Wolf v. Discover Fin. Servs.

• Decision Date: 29 July 2020
• Docket Number: No. CV-19-04989-PHX-JAT,CV-19-04989-PHX-JAT
• Parties: Joan Wolf, Plaintiff, v. Discover Financial Services Incorporated, Defendant.
• Court: U.S. District Court — District of Arizona

Joan Wolf, Plaintiff, v. Discover Financial Services Incorporated, Defendant.

No. CV-19-04989-PHX-JAT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 29, 2020

ORDER

Pending before the Court are Defendant Discover Financial Services Incorporated's Motion for Judgment on the Pleadings (Doc. 60), Defendant's Request for Summary Disposition (Doc. 67), and Plaintiff Joan Wolf's Motion for Leave to File a Late Opposition Response to Defendant's Motion for Judgment on the Pleadings (Doc. 72). The Court now rules on each of these motions.

I. DEFENDANT'S REQUEST FOR SUMMARY DISPOSITION

Defendant asks the Court to grant summary disposition on its Motion for Judgment on the Pleadings (Doc. 60) as a result of Plaintiff's failure to timely respond to that Motion (Doc. 60). (Doc. 67). Plaintiff has sought leave to file a response to the Motion for Judgment on the Pleadings (Doc. 60). (Doc. 72).

When a party fails to timely act, a court may extend the time to act for good cause if that party failed to act as a result of excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B). "[I]t is clear 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." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392 (1993) (footnotes and citations omitted). "To determine whether a party's failure to meet a deadline constitutes 'excusable neglect,' courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (citations omitted). Rule 6(b)(1)(B), "like all the Federal Rules of Civil Procedure, is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits." Id. at 1258-59 (internal quotation marks and citations omitted).

Plaintiff has met her burden under Rule 6(b)(1)(B). Thus, Plaintiff's Motion (Doc. 72) will be granted, and Defendant's Request for Summary Disposition (Doc. 67) will be denied.

First, there is little, if any, prejudice to Defendant. Defendant claims that the delay has prejudiced Defendant because it drafted the Motion for Summary Disposition (Doc. 67) as a result of Plaintiff's failure to respond to the Motion for Judgment on the Pleadings (Doc. 60), which caused it to incur additional expenses. (Doc. 77 at 2). The Ninth Circuit has rejected similar claims of prejudice. For example, in Bateman v. United States Postal Service, the Ninth Circuit concluded that a defendant's loss of "a quick victory" based on a plaintiff's failure to respond to that defendant's summary judgment motion was not so prejudicial that it should preclude relief under Rule 6(b)(1)(B) despite the fact that the defendant "filed papers . . . asking that its motion be granted as unopposed," just as Defendant did here. 231 F.3d 1220, 1223, 1224-25 (9th Cir. 2000). Here, the additional costs of litigation that resulted from Plaintiff's failure to timely respond and the potential—rather than the actual—loss of a victory due to Plaintiff's failure to respond do not constitute cognizable forms of prejudice, especially in light of the fact that cases should be decided on the merits when possible. Evangelista v. JustEnergy Mktg. Corp., No. SACV1702270CJCSSX, 2018 WL 4849673, at *3 (C.D. Cal. July 9, 2018). This factor favors Plaintiff.

Second, the delay was not excessive. The deadline to respond to Defendant's Motion for Judgment on the Pleadings was May 15, 2020. (Doc. 66). Defendant filed its Motion for Summary Disposition a week later on May 22, 2020. (Doc. 67). Plaintiff claims that she filed her response by mail on May 9, 2020; realized, on May 23, 2020, that the filing had been returned to sender; and then sought leave to file her untimely response on May 28, 2020. (Doc. 72 at 2-3). A less-than-two-week delay does not justify denying a motion for extension of time under Rule 6(b)(1)(B). See Bateman, 231 F.3d at 1225 (finding a nearly-one-month delay "not long enough to justify denying relief"); Evangelista, 2018 WL 4849673, at *3 (concluding delay of twenty-five days weighed in favor of granting relief). Indeed, Defendant did not show this two-week delay has had any effect on the progress of this case. See Bateman, 231 F.3d at 1225. This factor also favors Plaintiff.

