hibu Inc. v. PeckRESPONSED. Kan.December 11, 2017 CORE/3502715.0002/136376379.1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS AT WICHITA Hibu Inc., Plaintiff, v. Chad Peck, Defendant. ) ) ) ) ) ) ) ) ) Case No. 16-cv-01055-JTM-TJJ ) RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S UNTIMELY FILING Defendant Chad Peck ("Mr. Peck"), by and through his undersigned attorneys, hereby opposes Plaintiff's Motion to Strike Defendant's Untimely Filing ("Motion to Strike") (Doc. 300- 301). Mr. Peck's counsel, upon learning that his Memorandum in Opposition to Hibu's Motion to Exclude Expert Reports and Testimony of Rodney Sowards ("Opposition") (Doc. 295) was filed one week late, promptly filed a Motion for Leave to File Out of Time (Doc. 302-303). As set out in that motion, the Opposition was filed one week late due to an error in calendaring the deadline, which, Mr. Peck argues, is excusable neglect under applicable law, the facts and circumstances. Additionally, the Motion to Strike is procedurally improper and should be denied. I. ARGUMENT AND AUTHORITIES A. The Opposition of Mr. Peck Should be Accepted, as Its Filing One Week Late Was Excusable Neglect. The Motion to Strike deals exclusively with the issue of the untimeliness of the Opposition. Mr. Peck's substantive response to this issue is fully set out in its Motion for Leave to File Out of Time. In the interest of efficiency and not duplicating that motion in its entirety here, Mr. Peck incorporates all of his Statement of Facts, supporting Declaration, and Arguments and Authorities from his Motion for Leave to File Out of Time here, by this reference. (Doc. 303 at 1-6, and Att. A). Case 6:16-cv-01055-JTM Document 305 Filed 12/11/17 Page 1 of 6 2 CORE/3502715.0002/136376379.1 In that motion, Mr. Peck's counsel describe that upon receiving Hibu's Motion to Exclude Expert Reports and Testimony of Rodney Sowards, they promptly had a discussion concerning preparing the Opposition, and undersigned counsel instructed their mutual Legal Administrative Assistant to calendar the deadline for the response on their electronic Outlook calendar. Counsel did not realize that the deadline was mistakenly calendared incorrectly until the Motion to Strike was filed. The United States Supreme Court's decision in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S. Ct. 1489, 123 L. Ed.2d 74 (1993) clarified that courts would be "permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well by intervening circumstances beyond the party's control." Id. at 388. The Pioneer case also provides factors to consider in analyzing whether an untimely filing is due to excusable neglect, and instructs that the determination is an equitable one, taking into account all relevant circumstances surrounding the party's omission including: (1) the danger of prejudice, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reasons for the delay including whether it was within the reasonable control of the party seeking to show excusable neglect, and (4) whether the party acted in good faith. Id. at 395. Under the factors, the Court should find excusable neglect. There are indeed a plethora of analogous cases from this jurisdiction permitting filings out-of-time, where deadlines were calendared incorrectly, there was no prejudice to the opposition, no bad faith, and the late filing did not cause a significant delay. See Mohankumar v. Dunn, 97-1555-WEB, 1999 WL 1253053, at *1 (D. Kan. Dec. 22, 1999) (excusable neglect found where attorney's support staff made a clerical error in recording the deadline); Goings v. Crawford County District Attorney's Office, et al., 10-1402-MLB-KGG, 2011 U.S. Dist. LEXIS 15691, at *2 (D. Kan. Jan. 24, 2011) (excusable neglect found where counsel inadvertently calendared the deadline one month late) (citations omitted); Baker v. Promise Reg'l Med. Ctr., Case 6:16-cv-01055-JTM Document 305 Filed 12/11/17 Page 2 of 6 3 CORE/3502715.0002/136376379.1 10-cv-1257-KHV, 2012 WL 899265, at *2-3 (D. Kan. Mar. 16, 2012) (excusable neglect found where counsel's staff calendared deadline for the wrong date) (citing Harvey v. Via Christi Reg'l Med. Ctr., 05-1114-JTM (Feb. 28, 2006)); Kenney v. Citimortgage, Inc., et al., 14-2436-JAR, 2015 WL 265455, at *2 (D. Kan. Jan. 21, 2015) (excusable neglect found where sole reason for failing to timely file response was counsel's mistake in calendaring deadline). Importantly, Hibu would suffer no prejudice if the Court accepts the late-filed Opposition. Hibu is still entitled to file its Reply to the Opposition, and there is adequate time for the Court to rule on Hibu's Motion to Exclude Sowards, particularly due to the recent two- week delay of the start of the trial. However, refusing to consider the Opposition because it was untimely filed will be substantially prejudicial to Mr. Peck. The testimony of Mr. Sowards, which is at issue in the Opposition, is significant to the defense of