STEPHANIE M. ROSE, JUDGE

Jaysen Christopher McCleary, Attorney at Law, Jaysen McCleary, Des Moines, IA, for Plaintiffs.

Michelle Mackel-Wiederanders, Des Moines City Attorney, Des Moines, IA, for Defendants.

ORDER ON MOTIONS

STEPHANIE M. ROSE, JUDGE

Before the Court are various motions related to a third request by Plaintiffs Cynthia Pesce and Bela Animal Legal Defense and Rescue ("Bela") for an extension of time to file a resistance to a Motion for Summary Judgment filed by Defendants City of Des Moines, Iowa (the "City"), and James Butler. Those motions include the aforementioned Third Motion for Extension of Time to File a resistance, [ECF No. 39], Plaintiffs' Motion for Judgment on the Pleadings or, alternatively, Cross-Motion for Summary Judgment, [ECF No. 40], and Defendants' Motion to Strike Plaintiffs' resistance and dispositive motion, [ECF No. 42]. The motions are fully submitted and ready for decision. As discussed below, Plaintiffs' motions are DENIED; Defendants' Motion to Strike is GRANTED. Plaintiffs' resistance shall be stricken from the record.

I. BACKGROUND

Plaintiffs are represented in this matter by Jaysen McCleary. The Court's Rule 16 Scheduling Order set a deadline of September 30, 2019, for the parties to file dispositive motions. [ECF No. 25]. Defendants timely filed a Motion for Summary Judgment on the dispositive motion deadline. [ECF No. 34]. Pursuant to Local Rule 56(b), Plaintiffs had until October 21, 2019, to file a resistance to Defendants' motion. They did not do so. Further, as discussed in more detail below, Plaintiffs did not file a dispositive motion until December 9, 2019. [ECF No. 40].

On October 29, 2019, Plaintiffs filed a Motion for Extension of Time to File their resistance to Defendants' Motion for Summary Judgment. [ECF No. 35]. Invoking "Title II of the [Americans with Disabilities Act]"—but with no further explanation—Plaintiffs made an "administrative request for reasonable accommodation for additional time." Id. at 2. Plaintiffs acknowledged that the motion was belated, but they attributed their failure to "file a timely request for additional time" to four "unusual circumstances": (1) McCleary "had previous obligations at legal seminars in Southern California and Oregon" over the preceding three weeks; (2) McCleary's paralegal, "who was supposed to file the motion[,] was unexpectedly diagnosed with breast cancer"; (3) McCleary had a bench trial in Iowa beginning on November 1, 2019, and he had to be "driven back" (presumably from his legal seminars on the West Coast, though this is not specified) "due to medical reasons"; and (4) "[a]dditional circumstances [that] are also medical in nature and thus private." Id. at 1. The court granted the motion and gave Plaintiffs until November 15, 2019, to file their resistance. [ECF No. 36].

On November 13, 2019, Plaintiffs filed a Second Motion for Extension of Time to File their resistance. [ECF No. 37]. Plaintiffs explained that McCleary's "best childhood friend's health began to quickly deteriorate and he died [the previous] week and the memorial services [were that] week on the West Coast." Id. at 1. Plaintiffs sought "one last extension until November 25, 2019[,] to file the resistance after the funeral and memorial services," which were expected to have concluded by the end of that weekend. Id. at 2. The court granted the motion, extending the deadline up to and including November 25, 2019. [ECF No. 38].

Plaintiffs did not file a resistance within the allotted time. Meanwhile, there was a rush of activity in a different case involving Bela and the City, Reed v. City of Des Moines , No. 4:19-cv-00366-SMR-CFB (S.D. Iowa) ("Reed "). In that case, the plaintiffs—Bela and an individual named Matthew Reed—are represented by McCleary. On November 20, 2019, McCleary filed on the plaintiffs' behalf a motion to remand that case to state court. Mot. to Remand, Reed , ECF No. 2 (Nov. 20, 2019). The motion also included a request for sanctions. Id. The defendant in that case filed a resistance that same day. Def.'s Resp. to Pls.' Mot. to Remand, Reed , ECF No. 3 (Nov. 20, 2019). The next day, McCleary filed on the plaintiffs' behalf a separate motion for sanctions, which also contained arguments replying to the defendant's resistance to the motion to remand. Mot. for Sanctions, Reed , ECF No. 5 (Nov. 21, 2019). The Court eventually remanded the case but denied all requests for sanctions. Order, Reed , ECF No. 7 (Dec. 2, 2019).

