Summary
finding that a delay of two months in filing an answer would not prejudice the plaintiff and would have little impact on the ability of the Court and the parties to resolve the matter in a timely fashion
Summary of this case from Veasley v. Family DollarOpinion
Case No. 2:06-cv-00904.
February 25, 2008
ORDER
On August 13, 2007, this Court denied defendant Liberty Mutual's motion to dismiss. Pursuant to the Fed.R.Civ.P. 12(a)(4), Liberty Mutual's answer was due within ten days thereafter.
Liberty Mutual did not file a timely answer. On October 23, 2007, plaintiff Kevin Tolliver filed motions for a default judgment and for judgment on the pleadings, citing as grounds for these motions Liberty Mutual's failure to file an answer. The next day, Liberty Mutual moved for leave to file an answer instanter. Without waiting for a ruling on that motion, Liberty Mutual filed a motion to dismiss on December 17, 2007, which Mr. Tolliver subsequently moved to strike. For the following reasons, Liberty Mutual will be permitted to respond to the complaint, but Mr. Tolliver's motion to strike will be granted.
The motion for default judgment, judgment on the pleadings, and leave to answer instanter all raise the same issue. The question before the Court is whether Liberty Mutual should be granted an extension of time under Fed.R.Civ.P. 6(b) to answer the complaint. Rule 6(b) permits an enlargement of the time allowed for filing an answer under Rule 12(a) upon a showing of excusable neglect if the request for an extension comes after the expiration of the specified time period. Thus, the question becomes whether Liberty Mutual has demonstrated the type of excusable neglect which would permit the Court to grant it an enlargement of time to file its answer.
The meaning of the phrase "excusable neglect" was explored by the United States Supreme Court in Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380 (1993). There, the Court recognized that "excusable neglect" is a somewhat elastic concept. Under that concept, a court is "permitted, where appropriate, to accept late filings caused by inadvertence, mistakes, or carelessness" even when an adequate excuse is not tendered. Id. at 388. However, the Court must consider four factors in determining whether to grant an extension under the "excusable neglect" concept, including any prejudice which might inure to the opposing party or to the Court, the length of the delay involved, the reason advanced for the delay, and whether the dilatory party appears to have acted in good faith. See also Blandford v. Broome County Government, 193 F.R.D. 65 (N.D.N.Y. 2000); but see Robinson v. Wright, 460 F.Supp. 2d 178 (D.Me. 2006) (holding that such factors do not excuse a failure timely to file a pleading if the only reason advanced for the failure is an attorney's carelessness).
Here, the reason given by Liberty Mutual for its failure to file a timely answer is that its counsel was involved in several other substantial matters and inadvertently failed to calendar the answer date after the Court's August 13, 2007 ruling. Such conduct can only be described as carelessness. On the other hand, it does not appear that the delay in tendering an answer will prejudice either the plaintiff or the Court in its ability to resolve this litigation in a timely fashion. The delay was slightly more than two months, and there is no evidence that Liberty Mutual did not act in good faith. Under these circumstances, and given the flexible nature of the "excusable neglect" concept articulated in Pioneer, the Court concludes that it would be appropriate to permit a late answer to be filed. That is especially true in light of the "strong preference for trials on the merits in federal courts" consistently articulated in decisions from the United States Court of Appeals for the Sixth Circuit. See, e.g., Shepard Claims Service v. William Darrah Associates, 796 F.2d 190, 193 (1986). Thus, the Clerk will be directed to detach and file the answer attached to Liberty Mutual's motion.
As noted, without waiting for the Court to conclude that it was permitted either to answer or move in response to the amended complaint, Liberty Mutual filed a motion to dismiss. Mr. Tolliver's motion to strike that motion is well-taken. The Court has discretion to strike an untimely pleading or motion under these circumstances. See Helen of Troy, Ltd. v. John Paul Mitchell Systems, 2007 WL 1540980 (W.D. Tx. May 15, 2007). Once Liberty Mutual files its answer, it is free to file either a motion for judgment on the pleadings or a motion for summary judgment addressing the matters raised in its motion to dismiss.
The Court also notes that Mr. Tolliver filed a motion to be permitted to attend a pretrial video conference. The Court does not routinely conduct such conferences in litigation initiated by prisoners, but rather puts on a scheduling order after the pleadings have been closed. If issues arise which require further involvement by the Court in the pretrial stages, any party may move for relief in writing or may request that the Court conduct a telephonic status conference. Consequently, that motion will be denied.
Based upon the foregoing, the motion of plaintiff for a pretrial video conference (#29) is denied. Plaintiff's motions for default judgment and judgment on the pleadings (#s 35 and 36) are also denied. Liberty Mutual's motion for leave to file an answer instanter (#34) is granted. The Clerk shall detach and file the answer attached to the motion. Plaintiff's motion to strike (#43) is granted, and Liberty Mutual's motion to dismiss (#42) is stricken. Finally, the parties shall complete all discovery in this case by August 31, 2008, and shall file any case-dispositive motions by September 30, 2008.