Commercial Litigation and Arbitration

Excusable Neglect (Untimeliness) — Factors — Departure from Local Rules

The defense filed two motions for summary judgment in Nesselrotte v. Allegheny Energy, Inc., 2009 U.S. Dist. LEXIS 8232 (W.D. Pa. Jan. 30, 2009), and plaintiffs’ counsel failed to respond in a timely fashion to one of the two statements of undisputed material facts (“SUMF”), filed pursuant to local rule in connection with the motions. Plaintiffs’ counsel realized his error after reply briefs were filed and sought leave to respond to the unaddressed SUMF:

Rule 6(b)(1)(B) provides that "when an act may or must be done within a specified time, the court may, for good cause, extend the time on motion made after the time has expired if the party failed to act because of excusable neglect." FED. R. CIV. P. 6(b)(1)(B). "[T]he determination of whether a party's neglect is excusable has been held to be an equitable determination, in which [courts] are to take into account all the relevant circumstances surrounding a party's failure to file timely." In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143, 153 (3d Cir. 2005). In considering whether a party's neglect is excusable, the Supreme Court has directed courts to look specifically to 1) the danger of prejudice to the opposing party, 2) the length of delay and its potential impact on the proceedings, 3) the reason for the delay, and 4) whether the movant acted in good faith. Pioneer Inv. Serv. Co. v. Brunswick Assocs. P'ship, 507 U.S. 380, 395 (1993).


B. Departure from the Local Rules

In allowing Plaintiff to file an out of time response to SUMF-123, the Court is departing from Local Rule 56.1(C). However, it is within this Court's discretion to deviate from a local rule when there is "a sound rationale for doing so" and where it "does not unfairly prejudice a party who has relied on the local rule to his detriment." United States v. Eleven Vehicles, 200F.3d203,215 (3dCir. 2000). As Plaintiff'’s failure to respond was due to her counsel's lack of diligence, not her own, it would be unjust to have facts deemed admitted that could potentially negatively impact Ms. Nesselrotte's [plaintiff’s] opposition to Defendants' motion for partial summary judgment. In addition, allowing Ms. Nesselrotte to file a response to the statement of facts will not unfairly prejudice Defendants. Cf. Adams v. Gould, Inc., 739 F.2d 858, 869 (3d Cir. 1984) (where incurring additional attorneys fees was the only prejudice defendants would suffer if plaintiffs amended their complaint, plaintiffs should have been granted leave to amend). Although Defendants will likely incur additional expense in replying to Plaintiff's response and supplementing their reply brief, none of Defendants' substantial rights will be "unfairly jeopardized." Eleven Vehicles, 200 F.3d 203 at 215.

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