United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
E. WIER, UNITED STATES MAGISTRATE JUDGE.
January 30, 2018, the Court ordered Defendant Chrisman Mill
Farms, LLC (CMF), to file “a motion concerning all
discovery topics in dispute . . . within 10 days.” DE
#79, at 1. That deadline passed, and CMF made no filing.
Later, on February 16, 2018, Defendant, without seeking or
receiving Court authorization, filed such a discovery motion,
a week tardy. See DE #80 (Motion to Compel). The
Court, thus, ordered CMF to show cause “concerning its
lack of compliance with DE #79 and why the Court should not
dismiss DE #80 as untimely filed.” DE #81 (Order). CMF
responded. DE #84. Plaintiff then responded to DE #80,
seeking timeliness-based dismissal. DE #87 (Response). The
matter is ripe for consideration.
District recently reminded litigants, “deadlines are
important things. [W]hen the Court establishes deadlines, the
parties are obliged to follow them. If a party attempts to
file an untimely motion, the Court will not blithely
[evaluate] it without considering the reasons for the
delay.” Century Indem. Co. v. Begley Co.,
___F.Supp.3d___, No. 5:17-cv-138-JMH, 2018 WL 272576, at *1
(E.D. Ky. Jan. 3, 2018). Specifically, under Rule 6, as to an
expired deadline, the Court “may” extend the time
“for good cause, ” but only “on motion made
after the time has expired if the party failed to act because
of excusable neglect.” See Fed. R. Civ. P.
6(b)(1)(B) (“When an act may or must be done within a
specified time, the court may, for good cause, extend the
time: . . . (B) on motion made after the time has expired if
the party failed to act because of excusable
neglect.”). CMF nowhere in DE ##80 or 84 addresses the
standards of Rule 6.
neglect is an equitable balance of five factors: (1)
prejudice to the nonmoving party; (2) length of delay and
potential impact on judicial proceedings; (3) reason for the
delay; (4) whether the delay was within the reasonable
control of the moving party; and (5) whether the late-filing
party acted in good faith. See Nafziger v. McDermott
Int'l, Inc., 467 F.3d 514, 522 (6th Cir. 2006)
(citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 113 S.Ct. 1489 (1993)); see also, e.g.,
Howard v. Nationwide Prop. & Cas. Ins. Co., 306 F.
App'x 265, 266-67 (6th Cir. 2009) (“The
determination of excusable neglect is an equitable one,
taking account of all relevant circumstances surrounding the
party's omission.”). Although mostly unaided by
Movant, the Court considers each factor in turn.
Court, in these circumstances, sees prejudice to Plaintiff.
Indeed, Blazer directly asserted that he “is prejudiced
by CMF's late filing in numerous ways.” DE #87, at
5. Specifically, Blazer says that if CMF had timely filed,
the parties “might have been able to rectify some of
the issues complained of by CMF.” Id. Further,
Blazer bemoans the discovery period now being
“closed” and, instead of responding to the motion
to compel on the merits, having “to devote its
[o]pposition to the timeliness of CMF's [m]otion.”
Court adds the following additional observations. The Court
set a particular motion filing deadline, which CMF let pass
with no action. Blazer surely (as the Court did) then
presumed that either (1) the parties had resolved their
disputes or (2) CMF made an election, in the rough and tumble
of litigation, to drop contestation of the issues. The Court
designed the 10-day motion deadline, a period that ended on
February 9, 2018, to tee the issues up in advance of the
overall fact discovery cutoff, February 16, 2018.
See DE #26, at 3. Instead, CMF ignored the
Court's Order, let the issues fester, and bided its time
until arrival of the discovery deadline itself to file the
motion to compel. This disrupted (or could have disrupted)
the imposed schedule, the orderly progression of the
litigation, Blazer's expectations, and the Court's
surprised Blazer with a discovery motion a week after the
deadline to file passed, and on the day that discovery in the
case ended. Blazer, thinking any potential need to defend
against discovery disputes had abated, see DE #87,
at 5, now faces prejudice in having to brief and defend the
issues anew-post-filing-deadline, and post-discovery-close-in
the forms of, for instance, (1) unexpected time to be spent
on the issues instead of, for example, preparing for the
upcoming Markman hearing; (2) additional money
expended in paying counsel to litigate the issues, which he
thought had been dropped; and (3) the very surprise and
disruption itself inherent in noncompliance with a case
deadline. See, e.g., Cooper v. Shelby Cnty.,
Tenn., No. 07-2283-STA-cgc, 2010 WL 1780139, at *5 (W.D.
