Thyroff v. Nationwide Mutual Insurance Company

Full title: LOUIS E. THYROFF, Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY…

Court: United States District Court, W.D. New York

Date published: Jul 1, 2004

No. 00-CV-6481T (W.D.N.Y. Jul. 1, 2004)

Opinion

00-CV-6481T.

July 1, 2004

DECISION and ORDER

MICHAEL TELESCA, Senior District Judge

INTRODUCTION

Nearly four years ago, plaintiff Louis E. Thyroff ("plaintiff") initiated this action against the above-named defendants (collectively "Nationwide" or "defendants"), alleging violations of federal and New York state law. On May 1, 2003, plaintiff filed a motion seeking to amend his complaint for a fourth time, so as to include four additional causes of action. By Report and Recommendation dated November 26, 2003, Magistrate Judge Feldman recommended that this Court deny plaintiff's motion to amend his complaint. Defendants filed objections to Judge Feldman's Report and Recommendation on January 29, 2004. For the reasons that follow, the Court is unable to consider defendants' objections, and Judge Feldman's Report and Recommendation issued November 26, 2003 is adopted in its entirety.

BACKGROUND

Plaintiff filed his original complaint on October 2, 2000, and later amended his complaint on July 5, 2001. By Decision and Order dated July 24, 2001, this Court dismissed twelve of the thirteen causes of action in that first amended complaint. Only plaintiff's breach of contract claim survived. On January 15, 2002, plaintiff moved for leave to file a second amended complaint, seeking to re-allege his breach of contract claim as well as five additional causes of action under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq. By Report and Recommendation dated May 9, 2002, Magistrate Judge Bauer recommended that plaintiff's request for leave to file a second amended complaint be denied. On August 5, 2002, this Court adopted Magistrate Bauer's Report and Recommendation in its entirety. On May 22, 2003, plaintiff filed yet another motion to amend his complaint.

Plaintiff's motion to amend was referred to Magistrate Judge Jonathan W. Feldman pursuant to a April 14, 2003 Referral Order. By Report and Recommendation filed November 26, 2003, Judge Feldman recommended that plaintiff's latest motion to amend be denied. On January 29, 2004, defendants filed an objection to the Report and Recommendation, claiming that Judge Feldman mischaracterized certain prior rulings of this Court. Plaintiff filed a response to defendants' objections, claiming that they were untimely, and that the Court should not consider the objections because the omission was not the result of excusable neglect.

DISCUSSION

Once a Report and Recommendation is filed, any party may serve and file written objections to the proposed findings and recommendations contained therein. 28 U.S.C. § 636(b)(1). Any party wishing to submit objections must do so "[w]ithin 10 days after being served with a copy of the recommended disposition." Fed.R.Civ.Pro. 72(b). See also Local Rule Civil Procedure 72.3(a)(3) ("ten days after being served with such findings").

Defendants filed their objections nearly two months after the statutory objection period expired. However, Federal Rule of Civil Procedure 6 provides that it is within the Court's discretion to consider untimely filings "where the failure to act was the result of excusable neglect." Fed.R.Civ.Pro. 6(b)(2).

The Supreme Court defines "excusable neglect" as "an elastic concept." Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380, 392 (1993). In deciding whether certain conduct constitutes excusable neglect a court must consider "all relevant circumstances surrounding the party's omission." Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003). Factors to consider include: (1) the danger of prejudice to the non-movant; (2) the length of the delay and any potential impact it may have on judicial proceedings; (3) the reason for the delay, including whether it was in the reasonable control of the movant; and (4) whether the movant acted in good faith. Id. Primary importance is placed on the third factor, namely the reason for the delay, including whether it was within the movant's control. The Second Circuit Court of Appeals has noted that rarely if ever will the equities favor a party who "fail[s] to follow the clear dictates of a court rule." Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250-251 (2d Cir. 1997). "A party claiming excusable neglect will, in the ordinary course, lose under the Pioneer test." Id. I find that to be the case here.

In their objections to the Report and Recommendation, defendants argue that "no attorney representing Nationwide received a copy of the Report from the clerk's office." Defendant Nationwide's Objection to Report and Recommendation and Final Scheduling Order, filed January 29, 2004 (Doc. No. 77). However, in their reply brief in support of their objections, filed February 24, 2004, they admit that their local counsel did in fact receive a copy of the Report and Recommendation "shortly after its issuance", but that "she assumed that [other counsel] had also received a copy." Reply Brief in Support of Defendants Nationwide's Objection to Report and Recommendation and Final Scheduling Order and Brief in Support of Nationwide's Motion for Enlargement of Time, filed February 24, 2004 (Doc. No. 79). Defendants have failed to demonstrate that there exists excusable neglect sufficient to enlarge the time for filing objections.

Judge Feldman clearly set forth the prescribed time for objections. See Report and Recommendation and Final Scheduling Order, filed November 26, 2003 (Doc. No. 70). Defendants' attorneys — whether local or out of town — are charged with the responsibility of complying with this Court's rules. One of the essential purposes of retaining local counsel is to ensure close contact with the court. Lack of communication between counsel is an insufficient basis for excusable neglect. Accordingly, defendants' objections to Judge Feldman's recommendation are untimely. As such, I adopt Judge Feldman's Report and Recommendation dated November 26, 2003, in its entirety.

CONCLUSION

For the reasons set forth above, I find that defendants failed to adequately demonstrate that the untimeliness of their objections to Judge Feldman's Report and Recommendation was a result of excusable neglect. Accordingly, I adopt Judge Feldman's Report and Recommendation dated November 26, 2003 in its entirety, and his recommendation that plaintiff's motion to amend his compliant be denied stands.

ALL OF THE ABOVE IS SO ORDERED.