ESCAMILLA v. NUYEN et al

Filing 51

MEMORANDUM OPINION AND ORDER denying Plaintiff's 45 Petition for Award of Attorney's Fees and Costs as untimely. Signed by Magistrate Judge Robin M. Meriweather on 09/25/2017. (lcrm1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
JOSE MILTON BAUTISTA ESCAMILLA )
)
Plaintiff,
)
v.
)
)
DAVID NUYEN, et al.,
)
)
Defendants.
)
____________________________________)

Civil Action No. 14-00852 (RMM)

MEMORANDUM OPINION AND ORDER
Pending before this Court is Plaintiff Jose Milton Bautista Escamilla’s (“Mr. Escamilla”)
Petition for Award of Attorney’s Fees and Costs (“Fee Petition”). See ECF No. 45. On January
10, 2017, this matter was reassigned from Magistrate Judge Alan Kay to the undersigned for all
purposes and trial. See January 10, 2017 Referral. On February 9, 2017, Mr. Escamilla filed the
instant Fee Petition requesting attorney’s fees and costs in the amount of $64,372.79, following
Magistrate Judge Kay’s finding that Defendants David Nuyen d/b/a USA Home Champion
Realty and d/b/a Opmax (“Mr. Nuyen”), USA Home Champion Realty, Inc. (“HCR”), Opmax
Management, LLC (“OM”), and Opmax, LLC (“Opmax”) (collectively, “Defendants”) violated
the Federal Fair Labor Standards Act of 1938 (“FLSA”) and D.C. Minimum Wage Act Revision
Act (“DCMWA”) by failing to pay Mr. Escamilla his overtime wages. Fee Petition at 2;
Findings of Fact and Conclusions of Law (“Findings”) at 29, ECF No. 42. The Fee Petition is
unopposed. Nonetheless, the Court must deny Mr. Escamilla’s Fee Petition in its entirety
because it was not timely filed, and Mr. Escamilla has neither moved to enlarge the deadline nor
established excusable neglect that would warrant such an extension.

BACKGROUND  
A.

Factual Background

On May 22, 2014, Mr. Escamilla brought suit against Defendants, alleging that Mr.
Nuyen denied Mr. Escamilla his overtime wages, in violation of the FLSA and DCMWA.
Compl. ¶¶ 31, 44-56, ECF No. 1. Mr. Escamilla worked for Defendants as a “general laborer”
from approximately March 1, 2008 through approximately January 28, 2013. See Findings at 2,
ECF No. 42. Mr. Nuyen served as president and primary owner of Opmax, HCR, OM, and the
rental properties located in Washington, D.C. Id. Sung Dang (“Mr. Dang”) was Mr. Nuyen’s
building manager. Id.
As a general laborer, Mr. Escamilla performed maintenance work on Mr. Nuyen’s rental
properties in Washington, D.C. Id. Specifically, Mr. Escamilla worked, on average, 66 hours
per week cleaning, painting, and repairing the properties, in addition to performing plumbing and
carpentry tasks. Id. Mr. Nuyen paid Mr. Escamilla $10.00 per hour rather than paying Mr.
Escamilla his “half time” premium of $5.00 for every hour worked beyond a 40-hour workweek.
Id. Throughout the duration of Mr. Escamilla’s employment, he never received a raise. Id. at 6,
12.
Mr. Escamilla also claimed that Mr. Nuyen and Mr. Dang exercised significant control
over his daily work routine and provided the tools for Mr. Escamilla and his coworkers to use
each day at the job site. Id. at 6-8. Mr. Nuyen called Mr. Dang each day to inform him of Mr.
Escamilla’s tasks. Id. at 6. Mr. Nuyen and Mr. Dang also inspected Mr. Escamilla’s work
before he could perform the next assignment. Id. at 7. Moreover, Mr. Nuyen was often at the
properties where Mr. Escamilla was working and was usually there for the majority of the
workweek. Id. Mr. Nuyen also had the authority to fire Mr. Escamilla and his coworkers. Id.

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Mr. Escamilla claimed Defendants failed to pay him overtime wages and therefore owed
him $20,670.00. Id. at 3. Mr. Escamilla also requested liquidated damages, equitable tolling of
his claims, and reasonable attorney’s fees. Id. However, Defendants denied Mr. Escamilla’s
claims and argued that Mr. Escamilla was not Defendants’ employee and was instead hired as an
independent contractor who was paid per job rather than per hour. Id. Defendants also claimed
that Mr. Escamilla signed a service agreement on February 1, 2012 that reflected his status as an
independent contractor rather than an employee and therefore agreed to the terms of his
employment. Id.
B.

