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Wickenkamp v. Smith

United States District Court, Eighth Circuit

November 27, 2013

MARY WICKENKAMP, Plaintiff,
v.
CLAY SMITH, ANDREW STROTMAN, B & J PARTNERS, ABC CORPORATION, Its Successor Entity, CLINE WILLIAMS WRIGHT JOHNSON & OLDFATHER, L.L.P., A Nebraska Limited Liability Partnership, JOHN DOE NO.1, and JOHN DOE NO. 2, Defendants.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Plaintiff, Mary Wickenkamp, claims the defendants engaged in a conspiracy to obtain information through illegal electronic surveillance and to disclose and use illegally obtained information. On October 18, 2013, Defendants Andrew Strotman and Cline Williams Wright Johnson & Oldfather, L.L.P., filed a motion for summary judgment (filing 42) and Defendant Clay Smith filed a motion to dismiss (filing 47).[1] Plaintiff's responses to these motions were due on November 12, 2013. See NECivR 6.1(c) & 7.1(b)(1)(B). Plaintiff failed to respond within the prescribed time.

Plaintiff's Suggestion of Bankruptcy

On November 21, 2013, Plaintiff filed a suggestion of bankruptcy (filing 50), which indicates she filed a Chapter 7 petition in the United States Bankruptcy Court for the District of Texas on October 18, 2013.[2] It appears Plaintiff is seeking to claim the benefit of an automatic stay under the provisions of 11 U.S.C. § 362(a)(1), but that statute has no application to this case. "Because the automatic stay applies to the commencement or continuation... of a judicial... proceeding against the debtor, ' 11 U.S.C. § 362(a)(1), it is well established that it does not apply to a proceeding brought by the debtor that inures to the benefit of the debtor's estate." Farley v. Henson, 2 F.3d 273, 274-75 (8th Cir. 1993). The plaintiff's suggestion of bankruptcy, treated as a motion for a stay, will be denied.

Plaintiff's Motion for Extension of Time

On November 25, 2013, plaintiff filed a motion for extension of time (filing 51) to respond to Defendants' motions. Because such motion was not filed before the response deadline, Plaintiff must show that she "failed to act because of excusable neglect." Fed.R.Civ.P. 6(b)(1)(B).

Plaintiff states, in an unverified affidavit, [3]

3. That I am still recovering from a serious surgery that occurred on June 11, 2013 and for [w]hich I was hospitalized until June 19, 2013. I was subjected to certain physical restrictions by my [p]hysician until July 31, 2013.... That as a result of my medical condition I have been receiving Social Security Disability since September 1, 2013 and that the money received therefrom is my only significant source [o]f income. These factors hamper my ability to respond quickly to matters in this litigation....
4. That I have been out of the state of Texas since August 22, 2013 assisting family members with personal family business with the cost of such travel paid for by family members.... That on leaving Texas I made arrangements to have my mail forwarded to me in Oregon and later in Missouri. That I have encountered difficulties in receiving all mailings regarding legal matters and that I received the Motion for Summary Judgment in Missouri on approximately November 15, 2013. Further, that I expect the family matters in which I am involved will be resolved by December 11, 2013 and that I will be back in Texas on or about that date....
5. That on October 18, 2013 I filed a Chapter 7 bankruptcy proceeding with the Southern District of Texas, .... The court dismissed the bankruptcy action on November 7, 2013. From October 18, 2013 to November 7, 2013 this matter was still subject to the automatic stay in bankruptcy imposed by the Southern District of Texas.[4]
6. That I require additional time to respond to the pending motions and respectfully [r]equest that the court allow me until December 30, 2013 to respond thereto. I have a good faith, reasonable belief that there exists a valid legal basis to oppose the Motion for Summary Judgment and, further that I am entitled under the law to conduct discovery as to certain issues so that I may obtain evidence that can be introduced to assert my position. I intend to file a motion seeking leave to conduct certain discovery in order to enable me to respond adequately to the Motion for Summary Judgment.
7. That I believe that it is in the furtherance of justice and in furtherance of my [d]ue process rights that I be granted an extension of time to respond to all pending motions until December 30, 2013.

(Filing 52.)

"Excusable neglect is an elastic concept' that empowers courts to accept, where appropriate, ... late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control.'" Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th Cir. 2010) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392, 388 (1993)). "The determination of whether 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., 507 U.S. at 395). "[T]he following factors are particularly important: (1) the possibility of prejudice to [Defendants]; (2) the length of [Plaintiff's] delay and the possible impact of that delay on judicial proceedings; (3) [Plaintiff's] ...


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