
Affairs' motion to strike Plaintiff Daniel C.
Aguilar's response to Defendant's motion to dismiss
based on untimeliness. (DE 15). Plaintiff filed a response to
Defendant's motion to strike (DE 17), and Defendant filed
a reply (DE 18). Thus, the motion to strike is ripe for
ruling. For the reasons stated below, Defendant's motion
to strike will be denied.
February 4, 2019, Defendant filed a motion to dismiss
contending that Plaintiff's complaint failed to plead a
basis for this Court's jurisdiction or a claim for
relief. (DE 12; DE 13). On February 27, 2019, Plaintiff filed
a response objecting to Defendant's motion to dismiss.
(DE 14). In the conclusion of Plaintiff's response, he
also requests that the Court afford him 30 days to amend his
complaint. (DE 14 at 3).
March 4, 2019, Defendant filed a motion to strike
Plaintiff's response to the motion to dismiss under
Federal Rule of Civil Procedure 12(f), arguing that the
response was not timely filed, and that such delay was not
excused by good cause. (DE 15; DE 16). Defendant included in
its memorandum in support of its motion to strike, a reply to
Plaintiff's response to the motion to dismiss. (DE 16 at
March 12, 2019, Plaintiff filed a response to Defendant's
motion to strike, acknowledging that he had filed his
response to Defendant's motion to dismiss after the
deadline had passed and that he had not requested leave to
file a belated response. (DE 17 ¶¶ 1-2). Defendant
filed a reply arguing that Plaintiff had not demonstrated
excusable neglect in filing the untimely response. (DE 18).
12(f) states that the Court “may strike from a pleading
an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
“Generally speaking, motions to strike portions of
pleadings are disfavored as they consume scarce judicial
resources and may be used for dilatory purposes.”
Silicon Graphics, Inc. v. ATI Techs. ULC, No.
06-C-611-C, 2007 WL 5312633, at *1 (W.D. Wis. Mar. 12, 2007)
(citing Custom Vehicles, Inc. v. Forest River, Inc.,
464 F.3d 725, 727 (7th Cir. 2006); Heller Fin., Inc. v.
Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir.
1989)). However, “a motion that seeks to remove
unnecessary clutter serves not to delay, but rather to
expedite.” Abayneh v. Zuelch, No. 2:10-CV-415
RLM-RCB, 2011 WL 572407, at *1 (N.D. Ind. 2011) (citing
Heller Fin., Inc., 883 F.2d at 1294).
District of Indiana Local Rule 7-1(d)(2)(A) states that a
party must file a response brief to a motion “within 14
days after the motion is served, ” unless the Court
dictates otherwise. “Rule 6(b)(1)(B) provides that when
a party moves to extend a deadline that has already passed,
the court should deny the motion unless the movant can show
that his failure to meet the deadline was the result of
‘excusable neglect.'” Knapp v. Evgeros,
Inc., 322 F.R.D. 312, 315 (N.D. Ill. 2017) (citing
Fed.R.Civ.P. 6(b)(1)(B); Hassebrock v. Bernhoft, 815
F.3d 334, 341 (7th Cir. 2016)).
determination whether a party's neglect is excusable is
‘at bottom an equitable one, taking account of all
relevant circumstances surrounding the party's
omission.'” Id. (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 395
(1993)). The Seventh Circuit Court of Appeals has stated that
the “relevant circumstances” include “the
danger of prejudice to the [non-movant], 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.” Moje v. Fed. Hockey League,
LLC, 792 F.3d 756, 759 (7th Cir. 2015) (citation
outset, the parties agree that Plaintiff filed his response
to the motion to dismiss nine days after the deadline had
passed. The Court notes that in Plaintiff's response to
the motion to dismiss, he did not seek leave to file the
belated response or acknowledge that the deadline had already
passed. Rather, Plaintiff states that “counsel
immediately filed the response when it learned that [the
response] had not been timely filed. Said error was due to
mis-calendaring of the event in plaintiff's counsel's
calendar.” (DE 17 ¶ 3).
argues the Court should grant its motion to strike because
Plaintiff has not formally requested an extension of time to
file a response to the motion to dismiss. Defendant further
contends that the delay impacts its “responsibility to
file a reply brief, ” resulting in prejudice. (DE 18 at
3). In support of its argument, Defendant cites Raymond
v. Ameritech Corporation, 442 F.3d 600 (7th Cir. 2006)
and Peters v. Wal-Mart, 876 F.Supp.2d 1025 (N.D.
Ind. 2012), aff'd sub nom. Peters v. Wal-Mart Stores
E., LP, 512 Fed.Appx. 622 (7th Cir. 2013). However,
Raymond and Peters, are distinguishable
from this case.
district court in Peter found counsel's delay
inexcusable and emphasized that it had issued a written
warning to the plaintiff's counsel “regarding
procedural failures in the past.” 876 F.Supp.2d at