United States District Court, N.D. Mississippi, Aberdeen Division
RONALDO DESIGNER JEWELRY, INC.
JAMES B. COX and CATHERINE A. COX d/b/a JC DESIGNS d/b/a WIRE N RINGS and JOHN DOE a/k/a LEROY and JOHN DOES Numbers 1 through 99 DEFENDANTS,
M. BROWN, UNITED STATES DISTRICT JUDGE
September 21, 2018, Ronaldo Designer Jewelry, Inc., filed a
motion for partial summary judgment regarding certain
crossclaims asserted by the defendants. Doc. #164. The
defendants responded to the motion on October 10, 2018. Doc.
#180. On October 16, 2018, Ronaldo filed a motion to strike
the defendants' response as untimely. Doc. #186. One day
later, Ronaldo replied in support of its motion for summary
judgment. Doc. #189. The motion to strike is fully briefed.
Docs. #196, #201.
argues that, pursuant to Local Rule 7(b)(4), the
defendants' response was due to be filed on or before
October 5, 2018, fourteen days after the motion was filed.
Doc. #187 at 1.
defendants, citing the advisory committee's notes to
Federal Rule of Civil Procedure 56, contend their response
was timely. Doc. #196 at 1-2. They further argue that even if
the response was untimely, the Court should exercise its
discretion to consider the late filing. Id. at 2.
Finally, in violation of Local Rule 7(b)(3),  they request an
extension of the deadline to file the response. Id.
Rule 7(b)(4) requires that counsel for a party “within
fourteen days after service of movant's motion and
memorandum brief, file a response and memorandum brief in
support of the response.” However, the advisory
committee note to the 2009 amendment to Federal Rule of Civil
Procedure 56 provides that “[i]f a motion for summary
judgment is filed before a responsive pleading is due from a
party affected by the motion, the time for responding to the
motion is 21 days after the responsive pleading is
due.” Local rules cannot “diminish rights
afforded to parties” by the Federal Rules of Civil
Procedure. Johnson v. United States, 460 F.3d 616,
620 (5th Cir. 2006). “Although not binding, the
interpretations in the Advisory Committee Notes ‘are
nearly universally accorded great weight in interpreting
federal rules.'” Horenkamp v. Van Winkle &
Co., Inc., 402 F.3d 1129, 1132 (11th Cir. 2005)
(citation omitted). Accordingly, while the 2009 committee
note may not create a right on its own, it is of great weight
in interpreting the response rights under Rule 56.
it provides a deadline for filing motions for
summary judgment, Rule 56 does not set or address response
times generally. Given the absence of any provision
addressing response times which would be subject to
interpretation, the Court questions to what extent the 2009
committee note's reference to a 21-day response window
should be afforded weight. Nevertheless, the Court need not
resolve the issue because Ronaldo has not shown grounds to
strike the response, even if it was untimely.
court, in the exercise of its inherent power to control its
docket, may strike an untimely document. Rashid v. Delta
State Univ., 306 F.R.D. 530, 534 (N.D. Miss. 2015). The
primary consideration in considering whether to strike a
response to a dispositive document is prejudice arising from
the delay. See Coco v. United States, 569 F.2d 367,
372 (5th Cir. 1978) (affirming denial of motion to strike
two-day late response to § 2255 motion where movant did
“not show the slightest prejudice resulting from the
short delay”). Here, Ronaldo has identified no
prejudice from the five-day delay, and this Court finds none.
Accordingly, in the interest of deciding Ronaldo's
dispositive motion on the merits, the motion to strike will
be denied. See Grabenstein v. A.O. Smith
Corp., No. 2:11-cv-63929, 2012 WL 2849389, at *1 (E.D.
Penn. Apr. 2, 2012) (denying a motion to strike an untimely
filing “in light of the lack of prejudice to Plaintiff
and the Court's significant interest in deciding cases on
reasons above, Ronaldo's motion to strike  is