• March 1, 2010

The schedule for “dispositive” motion briefing under the local rules of the U.S. District Court (D. Minn.) is quite straight-forward and unambiguous.

Can a party ignore the schedule without adverse consequences? Apparently, at least sometimes, yes.

In Henke v. Allina Health System et al, Court File No. 0:09-cv-02999-RHK-SRN (D. Minn.), defendant, without leave and without any stated excuse filed and served its reply brief in support of a motion to dismiss or, alternately, for partial summary judgment,  two days late (that is, 12 days before the scheduled hearing on the motion rather than 14 days before).  Plaintiff’s counsel went through the time and effort to bring a motion to strike the reply as late and in violation of local rules.  U.S. District Court Judge Richard Kyle (D. Minn.) denied the motion to strike — the day after it was filed (not even pressing defendant to give a reason for its delayed filing).  The plaintiff failed to make any showing of prejudice, Judge Kyle commented in denying the motion.

(How often would anyone be able to show true prejudice if opposing lawyers nibble away a day or two on deadlines — a brief served 37 days before a hearing rather than 42 days, say?)  Would the outcome have been the same if Plaintiff’s counsel had sworn an affidavit to the effect that he relied on the deadline in scheduling his time and, due to defendant’s failure to observe the deadline, plaintiff’s counsel lost available time that had been scheduled for other work?)

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