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finding excusable neglect for missing a response deadline due to an inadvertent calendaring error
Summary of this case from EuroChem Trading U.S. Corp. v. GanskeOpinion
CAUSE NO.: 2:10-CV-21-PRC
07-14-2011
JOHN RUIZ, Plaintiff, v. CARMEUSE LIME, INC. d/b/a CARMEUSE LIME & STONE, Defendant. CARMEUSE LIME, INC. d/b/a CARMEUSE LIME & STONE, Third Party Plaintiff, v. ILLINI STATE TRUCKING, INC., Third Party Defendant.
ORDER
This matter is before the Court on Third-Party Plaintiff's Motion to Alter or Amend Order Granting Third-Party Defendant's Motion to Dismiss or In the Alternative, Motion to File Belated Response to Third-Party Defendant's Motion to Dismiss [DE 55], filed by Third Party Plaintiff Carmeuse Lime, Inc. d/b/a Carmeuse Lime & Stone ("Carmeuse") on June 30, 2011. Third Party Defendant Illini State Trucking, Inc. ("Illini") filed a response on July 5, 2011, and Carmeuse filed a reply on July 11, 2011.
Illini filed a Motion to Dismiss on May 18, 2011, seeking dismissal of the Third Party Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). A response brief was due, at the latest, on June 6, 2011. On June 23, 2011, Carmeuse filed a response brief, which the Court struck on June 24, 2011, as untimely pursuant to Local Rule 7.1, which allows a fourteen-day briefing period for motions. On June 23, 2011, the Court issued an Opinion and Order, granting the Motion to Dismiss and dismissing the Third Party Complaint with prejudice.
On June 30, 2011, Carmeuse filed the instant motion, asking the Court to either reconsider the decision granting the Motion to Dismiss, or, in the alternative, to allow Carmeuse to file a belated response brief.
Federal Rule of Civil Procedure 6(b) provides:
(b) Extending Time.
(1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time:
Fed. R. Civ. P. 6(b) (emphasis added). The United States Supreme Court has held that the standard of excusable neglect(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.
is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include . . . the danger of prejudice to the [nonmoving party], 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 Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993).
In this case, the Court finds that counsel for Carmeuse has shown excusable neglect for failing to file a timely response to the Motion to Dismiss. In a sworn affidavit attached to the instant motion, Attorney Jennifer E. Davis explains that the employee hired by the law firm to calendar deadlines and to notify the handling attorney of the deadlines, including the deadline for filing a response to the Motion to Dismiss, was only employed with the firm for one week and is no longer employed with the firm. Counsel further explains that due to an inadvertent calendaring error, the deadline for responding to the Motion to Dismiss was not calendared and neither she nor the primary attorney handling the case were advised regarding the deadline. Furthermore, the attorney primarily assigned to the case left the employ of the law firm on June 9, 2011. Counsel represents that she was not aware of the Motion t o Dismiss until a routine review of pending litigation matters on June 23, 2011. Counsel then immediately prepared and filed a Response at 11:58 p.m. on June 23, 2011.
The danger of prejudice to Illini, the nonmoving party, is minimal because the Motion to Dismiss will be considered on the merits, as it was in the Court's original ruling. The length of the delay is minimal, given that counsel for Carmeuse initially filed (albeit without first filing a motion for leave pursuant to Rule 6(b) and without leave of Court) the response seventeen days after it was originally due and on the same date that the inadvertent error was realized. Although the Court's Order granting the Motion to Dismiss issued the same date as the filing of the response brief, the response brief was docketed prior to the Court's Order; therefore, the response brief was not filed with the benefit of the Court's analysis. To a significant extent, the reason for this delay was within the control of counsel for Carmeuse because both attorneys of record at the time received electronic notification of the filing of the Motion to Dismiss, especially given that the primary attorney assigned to this case did not leave the firm until three days after the response brief was originally due. Nevertheless, given the short tenure of the administrative staff assigned to calendar this case, the departure of the primary attorney assigned to this case, the relatively prompt action taken by counsel to rectify the error, and counsel's good faith in taking the action, excusable neglect has been established.
Federal Rule of Civil Procedure 54(b) provides that
any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.Fed. R. Civ. P. 54(b). Under Rule 54(b), the Court has the inherent authority to reconsider its interlocutory orders because such orders may be revised at any time before the Court enters a final judgment. See Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 (1983) ("every order short of a final decree is subject to reopening at the discretion of the district judge"); Sims v. EGA Prods., Inc., 475 F.3d 865, 870 (7th Cir. 2007) ("nonfinal orders are generally modifiable").
Accordingly, the Court hereby GRANTS in part and DENIES in part as moot Third-Party Plaintiff's Motion to Alter or Amend Order Granting Third-Party Defendant's Motion to Dismiss or In the Alternative, Motion to File Belated Response to Third-Party Defendant's Motion to Dismiss [DE 55], granting the Motion to File Belated Response to Third-Party Defendant's Motion to Dismiss and denying as moot the Motion to Alter or Amend Order Granting Third-Party Defendant's Motion to Dismiss.
The Court hereby VACATES its June 23, 2011 Opinion and Order [DE 50].
The Court DIRECTS the Clerk of Court to reinstate to the docket as pending the Third Party Defendant's Motion to Dismiss Third Party Complaint [DE 44].
The Court further DIRECTS the Clerk of Court to reinstate to the docket the Third Party Complaint [DE 17, 24].
The Court ORDERS Third Party Plaintiff to FILE on or before July 18 , 2011 , the response brief originally filed at docket entry 48 and subsequently stricken by the Court . No new briefing, argument, or changes are permitted to the response brief.
Although no reply brief is necessary, should Third Party Defendant Illini wish to file a reply brief in support of its Motion to Dismiss, the Court GRANTS Illini up to and including July 25 , 2011 , in which to file a reply, if any.
SO ORDERED this 14th day of July, 2011.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT cc: All counsel of record