UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TRACY N. THOMPSON 

 Plaintiff, Civil Action 2:12-CV-1087 

 v. Judge Gregory L. Frost 

 Magistrate Judge Elizabeth P. Deavers 

 

THE OHIO STATE UNIVERSITY, 

et al., 

 

 Defendants. 

OPINION AND ORDER 

This matter is before the Court for consideration of Defendants’ Motion for Extension of 

Time and to File an Answer Instanter (ECF No. 49), Plaintiff’s Memorandum in Opposition 

(ECF No. 52), and Defendants’ Reply (ECF No. 56). For the reasons that follow, Defendants’ 

Motion is GRANTED. 

I. 

 The Court set out the factual background in this case in its January 6, 2014 Opinion and 

Order. (ECF No. 40.) For the purpose of efficiency, the Court adopts that factual background 

and will only set forth facts necessary to dispose of the instant Motion. 

 Plaintiff filed her first Complaint in this action on November 26, 2012. Rather than filing 

an Answer, Defendants filed their first Motion to Dismiss on April 4, 2013. (ECF No. 7.) 

Plaintiff then filed her Amended Complaint on May 20, 2013. (ECF No. 23.) As a result, the 

Court terminated Defendants’ first Motion to Dismiss as moot. (ECF No. 28.) 

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 Defendants filed their second Motion to Dismiss on July 12, 2013. (ECF No. 29.) On 

January 6, 2014, the Court granted in part and denied in part Defendants’ Motion. (ECF No. 40.) 

Specifically, the Court Dismissed Count II of Plaintiff’s Amended Complaint alleging a claim 

based on substantive due process, but allowed Counts I, III, and IV to proceed. (Order 1, ECF 

No. 40.) Since that time, the parties have engaged in paper discovery and conducted depositions. 

 Defendants filed the instant Motion on May 2, 2014, seeking permission from the Court 

to file an Answer to Plaintiff’s Amended Complaint instanter. Pursuant to Federal Rule of Civil 

Procedure 12(a)(4), Defendants’ Answer was due fourteen days after notice of the Court’s ruling 

on their second Motion to Dismiss. Defendants maintain that they inadvertently failed to file 

their Answer after the Court issued its ruling. They contend that their inadvertent failure to file a 

timely Answer to the remaining claims in Plaintiff’s Amended Complaint constitutes excusable 

neglect. Furthermore, Defendants posit that Plaintiff will not be prejudiced by the late filing 

because, according to them, “even Plaintiff failed to recognize Defendants’ excusable neglect.” 

(Mot. 3, ECF No. 49.) Defendants emphasize the equitable nature of the excusable-neglect 

analysis and assert that justice requires that the case proceed on its merits. 

 Plaintiff opposes Defendants’ Motion. She asserts that Defendants have not shown that 

the delay was due to excusable neglect. She contends that Defendants’ late Answer will 

prejudice her because it will require additional discovery and an extension of the trial date for a 

case that has already been pending for two years. Plaintiff indicates that her defense strategy has 

been adjusted based on Defendants’ failure to file a timely Answer. Specifically, Plaintiff asserts 

that her counsel has “elected not to pursue, among other things, certain third-party discovery and 

investigation” because it would not be necessary due to Defendants’ admissions brought about 

by their failure to plead, and provides an affidavit attesting to that strategy. (Mem. in Opp. 7, 

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ECF No. 52.) Plaintiff further asserts that Defendants have failed to show a sufficient reason for 

delay and that the 102-day lapse between January 20, 2014 and May 2, 2014 will have a 

substantial impact on these judicial proceedings. Plaintiff posits that Defendants have not acted 

in good faith based on past conduct by the Ohio Attorney General’s Office. 

 In their Reply, Defendants assert that Plaintiff relies on an erroneous reading of the case 

law. Defendants contend that Plaintiff will not suffer prejudice because she has been conducting 

discovery related to both liability and damages, as if Defendants had not admitted the factual 

allegations in her Amended Complaint. Defendants insist that they did not act in bad faith and 

filed the instant Motion immediately when they discovered the error. Defendants maintain that 

Plaintiff will not suffer prejudice because discovery remains open and dispositive motions have 

not yet been filed. 

II. 

 Under Federal Rule of Civil Procedure 6(B)(1)(b), the Court may grant an extension of 

time to file where a party’s failure to act was due to excusable neglect. Fed. R. Civ. P. 

6(B)(1)(b). The United States Court of Appeals for the Sixth Circuit described the standard this 

Court must apply, commonly referred to as the “Pioneer factors,” as follows: 

[T]he governing legal standard for excusable-neglect determinations is a 

balancing of five principal factors: (1) the danger of prejudice to the nonmoving 

party, (2) the length of the delay and its potential impact on judicial proceedings, 

(3) the reason for the delay, (4) whether the delay was within the reasonable 

control of the moving party, and (5) whether the late filing party acted in good 

faith. 

