UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__
)
ROBERT COHEN, )
)
Plaintiff, )
v. )
)
BOARD OF TRUSTEES OF THE ) Civil Action No. 14-754 (EGS)
UNIVERSITY OF THE DISTRICT )
OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Pending before the Court are four motions. First, the
defendants have moved to dismiss this case. See Defs.’ Mot. to
Dismiss, ECF No. 3. Plaintiff failed to oppose that motion and
has filed an untimely motion to extend the deadline for doing
so. See Pl.’s Mot. to Extend (“Mot.”), ECF No. 5. Defendants
oppose the motion for extension. Plaintiff, having failed to
file a timely reply in support of that motion, filed an untimely
motion to extend the deadline for filing that brief. See Pl.’s
Second Mot. to Extend, ECF No. 10. Finally, plaintiff moves to
amend his Complaint. See Pl.’s Mot. to Amend, ECF No. 8.
The Court is conscious of the general presumption in favor of
resolving disputes on their merits. This presumption, however,
cannot overrule legal requirements. To obtain an extension of
time within which to file a timely opposition to the motion to
dismiss, plaintiff must show that his neglect was excusable; he
has failed to do so here. Accordingly, upon consideration of the
pending motions, the responses thereto, the applicable law, and
the entire record, the Court DENIES plaintiff’s motions for
extension of time, GRANTS defendant’s unopposed motion to
dismiss, and DENIES AS MOOT plaintiff’s motion to amend his
complaint.
I. BACKGROUND
This case was filed in the Superior Court of the District of
Columbia on September 9, 2013. See Compl., ECF No. 2-4 at 145–
52. In his initial Complaint, plaintiff alleged that he was
terminated in violation of the collective-bargaining agreement
applicable to his position. Id. at 151–52. On March 14, 2014,
the Superior Court dismissed that claim and gave plaintiff until
April 1, 2014 to file an amended complaint. See Order, ECF No.
2-2 at 198. Plaintiff’s Amended Complaint was filed on April 2,
2014. See First Am. Compl., ECF No. 2-2 at 95–108. Although the
complaint was filed one day late, the Superior Court ultimately
accepted it. See Order, ECF No. 2-1 at 4.1 The First Amended
Complaint raised new claims, including a claim that plaintiff
1
This was not plaintiff’s first failure to meet a deadline. Some
defendants moved to dismiss the initial Complaint on December
19, 2013. See Defs.’ Mot. to Dismiss, ECF No. 2-4 at 27–39.
Plaintiff failed to file a timely opposition and, on January 22,
2014, the Superior Court entered an order permitting him to file
a response by January 27, 2014. See Order, ECF No. 2-4 at 20.
Plaintiff ultimately received an extension of that deadline and
filed his opposition brief.
2
was deprived of his constitutional right to due process. First
Am. Compl., ECF No. 2-2 at 100–06. In light of this federal
claim, the defendants removed the case to this Court on April
30, 2014. See Notice of Removal, ECF No. 1.
Pursuant to Federal Rule of Civil Procedure 81(c)(2),
defendants’ response to the First Amended Complaint was due on
May 7, 2014. That day, the defendants filed the pending motion
to dismiss. See Defs.’ Mot. to Dismiss, ECF No. 3. Pursuant to
Federal Rule 6 and Local Civil Rule 7(b), plaintiff’s opposition
was due on May 27, 2014. He missed that deadline.2 On June 5,
2014, plaintiff moved to extend the deadline for his response to
the motion to dismiss to June 20, 2014. See Mot.3
2
Hours after the motion to dismiss was filed on May 7, 2014,
plaintiff’s counsel filed a document that purported to be a
reply brief in support of a motion to permit the late filing of
his First Amended Complaint. See ECF No. 4. The purpose of this
filing is unclear, as the Superior Court had already accepted
the First Amended Complaint on May 1, 2014. See Order, ECF No.
2-1 at 4. The Court mentions this filing because plaintiff
entitled it a response to the motion to dismiss, but it bears no
relation to the motion to dismiss. See ECF No. 4.
3
On June 20, 2014, plaintiff filed his opposition to the motion
to dismiss. See Proposed Opp. to Mot. to Dismiss, ECF No. 7. The
defendants’ reply in support of their motion to dismiss is
currently due on July 9, 2014, but this ruling obviates the need
for a reply brief. Also on June 20, 2014, plaintiff filed a
motion to amend his Complaint. See Mot. to Amend, ECF No. 8.
That motion is not yet ripe, but this ruling renders it moot.
