Wells v. Gourmet Services Inc. et al (MAG+)
MEMORANDUM OPINION AND ORDER that Mr. Wells's 74 Motion for Extension of Time to Conduct Discovery and File Dispositive Motion is DENIED as further set out in the opinion and order. Signed by Chief Judge William Keith Watkins on 1/27/2015. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
GOURMET FOOD SERVICES,
INC., et al.,
CASE NO. 2:13-CV-516-WKW
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff Lawrence Wells’s Motion for Extension of Time
to Conduct Discovery and File Dispositive Motion (Doc. # 74). The motion is
opposed by Defendants. (Doc. # 76.) After careful consideration of the arguments
of counsel, the relevant law, and the record as a whole, the motion is due to be
Mr. Wells filed his law suit pro se on July 19, 2013. In his 819-page
Complaint, Mr. Wells alleged that he was subjected to a hostile work environment,
wrongfully discharged, and deprived of pay by his former employer, Gourmet
Services, Inc., and its agents. At the time Mr. Wells filed suit, he was living in
Austell, Georgia. On October 8, 2013, however, he telephoned to inform the court
that he had traveled abroad and was currently in Phnom Penh, Cambodia. He also
requested that the status and scheduling conference set for October 17, 2013, be
held by telephone or teleconference. During the telephone conversation, Mr. Wells
was instructed to file a written motion containing his scheduling request and was
specifically told that the court does not accept filings or communications via email.
Despite stating that he would submit his motion via express mail, Mr. Wells
immediately began attempting to communicate with the court and submit motions
by email. He also attempted to effect service of his complaint on Defendants by
sending copies of the emails he sent to their personal accounts.
In response to these efforts, an Order (Doc. # 18) was issued again
instructing Mr. Wells that he was not to communicate with the court or submit
motions via email and informing Mr. Wells that Rule 5(b) of the Federal Rules of
Civil Procedure requires that he mail Defendants a copy of anything he files with
the court. The Order further explained any document filed with the court should
contain a certificate of service, specifically stating that the pleading or other
document has been sent to Defendants. Lastly, the Order pushed the status and
scheduling conference back almost two months so that Mr. Wells could attend and
advised Mr. Wells that the case would “move forward even if he must proceed pro
se, and even if he has left the country.” (Doc. # 18.)
On February 13, 2014, Defendants moved for judgment on the pleadings,
and the Magistrate Judge filed his Recommendation that Defendants’ motion
should be granted unless Mr. Wells filed an amended complaint that alleged
sufficient particularized facts to state a claim for Title VII discrimination. (Doc. #
39.) While awaiting Mr. Wells’s amended complaint, the Magistrate Judge stayed
discovery and reserved ruling on motions involving third party discovery disputes.
On March 20, 2014, Mr. Wells filed his amended complaint.
complaint, however, did not comply with Federal Rule of Civil Procedure 8(a)(2),
which requires “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The court opted to give Mr. Wells the
opportunity to appear in person at a hearing where he could better explain his
claims. (Doc. # 48.) Recognizing that Mr. Wells was still residing abroad, the
court gave him three weeks to advise the court of the dates he could return to the
Mr. Wells informed the court on April 10, 2014, that he was currently in the
United States and wished to schedule a hearing before April 30, 2014, at which
time he anticipated returning overseas. (Doc. # 51.) A hearing was set for April
30, 2014, and all parties attended. During the hearing, Mr. Wells made an oral
motion to amend his complaint to better address his claim that he was subject to a
hostile work environment, wrongfully discharged and deprived of pay. Shortly
thereafter, he filed a motion to submit additional documentary evidence. (Doc. #
56.) The Magistrate Judge granted the motions, but when notice of the decision
was mailed to Mr. Wells, the documents were returned with the United States
Postal Service notation, “Return to Sender, Unclaimed, Unable to Forward, 2nd
Notice 4/21, RTS 4/29.” Accordingly, on May 23, 2014, the Magistrate Judge
ordered that Mr. Wells supply the court with his current mailing address by June 6,
2014. (Doc. # 58.) On June 2, 2014, Mr. Wells informed the court that he was
now living in Deltona, Florida, and supplied a new mailing address.
On July 14, 2014, Mr. Wells filed a motion to amend his complaint, which
the court granted on July 21, 2014, in light of Mr. Wells’s pro se status and for
(Docs. # 61 & 63.)
The Magistrate Judge then entered a
Recommendation (Doc. # 64) that Defendants’ Motion for Judgment on the
Pleadings (Doc. # 37) be granted in part, effectively dismissing all of Mr. Wells’s
claims with prejudice except for his claim that Defendants violated the Fair Labor
Standards Act (“FLSA”). On August 4, 2014, Mr. Wells informed the court that
he had been traveling throughout Texas looking for work and intended to travel to
Dubai in the coming days to continue his search for employment. He informed the
court that he would continue to use the address in Florida until he found a
permanent address in Dubai, and he requested additional time in which to object to
the Magistrate Judge’s Recommendation.
