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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TRACY THOMPSON, 

 Plaintiff, Case No. 2:12-cv-1087 

 JUDGE GREGORY L. FROST 

v. Magistrate Judge Deavers 

THE OHIO STATE UNIVERSITY, et al., 

 Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of Plaintiff’s objections to the 

Magistrate Judge’s June 13, 2014 Opinion and Order granting Defendants’ motion to file an 

answer instanter (ECF No. 58, hereinafter “Order”). (ECF No. 60.) For the reasons that follow, 

the Court OVERRULES the objections and DECLINES TO SET ASIDE the Order. 

I. BACKGROUND 

The facts underlying this dispute are set forth in more detail in the Order. Essentially, 

after filing two motions to dismiss in this case (the last of which the Court granted in part and 

denied in part), Defendants inadvertently failed to file an answer. A little over three months 

later, during which time the parties were actively pursuing discovery, Defendants realized the 

error and immediately filed a motion to file answer instanter. (ECF No. 49.) Plaintiff did not 

raise the issue of the missed answer with either Defendants or this Court. 

In the Order, the Magistrate Judge applied a five-factor test (commonly referred to as the 

“Pioneer factors”) to determine whether Defendants’ failure to timely file their answer 

constituted “excusable neglect” under Federal Rule of Civil Procedure 6(b)(1)(B). After noting 

that the “excusable neglect” standard is elastic and equitable, and finding that the Pioneer factors 

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weighed in favor of permitting the late answer, the Magistrate Judge granted Defendants’ 

motion. 

Plaintiff filed objections to the Order pursuant to Rule 72(a). Those objections constitute, 

in large part, the same arguments that Plaintiff made to the Magistrate Judge in her memorandum 

in opposition to Defendants’ motion. Compare ECF No. 60 with ECF No. 52. The Court now 

considers those objections. 

II. ANALYSIS 

A. Standard 

Pursuant to 28 U.S.C. § 636, a magistrate judge may hear and determine certain pretrial 

matters, such as motions to extend the time in which to file an answer. See 28 U.S.C. § 

636(b)(1)(A); see also E. Div. Order No. 91-3. Upon timely objection, the district judge may 

reconsider any such matter if a party can show “that the magistrate judge’s order is clearly 

erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). Review 

under this standard “provides considerable deference to the determinations of magistrates.” In re 

Search Warrants Issued Aug. 29, 1994, 889 F. Supp. 296, 298 (S.D. Ohio 1995) (quoting 7 

Moore’s Fed. Practice ¶ 72.03). 

B. Objections 

The Court first addresses Plaintiff’s objection that the Magistrate Judge incorrectly 

applied the Pioneer factors. Those factors include: 

(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)). 

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 First, Plaintiff rehashes the same arguments she made to the Magistrate Judge regarding 

the first and second factors. Plaintiff suggests that the Magistrate Judge’s finding that Plaintiff 

will not suffer prejudice from the delay is clearly erroneous because “counsel for Plaintiff have 

adjusted and tailored their approach to the litigation to date based on that failure to file an 

answer.” (ECF No. 60, at 7.) The Court, however, agrees with the Magistrate Judge that this 

factor weighs in Defendants’ favor. If Plaintiff really based her litigation strategy on the fact that 

Defendants admitted every allegation in the Complaint by failing to timely file an answer, then it 

remains unclear why Plaintiff was pursuing merits discovery at all. Plaintiffs’ suggestion that 

her counsel elected not to pursue certain discovery and investigation strategies based on 

Defendants’ failure to answer simply is not compelling. 

Regarding the second factor, Plaintiff asserts that a three-month delay “constitutes a 

substantial impact on judicial proceedings,” (id. at 9), but does not persuasively refute the 

Magistrate Judge’s conclusion that its potential impact on these proceedings is minimal. The 

fact that this case is still in the early stages of litigation weighs in Defendants’ favor. 