Procedural Background

Mr. Escamilla filed his Complaint on May 22, 2014 for Defendants’ alleged violations of
the FLSA and the DCMWA. See Compl. at 2. On December 18, 2014, District Judge James E.
Boasberg ordered that the matter be referred to a magistrate judge for all purposes and trial. See
Order of Referral, ECF No. 11. Accordingly, the case was reassigned to Magistrate Judge Alan
Kay on December 18, 2014. See Referral, ECF No. 12.
Magistrate Judge Kay conducted a two-day bench trial on October 24, 2016 and October
25, 2016. See October 24, 2016 and October 25, 2016 Minute Entries. During the bench trial
and following its conclusion, Magistrate Judge Kay considered witness testimony, evidence
presented, and the parties’ proposed Findings of Fact and Conclusions of Law. See Pl.’s
Proposed Findings of Facts and Law, ECF No. 40; Defs.’ Findings of Fact and Conclusions of
Law, ECF No. 41. In his Findings of Fact and Conclusions of Law, Magistrate Judge Kay
ultimately determined that Mr. Escamilla had met his burden of proof in showing that
Defendants violated the FLSA and the DCMWA for their failure to pay Mr. Escamilla his
overtime wages. See Findings at 3. Magistrate Judge Kay therefore awarded Mr. Escamilla

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$20,280.00 in damages for unpaid overtime wages, $20,280.00 in liquidated damages, and
reasonable attorney’s fees. Id. at 29. Magistrate Judge Kay did not apply equitable tolling to
Mr. Escamilla’s claims because he found the claims to be too speculative. Id. at 28. The Court
further instructed Mr. Escamilla to file a fee petition so that the Court could determine the
amount of attorney’s fees to which Mr. Escamilla was entitled. Id. at 29. On January 6, 2017,
Judgment was entered in favor of Mr. Escamilla. See Clerk’s Judgment, ECF No. 43. On
January 10, 2017, the case was reassigned to the undersigned magistrate judge for all purposes
and trial. See January 10, 2017 Referral.
Several attorneys withdrew their appearance after the bench trial. On November 17,
2016, in a Joint Motion to Extend Time to File Findings of Fact, Jason Friedman, counsel for Mr.
Escamilla, withdrew his appearance, and Gregg Greenberg replaced him as counsel for Mr.
Escamilla. See Joint Motion to Extend Time to File Findings of Fact, ECF No. 39. On January
29, 2017, Daniel Wemhoff, counsel for Defendants, filed a Notice of Withdrawal of Appearance.
See Withdrawal of Appearance, ECF No. 44. No attorney has entered an appearance for
Defendants since Mr. Wemhoff withdrew. 
Mr. Escamilla filed his Fee Petition on February 9, 2017. See Fee Petition, ECF No. 45.
As the prevailing party, Mr. Escamilla seeks an award of attorney’s fees in the amount of
$58,777.20 for 173.70 hours of legal services, provided over the course of about two-and-a-half
years, and costs in the amount of $5,595.59 for his filing, deposition transcript, and trial
interpreter fees. See Fee Petition at 1, 13-14; see also Supp. Billing Records, ECF No. 45-1.
The total requested amount is $64,372.79. See Fee Petition at 14.
On February 14, 2017, the Court, on its own motion, extended the deadline for
Defendants’ response to the Fee Petition by thirty days, through March 16, 2017, in light of the