Nafziger v. McDermott Intern., Inc., 467 F.3d 514, 522 (6th Cir. 2006) (citing Pioneer Inv. Servs. 

Co. v. Brunswick Assoc., Ltd. P’ship, 507 U.S. 380,395 (1993)). Excusable neglect is an “elastic 

concept” permitting courts to “accept late filings caused by inadvertence, mistake, or 

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carelessness, not just those caused by intervening circumstances beyond the party’s control.” 

Pioneer, 507 U.S. at 381. 

III. 

 Applying the foregoing authority, the Court concludes that the Pioneer factors weigh in 

favor of granting Defendants’ Motion. As to the first factor, Plaintiff indicates that she will be 

prejudiced because her defense strategy was based upon Defendants’ failure to answer her 

Amended Complaint. Defendants emphasize, however, that Plaintiff has had the opportunity to 

conduct extensive discovery into areas that would be relevant only if Defendants had not 

admitted the facts in Plaintiff’s Amended Complaint. Furthermore, the discovery deadline has 

not yet passed. Any potential prejudice could be mitigated by requesting an extension to the 

discovery deadline.1

 Furthermore, prejudice alone may not, in all instances, provide a basis upon 

which the Court will deny a party leave to file instanter if other circumstances suggest that denial 

would be unjust. See Elliott v. Simms, No. 2:08-cv-1144, 2009 WL 1362508, at *3 (S.D. Ohio 

May 13, 2009) (granting defendants’ motion for leave to file answer instanter despite a finding 

that plaintiff would be prejudiced). 

As to the second factor, Defendants have filed their Answer 102 days after it was due. 

While this is not a short delay, its potential impact on the judicial proceedings is minimal. See 

Toliver v. Liberty Mut. Fire Ins. Co., 2:06-CV-00904, 2008 WL 545018, at *1 (S.D. Ohio Feb. 

25, 2008) (finding that a delay of “slightly more than two months” would not prejudice “the 

Court in its ability to resolve this litigation in a timely fashion.”); Morgan v. Gandalf, Ltd., 165 

Fed. App’x 425, 429 (6th Cir. 2006) (allowing defendants to file an answer eight months late). 

 

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 The Court expresses no opinion as to whether any such motion would be granted. The Court 

notes, however, when Defendants filed the Motion for Extension, the discovery deadline was 

twelve weeks away. In the five weeks the instant Motion has been pending, Plaintiff has not 

sought additional discovery. 

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As to the fourth and fifth factors, Defendants concede that the failure to file a timely 

Answer was within their control. The record, however, does not bear out Plaintiff’s suspicion 

that Defendants’ failure was a result of bad faith. Defendants have actively defended in this case 

by filing two Motions to Dismiss. See Taylor v. Cleveland Healthcare Grp. Inc., No. 1:11-CV01838, 2011 WL 5873018, at *1 (N.D. Ohio Nov. 22, 2011) (finding no bad faith where 

defendants had appeared in the litigation by removing the case to federal court). Furthermore, 

Defendants have provided an affidavit of counsel averring that the proposed Answer and instant 

Motion were filed as soon as he discovered the error. (Caryer Aff. ¶ 3, ECF No. 56-1.); see 

Elliott, 2009 WL 1362508 at *3 (citing defendants’ immediate filing upon discovering that the 

response was past due as a factor in determining good faith). 

As to the third and arguably most important factor, Defendants indicate that the reason 

for delay was mere inadvertence. “[A]lthough attorney error or inadvertence will not ordinarily 

support a finding of excusable neglect,” this factor must be weighed against the other factors and 

the interests of justice. Morgan, 165 Fed. App’x at 429 (concluding that defendants’ eightmonth delay in filing an answer constituted excusable neglect because there was no evidence of 

bad faith). Given the elastic and equitable nature of the excusable neglect standard, denying 

Defendants leave to file their answer would not serve the interest of justice. See Pioneer, 507 

U.S. 395 (concluding that the determination of excusable neglect is “at bottom an equitable one, 

taking account of all relevant circumstances surrounding the party’s omission”). Both parties 

have actively litigated this case and have conducted extensive discovery. The Court finds no 

evidence of bad faith on the part of Defendants in failing to file the Answer within the time 

permitted by Rule 12(a)(4). 

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Applying the Pioneer factors, the Court finds that Defendants’ failure to timely file their 

Answer was the result of excusable neglect. Accordingly, Defendants’ Motion is GRANTED. 

IV. 

 Defendants’ Motion for Extension of Time and to File an Answer Instanter is 

GRANTED. (ECF No. 49) The Clerk is DIRECTED to file the Answer attached to 

Defendants’ Motion as Exhibit 1. (ECF No. 49-1.)

IT IS SO ORDERED. 

Date: June 13, 2014 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 United States Magistrate Judge 

 

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