IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEBRASKA 

ANTON E. KRAJEWSKI, 

 Plaintiff, 

vs. 

UNION PACIFIC RAILROAD 

COMPANY, a Delaware corporation, 

 Defendant. 

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Civil Action No. 4:23-cv-3097 

DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE 

DEFENDANT’S REPLY BRIEF REGARDING ITS DAUBERT MOTION TO EXCLUDE 

OPINIONS OF DR. JASON CITTA OR, IN THE ALTERNATIVE, MOTION TO DEEM 

THE REPLY BRIEF TIMELY FILED 

On August 9, 2024, Defendant filed its Daubert motions, including a motion seeking to exclude 

certain opinions of one of plaintiff’s treating physicians, Dr. Jason Citta. ((ECF #81 (motion); 

ECF #82 (brief)). Defendant filed several other Daubert motions related to plaintiff’s other 

retained and non-retained experts on the same day. (ECF #’s 71, 75, 78, 84, 87). The deadline for 

filing Daubert motions was September 30, 2024, according to the Court’s Trial Setting Order. 

(ECF # 58) therefore Defendant filed its Daubert motions early. 

On August 22, 2024, Plaintiff filed responses to Defendant’s Daubert motion regarding the 

opinions of Dr. Jason Citta, as well as, responses to Defendant’s other Daubert motions. (ECF #’s 

98, 99, 95, 96, 97, 100). The Court granted Defendant’s Motion to Extend Time to File Reply 

Briefs on August 29, 2024 (ECF #’s 107 & 108) allowing Defendant to file its reply briefs up to 

and including September 4, 2024. 

On September 4, 2024, Plaintiff filed Reply briefs in further support of its Daubert motions 

for all the other pending Daubert motions except Dr. Citta’s. (ECF #’s 111, 117, 115, 113, 109). 

Defendant’s Dr. Citta Reply brief was finished and ready to be filed with the other Reply briefs, 
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however due to an inadvertent clerical error made by one of defense counsel’s assistants it was 

inadvertently not filed because it was incorrectly believed to have been filed with the rest. When 

Defendant realized the mistake, it was promptly filed the reply brief at issue with the Court on 

September 30, 2024. (ECF # 126).

As discussed below, the Dr. Citta reply brief was for all practical purposes not untimely, as it 

was filed on or before September 30th, the date Daubert motions were allowed to be filed under 

the case management order and there is no delay to the case or other deadlines caused by the filing. 

Further, and more importantly, Plaintiff is not prejudiced in any way by the timing of the filing of 

the reply brief. Plaintiff has lost several motions in this case already, and Plaintiff’s counsels’ 

opposition to almost everything seems to be a pattern of overly litigious behavior. 

ARGUMENT 

I. Union Pacific’s Reply Brief was for all practical purposes not untimely. 

As a practical matter, Union Pacific’s Reply was not untimely because it was filed within 

the Court’s ordered deadline for Daubert motions, and it doesn’t alter any other deadlines. The 

Court issued a trial setting order which established the deadline for filing motions to exclude 

testimony on Daubert related grounds allowing same to be filed by September 30, 2024. (ECF # 

58). The reply brief was filed on or before the Daubert deadline on September 30th. 

II. To the Extent that the Court finds Defendant’s Reply Brief is Untimely, Plaintiff is not 

prejudiced, and Defendant Moves This Court for An Order Allowing the Dr. Citta Reply Brief 

to Be Deemed Timely Filed on September 30, 2024 

To the extent that the Court deems Union Pacific’s brief untimely, Defendant requests that 

this Court consider this response Brief, by reference, its motion for leave to file the Reply brief out 

of time on September 30th, the day it was filed. Defendant’s inadvertent failure to do was due to a 
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clerical error and the same is excusable. It is within the Court’s power to extend the deadline and 

allow Union Pacific’s Dr. Citta Reply Brief to be deemed timely filed on September 30th. 

Federal Rule of Civil Procedure 6 allows the Court discretion to extend the deadline for a 

party to file a reply brief if the party’s failure to do so on time was because of “excusable neglect”. 

