Opinion
HHDCV106008121S
02-19-2019
MEADOWBROOK CENTER, INC. v. Robert BUCHMAN
UNPUBLISHED OPINION
Wahla, J.
ISSUE
At present before the court is the plaintiff’s motion to reargue and/or reconsider (Docket Entry # 196) the court’s memorandum of decision regarding "Excusable Neglect" dated September 14, 2018 . The plaintiff contends that the court has misconstrued the applicable standard to be applied. The defendant filed an objection to the plaintiff’s motion, asserting that the plaintiff has not met its burden of justifying the re-arguments and/or reconsideration (Docket Entry # 197). Having heard the oral arguments and carefully considered the briefs as well as the record, the court has concluded that it has not misconstrued the applicable standards. The motion to reargue and /or reconsideration is therefore hereby denied.
PROCEDURAL CONTEXT
Relevant parts of the court’s Memorandum of Decision Re: Excusable Neglect, dated September 14, 2018, are adopted and re-incorporated herein not for repetition but only for the purposes of ‘context.’ (Docket Entry # 195). The issue presented before the court was whether the trial court may exercise its discretion and determine whether there was excusable neglect in filing a motion for attorneys fees, under the statute authorizing the same to a prevailing party in a consumer contract action, more than thirty days after judgment was rendered for the defendant, Robert Buchman. Meadowbrook Center, Inc., (the plaintiff), the nursing home facility, filed an action against Robert Buchman, (the defendant), the "responsible party" for the nursing home resident for breach of contract and promissory estoppel. Judgment was rendered for the defendant. Given that the motion was filed only five days beyond the deadline, and there was no prejudice to the nursing home, or any allegation of bad faith, the court, in the due exercise of its discretion, found that the late filing was excusable.
On October 2, 2018, the plaintiff filed a motion to reargue and/or reconsider the court’s ruling dated September 14, 2018 (Docket Entry # 196). On October 10, 2018, the defendant filed an objection to the plaintiff’s motion to reargue and/or reconsider (Docket Entry # 197). On November 9, 2018, the court heard arguments from the parties’ regarding their respective motions.
Before addressing the issues raised in these motions, (Docket Entry # 196, # 197), the court here again adopts the prior procedural posture for the purposes of context .
This case has been in litigation since 2010, and has a protracted and tortuous litigation history of eight years. The parties are well versed with the facts of the case. Therefore, the court will not engage in rehashing those facts. However, the court will borrow the background as stated by the Supreme Court, which quoted language from the Appellate Court: "The plaintiff, [Meadowbrook Center, Inc., a nursing home facility, ] brought an action against the defendant, [Robert Buchman, ] based on contract and promissory estoppel relating to its care of the defendant’s mother. The admission agreement executed by the plaintiff and the defendant, as a responsible party, contained a clause providing for the responsible party to pay the cost of collection, including reasonable attorneys fees, in the event an overdue account is referred to an agency or attorney for collection. Following a trial to the court, Hon. Robert J. Hale, judge trial referee, judgment was rendered for the plaintiff in the sum of $ 47, 561.15 with attorneys fees to be decided postjudgment. [The defendant appealed and] [o]n appeal ... [the Appellate Court] reversed the judgment and remanded the case to the trial court with direction to render judgment in favor of the defendant. Meadowbrook Center, Inc. v. Buchman, 149 Conn.App. 177, 212, 90 A.3d 219 (2014) ... [O]n April 30, 2014, the court, Robaina, J., rendered judgment for the defendant ... [o]n June 4, 2014, the thirty-fifth day after judgment, the defendant filed a motion for attorneys fees and costs. On April 7, 2015, the [Superior court Wahla, J.] issued its decision denying the defendant’s motion for attorneys fees on the basis that the motion was not timely." (Internal quotation marks omitted.) Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586, 588-90, 181 A.3d 550 (2018). "The defendant appealed ... Accordingly, the Appellate Court, [169 Conn.App. 527, 151 A.3d 404 (2016), aff’d, 328 Conn. 586, 181 A.3d 550 (2018) ], reversed the judgment of the trial court and remanded the case ..." Id., 590-92, 181 A.3d 550. The nursing plaintiff appealed. Id., 592, 181 A.3d 550.
