Harris v. Melchor-Hernandez et al
| Rakeem Harris |
| Hector Melchor-Hernandez, Cody Followell and Jared Roth |
| 1:2023cv01094 |
| March 3, 2023 |
| US District Court for the Central District of Illinois |
| Jonathan E Hawley |
| James E Shadid |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| Both |
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TEXT ONLY ORDER: Plaintiff seeks yet another redo of this Court's 3/312023 order granting an extension for Defendant Melchor to answer. This time, Plaintiff has incorrectly title his filing as an Objection to Court's Reason for Finding Excusable Neglect #28 . The Court construes this as an additional Motion for Reconsideration. Plaintiff's Objection #28 , like his earlier Motion #19 for Reconsideration, asks this Court to reconsider its 3/31/2023 Text Order extending the time for Defendants to answer and to enter a default against Defendant Melchor. After the deadline to file has passed, a court may still grant an extension of time for excusable neglect. Fed. R. Civ. P. 6(b)(1)(B). Excusable neglect is an elastic and equitable concept that turns on factors such as "the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Pioneer Inv. Servs. V. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396 (1993). "[M]ere inadvertence, without more, can in some circumstances be enough to constitute 'excusable neglect' justifying relief under Rule 6(b)(2)." Raymond v. IBM, 148 F.3d 63, 66 (2d Cir. 1998). Here, Defendant's motion was only two days after the deadline and had minimal impact on the judicial proceeding as the case had just begun, and the movant acted in good faith. Plaintiff's alleged prejudice is that, if not for the extension, he could have obtained a default judgment. Considering these factors and the strong policy preference for deciding cases on the merits, the Court finds that the 3/31 Text Order granting an extension was proper and so Plaintiff's Motion #19 for Reconsideration is DENIED. Plaintiff is cautioned that if he continues filing duplicative filings on grounds that the Court has now twice considered and rejected, he faces the possibility of sanctions. His disagreement with the Court's decision to grant an extension on 3/31 and deny his request for default is now well-documented on the record and continuing to raise it does nothing but waste the Court and the parties time. Entered by Judge James E. Shadid on 4/26/2023. (AH)
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| Filing 28 OBJECTION to Court's Reason for Finding Excusable Neglect by Rakeem Harris. (AEM) |
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TEXT ORDER granting #26 the Defendants' Motion to Strike the Plaintiff's Reply #24 to the Defendants' Response #17 to the Plaintiff's Motion for Default Judgment #16 . The Plaintiff did not first seek leave of Court to file his Reply #24 . See Civil LR 7.1(B)(3). Also, the Plaintiff's Reply is MOOT in light of the fact that the Court denied his Motion for Default Judgment #16 on 4/11/2023. Entered by Magistrate Judge Jonathan E. Hawley on 4/17/2023. (KZ)
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TEXT ORDER: The Court has reviewed the Plaintiff's #25 Motion for Rule 11 Sanctions Due to Defendants' #17 Response. The Defendants were entitled to file a response to the Plaintiff's #16 Request for Clerk's Entry of Default (Docketed as a Motion for Default Judgment) explaining their position. Nothing in their #17 Response indicates the Defendants filed it for an improper purpose, to harass, or to cause unnecessary delay or that their attorney acted in bad faith in filing the Response. The Defendants' #27 Motion to Strike the Plaintiff's Second Motion for Rule 11 Sanctions is therefore GRANTED, and the Plaintiff's #25 Motion for Rule 11 Sanctions is STRICKEN. Entered by Magistrate Judge Jonathan E. Hawley on 4/17/2023. (KZ)
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| Filing 27 MOTION to Strike #25 MOTION for Sanctions by Defendants Cody Followell, Hector Melchor-Hernandez, Jared Roth. Responses due by 4/28/2023 (Warner, Matthew) |
| Filing 26 MOTION to Strike #24 Reply to Response to Motion for Default Judgment #16 by Defendants Cody Followell, Hector Melchor-Hernandez, Jared Roth. Responses due by 4/28/2023 (Warner, Matthew) |
| Filing 25 STRICKEN PURSUANT TO TEXT ORDER ENTERED ON 4/17/2023 MOTION for Rule 11 Sanctions due to Defendant's Response #17 by Plaintiff Rakeem Harris. Responses due by 4/26/2023 (JRK) Modified on 4/18/2023 (VH). |
| Filing 24 STRICKEN PURSUANT TO TEXT ORDER ENTERED ON 4/17/2023 REPLY to #17 Response to #16 MOTION for Default Judgment filed by Plaintiff Rakeem Harris. (JRK) Modified on 4/18/2023 (VH). |
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Filing 23