On December 2, 2019, Plaintiffs in this matter filed a Third Motion for Extension of Time to File their resistance to Defendants' Motion for Summary Judgment. [ECF No. 39]. According to the motion, McCleary "underestimated the length of time needed for the memorial services of his friend and forgot about the Thanksgiving holiday week and then was stuck in a blizzard for two days in South Dakota." Id. at 1–2. Plaintiffs claimed McCleary was "driving all night" and needed until December 3, 2019, to file Plaintiffs' resistance. Id. at 2. There was no mention of Reed or any other matters.

While Plaintiffs' Third Motion for Extension of Time to File was pending, Plaintiffs filed their resistance on December 9, 2019—two weeks after the extended due date. [ECF No. 40]. They also designated their resistance brief as a Motion for Judgment on the Pleadings or, in the alternative, a Cross-Motion for Summary Judgment. Defendants resisted Plaintiffs' request for a third extension of time and moved to strike both that resistance and the dispositive motions contained therein. [ECF No. 42].

II. ANALYSIS

A. Motion for Extension of Time to File

Under Federal Rule of Civil Procedure 6(b), the Court may extend the time to complete an act "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). "The determination as to what sort of neglect is considered excusable is an equitable one, taking account of all relevant circumstances surrounding the party's own omission." Hawks v. J.P. Morgan Chase Bank , 591 F.3d 1043, 1048 (8th Cir. 2010) (citation omitted). The decision to grant or deny a request to extend a filing deadline is entrusted to the "considerable discretion" of the Court, Soliman v. Johanns , 412 F.3d 920, 921–22 (8th Cir. 2005), and its "refusal to accept untimely filed materials will not be reversed for an abuse of discretion unless the proponent of the materials has made an affirmative showing of excusable neglect," Huggins v. FedEx Ground Package Sys., Inc. , 592 F.3d 853, 856 (8th Cir. 2010) (citation omitted).

Here, the Court finds Plaintiffs have failed to show the requisite excusable neglect to justify a third extension of time to file a resistance. Although Plaintiffs inform the Court McCleary was too busy with memorial services for his childhood friend to file their resistance, he was still able to complete work on other matters, such as Reed. As his work in that case shows, McCleary prioritized other matters over this case. Even if McCleary viewed such work was more pressing than the deadlines in this matter, the United States Court of Appeals for the Eighth Circuit has held that an attorney's preoccupation with other matters does not constitute excusable neglect. See Hawks , 591 F.3d at 1048 ("[Plaintiff's] assertion in his motion that his counsel was occupied with other hearings does not constitute excusable neglect."). Further, Plaintiffs' other reasons for failing to timely file their resistance focus on the Thanksgiving holiday; but the resistance was due three days before Thanksgiving. Thus, for example, McCleary being trapped in a post -holiday blizzard does not address why Plaintiffs were unable to meet the pre -Thanksgiving November 25 deadline. Plaintiffs have not shown excusable neglect for failing to timely file their resistance to Defendants' Motion for Summary Judgment. See Soliman , 412 F.3d at 921–22. Therefore, their Third Motion for Extension of Time to File is DENIED.

B. Extending the Dispositive Motion Deadline

As previously noted, the Court's Rule 16 Scheduling Order set a September 30, 2019 dispositive motion deadline. Plaintiffs did not file a dispositive motion at that time. Instead, on December 9, 2019, they filed a Motion for Judgment on the Pleadings or, in the alternative, a Cross-Motion for Summary Judgment. [ECF No. 40]. Both motions are considered dispositive motions. See Martin Ankeny Corp. v. CTB Midwest, Inc. , No. 4:14-cv-000516-SMR-HCA, 2016 WL 7426584, at *1 (S.D. Iowa, Mar. 18, 2016) (noting that "[d]ispostive motions include the eight listed in 28 U.S.C. § 636(b)(1)(A)," which include motions for judgment on the pleadings and motions for summary judgment). Plaintiffs' dispositive motion is untimely, and the Court will deny it on those grounds unless circumstances warrant otherwise.

