Cohen v. Bd. of Trs. of the Univ. of D.C.

• Decision Date: 22 April 2016
• Docket Number: No. 15–7005.,15–7005.
• Parties: Robert COHEN, Appellant v. BOARD OF TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF COLUMBIA, c/o Chair, Dr. Elaine Crider, in their Official Capacities as Trustees for the University System for the University of the District of Columbia and its Flagship University of the District of Columbia, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

819 F.3d 476

Robert COHEN, Appellant

v.BOARD OF TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF COLUMBIA, c/o Chair, Dr. Elaine Crider, in their Official Capacities as Trustees for the University System for the University of the District of Columbia and its Flagship University of the District of Columbia, et al., Appellees.

No. 15–7005.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 6, 2015.

Decided April 22, 2016.

Tyler Jay King argued the cause and filed the briefs for appellant.

Anessa Abrams argued the cause and filed the brief for appellees. With her on the briefs was B. Patrice Clair.

Before: GRIFFITH, MILLETT, and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH

.

GRIFFITH

, Circuit Judge:

In the summer of 2010, the University of the District of Columbia fired Robert Cohen from his position as a tenured professor. Cohen filed a complaint in D.C. Superior Court against the Board of Trustees and three university officials alleging, among other things, a violation of his procedural due process rights under the U.S. Constitution. According to Cohen, the university fired him without notice or an opportunity to be heard.

The defendants removed Cohen's case to federal court and moved to dismiss his claims under Federal Rule of Civil Procedure 12(b)(6)

. Cohen missed the deadline to file a brief in opposition to the motion to dismiss. He later sought an extension of time to respond, filed an opposition, and moved to amend his complaint. The district court enforced the missed deadline against Cohen and refused to consider his late opposition to the defendants' motion to dismiss. Invoking Local Rule 7(b), the district court granted the motion to dismiss on the ground that its merits were unopposed and thus conceded by Cohen, thereby dismissing Cohen's complaint and case with prejudice. The district court then denied Cohen's motion to amend the complaint as moot and, in the alternative, for failure to consult with opposing counsel pursuant to Local Rule 7(m). Cohen filed a motion for reconsideration under Federal Rules 59(e) and 60(b), which the district court also denied.

The district court's application of prejudice to Cohen's complaint and case carried res judicata effect and barred Cohen from ever bringing his claims again. See Ciralsky v. CIA, 355 F.3d 661, 669 (D.C.Cir.2004)

. Had the district court dismissed only Cohen's complaint without prejudice and not dismissed the case at all, Cohen could have filed a new complaint in his original case and the statute of limitations would have been tolled from the date of his original complaint. See id. at 666, 672

. Alternatively, had the district court dismissed Cohen's complaint and case, both without prejudice, Cohen could have filed a new complaint in a new case only if the claims were still timely as of the new filing. See id. at 672 (recognizing that this statute-of-limitations difference between dismissing a case and dismissing only a complaint can mean that a case dismissed "nominally without prejudice" is de facto with prejudice, even though dismissal of only the complaint without prejudice would have allowed the case to go forward).

Cohen appeals the district court's rulings. We have jurisdiction under 28 U.S.C. § 1291

and our review is for abuse of discretion. See Smith v. District of Columbia, 430 F.3d 450, 456 (D.C.Cir.2005) (motion to extend time); Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C.Cir.2004) (application of Local Rule 7(b) to failure to oppose a motion to dismiss). For the reasons set forth below, we affirm the district court's denial of Cohen's motion to extend time and its dismissal of the complaint. But we reverse the district court insofar as it dismissed the complaint with prejudice and dismissed the case. In light of our disposition, we need not reach Cohen's remaining challenges.

I

Cohen sought an extension of time to file his opposition to the motion to dismiss on the ground that his counsel made a mistake. According to Cohen, counsel misread the electronic docket and thus did not believe the defendants' motion to dismiss had been filed properly. While trying to find the motion to dismiss on the electronic docket, Cohen's counsel clicked the wrong link, and the file he opened included only exhibits, but no motion. Counsel's assistant made the same mistake, confirming in the mind of Cohen's counsel his mistaken belief that the defendants had not properly filed the motion to dismiss. By the time counsel realized his error, the time for him to respond had run out.