On April 17, 2018, the Supreme Court affirmed the Appellate Court’s decision and remanded the case for a hearing on the defendant’s motion on the ground that the trial court improperly failed to exercise its discretion "to determine whether strict adherence to the rule [in Practice Book § 11-21] would work ‘surprise or injustice.’ Practice Book § 1-8." (Internal quotation marks omitted.) Meadowbrook Center, Inc. v. Buchman, 169 Conn.App. 527, 540, 151 A.3d 404 (2016).
On June 22, 2018, the court held a hearing as directed by the Supreme Court’s remand.
It is worthwhile to note here the timeline, as well as the actions and the conduct of the plaintiff, after the Connecticut Supreme Court’s ruling (Docket Entry # 177.10) was handed down in April 2018. The defendant filed a motion for bill of costs (Docket Entry # 178) and motions for counsel fees (Docket Entry # 181, # 182). Between May 14, 2018, and May 18, 2018, the defendant filed motions for immediate hearing (Docket Entry # 183, # 184, # 185, # 186 and # 187). All of these motions addressed attorneys fees and costs.
On May 21, 2018, the court entered an order and scheduled a hearing to be held on June 22, 2018. The plaintiff took no action whatsoever from May 21, 2018 through June 21, 2018.
On June 21, 2018, the night before the hearing, the plaintiff filed an objection to the attorneys fees and costs (Docket Entry # 189).
On June 22, 2018, the day scheduled for the hearing for the attorneys fees and costs, the defendant’s attorney made an oral motion asserting that the plaintiff’s objection to the attorneys fees and costs, filed less than 24 hours prior to the scheduled hearing, was untimely and by no means qualified as a good faith effort and should not, therefore, be considered by the court.
A review of the plaintiff’s objection to the defendant’s motion for attorneys fees (Docket Entry # 189) reveals that the phrase "excusable neglect " is mentioned only twice in the entire motion, once in the caption of paragraph A and once in the conclusion section of the motion. No ‘four point test’ and /or federal case law, as it had presently become the sole and primary focus of plaintiff’s motion to reargue and reconsider, is mentioned in the motion.
The court would have denied the plaintiff’s objection to the defendant’s motion for attorneys fees (Docket Entry # 189) as untimely and proceeded on the defendant’s motions for attorneys fees and costs, but for the sake of fairness and going the extra mile, the court permitted the plaintiff to proceed and ask the testifying witnesses about the excusable neglect. Attorney Brignole testified at the subject hearing and was thoroughly questioned and cross examined by the parties.
On July 23, 2018, the parties submitted their post-hearing briefs. On September 14, 2018, the court issued its memorandum of decision, finding, in the due exercise of its discretion, that, from the totality of facts and circumstances, the case and the court finds that the late filing is excusable. The plaintiff filed a motion for re-argument and/or reconsideration on the ground that the court misconstrued the standard to be applied. The defendant filed an objection, in which it argued that the plaintiff, through its motion for reconsideration and reargument was wrongfully attempting to have a "second bite of the apple." Def.’s Obj. and Mem. in Opp. Pl.’s Mot. Rearg. (Docket Entry # 197.) See C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n.39, 919 A.2d 1002 (2007) ("a motion to reargue is not a device to obtain a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument").
STANDARD OF REVIEW FOR REARGUMENT/RECONSIDERATION
"[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ... It also may be used to address ... claims of law that the [movant] claimed were not addressed by the court ... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple ..." (Internal quotation marks omitted.) Fortin v. Hartford Underwriters Ins. Co., 139 Conn.App. 826, 843, 59 A.3d 247, cert. granted on other grounds, 308 Conn. 905, 61 A.3d 1098 (2013). "Newly discovered evidence may warrant reconsideration of a court’s decision. However, [f]or evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006).
DISCUSSION
The plaintiff’s motion to reargue and reconsider asserts that this court, through its ruling, has misconstrued the four-part test applied by the Connecticut Supreme Court in Meadowbrook Center, Inc., v. Buchman, 328 Conn. 586, 606, 181 A.3d 550 (2018). The plaintiff specifically contends that this court has shifted the burden to the plaintiff to show ‘prejudice, ’ contrary to the established practice that the burden of proof is on the party seeking to excuse the late filing, here, the defendant, not to show prejudice.
