United States District Court, W.D. Wisconsin
STEPHEN L. CROCKER Magistrate Judge.
case presents disputes arising from plaintiff EuroChem
Trading USA Corporation’s (ECTUS’s) sale of
agricultural chemicals to one or more agri-businesses owned
or controlled by defendant W. Kent Ganske. On March 15, 2018,
W. Kent and Julie Ganske, AG Consultants, and WS AG Center,
Inc. (“WSAG”) – to whom I will refer
collectively as “Ganske” – filed a
third-party complaint against Scott Simon, the chief
financial officer of ECTUS and the other corporate
third-party defendants, accusing Simon of tortious
interference with contract, misrepresentation and deceptive
practices, trade secrets, and defamation. Dkt. 15. Instead of
answering the complaint, Simon filed a motion to dismiss for
lack of personal jurisdiction. Dkt. 43. On March 7, 2019,
this court issued an order denying the motion, dkt. 78,
meaning that Simon had until March 21, 2019 in which to file
an answer. See Fed. R. Civ. P. 12(a)(4)(A). However, because
Simon’s counsel failed to calendar the deadline, March
21 came and went without an answer being filed. Simon first
realized he missed the deadline on April 19, 2019, when he
received a motion by Ganske for entry of default. Dkt. 84.
Upon receiving that motion, Simon promptly contacted Ganske
and asked if he would withdraw it and permit the filing of a
late answer, to which Ganske replied “no.”
now asks this court for relief under Fed. R. Civ. P.
6(b)(1)(B), which permits the court to extend the time for
the doing of an act “if the party failed to act because
of excusable neglect.” Dkt. 89. The term
“excusable neglect” is a flexible concept that
encompasses late filings caused by inadvertence, mistake or
carelessness. Pioneer Investment Services Co. v. Brunswick
Associates, Ltd., 507 U.S. 380, 389 (1993). In deciding
whether a particular neglect is “excusable,” the
court must consider all the relevant circumstances
surrounding the omission, including the length and reason for
the delay, its potential impact on judicial proceedings,
whether the movant acted in good faith and the danger of
prejudice to other parties. Id. at 395.
in this circuit have found that miscalendaring a deadline
can, but does not necessarily, constitute excusable neglect.
See, e.g., Saul v. Prince Mfg. Corp., No.
1:12–CV–270, 2013 WL 228716, at *2 (N.D. Ind.
Jan. 22, 2013) (finding excusable neglect for missing
deadline due to attorneys' failure to place it on the
calendar); Ruiz v. Carmeuse Lime, Inc., No.
2:10–CV–21–PRC, 2011 WL 3290376, at *1
(N.D. Ind. July 14, 2011) (finding excusable neglect for
missing a response deadline due to an inadvertent calendaring
error); Boctking v. United States, No.
3:10–cv–10–RLY–WGH, 2010 WL 2265310,
at *2 (S.D. Ind. June 2, 2010) (setting aside a default
because good cause was shown when a calendaring error led
defendant to believe it had one more month to file an
answer). Under the circumstances present here, I find that
Simon’s error is excusable. As he points out, no one
has been making the third-party complaint a priority: Ganske
has not taken discovery and has not filed any motions with
respect to that complaint since filing it more than a year
ago, and this court did not decide Simon’s motion to
dismiss for ten months. Although the court’s ruling on
the dismissal motion should have prompted Simon’s
counsel to calendar the answer deadline, the oversight is
understandable in light of the case’s back-burner
status for so many months. Moreover, when Simon did learn of
the error, he sprang to action immediately, filing his answer
the same day (April 19) and attempting to contact Ganske for
a reprieve. When learning on April 23 that Ganske would not
agree to the late answer, Simon filed his motion for an
extension that same day.
importantly, Ganske will suffer no prejudice as a result of
the untimely filing. Ganske has not put forth any arguments
to the contrary or disputed Simon’s assertion that,
other than opposing Simon’s motion to dismiss, Ganske
has taken no actions to prosecute the third-party complaint,
even though three of the defendants answered the complaint
back in May 2018. In fact, Ganske has not even served one of
the third party defendants. Given Ganske’s inattention
to the matter thus far, Simon’s one-month delay in
filing his answer harms no one. The only prejudice of which
this court can conceive is that the dispositive motion
deadline expired on April 26, 2019, but Ganske has given no
indication that he planned to file such a motion against
motion of third-party plaintiffs for entry of default against
third-party defendant ...