On August 5, 2014, the Magistrate Judge entered an Order extending the
window for Mr. Wells to object to the July 21, 2014 Recommendation (Doc. # 65)
until August 26, 2014. The Order also reminded Mr. Wells that “regardless of
whether he is able to retain counsel, the court will move this case forward even if
he must proceed pro se, and even if he has left the country or is traveling within the
United States.” (Doc. # 66.) More than one month passed, and as of September
9, 2014, no objections had been filed to the Magistrate Judge’s Recommendation
(Doc. # 65). The Recommendation was adopted on September 9, 2014, and the
case was ordered to proceed solely on Mr. Wells’s FLSA claim. On September 11,
2014, the Magistrate Judge lifted the stay previously imposed on the case and
issued an amended scheduling order, setting discovery to conclude on December
10, 2014, and dispositive motions to be submitted by January 9, 2015.
Almost one full month after the discovery period concluded, a notice of
appearance was filed on behalf of Mr. Wells along with a request that discovery be
reopened and that both the discovery deadline and the dispositive motion deadline
be extended four months. Mr. Wells’s newly hired attorney informed the court that
Mr. Wells was still in Dubai, that he never received the Amended Scheduling
Order (Doc. # 77), and that he only recently sought the assistance of counsel.
Applying the provisions of Federal Rule of Civil Procedure 6(b)(1)(B), Mr.
Wells’s attorney argues that good cause and excusable neglect exist in this case
and warrant an extension of the deadlines. Defendants oppose the motion to
extend and highlight the repeated opportunities Mr. Wells was given to amend his
complaint and recurrent warnings Mr. Wells was given regarding the need to keep
abreast of the judicial determinations and deadlines in his case.
Pursuant to Rule 6(b)(1)(B), a court “may for good cause,” grant an
extension of time “upon [a]motion made after the expiration of the specified
period,” if “the failure to act was the result of excusable neglect.” Fed. R. Civ. P.
6(b)(1)(B). The phrase “excusable neglect” appears in several federal procedural
rules, including Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure, as
addressed in Pioneer Investment Services Co. v. Brunswick Associates Limited
Partnership, 507 U.S. 380 (1993), and in Rule 60(b) of the Federal Rules of Civil
Procedure, as addressed in Cheney v. Anchor Glass Container Corp., 71 F.3d 848
(11th Cir. 1996). In Pioneer, the Supreme Court held that the determination of
“what sorts of neglect will be considered ‘excusable’ . . . is at the bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s
omission.” 507 U.S. at 395. These circumstances “include . . . the danger of the
prejudice to the [non-movant], 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.
In Cheney, the Eleventh Circuit noted that in Pioneer, “the Supreme Court
accorded primary importance to the absence of prejudice to the nonmoving party
and to the interest of efficient judicial administration in determining whether the
district court abused its discretion.” 71 F.3d at 750.
To begin, it is important to note that Mr. Wells is not merely asking this
court to accept an untimely answer, dispositive motion, or other filing. Rather, he
is requesting that the court forgo deadlines under which Defendants have been
operating and give him an additional four months to engage in discovery and file a
dispositive motion. Applying the Pioneer factors, the court is unable to find
excusable neglect on the part of Mr. Wells to justify such an expansive request.
The first Pioneer factor requires consideration of the danger of prejudice to
the nonmovant. 507 U.S. at 395. Mr. Wells attempts to characterize any possible
prejudice felt by Defendants as nothing more than the pains of losing out on the
opportunity to benefit from a “quick victory.”
(Doc. # 74.)
however, is unpersuasive.
Defendants are not seeking a quick victory. Rather, they are requesting that
the court adhere to the discovery and dispositive motion deadlines, under which
they have been operating since early September. Defendants highlight that Mr.
Wells initially filed suit on July 19, 2013, approximately a year and a half ago,
during the first portion of which Mr. Wells attempted to engage in extensive
discovery practices. When the stay was lifted, Mr. Wells was given an additional
three months to conduct discovery.
It would no doubt prejudice Defendants to again – one month after they
believed the discovery period had concluded – be exposed to a four-month period
of discovery and push back the possibility of a timely resolution of Mr. Wells’s
remaining claim. Accordingly, the first Pioneer factor weighs in favor of denying
Mr. Wells’s motion due to his failure to show excusable neglect.
Length of the Delay and Its Potential Impact on the Judicial
The second Pioneer factor requires consideration of the “length of the delay
and its potential impact on judicial proceedings.” 507 U.S. at 395. The dates
discovery was to conclude and dispositive motions were due mark the starting
point for measuring the length of the delay. While just under one month has
passed from the date discovery was to conclude (December 10, 2014) and the date
Mr. Wells filed his motion to extend (January 7, 2015), Mr. Wells is requesting
that discovery be reopened and extended four months, thereby pushing back the
discovery deadline almost five months from the date it was originally set to
conclude. And while Mr. Wells’s motion for an extension was filed two days
before dispositive motions were due, he again seeks to adjust the deadline by four
While neither a pretrial conference nor trial date has been set, Mr. Wells is
seeking a four-month extension of two important deadlines so that his attorney can
only now begin to become familiar with his case. (Doc. # 74) (“Counsel for
Plaintiff needs additional time to review the documents already filed prior to
making a determination whether to file [a] motion for summary judgment . . . .
