Opinion
Civil Action No. 01-4936
July 29, 2002
MEMORANDUM
Plaintiff Securities and Exchange Commission ("the Commission") filed its complaint in this action on September 28, 2001. Service was effected as to defendants Gilbert Merrell Wynne, Orthodox Church of Jesus Christ, Inc., Kingdom Growth Fund, Ltd., and Kingdom Financial Services on January 23, 2002 in accordance with the time limit set forth in Federal Rule of Civil Procedure 4(m); the aforementioned defendants therefore had until February 12, 2002 to file an answer. On February 5, defendants Gilbert Merrell Wynne, Orthodox Church of Jesus Christ, Inc., and Kingdom Growth Fund, Ltd. ("the moving defendants") filed a "Motion to Enlarge Time to File an Answer to February 26, 2002," which was granted as unopposed by Order dated February 14. No answer was filed by this extended deadline. On February 28, 2002, the same moving defendants filed a second motion for enlargement of time, captioned "Motion to Enlarge Time to File an Answer For an Additional Thirty (30) Days to March 27, 2002." That motion is the subject of this Memorandum and Order. On March 5, 2002, the Commission opposed the motion on the ground that the moving defendants have not shown that their failure to abide by this court's deadlines was the result of "excusable neglect." The moving defendants thereafter indicated to the court their intention of filing a reply to the Commission's opposition; however, in the month that has since elapsed, the moving defendants have undertaken no further communication with the court.
As the instant motion was filed two days after the moving defendants' answer was due, it is governed by Federal Rule of Civil Procedure 6(b)(2). The Rule provides:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion . . . upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
Fed.R.Civ.P. 6(b) (emphasis added). Thus, the instant motion may be granted if the moving defendants' tardiness is due to "excusable neglect." The Supreme Court gave a broad construction to this phrase in the case of Pioneer Investment Services Co. v. Brunswick Assoc. LP, 507 U.S. 380 (1993), declaring: "Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute 'excusable' neglect, it is clear that 'excusable neglect' under Rule 6(b) is a somewhat 'elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Id. at 392 (quoting 4A Wright Miller, Federal Practice and Procedure § 1165, p. 479 (2d ed. 1987)). The Court elaborated:
Although the Pioneer Court was primarily concerned with Federal Rule of Bankruptcy Procedure 9006(b)(1), it not only discussed Rule 6(b) explicitly in the course of explicating its holding, but also made it clear that its ultimate interpretation of "excusable neglect" in the context of Rule 9006(b)(1) was also applicable to Rule 6(b). See Pioneer, 507 U.S. at 391.
Because Congress has provided no other guideposts for determining what sorts of neglect will be considered "excusable," we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include, as the Court of Appeals found, the danger of prejudice to the debtor, 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.Id. at 395. It is incumbent upon the moving party to allege specific facts in support of a finding of excusable neglect. See RR Caribbean, Inc. v. Dredge "Jumby Bay," 147 F. Supp.2d 378, 382 n. 8 (D. Virgin Islands, 2001) () (citing United States v. $55,518.05 in U.S. Currency, 728 F.2d 192 (3d Cir. 1984)).
In this case, the moving defendants advance their motion on two grounds. First, they assert that neither the Commission nor the court would be prejudiced by further delay. See Def.'s Mot. ¶ 4. Second, they contend that "the most important reason for the additional time is that it will permit defendants an opportunity to reach a settlement of this matter." Id. at ¶ 6. They also refer the court to their previous motion of February 5 by asserting that "[t]he additional time is necessary to facilitate the purposes of [the] original motion," id. at ¶ 3; however, the reference does not add anything as the February 5 motion was likewise based on their interest in pursuing settlement, see Def.'s Mot. of 2/5/02 ¶ 5.
As at least one of the moving defendants appears to be proceeding pro se, and as denial of the motion would foreclose any opportunity for this action to be decided on the merits, it seems fair to allow the moving defendants some latitude. On the other hand, I have serious reservations as to whether the two aforementioned arguments, standing alone, are sufficient to establish a finding of excusable neglect. Although the moving defendants requested an additional thirty days in which to answer the complaint, to March 27, 2002, they will receive the benefit of fourteen days from the date of this Memorandum and accompanying Order. As the accompanying Order makes clear, this court will not entertain further motions for extensions of time beyond that date.
ORDER
Upon consideration of the "Motion to Enlarge Time to File an Answer For an Additional Thirty (30) Days" by defendants Gilbert Merrell Wynne, Orthodox Church of Jesus Christ, Inc., and Kingdom Growth Fund, Ltd., and the opposition thereto by plaintiff Securities and Exchange Commission, and for the reasons articulated herein, it is hereby ORDERED that:
(1) The moving defendants have an additional fourteen (14) days from the date of this Order in which to answer the Complaint;
(2) In the event that the moving defendants have not filed an answer within this time limitation, default judgment will be granted to plaintiff.