Fed.R. Civ.P 6(b)(1)(B). Whether a party’s failure to meet a deadline constitutes “excusable 

neglect”, requires the Court to apply a four-factor equitable test, examining: (1) the danger of 

prejudice to the opposing party; (2) the length of the delay and its potential impact on the 

proceedings; (3) the reason for the delay; and (4) whether the movement acted in good faith. 

Pioneer inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); Ahanchian v. 

Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010). 

Here, Union Pacific’s inadvertent failure to file its Reply brief regarding Dr. Citta’s 

Daubert motion with the rest of its Reply briefs was the result of an internal clerical error and is 

therefore excusable. Plaintiff is not, nor will he be, prejudiced by the timing of the filing of the 

reply brief. Plaintiff would not have been able to respond to Union Pacific’s Reply anyways, 

further, the timing of the filing does not change the other deadlines, and there is no basis to show 

prejudice to Plaintiff. See Ahanchian v. Xenon Pictures, Inc. 624 F.3d 1253, 1263 (9th Cir. 2010) 

(finding insufficient prejudice where defendant would have won a “quick but unmerited victory, 

the loss of which we do not consider prejudicial” by not allowing Plaintiff to submit an untimely 

motion); see also, Cuffy v. Getty Refining & Marketing Co., 648 F.Supp. 802, 806 (D.Del. 1986) 

(inconvenience to a party or the strengthening of the movant’s legal position does not provide 

sufficient prejudice). 
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Union Pacific submitted its reply brief within the Court’s trial setting order deadline to 

submit Daubert motions on September 30, 2024. There has not been and would not be any delay 

or rescheduling of any of the other deadlines as a result of the timing of filing the reply brief. 

Other courts have found similar reasons to constitute excusable neglect. See Ahanchian v. 

Xenon Pictures, Inc. 624 F.3d 1253, 1263 (9th Cir. 2010) (“clerical error” calendaring mistake and 

computer problems were excusable neglect for missing a motion deadline); Picay v. Andrews, 389 

F.3d 853 (9th Cir. 2004) (calendaring mistake by clerical employee leading to missing a deadline 

was excusable neglect). Once Union Pacific learned of its mistake, it remedied the situation. There 

is no prejudice to Plaintiff. Plaintiff’s motion to strike should be denied. 

WHEREFORE Defendant requests that the Court deny Plaintiff’s Motion to Strike 

Defendant’s Dr. Citta Reply Brief, or in the alternative, that the Court consider this response 

a motion by Defendant to extend the time for filing the reply brief up to and including 

September 30, 2024. Defendant further requests that the Court deem the reply brief timely 

filed on September 30, 2024. Defendant also requests any other relief the Court deems proper 

under the circumstances. 

KNIGHT NICASTRO MACKAY, LLC 

/s/ Trent R. Church __

Trent R. Church MO Bar No. 59102 

Chad M. Knight, NE Bar No. 25116 

KNIGHT NICASTRO MACKAY, LLC 

1401 Walnut Street, Ste 200 

Boulder, CO 80302 

knight@knightnicastro.com 

church@knightnicastro.com 

Telephone: (303) 815-5869 

FAX: 816-396-6233 

ATTORNEY FOR DEFENDANT UNION 

 PACIFIC RAILROAD COMPANY 
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CERTIFICATE OF COMPLIANCE 

I certify that this brief complies with the word limits of other requirements of NECivR 

7.1(d). I have relied upon the word count function of Microsoft Word 365 software, which was 

applied to all text including the caption, headings, footnotes, and quotations, which calculates the 

current word count at 1,318 words. 

/s/ Trent R. Church 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that the above and foregoing was served via electronic 

filing with the Court’s electronic filing system on this 17th day of October to all counsel of record 

including the following: 

Paul D. Banker, MN 0256596 

Joshua N. Miller, MN 0397585 

Hunegs, LeNeave Law Firm 

1000 Twelve Oaks Center Drive 

Ste 101 

Wayzata, MN 55391 

P: 612-339-4511 

F: 612-339-5150 

pbanker@hlklaw.com

jmiller@hlklaw.com

Attorneys for Plaintiff 

/s/ Trent R. Church