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withdrawal of defense counsel. See Order, ECF No. 46. However, Defendants did not respond
to the Fee Petition prior to that date. On April 12, 2017, the Court requested that Defendants file
a notice advising the Court of whether Defendants intended to seek additional time to respond to
the Fee Petition. See April 12, 2017 Minute Order. The mailings notifying Mr. Dang of the
Court’s February 14, 2017 and April 12, 2017 orders were returned as undeliverable. See ECF
Nos. 47, 48, 50. Defendants have neither responded to the Fee Petition nor requested additional
time to do so. 
LEGAL STANDARD
The FLSA and DCMWA authorize an award of reasonable attorney’s fees and costs to
the prevailing party. 29 U.S.C. § 216(b); D.C. CODE §§ 32–1012(c), 32–1308(b) (2017); see
also Radtke v. Caschetta, 822 F.3d 571, 572 (D.C. Cir. 2016); Falica v. Advance Tenant Servs.,
Inc., 384 F. Supp. 2d 75, 77 (D.D.C. 2005). The award of reasonable attorney’s fees to the
prevailing plaintiff in a FLSA case is mandatory, provided that the plaintiff files a petition for
fees in accordance with Federal Rule of Civil Procedure 54. See Driscoll v. George Washington
Univ., 55 F. Supp. 3d 106, 112 (D.D.C. 2014). The DCMWA also mandates that courts award
fees to the prevailing party. See Pleitez v. Carney, 594 F. Supp. 2d 47, 53 (D.D.C. 2009); see
also D.C. CODE § 32–1012(c) (2017).
Under Federal Rule of Civil Procedure 54, a party seeking attorney’s fees must file a
petition or motion for attorney’s fees no later than 14 days after the entry of judgment unless a
statute or court order provides otherwise. Fed. R. Civ. P. 54(d)(2)(B); Radtke, 822 F.3d at 573.
That fourteen-day deadline is “designed, like a statute of limitations, to promote the finality of
closed cases and prevent disputes about stale facts by ‘afford[ing] an opportunity for the court to
resolve fee disputes shortly after trial, while the services performed are freshly in mind.’”

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Mobley v. Dep’t of Homeland Sec., 908 F. Supp. 2d 42, 45 (D.D.C. 2012) (quoting Fed. R. Civ.
P. 54 Advisory Comm. Note (1993 Amendments)). Rule 54 expressly contemplates that a court
may extend the time period for the requesting party to seek fees, as it provides that a fee petition
is due within fourteen days “[u]nless a . . . court order provides otherwise.” Fed. R. Civ. P.
54(d)(2)(B). However, several courts have determined that after the deadline expires, any
request for an enlargement of time must satisfy Federal Rule of Civil Procedure 6(b)(1)(B),
which requires a showing of excusable neglect. See, e.g., West v. Potter, No. 05-1339-BJR, 2016
WL 4275583, at *1 (D.D.C. Aug. 12, 2016) (denying motion requesting additional attorney’s
fees because it was filed more than a year after the entry of judgment without a sufficient
showing of excusable neglect); Gaskins v. BFI Waste Servs., LLC, 281 F. App’x 255, 259 (4th
Cir. 2008) (“[T]he language of Rule 6(b) . . . controls the exercise of a trial court’s discretion to
extend the filing deadlines established by the applicable rules, including Rule 54(d)(2)(B).”);
Tancredi v. Metro Life Ins. Co., 378 F.3d 220, 226 (2d Cir. 2004) (rejecting the theory that Rule
54(d)(2)(B) “gives district courts carte blanche to extend the time to move for attorneys’ fees
after the deadline expires without having to find ‘excusable neglect’ under Rule 6.”); Kyle v.
Campbell Soup Co., 28 F.3d 928, 931-32 (9th Cir. 1994) (reversing district court’s enlargement
of time to file fee petition because attorney failed to show excusable neglect); see generally
Quigley v. Rosenthal, 427 F.3d 1232, 1237-38 (10th Cir. 2005) (affirming trial court’s
conclusion that plaintiff had failed to establish that failure to file timely fee petition constituted
excusable neglect).

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DISCUSSION
A.

Mr. Escamilla’s Petition is Untimely

The Court begins with the threshold issue of whether Mr. Escamilla’s Fee Petition is
timely. As noted, Rule 54 instructs that, unless a statute or court order provides otherwise, a
motion for attorney’s fees must “be filed no later than 14 days after the entry of judgment.” Fed.
R. Civ. P. 54(d)(2)(B); see also Radtke, 822 F.3d at 573. Although both the FLSA and DCMWA
mandate that courts award “a reasonable attorney’s fee” and “costs of the action” to the
prevailing party, neither statute provides a schedule for filing a motion or petition for attorney’s
fees. See 29 U.S.C. §§ 201 et seq.; D.C. CODE §§ 32-1001 (2017) et seq. Accordingly, Rule
54’s fourteen-day period applies absent a court order to the contrary.
This Court has not issued an order modifying the deadline for Mr. Escamilla’s Fee
Petition. In the Findings of Fact and Conclusions of Law, Magistrate Judge Kay instructed Mr.
Escamilla to file a fee petition but did not address the deadline for filing that petition. See
Findings at 29. Mr. Escamilla has neither moved for nor obtained an enlargement of the deadline
for submitting the Fee Petition. Moreover, no other intervening motions or orders exist that
would modify or toll the time period for seeking fees. See generally Radtke, 822 F.3d at 573-74
(holding the resolution of a Rule 50(b), Rule 52(b), or Rule 59 motion creates a new period for
filing a fee petition). Consequently, Federal Rule of Civil Procedure 54 controls, and the
fourteen-day deadline applies. See Fed. R. Civ. P. 54(d)(2)(B); Radtke, 822 F.3d at 574 (noting
that the plain language of Rule 54 “requires a petition be filed ‘no later than’ 14 days after
judgment is entered”).
This Court issued its Findings of Fact and Conclusions of Law on January 3, 2017, and
Judgment was entered on January 6, 2017. See ECF Nos. 42, 43. Accordingly, the Fee Petition

