Dimmitt v. Ockenfels

United States Court of Appeals
For the First Circuit
No. 04-1618

PETER A. DIMMITT, JR.,

Plaintiff, Appellant,

v.

ALFRED OCKENFELS, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. David M. Cohen, U.S. Magistrate Judge]

Before

Lynch, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

Walter F. McKee, with whom Lipman, Katz & McKee, P.A. was on
brief for appellant.
Edward R. Benjamin, Jr., with whom Thompson & Bowie, LLP, was
on brief for appellees.

May 12, 2005
CYR, Senior Circuit Judge. In June 2003, Peter Dimmitt filed suit

against the Town of Rockland, Maine, its police department and

several police officers, alleging that the police had used

excessive force in effecting his arrest. The defendants filed a

motion for summary judgment, as well as the required statement of

material facts and supporting record citations. See Me. U.S. Dist.

Ct. Local R. 56(b).1 Dimmitt’s counsel submitted a timely

opposition to the motion, but the accompanying statement of

material facts (setting forth his putative evidence relating to the

use of excessive force) did not comply with Local Rule 56(c), which

requires that the counterstatement expressly admit, deny or qualify

each paragraph of the defendants’ statement of material facts.2

Defendants filed a motion to strike the Dimmitt

1
Local Rule 56(b) requires the filing of a "separate, short,
and concise statement of material facts, set forth in numbered
paragraphs, as to which the moving party contends there is no
genuine issue of material fact to be tried. Each fact asserted in
the statement shall be supported by a record citation.” Me. U.S.
Dist. Ct. Local R. 56(b).
2
Local Rule 56(c) provides, in pertinent part:

A party opposing a motion for summary judgment shall
submit with its opposition a separate, short, and concise
statement of material facts. The opposing statement
shall admit, deny or qualify the facts by reference to
each numbered paragraph of the moving party’s statement
of material facts and unless a fact is admitted, shall
support each denial or qualification by a record citation
as required by this rule.

Me. U.S. Dist. Ct. Local R. 56(c).

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counterstatement as noncompliant with the local rules. Dimmitt’s

counsel responded that any noncompliance was due to “excusable

neglect,” see Fed. R. Civ. P. 6 (b),3 and explained:

Difficult as it may be to admit, Plaintiff’s
counsel’s failure to properly file an opposing
statement of facts in dispute is based upon
inexperience with the requirements of the
District Court and unfamiliarity with the
local rules. Counsel has not participated in
a civil case in U.S. District Court for
several years (but for a busy bankruptcy
practice) and is attempting to get up to speed
as soon as is humanly possible. Counsel has
had extreme difficulties with everything from
perfecting his ECF participation to keeping up
with the speed of the system compared to that
of the State court system, to which he is
intimately acquainted. While his pleadings
may not have been set forth in the required
manner, Plaintiff has made a good-faith effort
to show the Court that there are substantial
disagreements regarding the facts of this case
through the submission of his own Statement of
Material Facts.

The district court granted the motion to strike. Then, in the

absence of a timely Rule 56(c) counterstatement demonstrating

3
Rule 6(b) provides:

When by these rules or by a notice given thereunder
or by order of court an act is required or allowed to be
done at or within a specified time, the court for cause
shown may at any time in its discretion (1) with or
without motion or notice order the period enlarged if
request therefor is made before the expiration of the
period originally prescribed or as extended by a previous
order, or (2) upon motion made after the expiration of
the specified period permit the act to be done where the
failure to act was the result of excusable neglect.

Fed. R. Civ. P. 6 (b).

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evidence of the use of excessive force, it proceeded to grant

summary judgment for the defendants. Dimmitt now appeals from that

judgment insofar as it rests upon the allowance of the defendants’

motion to strike the counterstatement.4

The district court ruling that Dimmitt failed to

demonstrate “excusable neglect” is reviewed only for abuse of

discretion. See Fed. R. Civ. P. 6(b); Bennett v. City of Holyoke,

362 F.3d 1, 4-5 (1st Cir. 2004). In so doing, we accord broad

deference to the special role of the district court in

administering its local procedural rules. See Crowley v. L.L.

Bean, Inc., 361 F.3d 22, 25 (1st Cir. 2004).

