Executive Summary: A federal trial court in D.C. recently dismissed the Amended Complaint of a former professor at the University of the District of Columbia ("UDC" or "University") due to his failure to timely oppose a Motion to Dismiss, finding that the plaintiff's counsel's reasons for the failure to timely respond to the motion did not rise to the level of "excusable neglect" under Federal Rule of Civil Procedure 6(b)(1).
Background
Plaintiff Robert Cohen was a former professor at UDC whose employment was terminated by the University. Cohen initially sued UDC and three individual defendants in state court, alleging breach of contract. Finding that Cohen could not bring a cause of action for breach of contract in court based on alleged violations of a collective bargaining agreement, the state court dismissed the case but granted Cohen leave to amend his complaint. Cohen subsequently filed a First Amended Complaint asserting new causes of action, including, among other things, that he was denied his constitutional right to due process in violation of Section 1983. UDC and the individual defendants removed the case to federal court and filed a Motion to Dismiss the First Amended Complaint.
Cohen failed to timely file an opposition to the Motion to Dismiss. Instead, over a week after the deadline had passed, Cohen filed a motion for an extension of time to respond to the Motion to Dismiss. In his motion for an extension, Cohen's counsel asserted that he believed the Motion to Dismiss was filed in "error," as when he downloaded and opened the document on the date it was filed he believed it was "incomplete because it appeared to start on a random page, and the pages that appeared were the exhibits to the motion." Cohen's counsel claimed he checked the docket approximately one week later but found "no new entries on the docket to correct the filing." Subsequently, Cohen's counsel checked the docket again and was able to download the motion. Cohen's counsel asserted in his motion for an extension that "he now believes that when he originally attempted to download the motion he simply incorrectly clicked on the wrong link (exhibits instead of leading document)." Cohen's counsel asserted that these "technical difficulties" and "technical issues opening the motion to dismiss" amounted to "excusable neglect."
Ruling
Because Cohen filed his motion for extension of time after the deadline for responding to the Motion to Dismiss had expired, Cohen was required to demonstrate that the failure to act was due to "excusable neglect." In determining whether a party has demonstrated excusable neglect, courts consider (1) the danger of prejudice to the non-moving party; (2) the length of the delay and its impact on the proceedings; (3) the reason for the delay, including whether it was within the control of the moving party; and (4) whether the moving party acted in good faith. The court found that Cohen had failed to meet the excusable neglect standard.
While the court found that the prejudice to the defendants was "relatively minimal" and the court did not infer bad faith, the court noted that the impact on the judicial proceedings arguably supported the defendants, as Cohen had "repeatedly delayed this action by failing to meet almost every relevant deadline . . ." According to the court, "the pattern of near-constant delay is notable." The court further found that Cohen had not set forth any reasonable excuse for his delay. Recognizing that "courts have found that a party's misunderstanding of a court order or mis-calendaring of a court deadline does not constitute excusable neglect," the court concluded in this case that "failure to keep apprised of a case's docket is similarly inexcusable." The court explained that Cohen's counsel's "perfunctory review of documents associated with a dispositive motion fell short" of the obligation to monitor a case docket and keep abreast of deadlines. Thus, the court held that Cohen had failed to satisfy the "excusable neglect" standard, noting that another judge of the court had previously recognized: "[t]he day has long since arrived whereby an attorney can view a docket in an instant at any time from anywhere . . . With that change has come a lessening of sympathy by the court for docket-related errors."
As Cohen failed to demonstrate excusable neglect for his failure to file a timely opposition to the Motion to Dismiss, Cohen's motion for an extension was denied. Accordingly, the Motion to Dismiss was granted as conceded.