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was due within fourteen days, i.e. by January 20, 2017. Mr. Escamilla waited an additional
twenty days beyond that deadline and filed his Fee Petition on February 9, 2017. See ECF No.
45. Therefore, the Fee Petition is untimely. See West, 2016 WL 4275583, at *1 (finding
plaintiff’s motion for attorney’s fees was untimely where plaintiff waited over a year before
requesting an extension or filing a motion estimating the amount of requested fees); Mobley, 908
F. Supp. 2d at 44-45 (denying plaintiffs’ petition for attorney’s fees as untimely where the
plaintiffs filed a petition for attorney’s fees more than six months after the plaintiffs voluntarily
dismissed the case).
B.

The Court Cannot Excuse the Untimeliness of Mr. Escamilla’s Fee Petition

Federal Rule of Civil Procedure 6(b) establishes the parameters under which a Court may
accept a late-filed submission. That rule provides that “[w]hen an act may or must be done
within a specified time, the court may, for good cause, extend the time . . . on motion made after
the time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P.
6(b)(1)(B); see also Smith v. Dist. of Columbia, 430 F.3d 450, 456-57 (D.C. Cir. 2005). Thus,
the rule establishes three prerequisites for obtaining an enlargement after a deadline has lapsed:
(1) a motion from the party who missed the deadline; (2) good cause; and (3) a finding that “the
failure to act was the result of excusable neglect.” Smith, 430 F.3d at 456; see also Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 896 (1990) (emphasizing that post-deadline extensions may
be granted only “for cause shown” and “upon motion”); West, 2016 WL 4275583, at *1 (noting
that Rule 6(b)(1)(B) allows a court to extend the time period for filing a motion for attorney’s
fees after the time period has run if the delay is due to “excusable neglect.”). Rule 54 is not
among the rules exempted from Rule 6(b). See Fed. R. Civ. P. 6(b)(2) (precluding extensions of
deadlines set in Rules 60(b) and (d), 52(d), 59(b), (d), and (e), and 60(b)). Accordingly, Rule

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6(b) applies to fee petitions filed under Rule 54(b), and therefore constrains this Court’s ability to
review a late-filed fee petition. Indeed, extending the deadline for filing a fee petition in these
circumstances without a showing of excusable neglect “would impede the[] efficiency and
fairness goals” that Rule 54(d)(2)(B) was designed to further. Tancredi v. Metropolitan Life
Insurance Co., 378 F.3d 220, 227 (2d Cir. 2004).
Mr. Escamilla’s failure to seek an enlargement of the deadline for filing his Fee Petition
proves fatal to his request for fees and costs. Under Rule 6(b), courts may only extend deadlines
without a motion “before the original time or its extension expires.” Fed. R. Civ. P. 6(b)(1)(A)
(emphasis added). Without a formal motion for an extension, a court has “no basis on which to
exercise its discretion” to extend a deadline after it has lapsed. Smith, 430 F.3d at 457 (citing
Lujan, 497 U.S. at 896 n.5.); see also Fed. R. Civ. P. 6(b)(1)(B). Consequently, this Court has
no authority to extend the deadline for Mr. Escamilla’s late-filed Fee Petition, or to consider the
merits of Mr. Escamilla’s request for fees and costs. Instead, Mr. Escamilla’s Petition must be
denied as untimely.
Even if the Fee Petition’s brief reference to the tardiness of the filing could be construed
as an enlargement request,1 this Court would have no basis to extend the deadline because the
stated cause for the delay does not rise to the level of excusable neglect. The Supreme Court
addressed the meaning of “excusable neglect” in Pioneer Investment Services Co. v. Brunswick
Assocs. Ltd. Partnership, et al., 507 U.S. 380 (1993). Pioneer identifies four factors that courts
should consider when determining what kind of neglect will be considered “excusable,”
including: (1) the danger of prejudice to the party opposing the modification; (2) the length of

