Gilyard v. Northlake Foods, Inc.

• Decision Date: 28 April 2005
• Docket Number: No. CIV.A. 2:05CV27.,CIV.A. 2:05CV27.
• Citation: 367 F.Supp.2d 1008
• Parties: Kaamilah GILYARD, et al., Plaintiffs, v. NORTHLAKE FOODS, INC. and Waffle House, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

Page 1008

367 F.Supp.2d 1008

Kaamilah GILYARD, et al., Plaintiffs, v. NORTHLAKE FOODS, INC. and Waffle House, Inc., Defendants.

No. CIV.A. 2:05CV27.

United States District Court, E.D. Virginia, Norfolk Division.

April 28, 2005.

John Richard Erickson, Esquire, Reed Smith LLP, Falls Church, VA, Counsel for Plaintiff.

Paul Granger Klockenbrick, Esquire, Gentry Locke Rakes & Moore, Roanoke, VA, Counsel for Defendant NorthLake Foods, Inc.

Rebecca Lyn Williams, Esquire, Troutman Sanders LLP, Atlanta, GA, Thomas Michael Lucas, Esquire, Troutman Sanders

LLP, Norfolk, VA, Counsel for Defendant Waffle House, Inc.

ORDER

MORGAN, Senior District Judge.

This matter came before the Court on the motion of Defendant Northlake to Dismiss the Complaint or, in the alternative, to Dismiss and Strike Portions of the Complaint (Doc. 5) and the motion of Plaintiffs for an Enlargement of Time to File a Response to Defendant's Motion (Doc. 9). On March 31, 2005, the Court heard the motions and ruled from the bench, denying the relief and alternative relief requested by Defendant Northlake and granting the relief requested by Plaintiffs. This order further explains the Court's rulings.

I. Background and Procedural History:

Plaintiffs filed a complaint alleging that they received discriminatory service on the basis of race at the Western Branch Waffle House, in violation of 42 U.S.C. § 1981. Compl. at ¶ 2. Plaintiffs allege that they were not greeted and seated in the same manner as other patrons, that they were served fly-infested food, that payment was demanded for the uneaten, inedible food, and that the police were called in an effort to force payment. Compl. at ¶ 3.

Northlake Foods, Inc. [hereinafter Northlake] is a franchisee of Waffle House, Inc. and operates the Western Branch Waffle House. Compl. at ¶ 11. Northlake moved to dismiss Plaintiffs' Complaint pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. 5.) Northlake served its Motion to Dismiss on Plaintiffs by mail on February 11, 2005. (Doc. 14.) On February 28, 2005, Plaintiffs moved to enlarge the time for them to file a responsive brief from February 25, 2005, a Friday, to February 28, 2005, a Monday. (Doc. 9.) Subject to the Court's determination of their request for an enlargement, Plaintiffs tendered a Memorandum in Opposition to Defendant's Motion. (Doc. 11.) The Court resolved Plaintiff's motion first and included their memorandum in the Court's consideration of the motion to dismiss.

II. Motions:

A. Plaintiffs' Motion for an Extension of Time:

STANDARD

"Unless otherwise directed by the Court, [an] opposing party shall file a responsive brief and such supporting documents as are appropriate, within eleven (11) days after service...." E.D.V.A. LOCAL R. CIV. P. 7(E). In computing a period of time allowed by the local rules of a district court, "the day of the act, event, or default from which the designated period of time begins to run shall not be included." FED. R. CIV. P. 6(a). Unless the last day is a weekend or legal holiday, it shall be counted. Id. A court may, for good cause shown, enlarge the period of time in which an action is to occur. Id. at (b). Requests for extensions or enlargements of time must be in writing and, if made after the period of time in which an act was to occur, must be accompanied by a brief. Local Rule 7(E) and (H). Such requests are looked upon with disfavor and may only be granted if the failure to act was the result of excusable neglect. Rule 6(b); Local Rule 7(H).

ANALYSIS OF MOTION

Northlake served its motion on Plaintiffs on February 11, 2005. (Doc. 14.) Under Rule 6(a), Plaintiffs had until February 22, 2005, to file a responsive brief. Because service was made by mail, however, Rule 6(e) adds three days to that date. Plaintiffs' adjusted deadline was Friday, February 25, 2005. Plaintiffs did not submit a response by this date.

