Pineda v. American Plastics Technologies, Inc. et al
Filing
46
ORDER denying as moot 45 Motion to Strike Response to MOTION for Reconsideration; granting 36 Amended Motion for Reconsideration of September 11, 2013 Docket Order; granting 38 Motion to Strike Plaintiff's Notice of Acceptance; vacating September 11, 2013 Docket Order [D.E. 34]; denying 33 Motion for Extension of Time to accept offer of judgment. Signed by Magistrate Judge Edwin G. Torres on 5/15/2014. (EGT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No.12-21145-CIV-TORRES
ROBERTO PINEDA and
all others similarly situated,
Plaintiff,
v.
AMERICAN PLASTICS TECHNOLOGIES,
INC., JUANA SOTO and JAVIER COCINA
Defendants.
________________________________________/
ORDER
This matter is before the Court on Defendants’ Amended Motion for
Reconsideration [D.E. 36] of the Court’s Docket Order entered September 11, 2013
[D.E. 34] that extended the time, without objection, for Plaintiff to accept a previous
offer of judgment served June 17, 2013. Also pending is a related Motion to Strike
[D.E. 38] the Plaintiff’s notice of acceptance of that offer of judgment following the
Court’s Docket Order.
The Court has reviewed the motions, the untimely response in opposition [D.E.
44],1 and the record. In part, the delay in disposing of these motions was premised on
the assumption that Defendants would, in the intervening period, reach some amicable
resolution of the issues in dispute. The delay was also attributable to the Court’s
1
The motion to strike the untimely response will be denied as moot.
review of the unique legal issues raised in the amended motion with respect to the
application of Rule 68. Now that a sensible resolution of these issues has not been
forthcoming, the motions are ripe for disposition.
I. BACKGROUND
The underlying thread that runs through all the pending motions and issues in
dispute is neglect, primarily by the lawyers in the case. Unfortunately, that neglect
has prejudiced both parties in the case and unnecessarily dragged out litigation that
should have been resolved long ago.
The sad tale begins with Defendant’s service of an offer of judgment, under Fed.
R. Civ. P. 68, to resolve all claims in the case. That notice, a copy of which is not in the
record, was served on Plaintiff’s counsel of record at the time, Andrew Palma, Esq. It
is undisputed that this offer was not timely accepted within fourteen days under the
Rule and was deemed withdrawn under the Rule. It is also undisputed that a second
offer of judgment was served by Defendant on Plaintiff’s counsel on or about June 17,
2013. [D.E. 33]. That second offer, with modified terms to dispose of the litigation, was
due to be accepted by July 1, 2013 or otherwise withdrawn under the Rule.
According to Plaintiff, he never learned of the existence of this second offer of
judgment. During that acceptance period, Plaintiff and his then counsel parted ways
for reasons not clear in the record. Counsel moved to withdraw on July 2, 2013 (one
day after the offer was due to be accepted) citing irreconcilable differences with the
client. [D.E. 26]. No objection was filed to that motion and counsel was terminated on
July 16, 2013. Plaintiff claims that during this period he was never advised by his
lawyer that the second offer of judgment had been served. As a result, he never had
the opportunity to timely accept it. Plaintiff’s motion for extension claimed that, had
he been apprised of the offer, he would have timely accepted it and resolved the case.
Plaintiff cites his counsel’s neglect in failing to present him with that opportunity
before counsel withdrew.
After counsel’s motion to withdraw was granted, Plaintiff appeared pro se and
sought an extension of time to mediate, citing in part his willingness to settle on terms
that mirrored the unaccepted second offer of judgment. [D.E. 31]. Shortly thereafter,
new counsel entered a limited appearance for the Plaintiff [D.E. 32] solely for the
purpose of filing a motion for extension of time to accept the second offer of judgment
[D.E. 33]. That motion, filed August 19, 2013, claimed that it was seeking an extension
of time to accept the offer due to “excusable neglect” – his former counsel’s failure to
advise him of the existence of the second offer. Plaintiff argued that he personally
contacted Defendant when he learned of the second offer to try to accept but
Defendant’s counsel refused.
