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United States v. Tolbert

United States District Court, W.D. Kentucky, Louisville Division

October 11, 2017

UNITED STATES OF AMERICA, Plaintiff
v.
WILLIAM LOUIS TOLBERT, JR., Defendant

          MEMORANDUM OPINION AND ORDER

          COLIN LINDSAY, MAGISTRATE JUDGE.

         Introduction

         The government's deadline for responding to William Tolbert's motion to vacate was December 28, 2016. (DN 90.) The government did not file a response before the deadline. On April 12, 2017, the Court ordered the government to “show cause as to why did not file a response by the December 28, 2016 deadline.” (DN 98.) On May 3, the government responded to the show cause order. (DN 100.) Five motions are before the Court and ripe for review:

1. The government moves for an extension of time to respond to Tolbert's motion to vacate. (DN 92.) The Court will grant the motion.
2. The government moves to strike the motion to dismiss it filed on March 17, 2017. (DN 95.) The Court will grant the motion.
3. The government moves for leave to file a late response to Tolbert's motion to vacate. (DN 99.) The Court will grant the motion.
4. Tolbert moves for an extension of time to file a reply in support of his motion to vacate. (DN 101.) The Court will grant the motion.
5. Tolbert moves for leave to file a sur-reply to the government's response to the Court's show cause order. (DN 102.) The Court will construe it as a motion for leave to file an objection to the government's response. The Court will grant in part and deny in part the motion.

         Analysis

         I. The government's motion for leave to file a late response (DN 99); the government's motion for extension of time to respond to Tolbert's motion to vacate (DN 92); and Tolbert's motion for leave to file a sur-reply to the government's response to the show cause order (DN 102)

         As discussed in the introduction, the government did not respond to Tolbert's motion to vacate by the deadline. On February 17, 2017, the government moved for an extension of time until March 17, 2017 to respond to Tolbert's motion to vacate. (DN 92.) The government said that it needed more time to gather the relevant documents. (Id.) In response to the Court's show cause order, the government conceded that it had made a “procedural error” in not moving for an extension before the deadline passed. (DN 100, #387.)

         Tolbert did not respond to the government's motion for an extension of time. See LR 7.1(c) (“Failure to timely respond to a motion may be grounds for granting the motion.”). Tolbert says he never received a copy of that motion. (See DN 93, ¶ 3; DN 102, ¶ 3.)

         Tolbert filed a “motion for leave to file a sur-reply to the government's response to [the] show cause order.” (DN 102 (brackets added).) The Court construes Tolbert's motion as a motion for leave to file an objection to the government's response to the show cause order. In the objection, Tolbert argues that the government did not show excusable neglect for filing a late response and asks the Court to strike the motion to dismiss as untimely. (Id., #395.) Among other authorities, he relies on Federal Rule of Civil Procedure 6(b) and this Court's opinion in Pogue v. Northwestern Mutual, 3:14-cv-598-CRS-CHL, 2016 WL 3124649, 2016 Lexis 71156, (W.D. Ky. Jun. 1, 2016). That opinion says:

Because the motion for extension was filed out of time, the heightened standard of Rule 6(b) of the Federal Rules of Civil Procedure applies. Rule 6(b) provides as follows: ‘When an act may or must be done within a specified time, the court may, for good cause, extend the time … 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). Determinations of whether a party failed to act because of excusable neglect are within the trial court's discretion. See Nafziger v. McDermott Int'l, Inc., 467 F.3d 514, 522 (6th Cir. 2006 ...

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