On Monday, February 28, 2005, Plaintiffs filed a motion for an extension of time. (Doc. 9.) Because this filing was made after the time period for response had expired, Plaintiffs included an accompanying brief as required in Local Rule 7E(2). (Doc. 10.) In their brief, Plaintiffs' counsel indicates that he miscalculated the number of days for response because he failed to count Washington's Birthday, February 21, 2005, as one of the eleven days. Rule 6(a) does provide that "when the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Washington's Birthday is a legal holiday as defined by the rule. Id. Because Plaintiffs had eleven days to respond, however, intermediate weekends and legal holidays are not excluded. Plaintiffs' counsel appropriately included intermediate weekends in his calculation, but mistakenly excluded Washington's Birthday.

Under Rule 6(b), where the specified period for the performance of an act has elapsed, a district court may enlarge the period and permit the tardy act where the omission is the "result of excusable neglect." Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P'ship., 507 U.S. 380, 391, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The Court of Appeals for the Fourth Circuit reviews a district court's ruling on excusable neglect for an abuse of discretion. United States v. Borromeo, 945 F.2d 750, 754 (4th Cir.1991).

Plaintiffs ask the Court to consider this excusable neglect. They cite to Pioneer in support of their motion. In that case the Supreme Court noted that "excusable neglect" under Rule 6(b) is a somewhat "elastic concept" and is not limited strictly to omissions caused by circumstances beyond the control of the movant. Id. at 392, 113 S.Ct. 1489. The Court also concluded that

the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include ...the danger of prejudice to the nonmovant, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.

Id. at 395, 113 S.Ct. 1489.

Northlake urges strict application of the rules and exclusion of Plaintiffs' response. For this treatment, Northlake cites to Shaw Environment v. Gulf Ins. Co., 225 F.R.D. 526, 529 (E.D.Va. Jan 14, 2005), a case in which a motion for enlargement of time was denied. In that case, the plaintiff failed to effectuate service within 120 days. The Shaw plaintiff mailed a waiver of service by summons to the purported defendant, but did so without allowing sufficient time for a response prior to the service deadline. That plaintiff claimed to have misunderstood the relationship of Rule 4(d) to Rule 4(c) and (m). Northlake also directs the Court's attention to the general rule concerning the "excusability" of neglect: inadvertence, ignorance of the rules, or mistakes construing the rules do not pass muster. Pioneer, 507 U.S. at 392, 113 S.Ct. 1489. Shaw can be distinguished, however, because those plaintiffs did not bring the matter to the court's attention until fourteen days after the deadline had passed, whereas Plaintiffs moved for an enlargement and were ready to file on the next business day.

Ultimately, Pioneer stands not for a rule, but for an equitable weighing of factors. And those factors support granting the motion in this case. Northlake was not and should not have been prejudiced by receiving the opposition three calendar days late. The length of the delay was minimal and did not affect judicial processing. Furthermore, Plaintiffs acted in good faith, with Plaintiffs' counsel submitting his motion for an enlargement and the responsive brief on the next business day. The only factor which undermines Plaintiffs' motion is that the delay was fully within their control. To allow this factor to triumph under these circumstances would divorce "excusable" from "neglect." Before a person can be negligent, the ability to do the act must have been within their control. For "excusable" to have meaning, there must be a circumstance where failure to do that which was within ones control is later allowed by a court. Finding that this is such a circumstance, the Court GRANTS Plaintiffs' Motion for an Enlargement of Time to File a Response.

B. Northlake's Motion to Dismiss Plaintiffs' Complaint in its Entirety:

FACTUAL BACKGROUND AS ALLEGED IN THE COMPLAINT¹

The five plaintiffs are members of racial or ethnic minorities. Compl. at ¶¶ 6-10.

Plaintiffs were not greeted when they entered the restaurant. Nobody offered them a seat. Plaintiffs stood by an empty table large enough to accommodate five people, [sic] and waited for somebody to clear the table and seat them. After a protracted wait, a white waitress who later identified herself as "Sheryl" walked past Plaintiffs. She told them they could not sit at the empty five-person table. At the time, the restaurant had only about four other parties seated, and there was no apparent reason why the Plaintiffs should not have been able to sit at the empty table. Plaintiffs partially cleared the table and seated themselves there anyway. Compl. at ¶ 15.

All customers present were white, with the exception of Plaintiffs and one other couple. Compl. at ¶ 16.

After bringing side dishes of waffles to the table, the waitress brought Plaintiff Amina Gilyard her meal. Compl. at ¶ 18.

When the food was placed in front of Plaintiff Amina Gilyard, it was immediately apparent that there were flies or pieces of flies cooked into the grits. The flies were large, black, mixed into the white grits, and obviously visible. Anybody merely glancing at the dish would have immediately noticed the flies. All the Plaintiffs saw them and were horrified. Compl. at ¶ 19.

Plaintiffs instantly notified the waitress that there were flies in their food. The waitress took the plate of grits...