Rule 6(b) of the Federal Rules of Civil Procedure

permits a court to extend deadlines, even after the time to act has expired, if there is good cause and the party "failed to act because of excusable neglect." Fed.R.Civ.P. 6(b)(1)(B). Excusable neglect is an equitable concept that considers "all relevant circumstances" surrounding the failure to act. Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Generally, "excusable neglect" does not require counsel to have been faultless, and "inadvertence, mistake, or carelessness" can fall within the rule. Id. at 388, 113 S.Ct. 1489 ; 4B CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1165 (4th ed. 2015). But counsel typically must have "some reasonable basis" for not meeting a filing deadline. WRIGHT & MILLER , supra, § 1165. To determine whether the district court permissibly exercised its discretion to find counsel's neglect inexcusable, we consider four factors set forth by the Supreme Court in Pioneer : (1) the risk of prejudice to the other side; (2) the length of the delay and the potential impact on judicial proceedings; (3) the reason for the delay and whether it was within counsel's reasonable control; and (4) whether counsel acted in good faith. See 507 U.S. at 395, 113 S.Ct. 1489 ; Yesudian ex rel. United States v. Howard Univ., 270 F.3d 969, 971 (D.C.Cir.2001) (applying the four Pioneer factors).

The district court carefully considered the four Pioneer factors, finding that two weighed in Cohen's favor and two against.

On the one hand, granting the extension would cause minimal prejudice to the defendants, and the court found no bad faith by counsel. On the other hand, his repeated failure "to meet almost every relevant deadline" created a pattern that could, taken together, burden judicial proceedings. Cohen v. Bd. of Trs., 305 F.R.D. 10, 13 (D.D.C.2014)

. Most importantly, counsel "put forth no reasonable excuse" for the delay; there was no suggestion that anything went wrong with the court's electronic docket. Id. at 14. Instead, Cohen's counsel and later his assistant simply misread its contents.

We give "great deference" to a district court's Rule 6(b)

decision, Yesudian, 270 F.3d at 971, and the district court here was well within its discretion to find that Cohen did not show excusable neglect. If we were to require the district court to excuse the type of mistake made by Cohen's counsel, it would be "hard to fathom the kind of neglect that we would not deem excusable." Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464 (8th Cir.2000). His repeated late filings further justify the court's "case-management decision[ ]." Yesudian, 270 F.3d at 971 (quoting Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 583–84 (1st Cir.1994) ). This was counsel's fourth missed deadline: counsel not only missed the deadline to respond to the motion to dismiss, but he was also late filing a motion to extend time to respond to the motion to dismiss, a reply brief in support of that motion to extend time, and a second motion to extend time to file his reply in support of his first motion to extend time. The district court did not abuse its discretion when it denied Cohen's motion to extend time to file his opposition brief.

II

Having rejected Cohen's tardy opposition, the district court treated the defendants' unopposed motion to dismiss as conceded pursuant to Local Rule 7(b)

and dismissed Cohen's complaint and case with prejudice. We reluctantly affirm the court's decision to grant the motion to dismiss the complaint. To do so with prejudice, however, and to dismiss the case as well were an abuse of discretion.

A

Local Rule 7(b)

permits a court to "treat ... as conceded" a motion not met with a timely opposing memorandum of points and authorities. D.D.C. Local Rule 7(b). Local Rule 7(b) is a "docket-management tool that facilitates efficient and effective resolution of motions," and we have yet to deem a "straightforward application of Local Rule 7(b)" an abuse of discretion. Fox, 389 F.3d at 1294 ; see also Texas v. United States, 798 F.3d 1108, 1113–15 (D.C.Cir.2015).

We have upheld district courts' application of Local Rule 7(b)

to grant unopposed motions to dismiss complaints with prejudice under Federal Rule 12(b)(6). See, e.g., Fox, 389 F.3d at 1292 ; Jackson v. Todman, 516 Fed.Appx. 3 (D.C.Cir.2013) (per curiam) (unpublished). In Fox, the defendant moved to dismiss the complaint, at which point the plaintiffs filed both an amended complaint and an opposition to the motion to dismiss. The defendant responded by moving to dismiss the amended complaint, but this time the plaintiffs failed to respond. We affirmed the district court's use of Local Rule 7(b) to dismiss the complaint with prejudice even though plaintiffs' counsel claimed that he never saw the second motion to dismiss, an explanation we found "plainly unacceptable" because counsel was obliged to monitor the electronic docket. Fox, 389 F.3d at 1294–95. We found it difficult to understand how counsel did not realize his mistake, particularly because counsel referenced the "pending" motion to dismiss in other filings submitted after the defendant filed its second motion to dismiss. Id.

We face a similar situation here. Because the district court properly denied Cohen's motion to extend time, the court did not consider Cohen's opposition...