The court notes that the plaintiff’s motion for reargument solely and heavily relies on the ‘four-point’ test for the very first time. As noted above, neither at the hearing of June 22, 2018, nor during the entire ten years’ history of its litigation was the ‘four-point’ test ever mentioned. "[A] motion to reargue cannot be used to correct the deficiencies in a prior motion." See Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001).
The plaintiff again for first time highlights and emphasizes in its motion to reargue that this court misapplied the four-point test as applied by the Connecticut Supreme Court in Meadowbrook Center, Inc., v. Buchman, supra, 328 Conn. 586, 181 A.3d 550. This court has reviewed the subject decision and notes that the Supreme Court has adopted the federal standard in that decision, which reads in relevant part: "In the federal courts, the ‘excusable neglect’ standard is an ‘elastic concept, ’ which implies ‘a determination that is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission ... Factors to be considered in evaluating excusable neglect include [1] the danger of prejudice to the [nonmovant], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith." (Citation omitted; internal quotation marks omitted.) Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003), cert. denied sub nom. Essef Corp. v. Silivanch, 540 U.S. 1105, 124 S.Ct. 1047, 157 L.Ed.2d 890 (2004); see also Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 392-93, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). We adopt the four-factor analysis used by the federal courts because it is consistent with existing Connecticut case law governing a trial court’s exercise of its discretion in determining whether to allow an untimely filing. See, e.g., Kervick v. Silver Hill Hospital, 128 Conn.App. 341, 353-55, 18 A.3d 622 (2011) (considering prejudice to opposing party, length of delay, and reason for delay with respect to untimely motion for summary judgment), rev’d on other grounds, 309 Conn. 688, 72 A.3d 1044 (2013); see also Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998) (General Statutes § 52-592 [a], accidental failure of suit statute, applies if ‘prior dismissal was a ‘matter of form’ in the sense that the plaintiff’s noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect’). As in Connecticut courts, a federal district court’s finding of excusable neglect, permitting a late filing, is reviewed for abuse of discretion. See, e.g., Silivanch v. Celebrity Cruises, Inc., supra, 362; Canfield v. Van Atta Buick/GMC Truck, Inc., supra, 127 F.3d at 250; LoSacco v. Middletown, 71 F.3d 88, 93 (2d Cir. 1995)." Meadowbrook Center, Inc., v. Buchman, supra, 328 Conn. at 606-07.
"The United States Court of Appeals for the Second Circuit ‘sets a high bar for excusable neglect concluding that failure to follow the clear dictates of a court rule will generally not constitute such excusable neglect.’ Sewell v. Lincoln Life & Annuity Co. of New York, United States District Court, Docket No. 11 Civ. 4236 (ALC), 2013 WL 1187431 (S.D.N.Y. March 22, 2013); see Silivanch v. Celebrity Cruises, Inc., supra, 333 F.3d at 366-68; Canfield v. Van Atta Buick/GMC Truck, Inc., supra, 127 F.3d at 250. Nevertheless, federal district courts within the Second Circuit continue to forgive attorneys’ lapses as excusable neglect. See LoSacco v. Middletown, supra, 71 F.3d 93 (District Court did not abuse its discretion by allowing untimely bill of costs); Sewell v. Lincoln Life & Annuity Co. of New York, supra (underestimation of time needed to brief opposition to summary judgment motion was excusable neglect when there was no bad faith, scheduling was not affected, and moving party ‘was not severely prejudiced by the delay’); Laina v. United Cerebral Palsy of New York City, Inc., United States District Court, Docket No. CV 2011-3983 (MDG), 2012 WL 28291 (E.D.N.Y. January 5, 2012) (‘[t]his [c]ourt finds that the [one-day] gap between the deadline of defendant’s answer and its extension motion, the uncertainty ... as to the exact date of that deadline, defendant corporation’s erroneous report to its counsel of the date of service and defendant’s need to consult with its insurance carrier constitute excusable neglect on defendant’s part and valid reasons to extend the time to respond to the complaint’); United States ex rel. Moye v. Strode, 276 F.R.D. 414, 416-17 (D.Conn. 2010) (setting aside default judgment after crediting attorney’s representation that ‘he simply forgot about the answer deadline because he did not write it down’). Id., 607, 181 A.3d 550.
