Madison River Man. v. Business Management Software

• Decision Date: 31 August 2005
• Docket Number: No. 1:03CV00379.,1:03CV00379.
• Citation: 387 F.Supp.2d 521
• Court: U.S. District Court — Middle District of North Carolina
• Parties: MADISON RIVER MANAGEMENT COMPANY, Plaintiff, v. BUSINESS MANAGEMENT SOFTWARE CORPORATION, a/k/a BMS, Defendant.

387 F.Supp.2d 521

MADISON RIVER MANAGEMENT COMPANY, Plaintiff, v. BUSINESS MANAGEMENT SOFTWARE CORPORATION, a/k/a BMS, Defendant.

No. 1:03CV00379.

United States District Court, M.D. North Carolina.

August 31, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Laura A. Derouin, Holland & Knight, LLC, Chicago, IL, Malcolm H. Brooks, Lee Michael Whitman, Grady L. Shields, Wyrick Robbins Yates & Ponton, L.L.P., Raleigh, NC, for Plaintiff.

Richard P. Earley, The Law Offices of Richard P. Earley, Hackettstown, NJ, Kenneth E. Peck, Bushell & Peck, L.L.C., Denver, CO, George W. Trey Aycock, III, Coltrane Aycock & Overfield PLLC, Greensboro, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

OSTEEN, District Judge.

Plaintiff Madison River Management Company ("Madison") brings this action against Defendant Business Management Software Corporation ("BMS") seeking a declaration that certain agreements between the parties were not void and remain in full force and effect, and that it is not infringing BMS' software copyright. Defendant brought a counterclaim premised on copyright infringement under the Copyright Act of 1976 ("Copyright Act"), as amended, 17 U.S.C. §§ 101 et seq., and violations of state and common law. This matter is now before the court on Plaintiff's amended motion for summary judgment, Defendant's motion to extend the time to respond to the summary judgment motion beyond the expiration of a previously granted extension of time, and Defendant's motion for leave to file an over length opposition brief. For the reasons set forth herein, Defendant's motions will be denied; Plaintiff's motion for summary judgment will be granted in part and denied in part.

I. PROCEDURAL POSTURE

This case has a history of unnecessary delay. Madison initiated this action in May 2003. In October 2003, the parties entered into a highly contentious discovery period, which closed April 3, 2004. After a hearing on April 26, the court reopened discovery for an additional 75 days. Before the extended discovery period ended, Madison moved to compel the depositions of certain BMS employees and BMS' answers to written discovery. The court held another hearing on October 26, 2004, and subsequently ordered BMS to secure the attendance of its employees for depositions and awarded sanctions to Madison. Because of the delay in completing discovery, the court extended the dispositive motion deadline to December 1, 2004, and continued the trial from the January 2005 to the April 2005 master calendar.

On December 1, 2004, while Madison's motion to dismiss was being considered by the court, Madison moved for summary judgment and for leave to file a lengthy brief. Madison contended it needed to file an over length brief because the case was complex and it had to reargue points within its pending motion to dismiss. The court denied Madison's motion for a lengthy brief on December 16 and instead gave Madison twenty days from the date of the court's forthcoming order on its motion to dismiss from which to renew its summary judgment motion. The court issued a memorandum opinion and order partially granting Madison's motion to dismiss on January 5, 2005. Therein, the court dismissed all of BMS' claims except for four copyright claims (Counts 1-4), two breach of contract claims (Counts 5 and 9), and three misrepresentation claims (Counts 10-12).

On January 19, 2005, Madison filed an amended motion for summary judgment on BMS' remaining counts and a supporting brief within the twenty-page limit specified by Local Rule 7.3(d). BMS' opposition to summary judgment was due February 18, 2005, but it moved for and was granted an extension of time up to and including March 4, 2005. No opposition brief was filed. On April 6, the clerk of court telephoned BMS' counsel and told him that because BMS had filed no opposition, the court was considering Plaintiff's motion for summary judgment unopposed.

BMS made no further filing until April 19. That day, BMS filed a motion for leave to file an opposition brief in excess of the page limit contained in Local Rule 7.3(d) and a motion to extend the time until April 18 to file its opposition.¹ BMS finally filed its untimely and over length opposition to summary judgment on April 20. One week later, the court held a hearing on the motions for over length brief and late filing.