Tenn. Apr. 29, 2010) (countenancing “incur[ring]
additional expense” as a prejudice marker); EQT
Prod. Co. v. Magnum Hunter Prod., Inc., No.
5:16-CV-150-JMH-REW, 2017 WL 2295906, at *4 (E.D. Ky. May 25,
2017) (“Simply put, there is harm in case disruption,
paired with the attendant negative effects on the
non-defaulting and innocent party.”). The prejudice
factor, thus, weighs against finding excusable neglect.
of Delay / Impact on Proceedings.
length of the delay, as the Court has recounted, was one
week-a week of unwarranted disruption and delay in the
orderly progression of the case. Further, as the Court just
described, that week was an important one in view of the
overall schedule. CMF elected to postpone litigation of the
discovery issues until the date of the discovery cutoff
itself, a meaningful period of delay vis-à-vis the
other case proceedings-and one that threatens to cause
further delays in case resolution, as the appropriate times
for a Markman hearing and other case events quickly
approach. See, e.g., Pogue v. Nw. Mut. Life Ins.
Co., 2016 WL 3124649, at *4 (W.D. Ky. June 1, 2016)
(bemoaning the “further delays in the progression of
this case” that permitting the late filing would
engender). This factor, too, although to a slightly lesser
degree, in the Court's view, weighs against finding
for the Delay.
Sixth Circuit has noted that this factor has “the
greatest import” in the excusable neglect inquiry.
Morgan v. Gandalf, Ltd., 165 F. App'x 425, 429
(6th Cir. 2006). Despite this factor's “always
critical” nature, id., CMF did not address
timeliness whatsoever (and, thus, did not even attempt to
justify the filing delay) in DE #80. In DE #84, CMF states
that the reason for the delay was simply that the deadline
“had been calendared incorrectly in counsel's
system.” Id. at 1.
counsel's negligence-inadvertence, pure and simple-in
failing to accurately keep track of and account for case
deadlines, especially given the intensity of the litigation
surrounding these discovery issues, militates strongly
against an excusable neglect finding. See, e.g.,
Allen v. Murph, 194 F.3d 722, 724 (6th Cir. 1999)
(“[A] fair-minded judge could easily find that the
carelessness of th[is] attorney . . . was
inexcusable.”). The Court does not lightly excuse such
carelessness. Simply put, “attorney error or
inadvertence will not ordinarily support a finding of
excusable neglect, ” Morgan, 165 F. App'x
at 429, and the Court sees no reason to come to a different
conclusion on these facts, involving straightforward and
unjustified attorney deadline mis-calendaring. See,
e.g., Shorette v. Harrington, 234 F. App'x
3, 5 (2d Cir. 2007) (holding a “law office calendaring
error” not sufficient for an excusable neglect
finding); In re Cade, 552 B.R. 800, 806 (Bankr. S.D.
Ohio 2014) (“In considering a request to extend a
deadline which asserts that miscalendaring the date
constitutes excusable neglect, numerous courts have found to
the contrary and held that miscalendaring a deadline does not
constitute excusable neglect.” (collecting cases));
Gohl v. Livonia Pub. Schools, No. 12-cv-15199, 2016
WL 2848421, at *2 (E.D. Mich. May 16, 2016)
(“[C]ounsel's inadvertence in calendaring the clear
and unambiguous deadline . . . does not constitute excusable
neglect.”); Halmon v. Jones Lang Wootton USA,
355 F.Supp.2d 239, 242 (D.D.C. 2005) (calling mis-calendaring
a “lame excuse” for tardy filing). This scenario
appears to be “nothing more than a classic example of
attorney error[, and] the federal courts are practically
unanimous in holding that . . . attorney error is not
‘excusable neglect.'” Peake v. First
Nat'l Bank & Trust Co. of Marquette, 101 F.R.D.
544, 546-57 (W.D. Mich. 1984).
the Delay was within ...