The close review of the foregoing case law highlights the discretion, specific facts of the case, and a determination that is at bottom an equitable one.
The court now addresses the issues raised by the plaintiff’s reargument motion.
1 First Factor: Danger of Prejudice
According to the Supreme Court’s four-factor standard, as noted above, the first factor to consider is the danger of prejudice to the nonmovant. In this case the plaintiff is a nonmovant party. If the defendant had filed the motion on time, there would have been no legal and reasonable basis for the plaintiff to deny payment which was owing and due at that moment in time. The defendant, however, did not move to file the motion on time. The United States Supreme Court has described in Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) that the "determination [of what constitutes ‘excusable’ neglect] is ‘at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission." This court has previously indicated that, in the exercise of the court’s discretion, considering the particular facts and circumstances of this case, the facts weigh in favor of the defendant. Additionally, it must be noted that court is not shifting the burden as the plaintiff incorrectly argues.
2 Second Factor: Length of Delay
The second factor for the court’s consideration is the length of the delay and its potential impact on judicial proceedings. The plaintiff in its motion to reargue and reconsider raises the argument that the court improperly focused on the harm to defendant. In support of its argument, the plaintiff cites Silivanch v. Celebrity Cruises, Inc., supra, 333 F.3d 355 and Grapsas v. North Shore Farms Two, Ltd., Docket No. 2:16-cv-775 (DRH) (ARL), 2018 WL 1136088 at *3, 2018 U.S. Dist. Lexis 32687 at *8 (Feb. 28, 2018, Hurley, J.). The plaintiff concedes that while the court may look into the totality of the circumstances, the case law establishes that the most important factor is the third factor, the reason for the delay, and not the possible loss of rights to the defendant.
The defendant counters that the Connecticut Supreme Court did not assign relative importance to the four factors of the test for determining excusable neglect.
This court reviewed the decision of Grapsas v. North Shore Farms Two, Ltd., supra, 2018 WL 1136088, 2018 U.S. Dist. Lexis 32687. The decision reads, in relevant part: "The Supreme Court has previously laid out a four-part test for to determine ‘excusable neglect.’ Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In Pioneer, the Supreme Court explained that ‘Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.’ Id. The Supreme Court further stated that ‘[t]he ordinary meaning of "neglect" is "to give little attention or respect" to a matter, or, closer to the post for our purposes, "to leave undone or unattended to especially through carelessness ." ’ Id. (quoting Webster’s Ninth New Collegiate Dictionary (1983) (alterations omitted) (emphasis in original)). The Supreme Court ultimately held that the determination of ‘whether a party’s neglect of a deadline is excusable ... is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission [including] ... [1] the danger of prejudice to the [other party], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.’ Pioneer, 507 U.S. at 395, 113 S.Ct. 1489." (Emphasis added.) Grapsas v. North Shore Farms Two, Ltd., supra, 2018 WL 1136088 at *3, 2018 U.S. Dist. Lexis 32687 at *6-7.
The Grapsas decision further states: "The Second Circuit has explained that ‘despite the flexibility of "excusable neglect" ’ and the fact that three of the four factors in the Pioneer test ‘usually weigh in favor of the party seeking the extension, [it] and other circuits have focused on the third factor: "the reason for the delay, including whether it was within the reasonable control of the movant." ’ (Internal quotation marks omitted.) Sillivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003). In other words, even if three of the factors suggest that the moving party should receive an extension, if the reason for the delay was within the reasonable control of the movant, an extension will not necessarily be granted." (emphasis added.) Grapsas v. North Shore Farms Two, Ltd., supra, 2018 WL 1136088 at *3, 2018 U.S. Dist. Lexis 32687 at *7-8.