Rule 12(c) states that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." However, when such a motion is filed after the dispositive motion deadline set by a Rule 16 scheduling order, the motion must comply with the requirements of Rule 16(b). Riggins v. Walter , 279 F.3d 422, 427–28 (7th Cir. 1995) ; Roundtree v. Adams , No. CV F 01 6502 LJO SMS, 2007 WL 1232173, at *5 (E.D. Cal. Apr. 25, 2007). Rule 16(b)(4) states that a Rule 16 scheduling order "may be modified only for good cause and with the judge's consent." Neither Rule 12(c) nor 16(b)(4) are satisfied here.

If the Court allows Plaintiffs to file a Motion for Judgment on the Pleadings, the Court will be required to delay trial. Trial in this case is presently scheduled to begin on March 23, 2020, with a final pretrial conference scheduled for March 9, 2020. It is not realistic for the Court to issue a ruling on both Plaintiffs' Motion for Judgment on the Pleadings and Defendants' Motion for Summary Judgment within that time frame. This issue has been exacerbated by Plaintiffs' repeated requests for extensions of time to file a resistance to Defendants' Motion for Summary Judgment, which has delayed the resolution of that motion and limited the remaining time for the Court to address other pretrial issues.

As for Rule 16(b)(4), "[t]he primary measure of Rule 16's ‘good cause’ standard is the moving party's diligence in attempting to meet the case management order's requirements." Bradford v. DANA Corp. , 249 F.3d 807, 809 (8th Cir. 2001). " ‘[T]he existence or degree of prejudice to the party opposing the modification’ and other factors may also affect the decision." Id. (alteration in original) (citation omitted). Here, although Plaintiffs have sought extensions of time to file their resistance to Defendants' Motion for Summary Judgment, they have not—within those requests or otherwise—requested an extension of the dispositive motion deadline. Nor have they explained why they failed to timely file a dispositive motion. Even if the Court considers Plaintiffs' reasons for needing an extension of time to file a resistance as potentially applying to a need to extend the dispositive motion deadline, those reasons do not cover the relevant time period. The earliest event cited in Plaintiffs' requests for extensions of time to file a resistance was a series of legal seminars on the West Coast beginning the first week of October 2019. See [ECF No. 35 at 1] (citing "legal seminars in Southern California and Oregon over the past three weeks" in Plaintiffs' October 29, 2019 request). However, the dispositive motion deadline passed on September 30, 2019—before those seminars began. Having provided no explanation for not meeting the dispositive motion deadline, Plaintiffs have failed to show the good cause necessary to amend the Rule 16 Scheduling Order. Their Motion for Judgment on the Pleadings or, alternatively, Cross-Motion for Summary Judgment is therefore DENIED.

C. Motion to Strike

Defendants' Motion to Strike raises a question of the appropriate remedy. Plaintiffs have filed an untimely resistance to Defendants' Motion for Summary Judgment, as well as an untimely dispositive motion. Both the resistance and the dispositive motion are presented in the same filing. To the extent the filing presents Plaintiffs' dispositive motion, the Court finds that denying the motion is appropriate. The Court agrees with Defendants, however, that the filing should be stricken to the extent it presents Plaintiffs' resistance to Defendants' Motion for Summary Judgment. Therefore, Defendants' Motion to Strike is GRANTED in part and DENIED in part.

III. CONCLUSION

For the foregoing reasons, Plaintiffs' Third Motion for Extension of Time to File, [ECF No. 39], is DENIED. Defendants' Motion to Strike, [ECF No. 42] is GRANTED in part and DENIED in part. Plaintiffs' resistance to Defendants' Motion for Summary Judgment shall be stricken from the record; their Motion for Judgment on the Pleadings or, alternatively, Cross-Motion for Summary Judgment, [ECF No. 40], is DENIED.

IT IS SO ORDERED.