Kula v. Wilkie et al
Mark A. Kula |
Department of Veterans Affairs and Robert Wilkie |
8:2020cv00080 |
March 2, 2020 |
US District Court for the District of Nebraska |
Joseph F Bataillon |
Cheryl R Zwart |
Civil Rights: Americans with Disabilities - Employment |
42 U.S.C. § 12101 |
Plaintiff |
Docket Report
This docket was last retrieved on November 14, 2022. A more recent docket listing may be available from PACER.
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Filing 31 TEXT ORDER granting Motion for Admission Pro Hac Vice #30 for attorney Lawrence A. Berger. Ordered by Deputy Clerk. (JLS) |
Filing 30 MOTION for Admission Pro Hac Vice Filing fee $ 100, receipt number ANEDC-4152135 by Attorney Lawrence A. Berger on behalf of Plaintiff Mark A. Kula. (Attachments: #1 Text of Proposed Order)(Berger, Lawrence) |
Filing 29 CASE CONFERENCE INSTRUCTIONS. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). Ordered by Magistrate Judge Cheryl R. Zwart. (ADB) |
Filing 28 SCHEDULING ORDER: Rule 26 Meeting Report Deadline set for 5/26/2020.Ordered by Magistrate Judge Cheryl R. Zwart. (ADB) |
Filing 27 ORDER TO SHOW CAUSE that on or before May 8, 2020, Attorney Lawrence A. Berger is to register for admittance to practice and register for the System or show cause by written affidavit why compliance is not possible as required under the rules of the court. Ordered by Magistrate Judge Cheryl R. Zwart. (copy mailed to Mr. Berger) (ADB) |
Filing 26 ORDER granting #25 Motion to Withdraw Kenneth Adebonojo as Attorney for defendants. Kenneth Adebonojo shall no longer receive electronic notice in this case. Ordered by Magistrate Judge Cheryl R. Zwart. (ADB) |
Filing 25 MOTION to Withdraw as Attorney for Kenneth Adebonojo by Attorney Lynnett M. Wagner on behalf of Defendants Department of Veterans Affairs, Robert Wilkie.(Wagner, Lynnett) |
Filing 24 ANSWER to Notice of Removal Complaint regarding: Complaint, #1 and Amended Complaint, Filing 13, pp 5-9 by Department of Veterans Affairs, Robert Wilkie (Wagner, Lynnett) |
Filing 23 TEXT ORDER granting #22 Defendants' Unopposed Motion for Extension of Time to File a Responsive Pleading. Defendants shall file an answer or other responsive pleading on or before April 3, 2020. Ordered by Magistrate Judge Cheryl R. Zwart. (CEW) |
Filing 22 UNOPPOSED MOTION for Extension of Time to File a Responsive Pleading by Attorney Lynnett M. Wagner on behalf of Defendants Department of Veterans Affairs, Robert Wilkie.(Wagner, Lynnett) |
Filing 21 NOTICE of Appearance by Attorney Lynnett M. Wagner on behalf of Defendants Department of Veterans Affairs, Robert Wilkie (Wagner, Lynnett) |
Filing 20 ATTORNEY LETTER by Clerk that Attorney Kenneth A. Adebonojo has not registered for admittance to practice nor registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (ADB) |
Filing 19 ATTORNEY LETTER by Clerk that Attorney Lawrence A. Berger has not registered for admittance to practice nor registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (ADB) |
Filing 18 TEXT NOTICE OF JUDGES ASSIGNED: Senior Judge Joseph F. Bataillon and Magistrate Judge Cheryl R. Zwart assigned. In accordance with 28 U.S.C. 636(c)(2), the parties are notified that, if all parties consent, a magistrate judge may conduct a civil action or proceeding, including a jury or nonjury trial, subject to the courts rules and policies governing the assignment of judges in civil cases. See Fed. R. Civ. P. 73; NEGenR 1.4. (ADB) |
Filing 17 Case transferred in from District of District of Columbia; Case Number 1:19-cv-01988. Original electronic file received. |
Case transferred to the USDC for the District of Nebraska, pursuant to the Court Order entered 2/19/2020. Sent to Court via Extraction. (ztd) [Transferred from District of Columbia on 3/2/2020.] |
Filing 16 ORDER granting #15 Consent Motion to Transfer Case. This case shall be transferred to the District of Nebraska by February 29, 2020. See full Order for details. Signed by Judge Christopher R. Cooper on 2/19/20. (lccrc2) [Transferred from District of Columbia on 3/2/2020.] |