"The Second Circuit has ‘taken a hard line’ on excusable neglect, finding that while substantial rights may be forfeited if they are not asserted within the established time limits, ‘the legal system would groan under the weight of a regimen of uncertainty in which time limitations were not rigorously enforced[.]’ Id. at 367-68. Moreover, where ‘the rule is entirely clear, we continue to expect that a party claiming excusable neglect will in the ordinary course, lose under the Pioneer test.’ Id. (quoting Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250-51 (2d Cir. 1997)). Courts have found the excusable neglect in the Rule 25 context to include ‘difficulty in appointing an administrator ... where there is a prompt application for such an appointment.’ Kernisant v. City of New York, 225 F.R.D. 422, 428 (E.D.N.Y. 2005). Courts have found that excusable neglect does not include attorney inadvertence or an attorney’s heavy caseload. See, e.g., Steward v. City of New York, No. 04-CV-1509, 2007 U.S. Dist. LEXIS 66824, 2007 WL 2693667, at *6 (E.D.N.Y. Sept. 10, 2007). Courts in the Eastern District of New York have previously declined to find excusable neglect where an administrator did not petition the Surrogate Court for more than six months after plaintiff died, and for more than two weeks after the court issued an order setting forth deadlines for substituting a party. Lungu v. New Island Hospital/St. Joseph Hosp., 2012 U.S. Dist. LEXIS 78815, 2012 WL 3115930, at *2 (E.D.N.Y. 2012) (finding that the administrator provided no explanation for such delay nor did he claim any difficulty in seeking appointment of an administrator). Id. A court in the Southern District of New York has held that the ‘argument for not finding excusable neglect is strengthened by the fact that plaintiff’s heirs were partially at fault in the failure to move to timely substitute parties.’ Zeidman, 122 F.R.D. at 162 (plaintiff’s heir was reluctant to take on role of administrator of plaintiff’s estate until learned she could personally profit, which greatly contributed to delay)." Grapsas v. North Shore Farms Two, Ltd., supra, 2018 WL 1136088 at *3, 2018 U.S. Dist. Lexis 32687 at *8-9.
The review of the forgoing case law weighs in favor of the defendant, as this court has previously concluded. The plaintiff had impliedly conceded in its briefing that three factors i.e., one, two, and four of the test, could easily weigh in favor of the defendant, but asserts that under part three, most defendants will fail. This court disagrees with the plaintiff’s assertion. This court again concludes, as it did previously, that the totality of the circumstances weigh in favor of the defendant.
3 Harm to the Defendant
The third argument the plaintiff raises is that this court improperly focused on the harm to the defendant. This argument has been addressed in number 2 above. The court once again finds, as it did previously, the delay in filing was caused by a number of legitimate factors, previously litigated and ruled on by the Appellate Court. The same factors were argued before the State Supreme Court and were credited by the said court. This court finds that the redundancy undertaken by the plaintiff is for purpose and could be construed in bad faith.
4 Importance of the Third Factor
The last argument the plaintiff raises is that, "[t]he reason for the Delay (The Third Factor) is the most important factor." The plaintiff contends that this court did not address this factor in its memorandum of decision. In support of its argument, the plaintiff again cites Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 356 (2d Cir. 2003) and Falls v. Novartis Pharms, Corp., Docket No. 3:13cv270 (JBA), 2014 WL 3810246, 2014 U.S. Dist. LEXIS 105950 (D.Conn. August 1, 2014).
This court has reviewed these cases and the relevant parts of decisions are as follows: "We have observed: Prior to the Supreme Court’s decision in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), we adhered to a firm rule that the ‘excusable neglect’ standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules ... In Pioneer, however, the Supreme Court established a more liberal standard for determining whether there had been ‘excusable neglect.’ Although Pioneer interpreted ‘excusable neglect’ in the context of Bankruptcy Rule 9006(b)(1), the Court analyzed that term as it is used in a variety of federal rules, including Rule 60(b)(1). For that reason, we have held that Pioneer ’s ‘more liberal’ definition of excusable neglect is applicable beyond the bankruptcy context where it arose. Canfield v. Van Atta Buick/GMC Truck Inc., 127 F.3d 248, 249-50 (2d Cir. 1997) (per curiam), cert. denied, 522 U.S. 1117, 118 S.Ct. 1055, 140 L.Ed.2d 117 (1998) (quoting Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir. 1994) (other citations and internal quotation marks omitted)), cert. denied, 522 U.S. 1117, 118 S.Ct. 1055, 140 L.Ed.2d 117 (1998); see also United States v. Hooper, 9 F.3d 257, 259 (2d Cir. 1993) (applying Pioneer to extensions of time to file notices of appeal under Fed.R.App.P. 4(b), noting that the case ‘draws upon the use of [‘excusable neglect’] in other federal rules, ’ and ‘nothing ... limits its interpretation ... to the Bankruptcy Rules’). In Pioneer, the Supreme Court referred to ‘excusable neglect’ as an ‘elastic concept, ’ 507 U.S. at 392, 113 S.Ct. 1489 (internal quotation marks omitted), implying a determination that is ‘at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission, ’ id. at 395, 113 S.Ct. 1489." Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 365-66 (2d Cir. 2003).