Furthermore, it is unclear to counsel whether the documents already filed include
sufficient discovery documents related to the FSLA claim.”). To reset the clock by
four months to provide Mr. Wells’s counsel an opportunity to come up to speed on
a year and a half’s worth of litigation and to engage in discovery that was already
supposed to have concluded would be a delay that strains the efficient
administration of justice.
The Reason for the Delay
The third Pioneer factor focuses on the reason for the delay. 507 U.S. at
395. Mr. Wells’s attorney asserts that he was only recently hired by Mr. Wells and
that Mr. Wells never received a copy of the Amended Scheduling Order due to his
In Pioneer the Supreme Court observed that “there is no
indication that anything other than the commonly accepted meaning of the phrase
[“excusable neglect”] was intended by [Rule 6(b)’s] drafters.” Id. at 391. As
explained in Pioneer, “the ordinary meaning of ‘neglect’ is ‘to give little attention
or respect’ to a matter, or . . . ‘to leave undone or unattended to esp[ecially]
Id. at 388 (quoting Webster’s Ninth New Collegiate
Dictionary 791 (1983)). “The word therefore encompasses both simple, faultless
omissions to act and, more commonly, omissions caused by carelessness.” Id.; see
also Raymond v. Int’l Bus. Machs. Corp., 148 F.3d 63, 66 (2d Cir.1998) (“[M]ere
inadvertence, without more, can in some circumstances be enough to constitute
‘excusable neglect’ justifying relief under” under Rule 6(b)(1)(B) (citing Pioneer,
507 U.S. at 391–92)).
Here, the court is not dealing with a mere mistake of fact via clerical error.
See Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 999 (11th Cir. 1997)
(explaining that when there is a “mistake of fact,” such in Cheney, which was a
“miscommunication case or clerical-error case,” the neglect can be excusable).
Rather Mr. Wells’s attorney asserts that the extension is needed because Mr. Wells
“was neglectful in not sending his new address,” but states that “nothing about the
legal proceeding up to that time put him on notice that deadlines would be issued
and expired before he could get settled in Dubai.” (Doc. # 74.) Mr. Wells’s
attorney, however, is incorrect. Mr. Wells was repeatedly informed that the case
would “move forward even if he must proceed pro se, and even if he [had] to
[leave] the country.” (Docs. # 18 & 57.) Mr. Wells was also reminded that, “while
the case is pending, it is his duty to provide direct, written notification to the Clerk
of this Court of any change of address or telephone number” and that should he fail
“to comply with [this obligation], the court will treat his failure to comply as an
abandonment of the claims set forth in the complaint and as a failure to prosecute
this action.” (Doc. # 57.)
The record indicates that Mr. Wells was aware of these warnings, as he
responded to the Magistrate Judge’s May 23, 2014 Order (Doc. # 57) by providing
a change of address (Doc. # 59) and informing the court that he would continue to
use his Florida address until he had a new address in Dubai and would send the
new address “ASAP, to the Clerk of This Court.” (Doc. # 65.) Despite his
recognition of the importance of keeping the court informed of his changes in
residencies and impending objection deadlines, the court did not hear from Mr.
Wells from August 4, 2014, to the filing of the present motion on January 7, 2015.
The court cannot conclude this five-month window was the result of mere
carelessness. Mr. Wells initiated this lawsuit and was informed on more than one
occasion that the lawsuit would move forward regardless of his changing country
of residence. He cannot now claim that failing to maintain any contact with the
court for five months amounts to excusable neglect. Accordingly, this third factor,
like the preceding two, weigh in favor of denying Mr. Wells’s motion.
The fourth Pioneer factor examines “whether the movant acted in good
faith.” 507 U.S. 395. Mr. Wells argues that he acted in good faith because all his
failures in not properly pursuing his claim were the result of his need to seek
employment overseas. He explains that “[t]here is much involved in such a move,
including travel, and getting a job, and obtaining all the other basic[ ] needs of
life,” such as “food, clothing, shelter[,] and furnishings.” (Doc. # 74.) In light of
the strength of the first three Pioneer factors, the court sees no need scrutinize Mr.
“[A]ll relevant circumstances surrounding” counsel for Defendants’ missed
deadlines have been considered. Pioneer, 507 U.S. at 395. The presence of
prejudice to Defendants coupled with the extent of the suggested delay and basis
for the motion do not support a finding of excusable neglect under Rule 6(b)(1)(B).
Accordingly, it is ORDERED that Mr. Wells’s Motion for Extension of Time to
Conduct Discovery and File Dispositive Motions is DENIED.
DONE this 27th day of January, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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