That motion for extension of time, having been filed on August 19th, was due for
a response from Defendant by September 6, 2013. Indeed that was the response date
the Court’s docketing system identified at the time. [D.E. 33]. And, a review of the
Court’s Local Rule 7.1 and Fed. R. Civ. P. 6 shows, in fact, that the fourteen continuous
days, plus three days for mailing and an extra day for the initial period landing on
Labor Day, results in a response date of September 6th.
No response was timely filed, however, by that date. Indeed, no response was
ever filed before the Court’s review of the record revealed two unopposed motions for
extension of time. Consequently, based upon the Defendant’s default in failing to
oppose the motions, plus the grounds cited in the motions, the Court granted the
motion for extension of time to accept the second offer, through a Docket Order entered
September 11, 2013. [D.E. 34]. The motion for extension of time to mediate was
contemporaneously denied as moot.
That same day, Defendant reacted to the entry of the Court’s Docket Order with
a motion for reconsideration [D.E. 35] that swiftly sought to vacate the Order based
upon excusable neglect. That neglect was Defendant’s counsel’s failure to timely serve
and file her opposition to the motion for extension of time and/or her failure to move
to strike that motion as being improperly filed under Rule 68. Counsel claimed that
when the motion for extension was originally filed “on August 28, 2013” counsel
immediately drafted a response in opposition and motion to strike (attached as an
exhibit to the motion for reconsideration with a purported service date of August 28,
2013). Counsel claimed that she had intended to file the motion but neglected to do so
before leaving the office for other business she had to attend to that night. Citing that
excusable neglect, plus the improper and unwarranted nature of the relief sought in
the original motion under Rule 68, counsel asked the Court to reconsider its Docket
Order based upon those arguments and the legal authorities cited in her attached draft
motion to strike.
The next day, Defendant filed the pending amended motion for reconsideration
[D.E. 36] that supplemented the original arguments for reconsideration with the claim
that in fact the response to the motion for extension of time was still timely.
Defendant claimed that the original motion filed August 28th, was due for a response
by September 11, 2013, the same date that the Court entered its Docket Order to which
Defendant immediately moved to reconsider. Additionally, Defendant reiterated the
argument that, even if untimely, excusable neglect warranted the Court’s
reconsideration of the entire issue based upon counsel’s misunderstanding coupled with
the lack of authority to grant any relief under Rule 68 to extend the time to accept an
expired offer of judgment. The amended motion specifically cites Rule 59 or Rule 60
as legal bases upon which the Court’s reconsideration of the Docket Order could lie.
Six days later, Plaintiff formally filed notice of his acceptance of the terms of the
second offer of judgment, in accordance with the Court’s September 11th Docket Order.
[D.E. 37]. Defendant moved to strike that acceptance, citing the same grounds already
presented through the motions for reconsideration. [D.E. 38]. That motion to strike
remains pending.
No timely response was filed by Plaintiff to either the motions for
reconsideration or the motion to strike the acceptance. The Court, however, stayed all
pending deadlines (including the October trial setting) until adjudication of the
motions relating to the Rule 68 issue. [D.E. 40].
In the interim period, the Court did not enter any judgment on the notice of
acceptance. The case remained in abeyance while the Court decided how to resolve the
problems presented in the case. After Defendant’s filing of a Local Rule 7.1 notice
advising that the motions were ripe for adjudication, Plaintiff for the first time
responded in opposition to the motion for reconsideration on April 28, 2014 [D.E. 44].
That untimely response was met with another motion to strike filed by Defendant on
April 30, 2014. [D.E. 45].
II. ANALYSIS
A.
Standard of Review
“[R]econsideration of a previous order is an extraordinary remedy to be employed
sparingly.” Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370
(S.D. Fla. 2002) (citing Mannings v. Sch. Bd. of Hillsborough County, 149 F.R.D. 235,
235 (M.D. Fla. 1993)). “The ‘purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered evidence.’ ” Id. at 1369
(quoting Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992)).
Three grounds generally justify reconsideration: “(1) an intervening change in the
controlling law; (2) the availability of new evidence; and (3) the need to correct clear
error or prevent manifest injustice.” Id. (citing Offices Togolais Des Phosphates v.
Mulberry Phosphates, Inc., 62 F. Supp. 2d 1316, 1331 (M.D. Fla. 1999)).