TEXT ORDER: This case is set for a Rule 16 scheduling conference before Magistrate Judge Jonathan E. Hawley on 5/12/23 at 9:30 AM via telephone. Counsel are to phone into conference by calling (551) 285-1373 and enter the Meeting ID: 16009516536 when prompted to do so. Please announce your name each prior to speaking unless the judge asks a question directly to you so time that the speaker may be identified by all. A discovery plan pursuant to Fed. R. Civ. P. 26(f)(3) shall be filed on or before 5/9/23. The parties may, but are not required to, follow the format of the sample discovery plan set forth as Attachment A to the standing order attached to this text order. If the complaint makes allegations on behalf of a class, the proposed discovery plan should include a deadline for filing a motion to certify class at a stage early in the the case. The Discovery Plan event may be found in the CM/ECF system within the other Documents category. All counsel must read and be familiar with the standing order attached to this text order prior to their Rule 26(f) planning meeting. Entered by Magistrate Judge Jonathan E. Hawley on 4/12/2023. (WG)
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TEXT ORDER granting #21 the Defendants' Motion to Strike #18 the Plaintiff's Motion for Sanctions and thus striking #18 the Plaintiff's Motion for Rule 11 Sanctions. As the Defendants point out, Fed. R. Civ. P. 11(c)(2) provides that a motion for sanctions "must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets." After filing waivers of service on 3/30/2023 which indicated 60 days for the Defendants to file their answers, Defendants Followell and Roth instead and nevertheless complied with the 21-day deadline (4/5/2023) set following personal service on them by the U.S. Marshal. Defendant Melchor also nevertheless complied with his extended deadline (4/7/2023) to the 21-day deadline following personal service on him by the U.S. Marshal. While the Court can understand why the Defendants' filing of waivers of service was confusing to the Plaintiff, nothing on the docket suggests the Defendants acted deceptively in doing so. As for the Plaintiff's #19 Objection to the Court extending Defendant Melchor's time to answer, the Court denies the Plaintiff's request to reverse its 3/31/2023 Text Order granting Melchor's motion requesting the extension. The request for an extension of time was just two days late, and it was within the Court's discretion to find that brief lapse of time coupled with Defendant Melchor's counsel's representations amounted to excusable neglect. Entered by Magistrate Judge Jonathan E. Hawley on 4/11/2023. (KZ)
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TEXT ORDER denying #16 the Plaintiff's Request for Clerk's Entry of Default. On 4/5/2023, the Court denied the Plaintiff's Motion for Default Judgment #14 given that Defendant Melchor was granted an extension of time to 4/7/2023 to file his answer, and he and the other two Defendants thereafter timely filed their Answer #15 on 4/5/2023. The Plaintiff's instant Request for Clerk's Entry of Default #16 is denied for the same reason - the Defendants timely filed their Answer #15 on 4/5/2023. Entered by Magistrate Judge Jonathan E. Hawley on 4/11/2023. (KZ)
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TEXT ORDER granting #20 the Plaintiff's Motion for Correspondence by Electronic Mail which the Court construes as a request to register for electronic filing. The Plaintiff is directed to register for electronic filing by 1) obtaining a Pacer Account at www.pacer.gov and then 2) requesting filer permission by following the instructions found at Registering for an E-Filing Account at the bottom of the Court's web page at https://www.ilcd.uscourts.gov/content/attorney-admission-pacer. To the extent the Plaintiff requests the Clerk's Office email rather than mail to him the Court's orders and any other party's filings, that will not be done. The Clerk's Office procedure is to mail the Court's orders to non-registered pro se parties. Parties must serve each other in conformity with Fed. R. Civ. P. 5. See also Civil LR 5.4. Entered by Magistrate Judge Jonathan E. Hawley on 4/11/2023. (KZ)
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| Filing 22 RESPONSE to Motion re #19 MOTION for Reconsideration re Order on Motion for Extension of Time to Answer filed by Defendants Cody Followell, Hector Melchor-Hernandez, Jared Roth. (Warner, Matthew) |
| Filing 21 MOTION to Strike #18 MOTION for Sanctions by Defendants Cody Followell, Hector Melchor-Hernandez, Jared Roth. Responses due by 4/24/2023 (Warner, Matthew) |
| Filing 20 MOTION for Correspondence by Electronic Mail by Plaintiff Rakeem Harris. Responses due by 4/24/2023 (JS) Modified on 4/10/2023 to correct the filing date. (JS). |
| Filing 19 MOTION for Reconsideration re 3/31/2023 Text Order on Motion for Extension of Time to Answer by Plaintiff Rakeem Harris. Responses due by 4/24/2023 (JS) Modified on 4/10/2023 to correct the filing date. (JS). |
| Filing 18 STRICKEN PURSUANT TO TEXT ORDER ENTERED ON 4/11/2023 MOTION for Rule 11 Sanctions by Plaintiff Rakeem Harris. Responses due by 4/21/2023 (JS) Modified on 4/12/2023 (VH). |
| Filing 17 RESPONSE to Motion re #16 MOTION for Default Judgment filed by Defendants Cody Followell, Hector Melchor-Hernandez, Jared Roth. (Warner, Matthew) |
