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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

ANTON E. KRAJEWSKI,

Plaintiff, 

vs. 

UNION PACIFIC RAILROAD COMPANY

A Delaware Corporation 

Defendant.

Civil Action No. 4:23-cv-03097

PLAINTIFF’S REPLY BRIEF

IN SUPPORT OF MOTION TO 

STRIKE DEFENDANT’S 

UNTIMELY REPLY BRIEF

On September 30, 2024, Defendant Union Pacific Railroad Company (UP) submitted an 

untimely reply brief in support of its motion to strike Plaintiff Anton Krajewski’s expert witness 

Dr. Jason Citta. (ECF #126.) The reply brief was untimely because it fell nearly a month outside 

the time to respond set by the Court’s text-only order (ECF #107), which in turn reflected UP’s 

request for an extension that Krajewski did not oppose. Despite submitting its reply brief on 

September 30 for a September 4 deadline, UP did not make a motion for the Court to accept its 

late filing or attempt to explain its untimeliness in any regard.

On October 4, 2024, Krajewski moved to strike UP’s reply brief as untimely. (ECF #131.)

On October 17, 2024, UP responded to the motion. (ECF #135.) UP does not and cannot 

dispute that its reply is untimely. (ECF #135 at 1-2.) Instead, UP argues that it is somehow entitled 

to submit a reply brief 26 days late with only a perfunctory retroactive explanation.

Under Fed. R. Civ. P. 6(b)(1)(B), UP was required to make a motion demonstrating the 

existence of “good cause” to extend the deadline and “excusable neglect” for its late filing. UP has 

taken the irregular step of asking the Court to treat its reply brief as a motion attempting to show 

excusable neglect. UP’s “motion” is not only procedurally deficient, but entirely devoid of merit. 

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Despite having the burden to demonstrate good cause to extend the deadline, UP does not 

mention the phrase “good cause” at all. Instead, UP argues, with no authority, that the late filing 

“was the result of an internal clerical error and is therefore excusable.” (ECF #131 at 2-3.) 

“Excusable neglect” is an “‘elastic concept’ that empowers courts to accept, ‘where 

appropriate, . . . late filings caused by inadvertence, mistake, or carelessness, as well as by 

intervening circumstances beyond the party’s control.’” Chorosevic v. MetLife Choices, 600 F.3d 

934, 946 (8th Cir. 2010) (emphasis added). Whether neglect is nevertheless excusable is an 

equitable determination considering all circumstances surrounding the omission based on the 

following factors: (1) “the possibility of prejudice”; (2) “the length of [the] delay and the possible 

impact of that delay on judicial proceedings”; (3) “[the untimely party’s] reasons for delay, 

including whether the delay was within [the untimely party’s] reasonable control”; and, (4) 

“whether [the untimely party] acted in good faith.”1 Id.

Here, regardless of prejudice or delay, UP took the unreasonable action of filing its brief 

nearly a month late with no conference with opposing counsel or the Court, no motion to the Court, 

and no attempt to explain its actions anywhere. UP’s actions were irregular at best and underhanded

at worst. UP now purports to make a perfunctory “motion” despite following no proper procedure 

and despite not even mentioning the words “good cause,” let alone analyzing how it might apply.

UP has no real excuse for filing its reply brief 26 days late, no real excuse for not even 

trying to follow the proper procedure for filing a brief late, and no real excuse for not even trying 

to follow the proper procedure for filing a motion to accept a late brief. Krajewski respectfully 

1 UP’s citation (for whatever reason, exclusively to Ninth Circuit case law) is both not controlling and inapposite. The 

discussion of a “quick but unmerited victory” is not relevant because the question is not whether UP is allowed to 

make its motion, but whether UP is allowed to submit a paper-thin retroactive justification for filing a very untimely 

reply brief in support of a motion it already made.

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asks the Court not to find workable excuses where UP provides none. UP’s untimely reply brief 

should be excluded. 

 

Dated: October 23, 2024 HUNEGS, LeNEAVE & KVAS, P.A.

 /s/ Paul Banker 

Randal W. LeNeave, NE ID 24813 

Paul Banker, MN ID 0256596 

Joshua N. Miller, MN ID 0397585 

Mark S. Triola, MN ID 0401933 

Attorneys for Plaintiff

1000 Twelve Oaks Center Drive, Suite 101 

Wayzata, MN 55391 

Tel: (612) 339-4511 

Fax: (612) 339-5150 

rleneave@hlklaw.com 

pbanker@hlklaw.com 

jmiller@hlklaw.com 

mtriola@hlklaw.com 

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on October 23rd, 2024, the foregoing Plaintiff’s 

Reply Brief in Support of Motion to Strike Defendant’s Untimely Reply Brief was 

electronically filed via CM/ECF, which will send notification of filing to:

 Chad M. Knight 

 Trent R. Church 

Jennifer Vedra

Christian J. Smith

Nicholas R. Snow 

 Knight, Nicastro Mackay, LLC. 

 1401 Walnut Street, Suite 200 

 Boulder, Colorado 80302 

knight@knightnicastro.com 

church@knightnicastro.com 

vedra@knightnicastro.com

cssmith@knightnicastro.com

snow@knightnicastro.com

/s/ Paul Banker 

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