Moreover, the motion to amend fails to comply with Local Civil
Rule 7(m) because it does not “include . . . a statement as to
whether the motion is opposed.”
3
Mr. King, plaintiff’s counsel, asserts that he failed to file
an opposition brief because, on the day the motion to dismiss
was filed, he “downloaded and opened the document but believed
that the PDF document was incomplete because it appeared to
start on a random page, and the pages that appeared were the
exhibits to the motion.” Id. at 3. Rather than reviewing all
docket entries associated with the motion to dismiss, Mr. King
concluded “that the filing was made in error,” “waited for a
corrected version or a supplement to be filed,” and “asked a
staff member to also check the filing to confirm that it was
missing the actual motion.” Id. The staff member also
“inadvertently found the filing to be incomplete.” Pl.’s
Proposed Reply Brief, ECF No. 11 at 8.
Approximately one week later, Mr. King “checked the docket
again and saw no new entries on the docket to correct the
filing.” Mot. at 3. He continued to assume that the motion to
dismiss had been entered in error. Mr. King did not discover his
error until defendants’ counsel sent him notice of their intent
to move for sanctions pursuant to Federal Rule of Civil
Procedure 11. See id.4 This prompted Mr. King to “check[] the
docket again,” at which time he “was able to download the
motion.” Id. He now understands that “when he originally
4
The basis for sanctions has not been revealed to the Court and
no motion for sanctions has been filed.
4
attempted to download the motion he simply incorrectly clicked
on the wrong link (exhibits instead of leading document).” Id.
at 4.
On June 12, 2014, defendants filed an opposition to
plaintiff’s motion to extend the deadline for opposing the
motion to dismiss. See Defs.’ Opp. to Mot. to Extend, ECF No. 6.
Pursuant to Local Civil Rule 7(d) and Federal Rule of Civil
Procedure 6, plaintiff’s reply to that opposition was due on
June 23, 2014. Plaintiff missed that deadline as well. On June
26, 2014, he moved to extend the deadline for filing his reply
brief to July 1, 2014. See Pl.’s Second Mot. to Extend, ECF No.
10 at 5. The defendants consented to that request. See id.
Plaintiff filed his proposed reply brief on July 1, 2014. See
Pl.’s Proposed Reply Brief, ECF No. 11.
II. ANALYSIS
A. Plaintiff’s Motions for Extensions of Time.
Plaintiff moves to extend the deadline for his response to the
motion to dismiss (“first extension motion”), and also moves to
extend the deadline for his reply in support of the first
extension motion (“second extension motion”). Both motions were
filed after the applicable filing deadline and are therefore
governed by Federal Rule of Civil Procedure 6(b)(1)(B), which
permits the court to extend such a deadline “if the party failed
to act because of excusable neglect.” As a general matter,
5
“excusable neglect seems to require a demonstration of good
faith on the part of the party seeking an enlargement of time
and some reasonable basis for noncompliance within the time
specified in the rules.” 4B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1165 (3d ed. 2014). It
is an “elastic concept” encompassing “situations in which the
failure to comply with a filing deadline is attributable to
negligence.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 392, 394 (1993). The determination whether
neglect is “excusable” is “at bottom an equitable one, taking
account of all relevant circumstances surrounding the party’s
omission.” Id. at 395. These circumstances include (1) “the
danger of prejudice to the [non-moving party]”; (2) “the length
of the delay and its potential impact on judicial proceedings”;
(3) “the reason for the delay, including whether it was within
the reasonable control of the movant”; and (4) “whether the
movant acted in good faith.” Id.
With respect to both motions, two of the four factors weigh in
plaintiff’s favor and two weigh against him. Favoring plaintiff,
the prejudice to the defendants is relatively minimal, and the
Court does not infer bad faith. A third factor, the impact of
the delay on judicial proceedings, arguably supports the
defendants because plaintiff has repeatedly delayed this action
by failing to meet almost every relevant deadline, including
6
deadlines for responding to a motion to dismiss and filing an
amended complaint in Superior Court, and deadlines for
responding to a motion to dismiss and filing a reply brief in
this Court. See supra at 2–5 & n.1. Any one of those delays may
not alone be a significant burden on judicial proceedings, but
the pattern of near-constant delay is notable. Cf. Embassy of
Fed. Republic of Nigeria v. Ugwuonye, 901 F. Supp. 2d 92, 99
(D.D.C. 2012) (relying in part on “multiple delays” in denying a
motion for extension of time and noting that “this is not the
first time [the party] has missed a deadline in this action”).