| Filing 16 MOTION for Default Judgment by Plaintiff Rakeem Harris. Responses due by 4/19/2023 (AH) |
| Filing 15 ANSWER to #1 Complaint AND AFFIRMATIVE DEFENSES by Cody Followell, Hector Melchor-Hernandez, Jared Roth.(Warner, Matthew) |
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TEXT ONLY ORDER: Plaintiff filed a Motion #14 for Default Judgment against Defendant Hector Melchor ("Melchor"). Melchor was served on March 7, 2023 and his deadline to answer lapsed on March 28, 2023. Melchor filed a Motion #13 for Extension of Time to File Answer on March 30, 2023. The Court granted this motion and extended Melchor's deadline to file an answer or other responsive pleading to April 7, 2023. On April 5, 2023, Defendant Melchor and the other defendants filed their Answer #15 . Therefore, Plaintiff's Motion #14 for Default Judgment is DENIED as Melchor was granted an extension of time to answer or otherwise plead and has since timely filed an answer. Entered by Judge James E. Shadid on 4/5/2023. (Townsend, Madeline)
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| Filing 14 MOTION for Default Judgment by Plaintiff Rakeem Harris. Responses due by 4/18/2023 (AH) |
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TEXT ORDER granting #13 Motion to Extend deadline to Answer. Defendant Hector Melchor-Hernandez shall file his answer or other responsive pleading by 4/7/2023. Entered by Magistrate Judge Jonathan E. Hawley on 3/31/23. (WG)
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| Filing 13 MOTION for Extension of Time to File Answer by Defendants Cody Followell, Hector Melchor-Hernandez, Jared Roth. Responses due by 4/13/2023 (Warner, Matthew) |
| Filing 12 NOTICE of Appearance of Attorney by Matthew Allen Warner on behalf of Cody Followell, Hector Melchor-Hernandez, Jared Roth (Warner, Matthew) |
| Filing 11 CERTIFICATE OF INTEREST pursuant to Local Rule 11.3 by Cody Followell, Hector Melchor-Hernandez, Jared Roth. (Jennetten, Peter) |
| Filing 10 Designation of Lead Counsel by Peter R Jennetten on behalf of Cody Followell, Hector Melchor-Hernandez, Jared Roth. (Jennetten, Peter) |
| Filing 9 DEMAND for Trial by Jury by Cody Followell, Hector Melchor-Hernandez, Jared Roth. (Jennetten, Peter) |
| Filing 8 WAIVER OF SERVICE Returned Executed by Jared Roth. (Jennetten, Peter) |
| Filing 7 WAIVER OF SERVICE Returned Executed by Cody Followell. (Jennetten, Peter) |
| Filing 6 WAIVER OF SERVICE Returned Executed by Hector Melchor-Hernandez. Hector Melchor-Hernandez waiver sent on 3/7/2023, answer due 5/8/2023. (Jennetten, Peter) |
| Filing 5 NOTICE of Appearance of Attorney by Peter R Jennetten on behalf of Cody Followell, Hector Melchor-Hernandez, Jared Roth (Jennetten, Peter) |
| Filing 4 SUMMONS Returned Executed by Rakeem Harris. Cody Followell served on 3/15/2023, answer due 4/5/2023; Jared Roth served on 3/15/2023, answer due 4/5/2023. (Attachments: #1 Followell summons executed)(TK) Modified on 3/17/2023 to correct typo (TK). |
| Filing 3 Summons Issued as to Cody Followell, Hector Melchor-Hernandez, Jared Roth. (JS) |
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TEXT ONLY ORDER: Plaintiff filed a complaint and petition to proceed in forma pauperis ("IFP"). Plaintiff alleges that he was the subject of an unlawful traffic stop by Bloomington Police Officers on November 30, 2021 and that the Officers subsequent search of his vehicle lacked probable cause. He claims that this violated his rights under the First, Second, Fourth, and Fifth Amendments to the Constitution. Plaintiffs IFP request is reviewed under 28 U.S.C. 1915 which is designed to ensure indigent litigants meaningful access to the federal courts. Neitzke v. Williams , 490 U.S. 319, 327 (1989). The court must deny an IFP request, however, if (1) the allegation of poverty is untrue; (2) the action is frivolous; (3) the action fails to state a claim; or (4) the action seeks monetary relief against an immune defendant. 28 U.S.C. 1915(e)(2); see also Hutchinson v. Spink, 126 F.3d 895, 899 (7th Cir. 1997) (recognizing applicability of 1915 to cases brought by nonprisoners). Plaintiff states in his signed IFP petition that he is unemployed, has no monthly income, and that he only has $300 in his bank account and no other assets. Plaintiffs Petition #2 to proceed in forma pauperis is granted and Plaintiff will not be responsible for any portion of the filing fee. The United States Marshal Service is directed to serve the complaint and summons upon Defendants at no cost to Plaintiff. Entered by Judge James E. Shadid on 3/7/2023. (Townsend, Madeline)
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| Filing 2 MOTION for Leave to Proceed in forma pauperis by Plaintiff Rakeem Harris. Responses due by 3/17/2023 (AH) |
| Filing 1 COMPLAINT against All Defendants, filed by Rakeem Harris. (Attachments: #1 Civil Cover Sheet, #2 Summons, #3 Summons, #4 Summons)(AH) |
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