Filing 15 Consent MOTION to Transfer Case by DEPARTMENT OF VETERANS AFFAIRS, ROBERT WILKIE (Adebonojo, Kenneth) [Transferred from District of Columbia on 3/2/2020.] |
MINUTE ORDER denying #11 Government's Motion to Dismiss #1 Plaintiff's Complaint. On July 3, 2019, Plaintiff filed a complaint under the Americans with Disabilities Act ("ADA") alleging that the United States Department of Veterans Affairs had discriminated against him. The government argues that the complaint should be dismissed because the ADA does not apply to the federal government, and, in the alternative, because Plaintiff's suit was untimely.The government's first argument is mooted by #13 Plaintiff's Motion to File an Amended Complaint. To the extent that Plaintiff seeks to file an amended complaint as of right, he is barred from doing so under Federal Rule of Civil Procedure 15(a)(1). Plaintiff's motion comes more than 21 days after service of both his initial complaint, see Fed. R. Civ. P. 15(a)(1)(A), and the government's motion to dismiss, see id. 15(a)(1)(B). Federal Rule of Civil Procedure 15(a)(2) permits Plaintiff to amend his complaint at any time, however, with "the court's leave," which should be "freely give[n] when justice so requires." The Court construes Plaintiff's motion as one for leave to file an amended complaint, which the Court now grants. The government's motion to dismiss pointed out a jurisdictional defect in Plaintiff's complaint, which he corrected by filing suit under the Rehabilitation Act, which does apply to the federal government. See 29 U.S.C. 791. No discovery has been conducted, and the Court discerns no "apparent or declared reason" that granting leave would cause "undue prejudice" to the government or any other injustice. Forman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, it is hereby ORDERED that #13 Plaintiff's Motion to File an Amended Complaint is GRANTED. It is further ORDERED that the Amended Complaint shall be deemed the operative complaint. It is further ORDERED that the government shall respond to the Amended Complaint by February 14, 2020. With respect to the government's alternative untimeliness argument, the same 90-day deadline that applies to claims under the ADA also applies to claims under the Rehabilitation Act. See 29 U.S.C. 794a(a)(1). The docket shows, however, that Plaintiff filed his initial complaint on July 3, 2019, which was presumptively within 90 days of his notice of the right-to-sue letter that was mailed to him by the Equal Employment Opportunity Commission on April 2, 2019. See Nkengfack v. Am. Ass'n of Retired Persons, 818 F. Supp. 2d 178, 181 (D.D.C. 2011) ("Courts routinely apply a three-to-five-day presumptive notice period following the mailing of the right-to-sue letter."). Plaintiff's filing of errata, at the direction of the Clerk's Office, on July 8 and July 9 to correct his address in the caption of the complaint does not push back the filing date for purposes of the statute of limitations. Accordingly, the Court finds that the government's untimeliness argument provides no basis for granting the government's motion to dismiss or concluding that Plaintiff's amended complaint would be futile. It is hereby ORDERED, therefore, that #11 Government's Motion to Dismiss is DENIED. It is further ORDERED that #14 Government's Motion for Extension of Time to File Reply is DENIED AS MOOT. (In any case, the Court fails to see any "intricacies" in Plaintiff's Opposition that would require "confer[ring] with agency counsel." The issues presented are straightforward.) Finally, Plaintiff is advised that future filings should conform with LCvR 5.1, including its requirement that documents shall be double-spaced. Signed by Judge Christopher R. Cooper on 1/14/20. (lccrc2) [Transferred from District of Columbia on 3/2/2020.] |
Filing 14 Consent MOTION for Extension of Time to File a Reply to Plaintiff's Opposition to Defendants' Dispositive Motion by DEPARTMENT OF VETERANS AFFAIRS, ROBERT WILKIE (Adebonojo, Kenneth) [Transferred from District of Columbia on 3/2/2020.] |
NOTICE OF ERROR re #13 Memorandum in Opposition; emailed to lberger@lbfedlaw.com, cc'd 3 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. Counsel must file this document as a Motion to Amend as well. (ztd, ) [Transferred from District of Columbia on 3/2/2020.] |