Third, the reason for delay also favors Plaintiff as Plaintiff has established excusable neglect. Plaintiff claims that she failed to timely file her response because she mistakenly addressed the filing, and it was returned to sender. (See Doc. 72 at 3; id. at 6). Defendant simply notes in response that the reason for delay was Plaintiff's "failure to comply with applicable rules of procedure." (Doc. 77 at 2). But "[t]he right way, under Pioneer, to decide cases involving" the failure to comply with applicable rules of procedure "is with an 'elastic concept' equitable in nature, not with a per se rule." See Pincay v. Andrews, 389 F.3d 853, 858-60 (9th Cir. 2004) (en banc) (citation omitted) (holding that district court was within its discretion to grant relief under the same factor test as required by Rule 6(b)(1)(B) while recognizing that the excuse presented there, "[the] failure to read an applicable rule[,] is one of the least compelling excuses that can be offered"). Even an attorney's near-month-long delay in filing a response to summary judgment "based on his recovery from jet lag and the time it took to sort through the mail that had accumulated while he was away" has been excused. See Bateman, 231 F.3d at1223, 1225; see also Ahanchian, 624 F.3d at 1262 (concluding that "a calendaring mistake caused by the failure to apply a clear local rule," while an admittedly "weak justification for . . . delay," constituted excusable neglect). The Court likewise finds that Plaintiff's less egregious error does not preclude a finding of excusable neglect.

Finally, there is no indication of bad faith here. The good faith analysis under Rule 6(b)(1)(B) looks to "whether the failure to file in a timely fashion was 'in bad faith or [in an attempt] to obtain any advantage.'" Goens v. Adams & Assocs., Inc., No. 216CV00960TLNKJN, 2018 WL 263896, at *4 (E.D. Cal. Jan. 2, 2018) (alteration in original) (citation omitted); see Ahanchian, 624 F.3d at 1262; see also Pincay, 389 F.3d at 861 (Berzon, J., concurring) ("The good faith consideration goes to the absence of tactical or strategic motives, not to the degree of negligence."). Plaintiff claims that her failure to timely file was not the result of bad faith but instead "an honest mistake made by [Plaintiff] in the Court's address." (Doc. 72 at 3-4). Mistakes in addressing happen, and it is possible that Plaintiff was on vacation and did not check her mail for several weeks as she asserts. (Id.). The fact that Plaintiff has produced an envelope addressed to the Court with a NIXIE label that is dated as processed on May 9, 2020 tends to show that she did not fabricate her excuse simply to buy more time. (Id. at 6); see Ahanchian, 624 F.3d at 1262 (finding this factor favored relief where "mistake was not a bad-faith, post-hoc rationalization concocted to secure additional time"). In short, while Plaintiff should have been more cautious in both properly filing the Response (Doc. 70) and checking her mail considering she has a pending case in which she is representing herself, the facts here simply do not appear to rise to the level of bad faith. Bateman, 231 F.3d at 1225.

The equities favor Plaintiff. Therefore, her Motion for Leave to File a Late Opposition Response to Defendant's Motion for Judgment on the Pleadings (Doc. 72) will be granted, and consequently, Defendant's Request for Summary Disposition (Doc. 67) will be denied.

II. DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

As noted, Defendant has filed a Motion for Judgment on the Pleadings (Doc. 60). Plaintiff opposes that Motion (Doc. 60). (Doc. 70).

a. Background

The operative complaint is the First Amended Complaint. (Doc. 12). Defendant has answered. (Doc. 17). The following facts are either undisputed or recounted in the light most favorable to Plaintiff, the non-movant. See Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).

Defendant hired Plaintiff in September 1993 as a Cardmember Senior Prevention Specialist in the fraud department within Defendant's call center in Phoenix, Arizona. (Doc. 12 at 5; Doc. 17 at 3). Plaintiff took a medical leave of absence from August 22, 2017 to February 14, 2018 in order to get throat and nose surgery to treat sleep apnea. (Doc. 12 at 5; Doc. 17 at 3).

On March 29, 2018, after returning to work, Plaintiff claims that the "phone work" that was required by her position was straining her voice, and she requested no phone work until May 23, 2018 based on a doctor's recommendation. (Doc. 12 at 7). Plaintiff claims that she "suggested a number of positions that did not require that she use the phone" and that her manager falsely indicated there were no such positions. (Id.). Plaintiff asserts that she was "forc[ed] . . . to take short term disability [sic]" as a result despite the fact that Defendant "could have accommodated" her with a different position. (Id. at 7-8). Plaintiff alleges that while she was on short-term disability, human resources "continued to insist [Defendant] had no work for [Plaintiff]" and that Defendant "offered her part-time phone work instead." (Id. at 8; see Doc. 17 at 4). But, according to Plaintiff, part-time phone work was not suitable "because it would cause permanent damage to her vocal cords." (Doc. 12 at 8; see Doc. 17 at 4). On May 30, 2018, Plaintiff's doctor recommended that Plaintiff perform no phone work until July 30, 2018. (Doc. 12 at 8; Doc. 17 at 4). In...