Smith et al v. Werner Enterprises, Inc.
Order granting 154 MOTION for Leave to Supplement filed by plaintiffs. Plaintiffs are ordered by 10/20/2015 to file their supplemental material. Defendant's response is due by 10/21/2015. Plaintiffs are ordered to incorporate any reply into the reply brief previously authorized and due on 10/23/2015. Signed by Chief Judge William H. Steele on 10/19/2015. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CORNELIUS SMITH, et al.,
) CIVIL ACTION 14-0107-WS-B
WERNER ENTERPRISES, INC.,
This matter is before the Court on the plaintiffs’ motion for leave to
supplement. (Doc. 154). The defendant has filed a brief in opposition, (Doc.
156), the plaintiffs have filed a reply, (Doc. 158), and the matter is ripe for
On September 3, 2015, the Court approved the parties’ settlement of this
FLSA action. (Docs. 145-46). On the same date, the Court ordered the plaintiffs
to file any motion for attorney’s fees and related nontaxable expenses on or before
October 1, 2015, “failing which no such fees or expenses will be awarded.” (Doc.
147). The Court also instructed that any such motion “shall be accompanied by …
any … evidence the plaintiffs deem necessary in support of their motion.” (Id.).
The plaintiffs timely filed a motion for attorney’s fees, costs and expenses,
seeking an award of approximately $190,000. (Doc. 152). On October 6, 2015,
the plaintiffs filed the instant motion, seeking permission to add exhibits in
support of a further award of $7,177.50, representing post-settlement fees (through
October 1) of one attorney. (Doc. 154-1 at 4). The explanation given is that, as of
October 1, counsel had not prepared time sheets for this time and had mistakenly
assumed he could submit the records as late as in conjunction with the plaintiffs’
reply brief on October 23. (Doc. 154 at 2).
The defendant correctly asserts this is a poor explanation, given the Court’s
explicit directive to file “any … evidence” supporting the motion no later than
October 1.1 The plaintiffs’ response that surely they could file, after October 1,
supplemental material covering the period after October 1, (Doc. 158 at 2-3),
misses the point; all the evidence made the subject of the instant motion relates to
time expended on or before October 1. (Doc. 154-1).
Although unnoted by the parties, the plaintiffs’ motion is governed by Rule
6(b). When, as here, a motion for extension of time is not filed until after the
deadline has expired, the movant must show that it “failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(2).2 Whether “excusable neglect” exists
under Rule 6(b) is to be evaluated under the standard set forth in Pioneer
Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S.
380 (1993).3 Under Pioneer, the factors governing the excusable neglect analysis
include “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.” Id. at 395. Of these considerations, “the absence of
prejudice to the nonmoving party and to the interest of efficient judicial
administration are of primary importance ….” In re: Worldwide Web Systems,
Inc., 328 F.3d 1291, 1297 (11th Cir. 2003) (internal quotes omitted).
The plaintiffs deny that the defendant would be prejudiced by their late
filing. (Doc. 154 at 3). The defendant, which focuses exclusively on the
perceived weakness of the plaintiffs’ excuse for being tardy, ignores prejudice
The plaintiffs’ suggestion that “any” does not in this context mean “all,” (Doc.
158 at 2), will not bear scrutiny.
Rule 6 applies to deadlines imposed by court order. Fed. R. Civ. P. 6(a); Valley
Drug Co. v. Geneva Pharmaceuticals, Inc., 262 Fed. Appx. 215, 216 (11th Cir. 2008).
See, e.g., Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 n.2 (11th Cir.
1998); Glover v. City of Pensacola, 372 Fed. Appx. 952, 955 (11th Cir. 2010).
altogether. Moreover, the delay is only five days (three business days), a period so
brief as to practically negate both prejudice and adverse impact on the judicial
proceedings. With these “primary” factors firmly in the plaintiffs’ favor, and with
no hint or allegation of bad faith by the plaintiffs, their carelessness in not timely
filing their proof as to some 4% of their demand can scarcely tip the balance in
favor of the defendant.
For the reasons set forth above, the plaintiffs’ motion for leave to
supplement is granted. The plaintiffs are ordered to file and serve their
supplemental materials, (Docs. 154-1, -2), on or before October 20, 2015. The
defendant is ordered to file and serve any response to the supplemental materials
on or before October 21, 2015.4 The plaintiffs are ordered to incorporate any
reply into the reply brief previously authorized and due on or before October 23,
2015. (Doc. 153).
DONE and ORDERED this 19th day of October, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
The defendant, having been in possession of this material since October 6,
cannot reasonably require additional time to respond to it.
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