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Aguilar v. Department of Veterans Affairs, Agency

United States District Court, N.D. Indiana, Fort Wayne Division

May 8, 2019

DANIEL C. AGUILAR, Plaintiff,
v.
DEPARTMENT OF VETERANS AFFAIRS, AGENCY, Defendant.

          OPINION AND ORDER

          Susan Collins United States Magistrate Judge.

         Before 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.

         A. Background

         On 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).

         On 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 2-4).

         On 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).

         B. Legal Standard

         Rule 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).

         Northern 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)).

         “The 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 omitted).

         C. Discussion

         At the 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).

         Defendant 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.

         The 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 1031-32. ...


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