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Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
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“Excusable Neglect” within Federal Rule of Civil Procedure 6(b) — Unawareness of ECF Message

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From Kucik v. Yamaha Motor Corp., 2009 U.S. Dist. LEXIS 96704 (N.D. Ind. Oct. 16, 2009):

Before this Court can consider the merits of the spoliation argument, it must address a procedural wrinkle that presented itself when the Plaintiff failed to timely respond to the Defendant's Motion to Dismiss. The Plaintiff's counsel advised during a telephone status conference with the Court on September 3, 2009, that he was unaware of the Motion, having not received it despite the CM-ECF system's electronic confirmation of service. The Plaintiff requests that the Court find that his failure to receive notice was the result of mistake, inadvertence, excusable neglect, or clerical error and to consider the merits of his response to the spoliation claim. ....

In the Rule 6(b) context, the Supreme Court has stated that "[a]lthough 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." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 392 (1993) (footnote omitted). Thus, this "elastic concept" may include, under appropriate circumstances, neglect due to simple, faultless omissions to act or carelessness.... The determination of whether the Plaintiff's neglect is "excusable" is ultimately "an equitable one, taking account of all relevant circumstances surrounding the party's omission." ... Those factors include evaluating the danger of prejudice to the non-moving party, the length of delay and its potential impact on the court's proceedings, the reason for the delay, including whether the delay was in the movant's control, and whether the movant acted in good faith....

The Defendant maintains that the electronic CM/ECF receipt confirms that the Plaintiff was served with its Motion to Dismiss and that, because the email was not returned as undeliverable, there exists a presumption that the Plaintiff received the electronic notice. The Defendant notes that the Plaintiff had no prior problems receiving filings and notices from the Court.

Although the presumption is that the CM/ECF notification system is functioning appropriately, and that a notice was generated and sent to the email address provided by the Plaintiff's counsel for service, there is no way for the Court to determine what transpired on the receiving end of the electronic notice. What the Court can say is that if counsel truly did not have notice of the Motion, whether through his own carelessness or otherwise, there would have been no reason for him to file a response. The only way the Plaintiff would have known to respond was if he received the electronic notice or looked at the docket for some other reason and noticed the filing. This is not a case where an attorney lacked knowledge or understanding of the Rules of Procedure or ignored a court-ordered deadline. The record does not support inattentiveness as the reason for the delay because there is nothing that indicates he should have checked the docket sua sponte absent knowledge that a motion was pending. Even if the failure to respond was the Plaintiff's own fault, there is nothing in the record to suggest that he acted with anything other than good faith. There is no indication that the Plaintiff knowingly, wilfully, or purposefully disregarded the response deadline, or that he simply let things go in the case. The Court notes that during the September 3 conference, the Plaintiff's counsel sounded genuinely surprised to learn that a motion to dismiss for spoliation of evidence had been filed and was pending. The fact that the Plaintiff believes he has a meritorious defense to the Motion to Dismiss, yet did not acknowledge the Motion until the hearing (which was scheduled pursuant to a bright-line notice), implies that he did not know about it before the hearing. Otherwise, rather than jeopardize the entire case, he would have filed a response or a motion for additional time to respond. Moreover, the Plaintiff has not missed or ignored any other deadlines in this case. ***

The Court, in its discretion, grants the Plaintiff's request for an enlargement of time to respond to the Motion to Dismiss.

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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