Case 4:17-cv JM Document 58 Filed 05/04/18 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

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1 Case 4:17-cv JM Document 58 Filed 05/04/18 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION HONORABLE WENDELL GRIFFEN, Plaintiff, v. No. 4:17-cv-639-JM Hon. James M. Moody, Jr. ARKANSAS SUPREME COURT, et al., Defendants. JUSTICES OF THE ARKANSAS SUPREME COURT S BRIEF IN SUPPORT OF THEIR UNOPPOSED MOTION FOR LEAVE TO FILE ANSWER AND AFFIRMATIVE DEFENSES OUT OF TIME The Honorable John Dan Kemp, the Honorable Robin F. Wynne, the Honorable Courtney Hudson Goodson, the Honorable Josephine L. Hart, the Honorable Shawn A. Womack, the Honorable Karen R. Baker, and the Honorable Rhonda K. Wood (collectively, the Justices hereby respectfully submit this brief in support of their motion for leave to file out of time their Answer and Affirmative Defenses to Plaintiff The Honorable Wendell Griffen s complaint. The Justices have conferred with counsel for Judge Griffen about the relief requested in their motion, and Judge Griffen does not oppose the relief sought. On April 12, 2018, this Court granted in part and denied in part the Justices motions to dismiss. Order (Apr. 12, 2018, ECF No. 48. Under FED. R. CIV. P. 12(a(4(A, the answer and affirmative defenses were to be filed by April 26, Although the Justices have actively litigated this case before and after this Court denied in part the motions to dismiss, including by producing their initial disclosures, complying with ongoing discovery obligations, and filing a petition for writ of mandamus in the Eighth Circuit concerning the denial of their motions to 1

2 Case 4:17-cv JM Document 58 Filed 05/04/18 Page 2 of 7 dismiss, the Justices counsel regrettably overlooked the deadline to answer. The Justices were alerted to this oversight yesterday when they received electronic service of Judge Griffen s Motion for Clerk s Entry of Default Pursuant to FED. R. CIV. P. 55(a (May 3, 2018, ECF No. 53, and the Justices have endeavored to promptly remedy their counsel s oversight by lodging their answer today. This Court may extend the time for the Justices to answer on motion made after the time has expired if the party failed to act because of excusable neglect. FED. R. CIV. P. 6(b(1(B. 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 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392 (1993. The determination of whether neglect is excusable is at bottom an equitable one, taking account of all relevant circumstances surrounding the party s omission. Id. (quoting Pioneer, 507 U.S. at 395. The factors that courts consider include, but are not limited to, (1 the possibility of prejudice to Judge Griffen, (2 the length of... delay and the possible impact of that delay on judicial proceedings, (3 the reasons for delay, and (4 whether the Justices acted in good faith. Id. (quoting Sugarbaker v. SSM Health Care, 187 F.3d 853, (8th Cir For the reasons set forth below, and for the reasons that will be more fully explained in a forthcoming opposition to Judge Griffen s Second Amended and Substituted Motion for Clerk s Entry of Default Pursuant to FED. R. CIV. P. 55(a (May 3, 2018, ECF No. 56, the Justices respectfully submit that they have demonstrated excusable neglect to file their answer out of time. First, Judge Griffen will suffer no prejudice because of the Justices eight-day delay in filing their answer. A showing of prejudice requires the plaintiff to have been injured in some 2

3 Case 4:17-cv JM Document 58 Filed 05/04/18 Page 3 of 7 concrete way, such as loss of evidence, increased difficulties in discovery, or greater opportunities for fraud and collusion. Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 785 (8th Cir (quoting Berthelsen v. Kane, 907 F.2d 617, 621 (6th Cir No evidence has been lost during the past eight days, Judge Griffen will suffer no increased difficulties in discovery, and there is no greater opportunity for fraud and collusion. Indeed, the Justices are already engaging in ongoing discovery: they served their Initial Disclosures upon Judge Griffen on April 23, 2018; they are currently in the process of responding to Judge Griffen s requests for production of evidence, which were served upon them before the answer was due; and they have sought a stay of discovery pending completion of their mandamus petition. Moreover, since the start of this litigation, the Justices have diligently worked to preserve any relevant evidence in this case. Second, the Justices eight-day delay is brief and will not adversely impact the judicial proceedings. As a general rule, [a] court abuses its discretion if it enters a default judgment for a marginal failure to comply with the time requirements. In re Jones Truck Lines, Inc., 63 F.3d 685, 688 (8th Cir (quoting United States v. Harre, 983 F.2d 128, 130 (8th Cir The Justices are filing their answer only one week and one day late, and within one day of ascertaining the oversight. Moreover, this case has already gone through motion-to-dismiss proceedings, and the eight-day delay has not halted or otherwise impacted the judicial proceedings. As discussed, the Justices are currently engaged in the discovery process, and that timeline is unaffected by this eight-day delay. In short, all relevant deadlines will remain in effect, including the trial date. With respect to the third and fourth factors, both the reason for the delay and the fact that the Justices acted in good faith counsels in favor of granting leave to file out of time. The Justices failure to file an answer... was not a result of bad faith, but instead an inadvertent oversight by their counsel, justifying relief. Chorosevic, 600 F.3d at The Justices and their counsel 3