All matters pending before the court are now fully briefed. Because the court's decision on whether to accept BMS' over length, late-filed opposition brief will undoubtedly affect its analysis on summary judgment, the court will address BMS' motions first. The court will then address whether summary judgment is appropriate.

II. DEFENDANT'S MOTIONS FOR LEAVE TO FILE AN OVER LENGTH, LATE-FILED BRIEF

The Federal Rules of Civil Procedure give district courts discretion to permit an act to be done after the expiration of the specified period where the failure to act was the result of excusable neglect. Fed.R.Civ.P. 6(b). This district's local rules, which provide that "[e]xtensions will not be allowed unless the motion is made before the expiration of the specified time, except upon a showing of excusable neglect," reinforce this principle. L.R. 6.1(a). The term "excusable neglect," as used in the rules has been characterized as an "elastic concept," which is not limited to "omissions caused by circumstances beyond the control of the movant" and may include inadvertent delays. Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 392, 113 S.Ct. 1489, 1496, 123 L.Ed.2d 74 (1993). Whether neglect is excusable is an equitable inquiry, "taking account of all relevant circumstances surrounding the party's omission," including: (1) the danger of prejudice to the non-movant, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. Id. at 395, 113 S.Ct. at 1498.²

Taking into account all of the relevant circumstances in this case, BMS has not shown excusable neglect for its failure to timely file its opposition brief. Weighing heavily against it is the length of the delay. Even after BMS received a 14-day extension of time, it was over six weeks late in filing its opposition. That significant delay is made even more remarkable by the fact that BMS delayed for almost two weeks after receiving a deficiency notice from the clerk of court that the summary judgment motion was being considered unopposed. See Brewer v. Jefferson-Pilot Standard Life Ins. Co., 333 F.Supp.2d 433, 436 (M.D.N.C.2004) (finding no excusable neglect for failure to file an opposition to summary judgment, where plaintiff was notified by the clerk of court that the motion would be treated as unopposed and the plaintiff failed to respond until two weeks later).

A second factor of great weight is the reason for delay. Despite defense counsel's contentions that the delay was caused by the sheer volume of documents and evidence counsel had to review in preparing an opposition, these were matters within his control. Defense counsel was added to the case in August 2004, but chose not to review any evidence or discovery until Madison filed its summary judgment motion in January 2005. Only then did counsel decide to review over 1,300 pages of deposition testimony and 1,500 pages of discovery, apparently leaving an additional 10,000 pages of discovery completely unreviewed. While counsel may contend that it was not prudent to review the case so far in advance of trial to save costs and energy, the court cannot conceive of any way counsel could have ever expected to review all of the evidence and complete an opposition brief within the 30 days allotted under local rules. This is not a case of inadvertence. Counsel made a strategic decision.

The court cannot excuse the conduct of counsel because he inherited the case from another attorney and is a sole practitioner, for those matters were also within his control. It is counsel's responsibility, once he undertakes representation of a client, to ensure that he is capable of handling his case load or else to associate with co-counsel who can assist in the matter. See, e.g., North Carolina Rules Prof'l Responsibility 1.1 ("A lawyer shall not handle a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter. Competent representation requires the legal ... preparation reasonably necessary for the representation."). The court cannot be expected to consider counsel's individual capabilities to comply with court deadlines. See Pioneer, 507 U.S. at 398, 113 S.Ct. at 1499; Shoaf v. Kimberly-Clark Corp., 294 F.Supp.2d 746, 749 (M.D.N.C.2003) (holding that counsel's case load, which created a conflict with the due date for a response brief, did not constitute excusable neglect).

The court is also troubled by what it perceives as defense counsel's possible bad faith. Defense counsel has acted less than forthright with opposing counsel and this court about the reasons for delay. BMS' first request for an extension of time was based solely on its counsel's heavy case load. (Mot. Extend Time Respond Mot. & Br.) However, opposing counsel was told, and defense counsel later acknowledged, that the request for an extension was based in part on defense counsel's prepaid vacation plans. (Madison's Agreement BMS' Mot. Ext. Time File Opp'n Mot. Summ. J. at 1.) Moreover, there is some indication that defense counsel had suggested "play[ing] dumb" about the filing deadlines and asked local counsel to avoid contact with opposing counsel and the court during the period of delay. (Aycock Decl. Apr. 19, 2005 ¶¶ 14, 18, 21.) Such behavior cannot be rewarded with leniency.

Lastly, the consequences of BMS' delay are not inconsequential. The court has expended energy and resources...