Even if all three of these factors weighed in plaintiff’s
favor, however, “the reason for the delay is the most important
[factor], particularly if it weighs against granting the
extension.” Id.; see also Webster v. Pacesetter, Inc., 270 F.
Supp. 2d 9, 14 (D.D.C. 2003). For that reason, in the absence of
a reasonable excuse for delay, courts regularly deny motions for
extension, even if the other factors weigh in the movant’s
favor. See, e.g., Inst. for Policy Studies v. CIA, 246 F.R.D.
380, 382–83 (D.D.C. 2007); D.A. v. District of Columbia, No. 7-
1084, 2007 WL 4365452, at *3 (D.D.C. Dec. 6, 2007).
Plaintiff has put forth no reasonable excuse for his delay.
The Supreme Court has cautioned that “inadvertence, ignorance of
the rules, or mistakes construing the rules do not usually
7
constitute ‘excusable’ neglect.” Pioneer, 507 U.S. at 392.5 This
flows from the need to prevent the exception from swallowing the
rule: “If a simple mistake made by counsel were to excuse an
untimely filing, it would be hard to fathom the kind of neglect
that we would not deem excusable.” Inst. For Policy Studies, 246
F.R.D. at 383 (quotation marks and alteration omitted).
Accordingly, courts have found that a party’s misunderstanding
of a court order or mis-calendaring of a court deadline does not
constitute excusable neglect. See, e.g., Halmon v. Jones Lang
Wootton USA, 355 F. Supp. 2d 239, 242 (D.D.C. 2005) (excuse that
counsel “did not place the due date on her calendar” rejected as
“lame”); Webster, 270 F. Supp. 2d at 10–11, 14 (attorney
mistakenly concluded that the court’s order was not a final
judgment and therefore missed the deadline to appeal).
At least in the unusual circumstances presented by this case,
failure to keep apprised of a case’s docket is similarly
inexcusable. All counsel have an “obligation to monitor the
court’s docket and keep apprised of relevant deadlines.” Halmon,
355 F. Supp. 2d at 244. Plaintiff’s counsel’s perfunctory review
5
For this reason, plaintiff’s second extension motion must be
DENIED. His reply brief was due on June 23, 2014, but he did not
move for an extension until June 26, 2014. See Pl.’s Second Mot.
to Extend, ECF No. 10. Plaintiff’s misunderstanding of Local
Civil Rule 7(d) and Federal Rule of Civil Procedure 6 is not
excusable neglect. In any event, the arguments contained in
plaintiff’s reply brief do not alter this Court’s conclusion and
are therefore addressed in this Opinion.
8
of documents associated with a dispositive motion fell short of
this obligation and he has provided no reasonable excuse for an
error that “could have been remedied by a simple look at the
docket.” Inst. for Policy Studies, 246 F.R.D. at 385. Reviewing
the docket would have revealed that there are three documents
associated with the motion to dismiss: the motion itself, a
document entitled “Exhibit A,” and a proposed order. See Defs.’
Mot. to Dismiss, ECF No. 3; Ex. A to Defs.’ Mot. to Dismiss, ECF
No. 3-1; Proposed Order, ECF No. 3-2.
The Court cannot excuse plaintiff’s counsel’s failure to read
these entries when he knew that a motion to dismiss had been
filed. Counsel’s obligation to monitor the court’s docket
extends to reading relevant docket entries and related
documents. See, e.g., In re Am. Classic Voyages Co., 405 F.3d
127, 134 (3d Cir. 2005) (neglect inexcusable where the “[d]elay
was the direct result of the negligence of . . . counsel in
failing to review the Notice sent to him”); Evans v. City of
Neptune Beach, No. 97-483, 1999 WL 462984, at *2 (M.D. Fla. May
26, 1999) (failure to file timely bill of costs was not due to
excusable neglect where counsel “fail[ed] to review the
official, docketed copies of both the summary judgment Order and
Judgment, which caused them to be unaware of the entry of
Judgment and the initiation of the 14-day period for filing
their Bills of Costs”). Indeed, this Court’s Local Rules mandate
9
that “[a]n attorney . . . who obtains a CM/ECF password” is
“responsible for monitoring their e-mail accounts, and, upon
receipt of notice of an electronic filing, for retrieving the
noticed filing.” Local Civ. R. 5.4(b)(6) (emphasis added).
