Opinion
CIVIL ACTION No: 99-2406-JWL
October 19, 2001
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff's Motion to Strike Defendants' Response to Plaintiff's Motion to Compel Answers to Interrogatories and Production of Documents (doc. 130). It is also before the Court on Defendants' Motion for Enlargement of Time (doc. 132) to file their response out of time.
Plaintiff filed a motion to compel discovery (doc. 119) on April 16, 2001. Defendants filed a response to the motion (doc. 127) on May 3, 2001. Plaintiff moves to the strike the response, asserting that the response was filed three days out of time.
Defendants' counsel admits that he calculated the deadline for filing the response under the former version of D. Kan. Rule 7.1(b), which allowed ten business days for filing a response to a non-dispositive motion. Had Defendants' response been filed under that former rule, there would be no dispute that the response was timely filed. As Defendants acknowledge, however, the Rules of Practice of the District of Kansas were amended effective March 15, 2001, including the rule regarding responses to non-dispositive motions. Defendants also acknowledge that those amended Rules were in effect when they filed their response.
Amended D. Kan. Rule 6.1(e) provides that "[r]esponses to nondispositive motions . . . shall be served within 11 days." (Emphasis added.) Defendants' response to Plaintiff's motion to compel was therefore due "within 11 days" of service of the motion, with three days added to the 11-day period to account for service of the motion on Defendants by mail, as provided for under Fed.R.Civ.P. 6(a). The parties do not agree as to the meaning of the phrase "within 11 days." Depending on how that phrase is defined, Defendants' response may or may not have been timely filed.
Fed.R.Civ.P. 6(a) explains how response times and other deadlines are to be computed. It excludes intermediate weekends and holidays if the period of time prescribed or allowed is "less than 11 days." Fed.R.Civ.P. 6(a). Defendants argue that the word "within" is ambiguous and that the phrase "within 11 days" should be interpreted to mean "less than 11 days." Plaintiff, on the other hand, argues that the phrase "within 11 days" should be interpreted to mean "11 days or less."
The term "within" as used in the context of time or duration, is defined by Webster's Dictionary as "not longer in time than," or "at any time during." Webster's Third New International Dictionary 2627 (1986). In the Court's opinion, that definition is consistent with the common usage of the word. Accordingly, the Court holds that the term "within 11 days," as used in D. Kan. Rule 6.1(e), means "not longer than 11 days" or "at any time during the 11-day period." It does not mean "less than 11 days." In light of the above, the provision contained in Fed.R.Civ.P. 6(a) for excluding intermediate weekends and holidays did not apply here. Because that provision did not apply, Defendant's response was three days out of time when it was filed on May 3, 2001.
Now that the Court has concluded that the response was filed out of time, the Court must determine whether to strike it or to grant Defendants leave to file it out of time. Defendants urge the Court not to strike the response because they claim their failure to file a timely response was due to their counsel's "excusable neglect." They assert that their counsel was not aware that the District's Rules of Practice had been amended to alter the time period for responding to nondispositive motions. The Court does not believe that counsel's ignorance of the amendments should be deemed "excusable neglect" or otherwise deemed sufficient to allow the response to be filed out of time. Counsel practicing before this Court are expected to familiarize themselves with the District's Rules of Practice, and counsel's ignorance of the rules should not be excused. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) ("[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute 'excusable' neglect . . . ."); Seyler v. Burlington Northern Santa Fe Corp, 121 F. Supp.2d 1352, 1356 (D.Kan. 2000) ("[E]ven absent prejudice to the opposing party or disruption of judicial proceedings, a party's failure to read and follow the plain terms of the federal rules does not constitute excusable neglect.").
Defendants also urge the Court, in the event it finds their response untimely, to grant them a post hoc extension of time to file the response. The Court will decline to do so, since granting such an extension would be equivalent to deeming counsel's conduct "excusable."
In light of the above, the Court will grant Plaintiff's motion to strike, and the Clerk of the Court is directed to strike Defendants' response (doc. 127). Although the response will be striken, the Court will decline to treat Plaintiff's motion to compel as uncontested and will hear oral argument from the parties regarding the motion.
The Court notes that when it struck Plaintiff's untimely response (doc. 97) to Defendants' motion to compel discovery (doc. 76), it did not treat Defendant's motion as uncontested and afforded Plaintiff the same opportunity to orally state her opposition to the motion.
The Court hereby schedules a hearing on Plaintiff's Motion to Compel Answers to Interrogatories and Production of Documents (doc. 119) on June 12, 2001, at 3:30 p.m ., by telephone conference call, to be initiated by the U.S. Magistrate Judge.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Strike Defendants' Response to Plaintiff's Motion to Compel Answers to Interrogatories and Production of documents (doc. 130) is granted. The Clerk of the Court is directed to strike Defendants' Response to Plaintiff's Motion to Compel Answers to Interrogatories and Production of Documents (doc. 127).
IT IS FURTHER ORDERED that Defendants' Motion for Enlargement of Time (doc. 132) to file their response out of time is denied.
IT IS FURTHER ORDERED that a hearing is scheduled on Plaintiff's Motion to Compel Answers to Interrogatories and Production of Documents (doc. 119) on June 12, 2001, at 3:30 p.m ., by telephone conference call, to be initiated by the U.S. Magistrate Judge.
IT IS SO ORDERED.