Opinion
Civ. No. 99-1019 (DRD).
February 13, 2001.
John Novella, Esq., Law Offices of Robert A. Olkowitz, P.C., Red Bank, New Jersey, Attorneys for Plaintiff.
Robert J. Cleary, Esq., United States Attorney, Peter J. O'Malley, Esq., Assistant U.S. Attorney, Newark, New Jersey, Attorneys for Defendant.
O P I N I O N
Defendant Commissioner of Social Security brings the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting that the court does not have subject matter jurisdiction over this case because the complaint was not filed timely. For the reasons set forth below, defendant's motion will be granted.
On March 5, 1997, the Appeals Council denied plaintiff's request for review of the Administrative Law Judge's denial of his claim for disability insurance benefits and supplemental security income benefits. That decision by the Appeals Council rendered the Administrative Law Judge's decision the "final decision" of the Commissioner, allowing for judicial review within sixty days of receipt by plaintiff. 42 U.S.C. § 405(g). Based on the March 5, 1997 date, plaintiff must have commenced his civil action on or before May 10, 1997, in order for it to have been considered timely.
Plaintiff did not commence a civil action on or before May 10, 1997. Rather, plaintiff filed a complaint on June 3, 1997, not quite four weeks after the May 10, 1997 cut-off date. Simultaneously with the filing of the complaint, plaintiff made a motion to file the complaint Nunc Pro Tunc, which was accompanied by an affidavit from plaintiff's attorney attesting that although the action was not commenced within the statutorily prescribed sixty days, the failure to do so was due to the fact that the attorney's office lost its secretary responsible for transcribing and word processing Social Security files and as a result plaintiff's file was overlooked. On October 13, 1998, plaintiff's complaint was dismissed without prejudice for failure to effect service within the required 120 days. Plaintiff's motion to file the complaint Nunc Pro Tunc was never addressed. On March 5, 1999, the complaint in the instant matter was filed, addressing the same subject matter as the 1997 complaint.
Plaintiff asserts that the complaint should not be dismissed because failure to file the complaint within sixty days was due to "excusable neglect" pursuant to Federal Rule of Civil Procedure 6(b). Moreover, plaintiff contends that justice demands that a blameless party not be disadvantaged by errors or neglect of his attorney.
Federal Rule of Civil Procedure 6(b)(2) permits a court to enlarge the time to respond to a deadline "where the failure to act was the result of excusable neglect." The Supreme Court has stated that the determination of whether one party's neglect to adhere to a deadline is excusable should take into account all relevant circumstances surrounding the delay. Pioneer Invest. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 395 (1993). Relevant factors include: "the danger of prejudice to the [nonmovant], the length of 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." Id. The Court then went on to examine whether the asserted reason for the delay in the case before it was "excusable." Id. In addition to the factors enumerated by the Supreme Court, the Third Circuit has added the following factors: "(1) whether the inadvertence reflected professional incompetence such as ignorance of the rules of procedure, (2) whether an asserted inadvertence reflects an easily manufactured excuse incapable of verification by the court, 3) counsel's failure to provide for a readily foreseeable consequence [and] 4) a complete lack of diligence."Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988).
The Court was actually analyzing "excusable neglect" under Bankruptcy Rule 9006(b)(1). Finding that Rule 9006(b)(1) was patterned after Fed.R.Civ.P. 6(b), the Court reviewed 9006(b)(1) in light of Rule 6(b) and case law considering Rule 6(b). 507 U.S. at 391 .
Applying the Pioneer factors to the present case, there is no danger of prejudice to defendant, the complaint was filed approximately four weeks late, and there is no reason to believe that plaintiff acted in bad faith. Applying the Dominic factors: the failure to file was not a result of ignorance of the rules and there is no reason to believe that plaintiff's counsel manufactured the excuse. Although the failure to file timely does not necessarily reflect a complete lack of diligence (because the complaint was filed eventually, albeit four weeks after the deadline for filing), it seems that counsel failed to provide for the readily foreseeable consequence that changes in office staff would affect the functioning of the office.
Additionally, the holding in Pioneer requires assessment of plaintiff's asserted reason for the delay in filing his complaint. For the reasons set forth by the Supreme Court in Pioneer, plaintiff has not established that failure to file within sixty days was the result of excusable neglect such that would justify enlargement of the time to file. Plaintiff argues that a change in his attorney's personnel staff caused his file to be overlooked. That rationale is identical in nature to the Pioneer respondent's argument that upheaval in its attorney's office constituted "excusable neglect" — an argument that the Supreme Court explicitly rejected: "we give little weight to the fact that counsel was experiencing upheaval in his law practice
. . . ." 507 U.S. at 398. Similarly, in 44 Liquormart, Inc. v. Rhode Island, 940 F. Supp. 437, 441 (R.I. 1996), the court rejected an argument for enlargement of time, finding that changes in law office staff that resulted in the misplacement of certain documents did not amount to excusable neglect. Therefore, plaintiff has failed to show sufficient reason to enlarge the time for filing of his complaint.