the case. Applying the factors from Pioneer leads to a conclusion that the Motion to Strike should be denied. B. Plaintiff's Motion to Strike Is Procedurally Improper and Should be Denied. Additionally, the Motion to Strike is procedurally improper and should be denied on that basis. Hibu should have addressed the late-filed Opposition in its Reply, which it is still entitled to make. As an initial matter, Mr. Peck notes that Hibu has not cited any procedural authority in support of his Motion to Strike. The Federal Rules of Civil Procedure do not provide any basis for striking motions or related memoranda. See Searcy v. Social Security Administration, 91- 4181, 1992 U.S. App. LEXIS 3805 (10th Cir. Mar. 2, 1992). Nor do the Local Rules of this Court authorize such a procedure. In federal court, motions to strike are generally restricted to pleadings. 1 See Fed. R. Civ. Proc. 12(f); Searcy, 1992 U.S. App. LEXIS 3805 at *5; Schmitt v. Beverly Health and Rehab 1 Courts are permitted to strike unsigned papers under Rule 11 and third party claims under Rule 14, neither of which are at issue here. Case 6:16-cv-01055-JTM Document 305 Filed 12/11/17 Page 3 of 6 4 CORE/3502715.0002/136376379.1 Svcs., Inc., 96-2537, 1997 U.S. Dist. LEXIS 18636 at *2-3 (D. Kan. Nov. 19, 1997); Jones v. City of Topeka, 764 F. Supp. 1423, 1425 (D. Kan. 1991). Motions, responses and replies do not qualify as pleadings. See, e.g., Fed. R. Civ. Proc. 7 (defining the type of documents that qualify as pleadings). Consequently, courts in this district routinely deny motions to strike improperly directed at motions or memoranda. See, e.g., Fisherman Surgical Instruments , LLC v. Tri-Anim Health Svcs., Inc., 06-CV-2082, 2007 U.S. Dist. LEXIS 53204 at *3-4 (D. Kan. Jul. 20, 2007). In a recent order from this district, the Court, in denying a motion to strike a response to a motion filed out of time, noted: The court begins with an observation about an increasing trend among litigants. This trend consists of parties invoking these Rules in their motion practice, preferring to file motions to strike an opposing party's submission instead of simply filing a response or reply that addresses the improprieties or weaknesses of the opposing party's submission. It is a perplexing trend. This practice needlessly multiplies the motions that the court must rule, clogs the court's docket, and wastes judicial resources. And, importantly, the Rules that the parties invoke here provide the court with no authority to strike the requested filings. Palmer v. Shawnee Mission Medical Center, 16-2750-DDC-GLR, 2017 WL 5629624 *2 (D. Kan. Nov. 22, 2017) (finding that Rule 12(f) does not permit the striking of responses or replies because they are not pleadings). The Court in Palmer noted that even if the procedural rules permitted the motion to strike, it would be denied because the subject filing was only 6 days late, was due to excusable neglect, and movant was not prejudiced by the late filing. Id. at *3. The proper procedural vehicle for addressing the concerns raised by Hibu in its Motion to Strike is to include them in its Reply. As such, the Court could consider the issue of the late filing in the context of the Motion to Exclude Mr. Sowards. Case 6:16-cv-01055-JTM Document 305 Filed 12/11/17 Page 4 of 6 5 CORE/3502715.0002/136376379.1 II. CONCLUSION For the foregoing reasons, Mr. Peck respectfully requests the Court to deny the Motion to Strike, as the late filing of his Opposition was due to excusable neglect, and a Motion to Strike is not permitted under these circumstances by the applicable rules of procedure. Dated: December 11, 2017 /s/ Alisa Nickel Ehrlich Lynn D. Preheim (#13300) Alisa Nickel Ehrlich (#17096) STINSON LEONARD STREET LLP 1625 N. Waterfront Parkway, Suite 300 Wichita, Kansas 67206-6620 Telephone (316) 265-8800 Facsimile (316) 265-1349 lynn.preheim@stinson.com alisa.ehrlich@stinson.com Joseph Serino, Jr., admitted pro hac vice Leah Friedman, admitted pro hac vice Gregory S. Mortenson, admitted pro hac vice LATHAM & WATKINS LLP 885 Third Avenue, Suite 1000 New York, New York 10022 Telephone: (212) 906-1200 Facsimile: (212) 751-4864 joseph.serino@lw.com leah.friedman@lw.com gregory.mortenson@lw.com Attorneys for Defendant Case 6:16-cv-01055-JTM Document 305 Filed 12/11/17 Page 5 of 6 6 CORE/3502715.0002/136376379.1 CERTIFICATE OF SERVICE I hereby certify that on this 11 th day of December, 2017, I caused the above and foregoing to be electronically filed with the clerk of the court by using the CM/ECF system which will send a notice of electronic filing to the following: Patrick L. Kenney John M. Mattox II Todd W. Ruskamp Russell J. Shankland Shook, Hardy & Bacon L.L.P. 2555 Grand Blvd. Kansas City, MO 64108 pkenney@shb.com jmattox@shb.com truskamp@shb.com rshankland@shb.com Attorneys for Plaintiff s/ Alisa Nickel Ehrlich Alisa Nickel Ehrlich Case 6:16-cv-01055-JTM Document 305 Filed 12/11/17 Page 6 of 6