4 Case 4:17-cv JM Document 58 Filed 05/04/18 Page 4 of 7 have complied with all other court deadlines, they have filed timely motions to dismiss, they have filed timely replies in support of those motions, and they have complied with their duty to file initial disclosures with Judge Griffen. A regrettable oversight by counsel, occurring while the Justices sought mandamus review of the denial of the motion to dismiss at issue here, caused this brief delay in filing the answer. Moreover, upon receiving Judge Griffen s motion for entry of default, the Justices have moved with alacrity to remedy their error, preparing and lodging their attached answer the very next business day. This case involves only a good faith, relatively brief lapse in the deadline, particularly given that the lapse has been cured within one day once [the Justices] learned of [their] mistake. Johnson, 140 F.3d at 784. The Justices have a meritorious defense on the merits, as set forth in their motions to dismiss and their petition for writ of mandamus, and as will be set forth in future filings. And denying leave to file this answer would impos[e] on [the Justices] a severe penalty unmatched by any prejudice to [Judge Griffen], contravening [t]he judicial preference for adjudication on the merits[, which] goes to the fundamental fairness of the adjudicatory process. Chorosevic, 600 F.3d at 947 (quoting Oberstar v. F.D.I.C., 987 F.2d 494, 504 (8th Cir Finally, the fact that Judge Griffen does not oppose the relief requested in this motion supports this Court exercising its discretion to grant this motion. 4

5 Case 4:17-cv JM Document 58 Filed 05/04/18 Page 5 of 7 CONCLUSION The Court should grant the Justices unopposed motion for leave to file the attached Answer and Affirmative Defenses out of time. Dated: May 4, 2018 /s/ Matt Keil Matt Keil Arkansas Bar No KEIL & GOODSON, PA 406 Walnut Street Texarkana, AR ( mkeil@kglawfirm.com Respectfully submitted, /s/ David H. Thompson David H. Thompson D.C. Bar No Michael W. Kirk D.C. Bar No William C. Marra D.C. Bar No COOPER & KIRK, PLLC 1523 New Hampshire Ave., N.W. Washington, D.C ( dthompson@cooperkirk.com Attorneys for Defendant The Honorable Courtney Hudson Goodson /s/ Robert S. Peck Robert S. Peck, N.Y. Bar No CENTER FOR CONSTITUTIONAL LITIGATION, P.C. One Riverside Park 50 Riverside Boulevard, Suite 12A New York, NY Tel. ( Fax ( robert.peck@cclfirm.com Attorney for Defendants Supreme Court of Arkansas, The Honorable John Dan Kemp, The Honorable Robin F. Wynne, and The Honorable Shawn A. Womack 5

6 Case 4:17-cv JM Document 58 Filed 05/04/18 Page 6 of 7 A.F. Tom Thompson, III Arkansas Bar Number Kenneth P. Casey Castleberry Arkansas Bar Number MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY 555 East Main Street, Suite 200 Post Office Box 2595 Batesville, Arkansas ( aftomt2001@yahoo.com caseycastleberry2003@yahoo.com /s/ Robert L. Henry, III Robert L. Henry, III Arkansas Bar Number BARBER LAW FIRM, PLLC 3400 Simmons Tower 425 West Capitol Avenue Little Rock, Arkansas ( rhenry@barberlawfirm.com Attorneys for Defendant The Honorable Josephine L. Hart /s/ Timothy O. Dudley Timothy O. Dudley Arkansas Bar Number TIM DUDLEY, LTD. 114 South Pulaski Little Rock, Arkansas ( todudley@swbell.net Attorney for Defendant The Honorable Karen R. Baker /s/ Cristopher O. Murray Christopher O. Murray David B. Meschke BROWNSTEIN HYATT FARBER SCHRECK, LLP th Street, Suite 2200 Denver, CO cmurray@bhfs.com dmeschke@bhfs.com Attorneys for Defendant the Honorable Rhonda K. Wood 6

7 Case 4:17-cv JM Document 58 Filed 05/04/18 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on May 4, 2018, I electronically filed the foregoing document with the Clerk of Court through the CM/ECF system for service this day via transmission of Notice of Electronic Filing generated by ECF to all counsel of record. /s/david H. Thompson David H. Thompson 7