"In the typical case, the first two Pioneer factors will favor the moving party: ‘[D]elay always will be minimal in actual if not relative terms, and the prejudice to the non-movant will often be negligible, since the Rule requires a 4(a)(5) motion to be filed within thirty days of the last day for filing a timely notice of appeal.’ Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir.), cert. denied, 531 U.S. 929, 121 S.Ct. 309, 148 L.Ed.2d 248 (2000). And rarely in the decided cases is the absence of good faith at issue. But despite the flexibility of ‘excusable neglect’ and the existence of the four-factor test in which three of the factors usually weigh in favor of the party seeking the extension, we and other circuits have focused on the third factor: ‘the reason for the delay, including whether it was within the reasonable control of the movant.’ 7 Pioneer, 507 U.S. at 395, 113 S.Ct. 1489. We have noted that the equities will rarely if ever favor a party who ‘fail[s] to follow the clear dictates of a court rule’ and held that where ‘the rule is entirely clear, we continue to expect that a party claiming excusable neglect will, in the ordinary course, lose under the Pioneer test.’ Canfield, 127 F.3d at 250-51 (holding not clearly erroneous the district court’s decision that a lawyer’s failure to file motion papers within the time limit established by a local rule was not excusable neglect under Rule 60(b)); accord United States v. Hooper, 43 F.3d 26, 28-29 (2d Cir. 1994) (per curiam) ("Hooper II ") (affirming denial of Rule 4(b) extension where delay resulted from legal assistant’s ignorance of the rules); Weinstock, 16 F.3d at 503 (affirming denial of Rule 4(a)(5) extension where delay was due to a misunderstanding of the rules, even though the rule in question was ‘a ‘trap’ for the unsuspecting litigant" and had been amended for that reason prior to our decision)." Silivanch v. Celebrity Cruises, Inc., supra, 333 F.3d at 366-67.
In the present case, the facts are distinguishable from those of Canfield, United States v. Hopper, and Weinstock. This court finds that plaintiff’s reliance on Silivanch v. Celebrity Cruises, Inc., supra, 333 F.3d 335 and Falls v. Novartis Pharms, Corp., Docket No. 3:13cv270 (JBA), 2014 WL 3810246, 2014 U.S. Dist. LEXIS 105950 contradicts the rule relied upon by the State Appellate and Supreme Court. To relitigate the issue which has been already adjudicated makes very little sense. The plaintiff’s filing of the same and similar arguments could safely be construed as a deliberate and calculated delay tactics. The plaintiff keeps on arguing time and again that the court failed to analyze the late filing for appellate attorneys fees under Practice Book § 11-21 within 30 days. The Appellate Court had ruled that the 30-day time limit was directory and not mandatory. This court ruled that the delay was excusable neglect.
Additionally, once again, the court has noted that plaintiff engaged in a conduct of overzealousness and redundancy by filing a supplemental motion (Docket Entry # 205.00) which was neither authorized nor requested by the court, after the argument of November 9, 2018. The court has taken notice of this practice with concern.
CONCLUSION
For all of the foregoing reasons, the court hereby denies the motion to reargue and reconsider. The court’s prior decision stands.
The only pending motions before the court are the defendant’s attorneys fees and costs and the plaintiff’s objection to such fees and costs. The court will direct the clerk to schedule hearing on the subject motions.
It is So Ordered.