Vazquez v. Uooligan Gas Station Convenience Store Inc et al

Filing 79

ORDER denying 78 Motion for Extension of Time to File Motion; denying as moot 78 Motion for Attorney Fees and Costs. Signed by Magistrate Judge Nicholas P. Mizell on 10/16/2020. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

MARIA Y. VAZQUEZ,
Plaintiff,
v.

Case No. 2:18-cv-611-FtM-38NPM

UOOLIGAN GAS STATION
CONVENIENCE STORE INC,
SAEEDA ULLAH, and
FARID ULLAH
Defendants.
ORDER
Before the Court are Plaintiff’s Nunc Pro Tunc Motion for Extension of Time
to File Motion and Motion for Attorney’s Fees and Costs, filed on September 24,
2020. (Doc. 78). The motion for more time seeks an after-the-fact extension of
nearly three months to file the motion for fees and costs. (Id., p. 1). With
Defendants having defaulted, no response was filed and the time to respond has
lapsed. For the reasons below, the Court denies the motion.
Plaintiff filed this action under the Fair Labor Standards Act, 29 U.S.C. §
201, for unpaid wages, overtime wages, and retaliation (Doc. 1). In sum,
Defendants failed to defend this action and a default judgment was entered against
them on June 15, 2020. (Doc. 71). Under Federal Rule of Civil Procedure
54(d)(2)(B)(i) and Local Rule 4.18, a motion for attorneys feels must be filed no

later than fourteen days after the entry of judgment. Courts in the Middle District
of Florida enforce Local Rule 4.18. Sanders v. Drainfield Doctor, Inc., No. 6:06cv-1216-ORL28GJK, 2009 WL 667158, *4 (M.D. Fla. Mar. 13, 2009) (listing cases).
And the Eleventh Circuit has affirmed the enforcement of this Local Rule “as long
as it does not eviscerate a statutory right.” Id. (citing Grayden v. City of Orlando,
171 F. App’x. 284, 285–286 (11th Cir. 2006)). Under these Rules, Plaintiff’s
deadline to file a motion for attorney’s fees was June 29, 2020. Plaintiff filed the
instant motion requesting an extension of time on September 24, 2020, eightyseven days late. The untimeliness of the motion for attorney’s fees is substantial.
Plaintiff asks the Court to allow for this late filing and find excusable neglect
under Rule 6(b). As an excuse for missing the filing date, one of Plaintiff’s two
attorneys claims some kind of software integration error caused an unintended
calendaring mistake. (Doc. 78, p. 1).
Under Rule 6(b), to extend an expired deadline, a party must show good
cause and demonstrate excusable neglect. Carter v. Butts Cty., Ga., 110 F. Supp.
3d 1325, 1332 (M.D. Ga. 2015), aff’d in part, rev’d in part on other grounds and
remanded, 821 F.3d 1310 (11th Cir. 2016). Courts consider the following factors:
“(1) the danger of prejudice to the opposing party, (2) the length of 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.” Id. at 1332-1333 (citing Glover v. City of Pensacola,

2

372 F. App’x 952 , 955 n.6 (11th Cir. 2010) (citing Pioneer Inv. Servs. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993))).
It is well established in the Eleventh Circuit that an attorney’s error based
on a misunderstanding of the law is an insufficient basis to excuse missing a
deadline. Ojeda-Sanchez v. Bland, No. 6:08-cv-096, 2010 WL 1737591, *1 (S.D.
Ga. Apr. 29, 2010) (quoting Advanced Estimating Sys., Inc. v. Riney, 130 F.3d
996, 998 (11th Cir. 1997)). “Conversely, delays may be excused if they are
attributable to miscommunication, clerical error, or other innocent oversight.” Id.
*1 (citing Walter v. Blue Cross & Blue Shield United of Wis., 181 F.3d 1198, 1201–
1202 (11th Cir. 1999)). The excusable-neglect determination is primarily an
“equitable one, taking account of all relevant circumstances surrounding the
party’s omission.” Pioneer, 507 U.S. at 395.
Although there is no evidence of prejudice to Defendants, an adverse impact
on the judicial proceedings, or bad faith, a finding of excusable neglect is not
warranted. Notably, the motion is not accompanied by any evidence supporting
the proffered excuse. While it is possible a calendaring error failed to remind
Plaintiff’s counsel of the deadline, it is equally possible if not more so, given the
substantial passage of time Plaintiff’s counsel simply failed to observe the time
constraints of Rule 54 and Local Rule 4.18. 1 And this seems evident on a review of
the docket.

The Court notes that when becoming admitted to the Middle District of Florida, Plaintiff’s
counsel certified familiarity with the Local Rules, including Local Rule 4.18. M.D. Fla. L.R.
2.01(b).

1

3

Within about three weeks after the entry of Default Judgment (Doc. 71),
Plaintiff’s second attorney, Robert Gramberg, filed a notice of appearance (Doc.
72) as additional counsel for Plaintiff. As new counsel, Mr. Gramberg should have
reviewed the docket and realized a motion for attorney’s fees and costs had not
been filed. And on July 23, 2020, Plaintiff filed a motion for issuance of a writ of
execution (Doc. 73), which was granted on July 30, 2020. (Doc. 74). It is hard to
fathom that while pursuing enforcement of the judgment neither of Plaintiff’s two
attorneys reviewed the docket and realized, albeit late, that a motion for attorney’s
fees and costs had not been filed. Given the collection activity, counsel’s failure to
file a motion for attorney’s fees and costs appears more a failure to comply with
well-known time constraints than a software problem. “The failure to file a timely
motion [for attorney’s fees] under [Rule 54], in the absence of showing excusable
neglect, has consistently been held to be a waiver of the right to recover attorney’s
fees.” Bland v. Provident Life and Accident Ins. Co., 2003 WL 27381851 *2 (M.D.
Fla. Oct. 17, 2003) (citing Hipps v. United States Steel Workers of Am., AFLCIO/CLC, No. Civ.A. 1:96-cv-3129-ECS, 2001 WL 194307 (N.D. Ga. Feb. 9, 2001)
(citing cases from other jurisdictions)).
Litigators are ingrained at the start of their careers that fee motions are time
sensitive. And here, not one but two attorneys entered appearances on behalf of
Plaintiff. Any calendaring error that may have occurred is obviously neglectful. The
neglect was arguably excusable up to July 23, 2020, when Plaintiff filed her motion
for issuance of a writ of execution. (Doc. 73). But another two months later—when
4

the untimely motion for more time was filed—the neglect had long since ceased to
be excusable.
Accordingly, it is ORDERED that the Motion for Extension of Time to File
Motion (Doc. 78) is DENIED and the Motion for Attorney’s Fees and Costs (Doc.
78) is DENIED as moot.
DONE and ORDERED in Fort Myers, Florida on October 16, 2020.

5