On appeal, Dimmitt contends that the district court

applied an inflexible “excusable neglect” standard, which was

explicitly rejected in Pioneer Investment Services Co. v. Brunswick

Associates Limited Partnership, 507 U.S. 380, 392 (1993)

(describing "excusable neglect" as an “elastic concept”). Dimmitt

argues that his counsel presented credible reasons for his mistake,

and that there exists no evidence either that his attorney acted in

bad faith or that the 18-day delay in submitting a compliant

counterstatement prejudiced the defendants’ case. See id. at 395

(enumerating some factors pertinent to “excusable neglect”

inquiry).

4
The district court cited alternate grounds for allowing
specific aspects of the defendants’ summary judgment motion, but
Dimmitt does not challenge these grounds on appeal.

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 It is true that the “excusable neglect” inquiry involves

"a significant equitable component and must give due regard to the

totality of the relevant circumstances surrounding the movant's

lapse.” Bennett, 362 F.3d at 5. We can discern no abuse of

discretion, however, in the district court’s equitable decision not

to excuse the late filing by Dimmitt's counsel in the present

circumstances.

First, as we have repeatedly held, “even under the

flexible standard prescribed by Pioneer,” counsels’ inattention or

carelessness, such as a failure to consult or to abide by an

unambiguous court procedural rule, normally does not constitute

“excusable neglect”. See Pioneer, 507 U.S. at 392

(“[I]nadvertence, ignorance of the rules, or mistakes concerning

construing the rules do not usually constitute ‘excusable

neglect.’”); Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d 97,

101 (1st Cir. 2003); Graphic Communications Int’l Union, Local 12-N

v. Quebecor Printing Providence, Inc., 270 F.3d 1, 6-7 (1st Cir.

2001); Hospital Del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir.

2001) (per curiam).

Moreover, among the factors enumerated in Pioneer, by far

the most critical is the asserted reason for the mistake. See

Hospital Del Maestro, 263 F.3d at 175. Here, Dimmitt’s counsel

proffered two reasons for the lapse: (i) he was accustomed to

practicing in the state-court system, and was having difficulty

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adapting to “the speed of the [federal-court] system”; and (ii) he

was unfamiliar with the local district court rules relating to

summary judgment. Neither explanation warrants relief.

Had Dimmitt’s counsel been experiencing difficulty in

meeting the 21-day deadline for submitting the opposition in a

compliant manner, he need simply have moved for an extension prior

to its expiration, which could have been allowed under the more

liberal “good cause” or “cause shown” standard. See

Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 187 (1st Cir.

2004); accord Hamby v. Thomas Realty Assocs., 617 A.2d 562, 564

(Me. 1992) (noting, in analogous context, that “‘good cause’

standard is less stringent than the . . . ‘excusable neglect’

standard”); cf. Me. R. Civ. P. 6(b). Indeed, the district court

already had demonstrated its willingness to accommodate counsel’s

purported lack of familiarity with one aspect of federal-court

practice – the use of the electronic filing system – by granting

counsel’s request for an exemption from it.

Further, both the state and the federal rules prescribe

the identical 21-day deadline for filing an opposition to a summary

judgment motion, see Me. Local R. 7(c) (2) & (3) (“Any party

opposing any other motion shall file a memorandum and any

supporting affidavits or other documents in opposition to the

motion not later than 21 days after the filing of the motion,

unless another time is set by the court. . . . A party failing to

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file a timely memorandum in opposition to a motion shall be deemed

to have waived all objections to the motion.”), and counsel never

explained how he could have been overwhelmed by federal summary

judgment deadlines, yet not by identical state deadlines.

Finally, the requirement that the counterstatement of a

party opposing summary judgment must reference each numbered

paragraph of the moving party’s statement of material facts, and

expressly admit, deny or qualify the facts alleged therein,

likewise are identical in the federal rules and local state rules.

Thus, it is simply not plausible that counsel submitted this

noncompliant counterstatement of material facts because he would

have done so in the Maine Superior Court.

As Dimmitt’s counsel proffered no valid reason for the

noncompliance, the protestations of good faith and insistence that

defendants were not prejudiced by his mistake plainly do not

suffice as grounds for setting aside the district court

determination that his mistake could not be considered “excusable

neglect.” See Hospital Del Maestro, 263 F.3d at 175 (noting that,

since the proffered reason for the mistake is the most pivotal

factor, a finding of bad faith is not a prerequisite to the

conclusion that a party's neglect was inexcusable); Gucci Am., Inc.

v. Gold Ctr. Jewelry, 158 F.3d 631, 635 (2d Cir. 1998) (same).

Affirmed.

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