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Sanders v. Bemis Co., Inc.

United States District Court, E.D. Kentucky, Central Division, Frankfort

August 8, 2017




         Larry Sanders has asked the Court to reconsider its opinion granting summary judgment in favor of his employer, Bemis Company, Inc., on his disability discrimination claim. Sanders maintains he filed an incorrect version of his response to Bemis's summary judgment motion and that the mistake was excusable neglect pursuant to Federal Rule of Civil Procedure 60(b). Sanders also asks the Court to amend its opinion and judgment under Rule 59 to avoid a manifest error of law. For the reasons that follow, the Court DENIES Mr. Sanders' requests.


         Two and a half years ago, Plaintiff Larry Sanders filed suit against his employer Bemis Company, Inc., for employment discrimination. [See R. 1-2.] After both parties completed discovery, Bemis filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 on all of Sanders' claims. [R. 15.] Mr. Sanders sought, and was given, one extension of time to file a brief in response to Bemis's motion. [See R. 16; R. 17; R. 18.] After Sanders sought a second extension, United States Magistrate Judge Edward B. Atkins held a telephone conference with the parties. [R. 20.] During that October 11, 2016, phone conference, Mr. Sanders advised that a computer malfunction had interfered with his preparation of the response brief. [See R. 23.] But despite his initial setback, Sanders indicated his response could be filed by that afternoon. And Magistrate Judge Atkins ordered Sanders to do just that. [Id.]

         The Magistrate's order notwithstanding, Sanders did not file a response by midnight, October 11. Instead, a ten page response brief along with nine attachments and a proposed order appeared in the record the next day, October 12. [See R. 24.] In the filed response, Sanders conceded to the dismissal of every count in his complaint besides the Kentucky Civil Rights Act (“KCRA”) disability discrimination claim. [Id. at 1.] Sanders then discussed the facts of the case, the standard of review for summary judgment motions, and the first prong of a valid claim under the KCRA-namely, that Sanders suffers from a “disability” as defined in the KCRA. [Id. at 8-9.] Sanders did not make an argument with regard to the second and third prongs of a valid KCRA claim: that he requested a reasonable accommodation and that Bemis failed to grant the request. Instead, Sanders referred to those prongs by heading only and then offered a one sentence conclusion at the end of the brief. [Id. at 9-10.]

         Two days later, Bemis replied to Sanders' response and pointed out Sanders' total failure to address relevant prongs of the KCRA test. [R. 25.] In fact, Bemis devoted an entire section of its reply, entitled “Sanders has waived any argument that he requested a reasonable accommodation and that he was denied such an accommodation” to that purpose. [Id. at 5.] And Bemis pointed out the deficiencies in Sanders' response a number of times, in clear language:

[B]y failing to make arguments that he had [ ] requested and was denied a reasonable accommodation, Sanders has waived those arguments. Thus, even if the Court determined that Sanders showed he was disabled, Bemis is still entitled to summary judgment because Sanders has waived his arguments that he requested a reasonable accommodation and that Bemis failed to provide him with one.

[Id. at 8.]

         Subsequently, no significant activity occurred in the case for one hundred eight days.[1]Then, on January 30, 2017, the Court issued a Memorandum Opinion and Order granting Bemis's motion for summary judgment. [R. 27.] The Court also entered judgment in favor of Bemis, cancelled the Final Pretrial Conference and Jury Trial dates, and closed the action. [R. 28.] In its opinion, the Court determined Sanders had failed to demonstrate proof of a “disability” as defined in KRS § 344.010(4). [See R. 27 at 6-11.] And the Court also pointed out Sanders' failure to adequately develop arguments with regard to the remaining elements of his KCRA disability discrimination claim. [Id. at 11-13.]

         Two days later, Sanders filed the present motion to alter or amend the Court's opinion and judgment. [R. 29.] By way of this motion, Sanders' counsel, Mr. Samuel G. Hayward, explains that on the day Magistrate Judge Atkins ordered the response brief be filed, he gave his law clerk permission to act as his agent and to electronically file an approved version of the response and accompanying exhibits. [Id. at 6.] Unfortunately, the law clerk experienced computer trouble between the hours of 8:30 p.m. and midnight on October 11, and the law clerk inadvertently uploaded an incorrect version of the response brief. Mr. Hayward indicates this mistake was “masked” until the Court issued its order granting summary judgment in favor of Bemis. [Id. at 7.] Mr. Sanders now asks the Court to (1) vacate the judgment pursuant to a finding of excusable neglect under Federal Rule of Civil Procedure 60(b), and/or (2) amend the judgment under Federal Rule of Civil Procedure 59(e) because the decision was manifestly unjust.[2] [See Id. at 1-15.]



         Sanders' failure to file an adequate response brief is not grounds for relief under Federal Rule of Civil Procedure 60(b). Rule 60(b)(1) allows a Court to relieve a party from a final judgment because of “mistake, inadvertence, surprise, or excusable neglect, ” and Mr. Sanders maintains excusable neglect is relevant here. But under Sixth Circuit precedent, the excusable neglect threshold is “strict” and “can be met only in extraordinary cases.” Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir. 2005) (quoting Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989)). A movant must first establish his or her failure was indeed a case of “neglect, ” which exists when the failure occurred “because of a simple, faultless omission to act, or because of a party's carelessness.” Id. Then, if the failure was due to neglect, the movant must also establish that it was “excusable.” Id.

         The Supreme Court has outlined five factors for courts to consider when making the equitable determination of whether excusable neglect exists: “(1) the danger of prejudice to the other party, (2) the length of delay, (3) its potential impact on judicial proceedings, (4) the reason for the delay, and (5) whether the movant acted in good faith.” See, e.g., Burnley v. Bosch Americas Corp., 75 F. App'x 329, 333 (6th Cir. 2003); see also Pioneer Invest. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 388 (1993). These five factors are relevant but not controlling where the court's initial decision was on the merits rather than due to procedural default. Burnley, 75 F. ...

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