Navarro v. City of Aurora

MARIO NAVARRO, Plaintiff, v. THE CITY OF AURORA, ILLINOIS, a municipal corporation, CLARK JOHNSON, OFFICER WHITFIELD, SERGEANT MOSS, and UNKNOWN OFFICERS A, B, C, D and E, Defendants.

No. 21 C 6288

United States District Court, N.D. Illinois, Eastern Division

December 27, 2022

MEMORANDUM OPINION AND ORDER

Gary Feinerman, Judge

Mario Navarro brought this suit against the City of Aurora and Aurora police officer Clark Johnson, asserting claims under 42 U.S.C. § 1983 and state law. Doc. 1. The City and Johnson moved to dismiss under Civil Rule 12(b)(6), Doc. 10 and the court granted the motion, dismissing the complaint without prejudice, Docs. 20-21 (reported at 2022 WL 1988990 (N.D. Ill. June 6, 2022)). Navarro filed an amended complaint, naming several more Aurora police officers as defendants. Doc. 23. Defendants again move to dismiss under Rule 12(b)(6), Doc. 26, while Navarro moves for leave to file instanter an untimely brief opposing dismissal, Doc. 36. Navarro's motion for leave to file is denied, and Defendants' motion to dismiss is granted in part and denied in part.

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in the plaintiff's opposition brief, so long as those facts “are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th Cir. 2013) (internal quotation marks omitted). The facts are set forth as favorably to the plaintiff as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United States, 881 F.3d 529, 531 (7th Cir. 2018).

On November 16, 2019, Navarro stood on a public easement outside a Planned Parenthood clinic in Aurora, Illinois. Doc. 23 at ¶ 8. While on the easement, Navarro counseled prospective abortion patients, handed out Christian pro-life literature, and engaged in Christian preaching and conversation. Ibid. Officer Johnson approached Navarro and asked him to move from the easement. Id. at ¶ 9. Johnson did not ask the same of others on the easement who were not opposing abortion or preaching the Christian gospel. Id. at ¶ 20.

Navarro refused Johnson's order to move and asserted his right to remain on the easement. Id. at ¶ 9. Johnson arrested Navarro and issued him a citation for disobeying a peace officer under 625 ILCS 5/11-203. Doc. 23 at ¶ 9. In March 2021, an Illinois court found Navarro guilty of the charge and sentenced him to one day of court supervision and imposed costs and a fine totaling $276. Id. at ¶ 19. Johnson also issued a complaint against Navarro for obstructing a peace officer under 720 ILCS 5/31-1, Doc 23 at ¶ 9, but the state court dismissed that charge id. at ¶ 12.

On two subsequent occasions, Aurora police officers again ordered Navarro to move from the public easement in front of the Planned Parenthood clinic. Id. at ¶¶ 4, 21-22. On December 22, 2021, Officer Whitfield and Sergeant Moss ordered Navarro to move from the easement while he was preaching and attempting to dissuade others from entering the clinic. Id. at ¶ 21. On April 16, 2022, five unidentified Aurora police officers (Unknown Officers A, B, C, D, and E) ordered Navarro to leave, ostensibly due to the large size of his group. Id. at ¶ 22.

Navarro does not allege that he was arrested or charged with any crime in connection with the two later occasions. The complaint is unclear whether Aurora police officers ordered others who were on the easement but not preaching or opposing abortion to move on those two occasions (as Johnson had on November 16, 2019). Id. at ¶¶ 20-22, 27. But at the motion hearing, Doc. 38, Navarro's counsel represented that, on all three occasions, officers did not order others similarly situated but not preaching or opposing abortion to leave the easement.

Discussion

Navarro asserts claims under § 1983 and state law. Doc. 23 at ¶¶ 23-73. He also moves for leave to file instanter his response to Defendants' motion to dismiss, Doc. 36 as he did not file a response by the twice-extended deadline set by the court, Docs. 30, 32, 36-37.