1

In a footnote to the Fee Petition, Mr. Escamilla acknowledges that the Petition was filed after
the deadline expired and attempts to explain the reasons for the delay. See Fee Petition at 2 n.2.
However the Fee Petition does not expressly ask the Court to extend the deadline.
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delay and its potential impact on judicial proceedings; (3) the reason for the delay, including
whether it was within the reasonable control of the movant; and (4) whether the movant acted in
good faith. See id. at 395; see also In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1209
(D.C. Cir. 2003) (applying the four Pioneer factors). Determining whether a party’s neglect is
excusable “is at bottom an equitable [decision], taking account of all relevant circumstances
surrounding the party’s omission.” Inst. for Policy Studies v. U.S.C.I.A., 246 F.R.D. 380, 383
(D.D.C. 2007) (quoting Pioneer, 507 U.S. at 395). Fault is “perhaps the most important single
factor.” Webster v. Pacesetter, Inc., 270 F. Supp. 2d 9, 14 (D.D.C. 2003) (quoting City of
Chanute, Kan. v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994)); see also
Wilson v. Prudential Fin., 218 F.R.D. 1, 3 (D.D.C. 2003) (describing fault as the “key factor” in
excusable neglect analysis).
“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect.” D.A. v. Dist. of Columbia, No. 07-1084, 2007 WL 4365452, at
*3 (D.D.C. Dec. 6, 2007) (quoting Pioneer, 507 U.S. at 392.). That is unsurprising, for if a
simple mistake made by counsel were sufficient to excuse an untimely filing, it would be “hard
to fathom the kind of neglect that we would not deem excusable.” Cohen v. Bd. of Trs. of the
Univ. of the Dist. of Columbia, 819 F.3d 476, 480 (D.C. Cir. 2016) (quoting Lowry v. McDonnell
Douglas Corp., 211 F.3d 457, 464 (8th Cir. 2000)) (finding no excusable neglect where Cohen’s
counsel misread court’s electronic docket and missed filing deadline); see also Jarvis v. Parker,
13 F. Supp. 3d 74, 79 (D.D.C. 2014) (quoting Spears v. City of Indianapolis, 74 F.3d 153, 158
(7th Cir.1996)) (“If the court allows litigants to continually ignore deadlines and seek never
ending extensions without consequence, soon the court’s scheduling orders would become
meaningless.”).

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Mr. Escamilla’s explanation for the delay in filing the Fee Petition falls short of
establishing excusable neglect. Mr. Escamilla states in a footnote to the Fee Petition that:
Plaintiff would have filed this petition earlier. But, Defendants had
previously given indications of an intention to appeal the Court’s
ruling and Plaintiff did not want to file the instant petition and then
later file a supplemental petition. When defense counsel filed his
Notice to Withdraw, it became apparent that an appeal and/or other
post-judgment motion was not forthcoming. As such, and with
apologies to the Court for the delay, Plaintiff, through counsel, files
this petition for an award of fees and costs.
Fee Petition at 2 n.2. Plaintiff’s counsel does not claim to have been unaware of Rule 54, yet
deliberately chose to delay the submission of the Fee Petition until it was apparent that
Defendants were unlikely to file an appeal or other post-judgment motion. Thus the articulated
reasons for the delay — waiting for a possible appeal2 — were fully and reasonably within the
control of Mr. Escamilla and his counsel. See Pioneer, 507 U.S. at 395; In re Vitamins Antitrust
Class Actions, 327 F.3d at 1209. Even if Defendants had at some point expressed an intention to
appeal, Mr. Escamilla and his counsel bore the “responsibility to notify the Court of any need for
an extension of time.” West, 2016 WL 4275583, at *1; see generally Lepkowski v. U.S. Dep’t of
Treasury, 804 F.2d 1310, 1313 (D.C. Cir. 1986) (citing counsel’s “fail[ure] to exert the minimal
effort which would have cured” failure to respond to filing inconsistent with a finding of
excusable neglect).
Mr. Escamilla’s explanation for his untimeliness also conflicts with the purpose of Rule
54’s fourteen-day deadline. That deadline was intended “to align the resolution of fee requests
with the time for appealing the merits of a case” and “to assure that the opposing party is

