UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
Norman H. )
Plaintiff, )
v. ) Case No. 1:09 xxx
United States and, )
Spectrum Bank )
Respondents. )
Plaintiff, Norman H., hereby files this response to the government’s response in opposition to plaintiff’s motion for enlargement of time. In his Motion for Enlargement of Time, Plaintiff moves this Court to extend his response deadline to the United States’ Motion to Dismiss. The Court erroneously and prematurely dismissed the case for alleged lack of subject matter jurisdiction and did not consider the Plaintiff’s timely filed Motion for Enlargement of Time prior to filing the Order. Therefore, the Motion should not be denied, and should be considered on the following merits:
1. On October 28, 2009, District Counsel filed the United States' Motion to Dismiss Petition to Quash Third-Party Summons, Memorandum in Support, and corresponding proposed Order. District Counsel also sent a copy via certified U.S. Mail to Plaintiff, who received it on October 30, 2009. Plaintiff had until the end of the day, Tuesday, November 17, 2009, to file his response, plus three days according to Rule 6(d) of the Federal Rules of Civil Procedure, which states, “When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).” This gave the Plaintiff until Friday, November 20, 2009 to file his response to the Government’s Motion to Vacate.
On November 19, 2009, Plaintiff timely filed his Motion for Enlargement of Time, one day prior to his deadline for filing and one day after this Court signed an order dismissing his case. Until the filing of this response, Petitioner has received no response by the Court on this Motion. District Counsel filed a response in opposition to the Motion, which is the subject of this pleading.
2. On November 18, 2009, the Court signed the Order Granting United States’ Motion to Dismiss Petition to Quash Third-Party Summons, two days prior to the deadline for Petitioner to file his response and one day prior to the Petitioner’s timely filing of his Motion for Enlargement of Time.
3. On Friday, November 20, 2009, the aforementioned Order was issued and mailed to the Petitioner. The Petitioner received it on Monday, November 23, 2009.
District Counsel is in error in claiming that the Plaintiff only had nineteen days to respond to the US Motion to Dismiss. Plaintiff has searched the Federal Rules of Civil Procedure thoroughly on the matter of time limits and there is no Rule that would indicate Plaintiff only had nineteen days to respond, unless District Counsel is counting October 28, 2009, the date the initial Motion to Dismiss was filed. The Rules indicate that the first day of the event (the day of the filing) is not to be counted against Plaintiff in his calculation of time to respond.
Rule 6: Computing and Extending Time; Time for Motion Papers:
(a) Computing Time. The following rules apply in computing any time period specified in these rules or in any local rule, court order, or statute:
(1) Day of the Event Excluded. Exclude the day of the act, event, or default that begins the period.
5. In addition, according to Rule 12(1)(B), “A party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim.”
The government’s Motion to Dismiss served as a counterclaim, hampering the Plaintiff’s ability to move forward. The Plaintiff had until November 17, 2009 to respond to the Government’s Motion to Dismiss under Rule 12(1)(B), plus an additional 3 days, under Rule 6(d), which allows for additional time when the plaintiff was not served personally.
Because the Plaintiff was sent a copy of the Government’s Motion via US Mail, he was entitled to submit his response no later than Friday, November 20, 2009.
6. District Counsel argues in the Response in Opposition to Plaintiff’s Motion for Enlargement of Time that he was required, under Rule 6(b) to show excusable neglect. However, because the Plaintiff did file his response in a timely manner, no showing of excusable neglect is required.
7. Further, District Counsel attempts to thwart the privileges given to Plaintiff, as a pro se litigant, but does so by trying to deny Plaintiff his procedural rights under the Federal Rules of Civil Procedure; rights enjoyed by all litigants, including those with counsel. By the Rules, Plaintiff had until Friday, November 20, 2009 to file his response to the government’s Motion to Dismiss Petition to Quash Third Party Summons, and the Plaintiff timely filed a Motion for Enlargement of Time, one day prior to his deadline. Therefore, Plaintiff’s status as a pro se litigant is irrelevant in this instant.
8. A Motion to Vacate Court’s Order of Dismissal was timely filed with the Court on November 30, 2009, and must be considered in light of these facts. In addition, since the Rules clearly dictate that the Order of Dismissal was premature, the arguments in the government’s Opposition to which this pleading is a response, ought to be rendered moot.
9. The Plaintiff is not an attorney and has limited knowledge of the law and of procedures. The Plaintiff requires, to the fullest extent of the law, statute, and Rules, the time allowed for him to fully prepare his case, respond to pleadings, and answer demands made of him by the Court and by District Counsel.
WHEREFORE, for good cause shown in the preceding paragraphs, the Plaintiff requests this Court grant the Plaintiff’s Motion for Enlargement of Time, without requiring a finding of excusable neglect, and give the Plaintiff has a reasonable amount of time to research and adequately respond to the government’s Motion to Dismiss Petition to Quash Third Party Summons for lack of subject matter jurisdiction.
CERTIFICATE OF SERVICE: I certify that a copy of this foregoing Motion was served on Respondent by US Mail in a postage paid wrapper this 30th day of November, 2009, at Respondent’s address of record at
U.S. Department of Justice
Post Office Box 227
Ben Franklin Station
Washington, DC 20044
SPECTRUM BANK
2417 West Whittier Blvd.
Montebello, CA 91101
______________________________________ November 30, 2009 Norman H., Petitioner, pro se Russellville, Kentucky 42276