Robinson v. Wright, No. CV-05-190-B-W.

• Decision Date: 31 October 2006
• Docket Number: No. CV-05-190-B-W.
• Citation: 460 F.Supp.2d 178
• Parties: Susan ROBINSON and Jean H. Trott, Plaintiffs, v. Francis WRIGHT and Elizabeth Wright, Defendants.
• Court: U.S. District Court — District of Maine

Page 178

460 F.Supp.2d 178

Susan ROBINSON and Jean H. Trott, Plaintiffs, v. Francis WRIGHT and Elizabeth Wright, Defendants.

No. CV-05-190-B-W.

United States District Court, D. Maine.

October 31, 2006.

Barry K. Mills, Hale & Hamlin, Ellsworth, ME, for Plaintiffs.

Brent A. Singer, John W. McCarthy, Rudman & Winchell, Bangor, ME, for Defendants.

AMENDED¹ ORDER ON MOTION FOR EXTENSION OF TIME AND MOTION FOR SUMMARY JUDGMENT

WOODCOCK, District Judge.

On August 10, 2006, Francis Wright and Elizabeth Wright moved for summary judgment. Under Local Rule 7(b), Plaintiffs Susan Robinson and Jean H. Trott were required to respond by August 31, 2006, but failed to do so. On September 19, Plaintiffs filed a Motion to Extend Time, citing "excusable neglect." Because the Plaintiffs have failed to state sufficient justification for their failure to respond, the Court denies the Plaintiffs' motion for extension of time within which to answer (Docket # 13). However, even when the Defendants' statements of material fact are taken as true, there remains a genuine question of material fact; the Court therefore denies the motion for summary judgment (Docket # 6).

I. STATEMENT OF FACTS

On December 12, 2005, Susan Robinson and Jean H. Trott filed a complaint against Francis Wright and Elizabeth Wright, claiming that the Wrights intentionally and negligently made misrepresentations about their home in East Machias, Maine and that Ms. Robinson and Ms. Trott were thereby misled into purchasing it. Compl. (Docket # 1). Specifically, Ms. Robinson and Ms. Trott assert that the Wright home was "infested with toxic and/or allergenic types of mold, mold spores, and mold fragments, including high levels of Aspergillus/Penicillium-like fungus and other harmful species of mold." Id. 8. As a consequence, the Plaintiffs claim that they incurred remediation expenses, suffered physical and emotional symptoms, and cannot live in the house they purchased from the Wrights. Id. ¶¶ 20-26. They assert damages in excess of $75,000.00, including remediation expenses exceeding $88,000.00. Id. 21. The Wrights deny the allegations and have vigorously defended the claim.

After the discovery period lapsed, the Defendants timely moved for summary judgment on August 10, 2006. Defs.' Mot. for Summ. J. (Docket # 6) (Defs.' Mot.). The motion is grounded on the contention that, under principles of tort and contract law, the Plaintiffs are unable to establish "an essential element of their claim, namely, that [Ms. Robinson] justifiably relied on the Wrights' alleged assurances there was no mold." Id. at 3. The Plaintiffs did not file a timely response to the dispositive motion.

Local Rule 7(b) provides, "[u]nless within twenty-one (21) days after the filing of a motion the opposing party files written objection thereto, incorporating a memorandum of law, the opposing party shall be deemed to have waived objection." Under this Rule, the Plaintiffs were required to file an objection by August 31, 2006, but failed to do so.

On September 15, 2006, the Court sent a routine notice to the parties, informing them that the matter would be placed on the trial list, if appropriate, after the ruling on the dispositive motion. Notice (Docket # 12). Receipt of this notice likely provoked an existential moment in the life of Plaintiffs' counsel. He states that he "checked the file and realized, to dismay, that no opposition had been filed to the motion for summary judgment." Pls.' Mot. for Extension at 1-2. After contacting defense counsel and receiving no firm position, Plaintiffs' counsel moved for extension on September 19, 2006. Id. at 2. The motion explains that the Defendants' motion arrived in his office while Plaintiffs' counsel had been "preparing for two backto-back trials in Hancock County Superior Court — one a one-day non jury trial ... and the other — a seven-day jury trial...." Id. at 1. Following the trials, he was required to address post-trial motions and other accumulated matters, and he frankly admits "the pending motion for summary judgment was overlooked." Id. at 1. He asserts that his excusable neglect has not prejudiced the Defendants. Id. at 2.