2

The record, including the bench trial transcripts and both parties’ proposed Findings of Fact,
contains no evidence that Defendants expressed an intent to appeal. See ECF Nos. 37, 38, 40,
41.
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informed of the claim before the time for appeal has elapsed.” Mobley, 908 F. Supp. 2d at 45
(quoting Fed. R. Civ. P. 54 Advisory Comm. Note (1993 Amendments)); Fed. R. Civ. P. 54
Advisory Comm. Note (1993); see also Radtke, 822 F.3d at 573 (quoting and giving weight to
Advisory Committee’s Notes when interpreting Rule 54). While Mr. Escamilla’s counsel may
believe that a different procedural sequence would be more efficient, the Advisory Committee
concluded otherwise.
The remaining three Pioneer factors favor Mr. Escamilla. The late motion does not
prejudice the defendants because they already were on notice that Mr. Escamilla could request
attorney’s fees. The length of the delay, approximately three weeks, was relatively short, and
there is no reason to believe Mr. Escamilla acted in bad faith.
The absence of prejudice or bad faith does not warrant a finding of excusable neglect.
Given that Mr. Escamilla’s counsel’s firm has handled “hundreds” of local FLSA cases, Fee
Petition at 9, he should be familiar with the deadline for filing FLSA fee petitions. Yet he
apparently made a conscious and strategic choice to ignore the filing deadline, perhaps hoping
that the Court would set a later deadline if an appeal were filed. See Fed R. Civ. P. 54 Advisory
Comm. Note (1993) (describing ways the trial court may modify the deadline for seeking fees if
an appeal has been filed). That gamble did not pay off. This Court’s precedent is “replete with
examples of untimely filings being rejected where the only triggering Pioneer factor was . . . a
mistake made by counsel.” Inst. For Policy Studies, 246 F.R.D. at 384; see, e.g., Jarvis, 13 F.
Supp. 3d at 78–79 (citing counsel’s avoidable error as the reason for denying plaintiff’s late
motion for relief from judgment, despite the other three Pioneer factors favoring the plaintiff);
McDowell-Bonner v. Dist. of Columbia, 668 F. Supp. 2d 124, 127 (D.D.C. 2009), aff’d, No. 097160, 2010 WL 2574152 (D.C. Cir. June 16, 2010) (denying plaintiffs’ motion to reconsider

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solely because counsel’s repeated neglect and inattention to local rules caused plaintiffs to miss
filing deadline); Ramseur v. Barreto, 216 F.R.D. 180, 182 (D.D.C. 2003) (rejecting defendant’s
response to plaintiff’s petition for relief and attorney’s fees where defense counsel inadvertently
missed the filing deadline for the response); see generally Webster, 270 F. Supp. 2d at 14–15
(noting that fault is the most important single factor). Here, too, Mr. Escamilla’s responsibility
for this omission outweighs the other three factors and counsels against a finding of excusable
neglect.
The Court recognizes that its interpretation and application of the applicable rules and
precedent means that Mr. Escamilla will bear severe consequences for failing to timely petition
the Court for fees and costs. Due to counsel’s tactical mistake, Mr. Escamilla’s Fee Petition will
be denied notwithstanding that the petition is unopposed and the relevant statutes otherwise
would entitle Mr. Escamilla to reasonable attorney’s fees and costs. However, that is the only
outcome consistent with the applicable law. The D.C. Circuit unequivocally held, in Smith v.
District of Columbia, that Rule 6(b)(2) precludes courts from extending deadlines that have
lapsed if the tardy party fails to file a motion that establishes excusable neglect and good cause to
extend the deadline. 430 F.3d at 457. Moreover, “it is only fair to require all parties . . . to
comply with the Federal Rules of Civil Procedure.” Cobell v. Norton, 213 F.R.D. 42, 42 (D.D.C.
2003).
This ruling is without prejudice to Mr. Escamilla’s ability to file an enlargement motion
under Rule 6(b)(2). However, the justification Plaintiff’s counsel already has provided casts

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significant doubt upon Mr. Escamilla’s ability to demonstrate in such a motion that his
untimeliness constitutes “excusable neglect.”
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff’s Petition for Award of
Attorney’s Fees and Costs is untimely. It is therefore
ORDERED that Plaintiff’s Petition for Award of Attorney’s Fees and Costs is DENIED.
SO ORDERED.
Digitally signed by Robin
M. Meriweather
Date: 2017.09.25 12:06:06
-04'00'

Dated: September 25, 2017

ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE

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