Fleming v. Evergreen Packaging Inc
ORDER granting Evergreen's 7 Motion for Extension of Time to Answer; 5 Answer to Complaint filed by Evergreen Packaging Inc is hereby construed as timely; pltf's 3 MOTION for Entry of Default and Default Judgment is DENIED. Signed by Chief Judge J. Leon Holmes on 6/29/12. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
STANLEY A. FLEMING
No. 4:12CV00273 JLH
EVERGREEN PACKAGING, INC.
On May 10, 2012, Stanley Fleming commenced this action against his employer, Evergreen
Packaging, Inc., alleging that Evergreen engaged in a pattern of discrimination against Fleming and
other African-American employees in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000(e) et. seq., and the Arkansas Civil Rights Act of 1993, Ark. Code Ann. § 16-123-101 et. seq.
On May 16, Fleming served the summons and complaint on Evergreen’s registered agent in Arkansas.
Thus, pursuant to Rule 12(a)(1)(A)(i) of the Federal Rules of Civil Procedure, Evergreen had up to
and including June 6 to file a responsive pleading. Because Evergreen did not filed a responsive
pleading by June 6, Fleming filed a motion for default judgment on June 7. On June 11, Evergreen
filed a response opposing Fleming’s motion for default judgment, a motion for extension of time to
file an answer, and its answer. Fleming has filed a response in opposition to the motion for extension
of time. The dispositive issue is whether Evergreen failed to file a timely responsive pleading because
of excusable neglect. See Fed. R. Civ. Proc. § 6(b)(1)(B).
At one time, a party generally could only establish “excusable neglect” by showing that the
delay was a result of factors outside of that party’s control. See, e.g., Hanson v. First Bank of S.D.,
N.A., 828 F.2d 1310, 1314 (8th Cir. 1987) (“Conduct does not constitute excusable neglect,
however, when the delay was within the [party]’s control[.]”). In 1993, however, the Supreme Court
rejected the rule that a party could only establish “excusable neglect,” as the term was used in the
context the Federal Rules of Bankruptcy Procedure, by showing that the “failure to comply with the
court’s deadline was caused by circumstances beyond its reasonable control.” Pioneer Inv. Servs.
Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388, 113 S. Ct. 1489, 1494, 123 L. Ed. 2d 74
(1993). The Supreme Court ruled that “excusable neglect” is a flexible concept that permits courts
“where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well
as by intervening circumstances beyond the party's control.” Id. at 388-89, 113 S. Ct. at 1495. The
Supreme Court noted that “the determination is at bottom an equitable one, taking account of all
relevant circumstances surrounding the party’s omission.” Id. at 395, 113 S. Ct. at 1498. In
determining whether neglect is excusable, a district court must pay particular attention to the
following factors: (1) the possibility of prejudice to the defendant, (2) the length of the delay and the
potential impact on judicial proceedings, (3) the reason for the delay, including whether the delay was
within the party’s reasonable control, and (4) whether the party acted in good faith. Kurka v. Iowa
Cnty., Iowa, 628 F.3d 953, 959 (8th Cir. 2010) (citing Pioneer, 507 U.S. at 395, 113 S. Ct. at 1498).
However, “[t]hese factors do not bear equal weight as the reason for delay is generally a key factor
in the analysis.” Kurka, 628 F.3d at 959 (citing In re Guidant Corp. Implantable Defibrillators
Prods. Liab. Litig., 496 F.3d 863, 866 (8th Cir. 2007)). The Eighth Circuit applies Pioneer to cases
implicating Rule 6(b) of the Federal Rules of Civil Procedure. See Chorosevic v. MetLife Choices,
600 F.3d 934, 946 (8th Cir. 2010).
Here, Evergreen’s employee who was informed of the service of Fleming’s complaint
inadvertently failed to note the service date so that Evergreen’s counsel did not learn of the suit until
June 11.1 Evergreen’s filing, which was five days late, certainly will not prejudice Fleming nor have
Fleming contends that this allegation cannot establish excusable neglect because it is
unsupported by an affidavit or other admissible evidence. Evergreen has attached to its reply an
any meaningful impact on these proceedings. Finally, although Evergreen’s employee was negligent,
Evergreen did not act in bad faith. In fact, Evergreen filed a motion for extension of time and answer
on the very day it discovered the error. Thus, three of the four factors weigh in favor of finding
Undoubtedly, as Fleming points out, the reason for the delay was within Evergreen’s control.
Although that fact weighs against Evergreen, it is no longer dispositive. It is well-settled that “[t]he
entry of default judgment is not favored by the law . . . and should be a rare judicial act[.]” In re
Jones Truck Lines, Inc., 63 F.3d 685, 688 (8th Cir. 1995) (internal quotation marks omitted) (quoting
U.S. on Behalf of & for Use of Time Equip. Rental & Sales, Inc. v. Harre, 983 F.2d 128, 130 (8th
Cir. 1993), and Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir. 1993)). “A court abuses its
discretion if it enters a default judgment ‘for a marginal failure to comply with the time requirements.’
” In re Jones Truck Lines, Inc., 63 F.3d at 688 (quoting Harre, 983 F.2d at 130). In Harre, the
defendant filed his answer twelve days late because he had several lawsuits concerning the same
subject and had erroneously recorded the date his answer was due. 983 F.2d at 128. In Jones Truck
Lines, the attorney erred by assuming that Arkansas’s bankruptcy practice was the same as his home
state of Indiana. 63 F.3d at 688. In both cases, the district court’s entry of default judgment was
reversed as an abuse of discretion. The Court cannot say that the mistake of Evergreen’s employee
is less excusable than the mistakes considered in Harre and Jones Truck Lines. Cf. N. Cent. Ill.
Laborers’ Dist. Council v. S.J. Groves & Sons Co., Inc., 842 F.2d 164, 167 (7th Cir. 1988) (prior
affidavit by the employee in question. That affidavit says, in pertinent part, “I forgot to calendar the
date our response was due or notify our counsel . . . about the service of process” and “on June 11,
2012, I checked my file and noticed my mistake. I immediately notified our counsel . . . .” Evergreen
has “allege[d] the facts constituting excusable neglect.” 4B Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure: Civil § 1165 (3d ed. 2002).
to Pioneer, ruling that the district court did not abuse discretion in finding no excusable neglect where
in-house legal staff overlooked the notice of suit, but noting that the district court could reasonably
have came to the opposite conclusion).
The Pioneer factors, on the whole, balance in favor of finding Evergreen’s neglect to be
Therefore, for good cause shown, Evergreen’s motion for extension of time is
GRANTED. Document #7. Evergreen’s answer, filed on June 11, 2012, is hereby construed as
timely. Fleming’s motion for entry of default and default judgment is DENIED. Document #3.
IT IS SO ORDERED this 29th day of June, 2012.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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