United States District Court, C.D. Illinois
KEVIN W. STANBERRY, Plaintiff,
WORLD WAY, INC., IVAN ENEV, and HIRERIGHT, LLC., Defendants.
ORDER AND OPINION
E. SHADID, CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's Motion (Doc. 15) to
Vacate the Court's November 21, 2017 Order granting
unopposed Motions to Dismiss by Defendants Enev (Doc. 10) and
World Way, Inc. (Doc. 11). For the reasons set forth below,
Plaintiff's Motion (Doc. 15) to Vacate is GRANTED,
Defendants Enev and World Way are REINSTATED, and this action
is REMANDED to the Circuit Court for the Tenth Judicial
Circuit in Peoria County, Illinois for further proceedings.
September 11, 2017, Plaintiff, Kevin Stanberry, commenced
this action against Defendants World Way, Inc. (“World
Way”), World Way's president, Ivan Enev, and
HireRight, LLC (“HireRight”) in the Circuit Court
for the Tenth Judicial Circuit in Peoria County, Illinois.
See Doc. 1-1. Plaintiff's Complaint contains four counts.
Counts one through three assert state law claims of
defamation, defamation per se, and tortious interference with
prospective business relationship against World Way and Enev.
Count four asserted a claim against HireRight for violation
of the Fair Credit Reporting Act (“FCRA”), 15
U.S.C. § 1681 et seq. On October 25, 2017,
Defendant HireRight removed the case to the United States
District Court for the Central District of Illinois under
this Court's federal question jurisdiction. See 28 U.S.C.
§§ 1331, 1441.
November 1, 2017, Defendants Enev and World Way filed Motions
to Dismiss (Docs. 10, 11) under Federal Rule of Civil
Procedure 12(b)(6). On November 21, 2017, the Court granted
Defendants' motions because Plaintiff failed to file a
response and the time for doing so had passed. See Local Rule
7.1(B)(2) (“If no response is timely filed, the
presiding judge will presume there is no opposition to the
motion and may rule without further notice to the
parties.”). The next day, Plaintiff filed responses to
the motions (Docs. 12, 13), and on December 1, 2017,
Plaintiff filed a Motion to Vacate (Doc. 15) the Court's
November 21, 2017 Order granting Defendants' motions, to
which Defendants Evev and World Way responded. Doc. 19. On
December 19, 2017, Plaintiff and Defendant HireRight filed a
Stipulation of Dismissal informing the Court that Plaintiff
had dismissed all claims against HireRight with prejudice.
60(b)(1) of the Federal Rules of Civil Procedure provides,
“[o]n motion and just terms, the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding for … mistake, inadvertence,
surprise, or excusable neglect….” Fed.R.Civ.P.
60(b)(1). “[T]here is not a “hard and fast”
rule in this circuit which bars a trial judge from exercising
discretion to determine whether attorney negligence in
missing a filing deadline may be deemed “excusable
neglect.” Robb v. Norfolk & W. Ry. Co.,
122 F.3d 354, 361 (7th Cir. 1997). Accordingly, “trial
judges are vested with discretion when determining whether an
attorney's neglect in missing a deadline is
“excusable” for purposes of Rule 60(b)(1).”
Id. at 363.
Plaintiff has Demonstrated Excusable Neglect
‘Excusable neglect' can include omissions through
carelessness and mistake.” Robb, 122 F.3d at
357. “The determination of what sorts of neglect will
be considered ‘excusable' is an equitable one,
taking account of all relevant circumstances.”
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 381 (1993). These
circumstances include “the danger of prejudice to the
[defendant], 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.”
Id. at 395.
Plaintiff's counsel has represented in his Motion to
Vacate that the failure to timely file a response to the
Motions to Dismiss by Defendants Enev and World Way was the
result of neglect and the untimely departure of a former
attorney of counsel's law firm. Taking into account the
circumstances identified supra, the Court finds that
counsel's neglect should be excused. Defendants Enev and
World Way will not be prejudiced by having their Motions to
Dismiss determined on the merits, this Court's timely
resolution of the issue minimizes any delay, and there is no
indication that Plaintiff's counsel has acted in bad
faith. Accordingly, the Motion to Vacate is granted, and
Defendants Enev and World Way are reinstated.
The Court Declines to Exercise Supplemental Jurisdiction Over
the Remaining Claims
28 of the United States Code, Section 1367 provides:
(a) Except as provided in subsections (b)
and (c) or as expressly provided otherwise by Federal
statute, in any civil action of which the district courts
have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original
jurisdiction that they form part of the same ...