Robert Allen, Cliff McNeilly Carolyn Mack v. Thomas D. Murph, Doris B. Murph

DAVID A. NELSON, J., delivered the opinion of the court, in which SILER, J., joined. KRUPANSKY, J. (pp. 724-30), delivered a separate concurring opinion.

OPINION

DAVID Á. NELSON, Circuit Judge.

Thomas and Doris Murph appeal an order in which the district court denied a motion for leave to file an untimely application for attorney fees. The Murphs argue that their untimeliness should be excused because they personally did all that could reasonably have been expected of them in attempting to prosecute the application promptly. Unfortunately for the Murphs, however, their attorneys did not act with similar diligencé — and an attorney’s inexcusable neglect is normally attributed to his client. See Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 396-97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Accordingly, and because we find no abuse of discretion on the part of the district court, we shall affirm the challenged order.

I

As defendants in an action alleging housing discrimination, the Murphs won a jury verdict at trial. Judgment on the .verdict was entered June 5, 1998.

On June 7, 1998 — acting pro se, and without favoring their adversaries’ lawyer with a copy — the Murphs sent a letter to the trial judge requesting that the case be “formally declared a frivolous action” so that the Murphs could “recover some of [their] damages.” By letter received five days later, the judge responded that he could not properly address the merits of the Murphs’ request. The judge asked the Murphs to make any requests to the court through their counsel, Attorney Charles Lowe.

Thomas Murph contacted Attorney Lowe’s office on June 13, 1998. He was told that Mr. Lowe had gone fishing in Canada and could not be reached until June 22. Mr. Murph then asked to speak with Mr. Lowe’s associate, Jeffrey Snead. Unavailable on the 13th, Mr. Snead returned Mr. Murph’s call on the next day. Snead told the client that any request for attorney fees would have to be handled by Lowe, and that he (Snead) would not undertake to make an application for fees without Lowe’s authorization, guidance and assistance. Mr. Snead did not tell the client that there was a 14-day deadline for filing an attorney fee application. Neither did he volunteer to consult another lawyer in the office, and he did not suggest that the Murphs consult other counsel.

Mr. Murph spoke with Attorney Lowe on June 23, 1998. Lowe declined to prepare a motion for attorney fees, and he advised the Murphs to retain the services of another lawyer.

The Murphs did so, and on July 2, 1998 — 27 days after the entry of judgment — they filed their motion for leave to apply out-of-rule for attorney fees and non-taxable expenses. The motion papers described the events outlined above and argued that the delay was the result of excusable neglect. Relying on Pioneer, the district court denied the motion.

II

Rule 54(d)(2), Fed.R.Civ.P., ' requires that an application for attorney fees and non-taxable costs be filed within 14 days of the entry of judgment. The Murphs did not meet this requirement. Neither did they request an enlargement of time within the 14-day period. Under *724these circumstances, the district court could permit a late filing only if the delay was the result of “excusable neglect.” Rule 6(b)(2), Fed.R.Civ.P.

A district court’s determination with respect to excusable neglect is subject to review under an “abuse of discretion” standard. See In re Pioneer Investment Services Co., 943 F.2d 673, 676 (6th Cir.1991), aff'd, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Committee for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 824 (9th Cir.1996). We cannot say that the district court abused its discretion here.

In seeking assistance first from the court and then from their own counsel, the Murphs acted promptly and diligently in their effort to recover attorney fees and non-taxable costs. However, as the Supreme Court held in Pioneer, a determination of “excusable neglect” does not turn solely on whether the client has done all that he reasonably could to ensure compliance with a deadline; the performance of the client’s attorney must also be taken into account. See Pioneer, 507 U.S. at 396, 113 S.Ct. 1489. The Supreme Court expressly rejected a suggestion previously made by this court that “it would be inappropriate to penalize [the clients] for the omissions of their attorney;” on the contrary, the Court held, clients must “be held accountable for the acts and omissions of their chosen counsel.” Id. at 396-97, 113 S.Ct. 1489. In light of Pioneer, it was clearly appropriate for the district court to focus its inquiry on the neglect of the Murphs’ attorneys.

That neglect was not necessarily excusable. Attorney Lowe represented the Murphs at trial and remained their counsel of record after the entry of judgment. He knew or should have known that the Murphs could seek attorney fees under 42 U.S.C. § 3613(c)(2), and he knew or should have known that they would have only 14 days in which to do so. Yet Mr. Lowe departed for the wilds of Canada without knowing the clients’ wishes and without having arranged for another lawyer to cover the case in his absence.

Mr. Lowe’s associate also knew or should have known of the deadline for seeking attorney fees. Yet when Mr. Murph asked him — before the filing period had run^ — to prepare an application, the associate refused to act without the guidance of Mr. Lowe. At the very least, arguably, the associate should have sought an extension of time in order to preserve the clients’ rights. Taking all relevant circumstances into account, see Pioneer, 507 U.S. at 395, 113 S.Ct. 1489, a fair-minded judge could easily find that the carelessness of these attorneys in allowing the 14-day period to run was inexcusable. The district court did not abuse its discretion in so finding.

AFFIRMED.