The Defendants object to the motion to extend. Deft.' Objection to Pls.' Mot. for Extension (Defs.' Objection) (Docket # 14). They quote First Circuit law, which states that "even under the flexible standard prescribed by Pioneer, counsels' inattention or carelessness normally does not constitute `excusable neglect.'" Defs.' Objection at 2 (citing Dimmitt Ockenfels, 407 F.3d 21, 24 (1st Cir.2005)). They point out that the First Circuit has commented that the "stated reasons for the neglect — confusion over filing dates and busyness — hold little water." Deft.' Objection at 2 (citing Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 101 (1st Cir. 2003)). They further relate a number of equitable factors, including the fact that their clients are an elderly couple with little means and the assertion that the delay will give the Plaintiffs an undue advantage in responding to the motion. Defs.' Objection at 3. In short, they say the Plaintiffs demonstrated neglect, but not excusable neglect.

II. DISCUSSION

A. Motion for Extension of Time

Federal Rule of Civil Procedure 6(b) "confers discretion on a court to grant an extension of time after the expiration of a filing deadline for `excusable neglect.'" Cordero-Soto v. Island Fin., 418 F.3d 114, 117 (1st Cir.2005). The Supreme Court set forth the analysis for excusable neglect in Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P'ship saying,

... the determination is at bottom an equitable one, taking account of all relevant circumstances ... [including] the danger of prejudice to the [other party], 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.

507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (discussing the excusable neglect standard under Bankruptcy Rule 9006(b)(1)); Pratt v. Philbrook, 109 F.3d 18 (1st Cir.1997) (discussing the excusable neglect standard under Rule 60(b)); Elmet Techs., Inc., v. Advanced Techs. Sys., Inc., No. 05-200-P-S, 2006 WL 411905, *1, 2006 U.S. Dist. LEXIS 6555, *3 (D.Me. Feb. 17, 2006).

Turning first to prejudice, the First Circuit explained that, as used in this context, prejudice does not refer to a situation in which the party who would obtain a legal advantage from default is deprived of that advantage. Pratt, 109 F.3d at 22. Instead, "cognizable prejudice" is, "for example ... lost evidence." Id. Here, the Defendants do not produce an argument for any cognizable prejudice.

The second factor is the length of the delay and its potential impact on the judicial proceedings. For a case that has been pending since December 12, 2005, a delay of two to three weeks, though not insignificant, does not weigh heavily in favor of a default.

The third factor, the reason for the mistake, is the "by far the most critical." Dimmitt, 407 F.3d at 24. In Pioneer, the Supreme Court "declined to limit `excusable neglect' to those circumstances caused by intervening circumstances beyond a party's control." Pratt, 109 F.3d at 19. Instead, Pioneer concluded that "Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness." Id (quoting Pioneer, 507 U.S. at 388, 113 S.Ct. 1489). Here, the reason for the mistake is, by counsel's own admission, inadvertence.

The First Circuit has commented that "counsels' inattention or carelessness, such as a failure to consult or to abide by an unambiguous court procedural rule, normally does not constitute `excusable neglect.' " Dimmitt, 407 F.3d at 24; see also Stonkus, 322 F.3d at 101; Graphic Commc'ns Intl Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 6-7 (1st Cir.2001); Hosp. del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir. 2001); Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 631 (1st Cir.2000). These cases establish that the Court would be wellwithin its permissible authority were it to conclude that the Plaintiffs' failure to comply with a procedural deadline does not constitute excusable neglect.

By the same token, the Court does not read the First Circuit cases as establishing an inflexible bar on the Court's discretion, in derogation of Pioneer. See Pratt, 109 F.3d at 22 (finding that the Supreme Court has "recently adopted a forgiving attitude toward instances of `excusable neglect,'"); Hosp. del Maestro, 263 F.3d at 174 ("excusable neglect ... is a somewhat elastic concept"). Rather, the First Circuit has repeatedly affirmed that excusable neglect motions are "committed to the district court's sound discretion," Stonkus, 322 F.3d at 100, and, although the reason for the mistake is the most critical factor, the analysis remains "at bottom an equitable one." Stonkus, 322 F.3d at 101 (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489).

Here, the Plaintiffs have given only the barest bone of an excuse. Counsel states that he completed two back-to-back trials in August: a one-day bench trial and immediately thereafter a seven-day jury trial on August 22, 2006. Tracking the calendar back, this means that counsel began his eight day trial schedule on August 11, 2006. The Defendants' motion for summary judgment was filed on August 10, 2006. The need to prepare and the trials themselves offer some explanation as to why he initially failed to respond to the motion. However, the trials were completed on August 22, 2006, leaving counsel eight days to respond, in some fashion, to the Defendants' motion.

Counsel's excuse "hold[s] little water." Stonkus, 322 F.3d at 101. That counsel was preparing for or in trial cannot, standing alone, constitute excusable neglect for entirely failing to respond to court deadlines in ...