Filing 13 Memorandum in opposition to re #11 MOTION to Dismiss and Plaintiffs Motion to File Amended Complaint as of Right filed by MARK A. KULA. (Attachments: #1 Text of Proposed Order)(Berger, Lawrence) [Transferred from District of Columbia on 3/2/2020.] |
Set/Reset Deadlines: Response to Dispositive Motions due by 1/6/2020. (lsj) [Transferred from District of Columbia on 3/2/2020.] |
MINUTE ORDER granting #12 Consent Motion for Extension of Time to File Opposition. Plaintiff shall file his Opposition to #11 Defendants' Motion to Dismiss by January 6, 2020. No further extensions of this deadline will be granted. Signed by Judge Christopher R. Cooper on 12/9/19. (lccrc2) [Transferred from District of Columbia on 3/2/2020.] |
Filing 12 Consent MOTION for Extension of Time to File Response/Reply to Defendant's Motion to Dismiss by MARK A. KULA (Attachments: #1 Certificate of Service, #2 Text of Proposed Order proposed order)(Berger, Lawrence) [Transferred from District of Columbia on 3/2/2020.] |
Filing 11 MOTION to Dismiss by DEPARTMENT OF VETERANS AFFAIRS, ROBERT WILKIE (Adebonojo, Kenneth) [Transferred from District of Columbia on 3/2/2020.] |
MINUTE ORDER granting #10 Defendants' Motion for Extension of Time to File Answer or Responsive Pleading. Defendants shall file their answer or responsive pleading by November 22, 2019. No further extensions will be granted. Signed by Judge Christopher R. Cooper on 10/22/19. (lccrc2) [Transferred from District of Columbia on 3/2/2020.] |
Filing 10 Consent MOTION for Extension of Time to File Defendants' Answer or Other Response to Plaintiff's Complaint by DEPARTMENT OF VETERANS AFFAIRS, ROBERT WILKIE (Adebonojo, Kenneth) Modified on 10/22/2019 (ztd). [Transferred from District of Columbia on 3/2/2020.] |
Set/Reset Deadlines: Answer due by 10/22/2019 (lsj) [Transferred from District of Columbia on 3/2/2020.] |
MINUTE ORDER granting #9 Consent Motion for Extension of Time to File Answer or Responsive Pleading. Upon consideration of the motion, it is hereby ORDERED that Defendant shall file its answer or responsive pleading by October 22, 2019. Signed by Judge Christopher R. Cooper on 9/20/19. (lccrc2) [Transferred from District of Columbia on 3/2/2020.] |
Filing 9 Consent MOTION for Extension of Time to File Defendants' Answer or Other Response to Plaintiff's Complaint by DEPARTMENT OF VETERANS AFFAIRS, ROBERT WILKIE (Adebonojo, Kenneth) [Transferred from District of Columbia on 3/2/2020.] |
Filing 8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/23/2019. Answer due for ALL FEDERAL DEFENDANTS by 9/21/2019. (Berger, Lawrence) [Transferred from District of Columbia on 3/2/2020.] |
Filing 7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General July 23, 2019. (Berger, Lawrence) [Transferred from District of Columbia on 3/2/2020.] |
Filing 6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General July 23, 2019. (Berger, Lawrence) [Transferred from District of Columbia on 3/2/2020.] |
Filing 5 NOTICE of Appearance by Kenneth A. Adebonojo on behalf of DEPARTMENT OF VETERANS AFFAIRS, ROBERT WILKIE (Adebonojo, Kenneth) [Transferred from District of Columbia on 3/2/2020.] |
Filing 4 SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General (Attachment: #1 Notice and Consent)(zeg) [Transferred from District of Columbia on 3/2/2020.] |
Filing 3 ERRATA by MARK A. KULA #1 Complaint filed by MARK A. KULA. (Berger, Lawrence) [Transferred from District of Columbia on 3/2/2020.] |
Case Assigned to Judge Christopher R. Cooper. (zeg) [Transferred from District of Columbia on 3/2/2020.] |
Filing 2 ERRATA by MARK A. KULA #1 Complaint filed by MARK A. KULA. (Berger, Lawrence) [Transferred from District of Columbia on 3/2/2020.] |
Filing 1 COMPLAINT against MARK A KULA with Jury Demand ( Filing fee $ 400 receipt number 0090-6233200) filed by MARK A KULA. (Attachments: #1 Summons, #2 Civil Cover Sheet)(Berger, Lawrence) [Transferred from District of Columbia on 3/2/2020.] |
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