 Plaintiff’s arguments regarding the fourth and fifth Pioneer factors are similarly 

unpersuasive. As in her memorandum in opposition to Defendants’ motion, Plaintiff again 

speculates that bad faith might be at play and asserts that prior conduct by the Ohio Attorney 

General’s office in unrelated cases is relevant to this dispute. The Court, however, again agrees 

with the Magistrate Judge that the record does not support Plaintiff’s suspicion that Defendants’ 

failure to timely file their answer was the result of bad faith. 

 The crux of Plaintiff’s argument appears to be that the Magistrate Judge acted contrary to 

law by failing to give the third factor (the reason for the delay) enough deference. Plaintiff 

argues that the Magistrate Judge wrongly considered the third factor to be “arguably the most 

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important,” rather than the “most important,” but the term “arguably” does not appear to have 

played any role in the Magistrate Judge’s analysis. Instead, the Magistrate Judge correctly 

weighed the third factor against the other factors, while recognizing that the excusable neglect 

standard is elastic and equitable in nature. Plaintiff does not persuasively explain why that 

analysis is clearly erroneous or contrary to law. 

 Having found that Plaintiffs’ first objection does not warrant a modification of the Order, 

the Court next considers Plaintiff’s objection that the Magistrate Judge incorrectly considered 

evidence presented for the first time in Defendants’ reply. Specifically, Plaintiff argues that 

Defendants failed to attach any evidence in their motion, such that the Magistrate Judge acted 

contrary to law by considering an affidavit attached to Defendants’ reply. The Court rejects this 

argument for three reasons. 

First, although evidence outside the record might be necessary to prove excusable neglect 

in some cases, it is not required in every case. Compare Amick v. Ohio Dep’t of Rehab. & 

Corrections, No. 2:09-cv-812, 2011 WL 4055246, at *2 (S.D. Ohio Sept. 8, 2011) (denying a 

motion for leave to file answer and crossclaim instanter filed over a year after the litigation 

begun because, inter alia, the moving party provided no evidence to support his claim that he 

was unable to file the documents earlier because he feared retaliation while in prison) with

Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-cv-00904, 2008 WL 545018, at *1 (S.D. Ohio 

Feb. 25, 2008) (permitting a defendant to file a late answer and citing only the record without 

reference to outside evidence). Second, the Magistrate Judge’s conclusion that the record 

suggests good faith in this case did not depend on Defendants’ affidavit. See ECF No. 58, at 5. 

Indeed, it cannot be disputed that Defendants have actively defended and participated in this case 

since its inception. Cf. Tolliver, 2008 WL 545018, at *1 (finding excusable neglect at least in 

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part because “there is no evidence that [the defendant] did not act in good faith”). And finally, 

Plaintiff had adequate time to respond to Defendants’ assertion in their motion that they acted in 

good faith by filing the answer immediately upon recognizing the error. The affidavit in the 

reply brief merely corroborated that assertion. Accordingly, the Court declines to set aside the 

Magistrate Order on this ground. 

For her third objection, Plaintiff argues that the Magistrate Judge acted contrary to law by 

ignoring Defendants’ failure to solicit consent for the proposed extension pursuant to Southern 

District of Ohio Civil Rule 7.3(b). But Plaintiff cites no authority for the proposition that a 

party’s failure to comply with Local Rule 7.3(b) before filing a motion mandates denial of that 

motion. Accordingly, Plaintiff failed to explain how the Magistrate Judge’s omission of Local 

Rule 7.3(b) renders the Order clearly erroneous or contrary to law. 

Finally, Plaintiff argues that analogous case law supports her position, but that argument 

is not persuasive given the case-by-case analysis pursuant to Federal Rule of Civil Procedure 6 

that courts must employ. Absent any binding precedent that is directly analogous and 

contradictory to the Order, Plaintiff’s discussion of similar cases does not render the Order 

clearly erroneous or contrary to law. 

III. CONCLUSION 

For the foregoing reasons, the Court OVERRULES Plaintiff’s objections (ECF No. 60) 

and DECLINES TO SET ASIDE the Order (ECF No. 58). 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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