Procedural Untimeliness Forgivable on Grounds of “Excusable Neglect” under Rule 6(b)(1) — Factors — Delay Caused by Obtaining Needed Permission to File Affidavit

From Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 2011 U.S. Dist. LEXIS 4768 (S.D.N.Y. Jan. 14, 2011):

***Dongbu argues for the exclusion of the Declaration of Erik Gijbels because it was untimely under Local Civil Rule 6.1. *** Cedar concedes that the Gijbels Affidavit is untimely but argues that the untimeliness "did not unfairly prejudice Dongbu and is substantially justified." *** Cedar argues that the affidavit's late filing was "due to unforeseen circumstances outside of Cedar's control" because Mr. Gijbels required approval from several parties before executing the affidavit, and these parties delayed in granting that authorization. ***. Cedar also notes that the substance of this declaration was "fully set forth" in Cedar's memorandum in opposition to Dongbu's motion for sanctions. ***

Untimeliness in purely procedural matters may be forgiven on grounds of "excusable neglect.'" Lee v. ITT Standard, 268 F. Supp. 2d 315, 329-30 (W.D.N.Y. 2002) (quoting Fed. R. Civ. P. 6(b)(1)(B)), report and recommendation adopted by Estate of Lee v. ITT Standard, 268 F. Supp. 2d 356 (W.D.N.Y. 2003). While instances of "excusable neglect" are "'not limited strictly to omissions caused by circumstances beyond the control of [the] movant,'" LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (quoting Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 392 (1993)), they certainly can encompass such instances. And indeed, the concept of "excusable neglect" "may encompass delays caused by inadvertence, mistake, or carelessness, at least when the delay was not long, there is no bad faith, there is no prejudice to the opposing party, and movant's excuse has some merit." LoSacco, 71 F.3d at 93 (internal quotation marks and citations omitted). Here the delay was, at worst, caused by the plaintiff's carelessness in failing to plan ahead for the execution of the Gijbels Affidavit. There are no allegations of bad faith, and there is at least some merit to the plaintiff's contention that the delay in execution of the affidavit was outside its control. *** Finally, there is no prejudice to Dongbu; the affidavit makes straightforward factual assertions that are summarized in Cedar's memorandum in opposition to Dongbu's sanctions motions. See Lee, 268 F. Supp. 2d at 329-30 (admitting late deposition papers where they were omitted by inadvertence and "previously referenced" in papers to which they should have been annexed such that other party had opportunity to respond to related arguments). Therefore, the Gijbels Affidavit may properly be considered.

Share this article:


Recent Posts