American Knights of Ku Klux Klan v. City of Auburn

179 F.R.D. 228, 1997 U.S. Dist. LEXIS 22897, 1997 WL 876548
CourtDistrict Court, N.D. Indiana
DecidedDecember 18, 1997
DocketNo. 1:97-CV-267
StatusPublished
Cited by2 cases

This text of 179 F.R.D. 228 (American Knights of Ku Klux Klan v. City of Auburn) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Knights of Ku Klux Klan v. City of Auburn, 179 F.R.D. 228, 1997 U.S. Dist. LEXIS 22897, 1997 WL 876548 (N.D. Ind. 1997).

Opinion

ORDER

LEE, Chief Judge.

Before the Court are four motions: Plaintiffs Petition for Attorney Fees and Expenses, Plaintiffs Request for Entry of Judgment, Plaintiffs Motion to Strike Defendant’s Response, and Defendant’s Motion to Accept Belated Filing.

For the reasons provided below, the Court DENIES Plaintiffs Motion to Strike, DENIES Plaintiffs Request for Entry of Judgment, GRANTS Defendant’s Motion to Accept Belated Filing, and GRANTS Plaintiffs Petition for Attorney Fees and Expenses in the amount of $8,397.12.

BACKGROUND

It was a request submitted by the Plaintiff, American Knights of the Ku Klux Klan (“the Klan”), for a permit to conduct a rally on the steps of the DeKalb County Courthouse in Auburn, Indiana, that generated this flurry of motions. Though the National Imperial Wizard, the Reverend Jeffrey Berry, made the request on February 1, 1997, well in advance of the rally scheduled for Saturday, July 19, 1997, the Defendant City of Auburn (“the City”) could not agree with the Klan on how many ralliers would be permitted to stand together on the steps of the Courthouse. The City, believing that the Reverend Berry was not providing them with an accurate estimate of how many ralliers would in fact show up, limited the number to 20, based on. the previous experience of the Indiana State Police with Klan rallies. See Affirmation of Kerry L. Uhriek, Chief of Police, City of Auburn, 11H 8-9, attached to Memorandum of Law in Support of Defendant’s Response to Plaintiffs Petition (R. 19). On July 18, 1997, Plaintiff filed a Verified Complaint for Injunctive and Declaratory Relief (R. 1) and a Motion for a Temporary Restraining Order or Preliminary Injunction (R. 2). The Klan claimed that the City’s proposed limitations would violate the First Amendment rights of its members, and requested that 50 ralliers, the number which the Reverend Berry estimated would attend, be permitted to stand together on the Courthouse steps. Memorandum in Support of Plaintiffs Motion for a Temporary Restraining Order or Preliminary Injunction (R. 3), at 4. On July 18, the parties appeared before this Court and negotiated a Settlement Agreement which provided that the rally area would be expanded to accommodate approximately 50 ralliers. Settlement Agreement, attached to Plaintiffs Petition for Attorney’s Fees and Expenses (R. 14), 111(a) and (b). The Settlement Agreement provided that Plaintiff would file a petition for attorney’s fees (H4) and that Defendant denied liability and would oppose such a motion (UK 4 and 8).

Plaintiff mailed its Petition for Attorney’s Fees and Expenses (R. 14, Memorandum in Support, R. 15, Exhibits, R. 16) on September 17, 1997, and it was filed by the Clerk of the Court on September 19. Plaintiff requested Entry of Judgment on October 14, 1997, arguing that Defendant had missed the October 6, 1997, deadline to respond under L.R. 7.1. Plaintiffs Request for Entry of Judgment on Plaintiffs Petition for Attorney’s Fees and Expenses (R. 17). Defendant submitted a Response to Plaintiffs Request for Entry of Judgment (R. 18), which was mailed October 14, and filed October 20. It stated that Defendant was unaware that Plaintiffs Petition would be considered a motion under L.R. 7.1. Defendant also mailed its Response to Plaintiffs Petition for Fees and Expenses (R. 19), on Oct. 14, and it was filed Oct. 20.

On Oct. 24, Plaintiff replied to Defendant’s Response to Plaintiffs Request for Entry of Judgment on Plaintiffs Petition for Fees and Expenses (R. 22), but also moved to Strike Defendant’s Response (R. 20, Memorandum in Support, R. 21), arguing that Defendant’s Response was untimely. Then, on Oct. 30, Defendant submitted a Supplementary Re[230]*230sponse on the Issue of Expenses and Fees (R. 23), and also a Response to Plaintiffs Motion to Strike (R. 24, Memorandum in Support, R. 25), in which Defendant argued that Plaintiffs Petition for Fees and Expenses should have been considered a pleading, in which case Defendant’s Response would be timely. Defendant also filed a Motion to Accept Belated Filing (R. 26) in case the Court did not agree that Plaintiffs Petition should be considered a pleading. On Nov. 3, Plaintiff replied to Defendant’s Response on Plaintiffs Motion to Strike (R. 28), arguing that the deadline for responding to the Fee Petition ran from the day it was mailed, not the day it was received, and that a fee petition could not be considered a pleading. That day, Plaintiff also had a Response to Defendant’s Motion to Accept Belated Filing (R. 27), arguing that Defendant had no grounds for excusable neglect and that, even under Defendant’s excuse that it mistakenly took the Fee Petition for a pleading, Defendant’s filing would still be untimely-

It is now the duty of the Court to sort all this out.

Defendant’s Motion to Accept Belated Filing, Plaintiffs Motion to Strike, and Plaintiffs Motion for Entry of Judgment

Defendant argues that Plaintiffs Petition “should have been considered as a pleading, i.e. complaint, F.R.C.P. 7(a).” R. 25 at 2. However, Defendant’s proffered reasons for thinking the petition was a pleading, that “there were no pending issues left ... for the Court to decide” (Id.), and that “[t]he agreement did allow the Plaintiff to file for relief’ (Id.), do not explain why Defendant should think this. As Plaintiff points out, Fed.R.Civ.P. 7(a) states that only the complaint, answer, reply, answer to a cross-claim, and the third party complaint and answer are pleadings, and “[n]o other pleading shall be allowed.” R. 27, at 2.

L.R. 7.1 sets a deadline of 15 days after service of initial brief in which to serve and file an answer. This applies to “[a] motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure, for summary judgment, for judgment on the pleading, for more definite statement, to strike, or motions made pursuant to Rule 37 of the Federal Rules of Civil Procedure” and, unless the court otherwise directs, “all other motions.” The Response, then, was due fifteen days after service of the fee petition. Plaintiff mailed the Petition on Sept. 17, so that, allowing 3 extra days for the mail under Fed.R.Civ.P. 6(e), the Response was due on Oct. 5. Since this was a Sunday, under Fed.R.Civ.P. 6(a), Defendant should have mailed the response on the following Monday, Oct. 6,1997. R. 17 at 1. The Response was not mailed until Oct. 14.

Defendant filed a Motion to Accept Belated Filing, arguing that in mistaking the Petition for a Pleading, Defendant applied Fed. R.Civ.P. 6(c) and 6(e) (actually, that should be 12(a), 6(a) and 6(e)) which set a deadline of 23 days for a response. R. 26, at 1.

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Bluebook (online)
179 F.R.D. 228, 1997 U.S. Dist. LEXIS 22897, 1997 WL 876548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-knights-of-ku-klux-klan-v-city-of-auburn-innd-1997.