Even without reading the docket entries themselves,
plaintiff’s counsel should have noticed that something was
amiss. One week after the motion to dismiss was filed, he
reviewed the docket and saw that no corrected motion or Court
Order had been filed. See Mot. at 3. This should have struck him
as odd. The defendants’ response to the First Amended Complaint
was due on May 7, 2014, see Fed. R. Civ. P. 81(c)(2), so they
might have risked entry of default by failing properly to
respond to the First Amended Complaint. Moreover, neither this
Court nor the Clerk’s Office made any entry noting an erroneous
filing. The absence of such docket activity should have prompted
counsel to investigate further. His failure to do so is “garden-
variety attorney inattention” of the type courts have found
inexcusable. Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464
(8th Cir. 2000). As another Judge of this Court has stressed,
“[t]he day has long since arrived whereby an attorney can view a
docket in an instant at any time from anywhere . . . . With that
change has come a lessening of sympathy by the court for docket-
related errors.” Inst. for Policy Studies, 246 F.R.D. at 385.
10
For these reasons, the Court DENIES plaintiff’s first extension
motion.
B. Defendants’ Motion to Dismiss.
Plaintiff has therefore failed to file a timely response to
the motion to dismiss. His opposition was due on May 27, 2014,
but was not filed until June 20, 2014. In this Court, the
obligation to file a timely opposition to a dispositive motion
is governed by Local Civil Rule 7(b), which states that
“[w]ithin 14 days of the date of service or at such other time
as the Court may direct, an opposing party shall serve and file
a memorandum of points and authorities in opposition to the
motion. If such a memorandum is not filed within the prescribed
time, the Court may treat the motion as conceded.” See also FDIC
v. Bender, 127 F.3d 58, 67–68 (D.C. Cir. 1997). This Rule
“facilitates efficient and effective resolution of motions by
requiring the prompt joining of issues.” Fox v. Am. Airlines,
Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004). It is within this
Court’s discretion to grant an unopposed motion as conceded, and
the D.C. Circuit has “yet to find that a district court’s
enforcement of this rule constituted an abuse of discretion.”
Bender, 127 F.3d at 67. Indeed, the Circuit has stated that
“[w]here the district court relies on the absence of a response
as a basis for treating the motion as conceded, we honor its
11
enforcement of the rule.” Twelve John Does v. District of
Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997).6
Accordingly, Judges of this Court regularly treat motions as
conceded when the opposing party fails to demonstrate excusable
neglect for an untimely opposition. See, e.g., Inst. for Policy
Studies, 246 F.R.D. at 386; Wilson v. Prudential Fin., 218
F.R.D. 1, 3–4 (D.D.C. 2003); Ramseur v. Barreto, 216 F.R.D. 180,
182–83 (D.D.C. 2003); Stephenson v. Cox, 223 F. Supp. 2d 119,
121 (D.D.C. 2002). Moreover, the D.C. Circuit has specifically
expressed skepticism of attempts to blame the ECF system for
counsel’s failure to oppose a motion. See Fox, 389 F.3d at 1294
(rejecting as “plainly unacceptable” and “an updated version of
the classic ‘my dog ate my homework’ line” the excuse that
counsel failed to oppose a motion due to “a malfunction in the
district court’s CM/ECF electronic case filing system,” which
resulted in “counsel never receiv[ing] an e-mail notifying him
of [a] motion to dismiss”).7 As discussed above, plaintiff’s
6
In his reply brief, plaintiff cited to cases from other
Circuits indicating that courts must address the merits of
unopposed motions. See Pl.’s Proposed Reply Brief, ECF No. 11 at
4–5. These cases are inapplicable because this Court’s Local
Rules and this Circuit’s precedent indicate that unopposed
motions may be granted as conceded.
7
Plaintiff attempts to distinguish Fox by arguing that the
parties in that case “attempted to use technology as an excuse
for [their] failure to check the docket . . . whereas in the
instant matter, Dr. Cohen’s counsel was aware of the docket, had
been diligently checking the docket, and truly believed he had
12
counsel has proffered no reasonable excuse for his failure to
oppose the defendants’ motion to dismiss. See supra Part II.A.
In light of this, the Court will grant the motion as conceded.
III. CONCLUSION
For the foregoing reasons, plaintiff’s motions for extensions
of time are DENIED and defendants’ motion to dismiss is GRANTED
as conceded. In light of the Court’s ruling on the motion to
dismiss, plaintiff’s motion to amend his Complaint is DENIED AS
MOOT. An appropriate order accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Judge
July 7, 2014
been using the technology correctly.” Pl.’s Proposed Reply
Brief, ECF No. 11 at 9. If anything, plaintiff’s counsel has a
less convincing excuse. The party in Fox was not aware that a
motion had been filed; plaintiff’s counsel was aware that a
motion to dismiss had been filed, but failed to read documents
associated with that motion. See supra at 8–10.
13