I. Navarro's Motion for Leave to File Instanter

After Defendants filed their motion to dismiss, the court set a deadline of August 17, 2022, for Navarro to respond. Doc. 28. On August 17, Navarro moved for an extension, Doc. 29, which the court granted, extending the deadline to September 7, Doc. 30. One day after the new deadline passed, Navarro moved for another extension, Doc. 31, and the court granted the motion and extended the deadline to September 14, Doc. 32. September 14 came and went; Navarro did not file a response, nor did he move for another extension.

On October 6-the day before the scheduled hearing on Defendants' motion to dismiss, ibid.-Navarro moved for leave to file instanter a response to Defendants' motion. Doc. 36. Navarro contends that his tardiness should be excused due to (1) his counsel's unspecified “issues with email”, which caused him to miss the court's order setting September 14 as the most recent deadline, and (2) his counsel's numerous (and likewise unspecified) conflicts with deadlines for and obligations to other clients. Id. at 1. At the motion hearing, Doc. 38, Navarro's counsel explained that, due to the email error, he did not become aware until later in September of the court's order extending his response deadline to September 14. Navarro's counsel further explained that he did not then file a response brief or move for an extension because he was busy working on other clients' cases.

It is best to consider Navarro's motion for leave to file instanter as a request for an extension of time to respond to Defendants' motion to dismiss. See Keeton v. Morningstar, Inc., 667 F.3d 877, 883 (7th Cir. 2012) (treating a late motion for leave to file instanter a summary judgment response as a motion to extend the deadline for filing the response). Rule 6(b)(1)(B) provides that when a party moves to extend a deadline that has already passed, the court must deny the motion unless the movant can show that the failure to meet the deadline was the result of “excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). The determination whether a party's neglect is excusable is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 395 (1993) (interpreting a parallel provision of the Bankruptcy Rules); see also Flint v. City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015) (applying Pioneer's definition of “excusable neglect” to Rule 6(b)(1)(B)); Global Tech. & Trading, Inc. v. Tech Mahindra Ltd., 789 F.3d 730, 732 (7th Cir. 2015) (same); Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir. 2006) (“We have held that Pioneer applies whenever ‘excusable neglect' appears in the federal procedural rules.”). Relevant circumstances include “the danger of prejudice to the [non-movant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Pioneer, 507 U.S. at 395; see also Raymond, 442 F.3d at 606.

Navarro's excuses for his late motion do not satisfy this standard. That a lawyer is busy with other cases does not excuse him from proactively seeking an extension to an impending deadline. See Keeton, 667 F.3d at 883 (rejecting the argument that a lawyer's other professional commitments excused his failure to timely move to extend a deadline); Harrington v. City of Chicago, 433 F.3d 542, 548 (7th Cir. 2006) (“[I]t is widely accepted that neglect due to a busy schedule is not excusable.”). Nor does Navarro's counsel's underexplained email issue justify an extension to the deadline. Counsel knew that the original deadline was August 17; that is why he sought (and the court granted) the first extension. Counsel then knew that the new deadline was September 7; that is why he sought (and the court granted) a second extension. That counsel (supposedly) did not see the most recently set September 14 deadline due to an email glitch does not excuse failing to seek another extension until October 6. If counsel really did not see the order extending the deadline to September 14, then he should have thought that the deadline remained September 7 and filed his response or sought an extension by that date. Because he did not do so until October 6, counsel's email issue does not constitute excusable neglect. See Johnson v. Gudmundsson, 35 F.3d 1104, 1111 (7th Cir. 1994) (affirming a district court's denial of a late motion for leave to file a response to a summary judgment motion where counsel invoked as excuses “the combination of an erroneous entry in his diary, a computer glitch, a miscommunication at his office, and his mother's illness”); Ammons-Lewis v. Metro. Water Reclamation Dist. of Greater Chi., 2012 WL 6019013, at *2 (N.D. Ill. Nov. 30, 2012) (rejecting the argument that computer problems excused a lawyer's late motion where the lawyer could have moved for an extension prior to the deadline). Accordingly, Navarro's motion to file instanter is denied.

II. Defendants' Motion to Dismiss

With his motion to file instanter denied, Navarro is left without a...