UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

ANNIE LUCILE LIVINGSTON, 

 Plaintiff - Appellant,

v.

UNIVERSITY OF KANSAS 

HOSPITAL AUTHORITY, 

 Defendant - Appellee.

No. 20-3075

(D.C. No. 2:18-CV-02210-KHV)

(D. Kan.)

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ORDER AND JUDGMENT*

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Before BACHARACH, Circuit Judge, LUCERO, Senior Circuit Judge, and 

PHILLIPS, Circuit Judge.

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This appeal involves the scope of a district court’s discretion over 

when to allow amendment of a brief. The issue emerged from the parties’ 

briefing of a summary-judgment motion. The plaintiff (Ms. Annie Lucile 

Livingston) objected to the defendant employer’s motion for summary 

* Both parties waive oral argument, and it would not materially help us 

to decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). 

So we have decided the appeal based on the record and the parties’ briefs.

Our order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate under Fed. R. App. P. 32.1(a) and 10th Cir. R. 

32.1(A).

FILED

United States Court of Appeals

Tenth Circuit

February 11, 2021

Christopher M. Wolpert

Clerk of Court
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judgment, but then wanted to amend her objection. The district court 

denied permission to amend the response brief and granted the employer’s 

summary-judgment motion. Ms. Livingston appeals the denial of 

permission to amend the response (but not the summary-judgment ruling 

itself). 

In considering this ruling, we apply the abuse-of-discretion standard. 

Quigley v. Rosenthal, 427 F.3d 1232, 1237 (10th Cir. 2005). Under this 

standard, legal errors constitute an abuse of discretion. El Encanto, Inc. v. 

Hatch Chile Co., 825 F.3d 1161, 1162 (10th Cir. 2016) (Gorsuch, J.). So 

our threshold issue is whether the district court committed a legal error. 

Ms. Livingston argues that the district court legally erred in applying 

the wrong test. She filed her initial objection on the last day to respond to 

the summary-judgment motion. So her initial objection was timely, but any 

amendment would have been late. She therefore needed an extension of 

time to amend the objection.

So when Ms. Livingston asked for leave to amend her response brief, 

the district court considered Federal Rule of Civil Procedure 6(b) and 

District of Kansas Rule 6.1. Ms. Livingston argues that the court should 

instead have considered Federal Rule of Civil Procedure 15, which governs 

amendment of pleadings. 

But an objection to a summary-judgment motion is not a pleading. 

“Pleadings” are defined in Federal Rule of Civil Procedure 7, and this 
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definition includes complaints, answers, counterclaims, cross-claims, and 

replies to answers. Ms. Livingston didn’t want to amend any of those 

documents; she wanted to amend an objection to a summary-judgment 

motion, and objections like this one fall outside of Rule 15. See Sorbo v. 

United Parcel Serv., 432 F.3d 1169, 1177 (10th Cir. 2005). The district 

court thus properly considered whether to grant an extension of time under 

Federal Rule of Civil Procedure 6(b) and District of Kansas Rule 6.1. 

In applying these rules, we must determine whether the district court 

abused its discretion. Quigley, 427 F.3d at 1237. For this determination, 

we consider the timing of Ms. Livingston’s request. By the time she 

requested the extension, her deadline had already expired. So she needed to 

show excusable neglect. Fed. R. Civ. P. 6(b)(1)(B); D. Kan. R. 6.1(a). The 

existence of excusable neglect is an equitable inquiry, requiring 

consideration of all of the relevant circumstances. Pioneer Inv. Servs. Co. 

v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). These 

circumstances include 

1. the danger of prejudice to the adversary,

2. the extent of the delay and potential effect on the proceedings,

3. the reasons for delay (including whether these reasons are 

within the movant’s “reasonable control”), and

4. the existence of good faith on the part of the movant.

Id.
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The district court found that 

• the fourth factor (good faith) favored an extension and 

• the other three factors weighed against an extension.

The court acted reasonably in weighing the four factors.

Like the district court, we conclude that Ms. Livingston acted in 

good faith.

But the court could reasonably consider an extension prejudicial to 

the employer. Once Ms. Livingston filed her initial objection, the employer 

had 14 days to reply. D. Kan. R. 6.1(d)(2). The employer’s task was 

considerable, for Ms. Livingston’s objection spanned 79 pages and 

included 40 exhibits. After the employer had spent considerable time 

preparing a reply, Ms. Livingston asked for the extension. 

Ms. Livingston had already received three extensions, providing a 

total of 45 days to object to the summary-judgment motion. On the third 

extension, the court stated that it would not grant any additional time for 

the response brief. So Ms. Livingston filed the response on November 15, 

2019. The employer began working on a reply and obtained an extension 

until December 9, 2019. 

With the extended reply deadline only four days away, Ms. 

Livingston sought an extension to amend her response. With no ruling on 

the request for an extension, the employer filed a 128-page reply brief. If 

the district court had granted Ms. Livingston’s request for an extension, 
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the employer would have needed to redo its reply brief. The task would 

have been considerable: Ms. Livingston’s proposed amendment would have 

added over 100 alleged facts, 69 pages, and 76 exhibits. Redoing the reply 

brief would have required the employer to incur substantial attorney fees.

Given the cost to the employer, the court considered Ms. 

Livingston’s control over the timing of her request. When she sought an 

extension, she explained that she had severely underestimated the time 

needed to properly respond to the employer’s summary-judgment motion. 

But when she filed her 79-page response, she surely knew by then if she’d 

need more time to fix any deficiencies. But she said nothing.

Seventeen days after she filed the response, the employer asked for 

extra time to reply. Ms. Livingston could have interjected, pointing out 

that she was hoping for a chance to amend her response brief. But she 

again said nothing, and the employer continued working on the reply brief. 

The employer had no way of knowing that much of its work would be

wasted if Ms. Livingston were to amend her response brief. So the court 

reasonably considered Ms. Livingston’s control over the reasons for the 

delay.

Ms. Livingston does not address the district court’s weighing of the 

four factors. She instead points out that she is pro se, facing a considerable 

burden in fashioning a summary-judgment response. We sympathize with 

Ms. Livingston and recognize the difficulty that she faces. But we must 
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follow our precedents, which require pro se parties to comply with our 

procedural rules just like any other litigant. Garrett v. Selby Connor 

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). And under those 

rules, inadvertence or lack of knowledge doesn’t constitute excusable 

neglect. Quigley v. Rosenthal, 427 F.3d 1232, 1238 (10th Cir. 2005).

* * *

We conclude that the district court reasonably exercised its 

discretion in disallowing leave to amend the response brief.

Affirmed.

Entered for the Court

Robert E. Bacharach

Circuit Judge