United States District Court, D. Utah, Central Division
D. RAY STRONG, as Liquidating Trustee of the Consolidated Legacy Debtors Liquidating Trust, the Castle Arch Opportunity Partners I, LLC Liquidating trust, and the Castle Arch Opportunity Partners II, LLC Liquidating Trust, Plaintiff,
KIRBY D. COCHRAN; JEFF AUSTIN; AUSTIN CAPITAL SOLUTIONS; WILLIAM H. DAVIDSON; ROBERT CLAWSON; HYBRID ADVISOR GROUP; ROBERT D. GERINGER, ROBERT D. GERINGER, P.C.; FINE ARTS ENTERTAINMENT; and DOES 1-50, Defendants.
ORDER AND MEMORANDUM DECISION
CAMPBELL U.S. DISTRICT COURT JUDGE
Robert Clawson filed his Opposition to Plaintiff D. Ray
Strong's Motion for Partial Summary Judgment (ECF No.
221) on August 15, 2018-thirty-seven days after his
thrice-extended filing deadline of July 9 (see ECF
No. 291). Mr. Clawson did not seek a further extension from
the court. Instead, two days after filing his Opposition, he
filed a Motion for Relief under Federal Rule of Procedure
because of “excusable neglect due to the medical
necessity of his counsel.” (ECF No. 258, at 2.) His
motion, supported by a declaration from his attorney Brett G.
Evans, details Mr. Evans' medical treatment for a
degenerative spinal disorder.
August 16, 2018, Mr. Strong filed a Motion to Strike Mr.
Clawson's Opposition. (ECF No. 255.) He also moved for an
expedited briefing schedule to obtain a ruling from the court
on his Motion to Strike before his August 31, 2018 reply
brief deadline (he is currently drafting a reply to three
timely-filed oppositions from different defendants). (ECF No.
260.) Mr. Clawson agreed to an expedited schedule and
subsequently filed an Opposition to Mr. Strong's Motion
to Strike (ECF No. 263) to conclude briefing on the subject
of timeliness. For the reasons stated below, the court will
accept Mr. Clawson's late-filed Opposition.
may extend a filing deadline “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).
“This rule should be liberally construed to advance the
goal of trying each case on the merits.” Rachel v.
Troutt, 820 F.3d 390, 394 (10th Cir. 2016).
factors determine whether neglect is excusable: “(1)
the danger of prejudice to the non-moving party, (2) the
length of delay and its potential impact on judicial
proceedings, (3) the reason for the delay, including whether
it was within the reasonable control of the movant, and (4)
whether the movant acted in good faith.” Perez v.
El Tequila, LLC, 847 F.3d 1247, 1253 (10th Cir. 2017)
(internal alteration marks and quotation omitted). These
factors largely mirror those used to determine the merits of
a motion to strike a filing as untimely. See Utah
Republican Party v. Herbert, No. 2:14-cv-00876-DN-DBP,
2015 WL 6394534, at *3 (D. Utah Oct. 22, 2015) (listing three
factors: (1) the degree of actual prejudice to the movant;
(2) the amount of interference with the judicial process; and
(3) the culpability of the respondent). Accordingly, the
court will use the test to resolve both timeliness motions.
Strong relies on the first factor, prejudice, in his Motion
to Strike. He asserts that the late filing will force him
“to wade through an additional opposition brief, and 1,
200 pages of exhibits-after largely formulating his reply
position.” (ECF No. 255, at 4.) Additionally, accepting
the late filing will “result in additional delay, to
the prejudice of the Trustee [Mr. Strong] (and the other
defendants) who are seeking to get these motions completed
and ruled upon.” (Id.)
Clawson counters that he and counsel for all other defendants
“would agree to a reasonable extension to allow for
Plaintiff to collectively respond to their oppositions and
Clawson's untimely opposition.” (Decl. of Brett G.
Evans ¶ 2, ECF No. 263-1.) And addressing the second
factor, the impact of a delay on judicial proceedings, he
notes that the court has not yet set a hearing on the
court agrees with Mr. Clawson on these two points and will
not address his other arguments. Mr. Strong can avoid
prejudice by moving for an appropriate extension of time to
reply to Mr. Clawson's late-filed opposition. The court,
in evaluating such a motion, will be mindful of Mr.
Clawson's late filing date.
Mr. Clawson's late filing will not significantly delay
these proceedings. Mr. Strong forecasts moving for a one to
two week extension for his reply brief even if the court were
to strike Mr. Clawson's opposition. And the court intends
to hear oral argument on Mr. Strong's Motion for Partial
Summary Judgment alongside other pending dispositive motions.
(See Mot. for Partial Summ. J. (Claim Preclusion),
ECF No. 225; Mot. for Partial Summ. J. (Statute of
Limitations), ECF No. 244; Mot. to Dismiss (Mootness), ECF
No. 256.) Two of these motions are not yet fully briefed, so
oral argument is not imminent.
foregoing reasons, the court GRANTS Mr. Clawson's Motion
for Relief for his Untimely Response (ECF No. 258), DENIES
Mr. Strong's Motion to Strike (ECF No. 255), and DENIES
as moot Mr. Strong's Ex Parte Motion to Shorten Time for
Briefing (ECF No. 260).
 Mr. Clawson also cites Federal Rule of
Civil Procedure 60(b) as grounds for relief. (ECF No. 258, at
4.) It does not apply here. Rule 60(b) provides relief
“from a final judgment, order, or proceeding.”
Fed.R.Civ.P. 60(b). The court's order setting Mr.