Motions for reconsideration based upon excusable neglect, whether filed under
Rule 59(e) prior to a final appealable judgment, or under Rule 60(b) after a final
appealable judgment or order is entered, require application of a well understood
standard. Excusable neglect is an equitable determination that analyzes whether the
moving party had a good reason for not responding timely and whether the opposing
party would be prejudiced. In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1297 (11th
Cir. 2003); Walter v. Blue Cross & Blue Shield United of Wis., 181 F.3d 1198, 1201
(11th Cir. 1999) (listing the relevant factors as (1) the danger of prejudice, (2) the
length of delay and its potential impact on the proceedings, (3) the reason for the delay,
and (4) whether the movant acted in good faith). As the Supreme Court put it,
“ ‘excusable neglect’ is understood to encompass situations in which the failure to
comply with a filing deadline is attributable to negligence.’ ” Pioneer Invest. Servs. Co.
v. Brunswick Assocs. Limited Partnership, 507 U.S. 380, 394 (1993). So, for instance,
taking account of all these relevant circumstances a court could excuse a tardy filing
if the prejudice suffered was minimal, if good faith permeated the neglect, and the
interests of efficient judicial administration favored the exercise of that discretion. Id.
at 397-98.
B.
Excusable Neglect for Untimely Response
The first question to address is whether excusable neglect or other grounds
warrant reconsideration of this Court’s September 11th Docket Order. That Order was
founded on Defendants’ default under Local Rule 7.1 plus the good cause shown on the
face of the motion.
As to the default issue, there is no dispute that Defendants’ failure to timely
respond in opposition to the motion was a product of counsel’s neglect. Though the
amended motion for reconsideration claimed otherwise, the response was due on
September 6th. The response to the motion was admittedly not filed by counsel, even
after preparing and drafting it together with a motion to strike, due to counsel being
distracted with other matters. That misfeasance is by definition neglect.
That neglect resulted in the absence of any opposition to a procedural motion for
extension of time in the record. The Court was, therefore, entitled to rely upon Local
Rule 7.1(c): “Failure to [file a timely opposing memorandum] may be deemed sufficient
cause for granting the motion by default.” That Rule may undeniably be enforced and
relied upon by a district court in the proper management of its cases. See, e.g., Digioia
v. H. Koch & Sons, Div. of Wickes Mfg. Co., 944 F.2d 809, 811 (11th Cir. 1991);
Calmaquip Eng’g West Hemisphere Corp. v. West Coast Carriers, Ltd., 650 F.2d 633,
636 (5th Cir. Unit B 1981) (“A litigant has a right to rely upon the local rules, as the
parties and the court are bound by them.” (quoting Woods Constr. Co. v. Atlas Chem.
Indus., Inc., 337 F.2d 888, 891 (10th Cir. 1964)).2
If, however, there is excusable neglect in the record to excuse Defendants’
default under the Local Rule, that would indeed provide a reason for the Court to
reconsider its original interlocutory order. We find, in consideration of all the factors
required under Pioneer, as well as the Eleventh Circuit’s interpretation and application
of those factors, that the neglect at issue here squarely falls in the “mistake of fact” or
clerical error category. In that type of case, excusable neglect may more readily be
found. See, e.g., Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 849-50 (11th
Cir. 1996).
In Cheney, plaintiff filed an action, which was referred to arbitration. Under the
local rules, an arbitration outcome became final unless a trial de novo was requested
within 30 days. During that period lead counsel was on vacation; and “[t]he associate
attorney did not think he should file the demand without consulting the lead counsel.”
2
This is not a case where application of the rule resulted in draconian
sanctions or dispositive relief against a pro se litigant unaware of the effect of a court’s
local rules. Cf. Pierce v. City of Miami, 176 F. App'x 12, 14 (11th Cir. 2006); Rex v.
Monaco Coach, 155 F. App'x 485, 486 (11th Cir. 2005). Nor did it involve application
of a local rule in derogation of a superseding Federal Rule of Civil Procedure. Cf.
Trustees of Cent. Pension Fund of Int'l Union of Operating Engineers & Participating
Employers v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1040 (11th Cir. 2004).
Id. at 849. Because the associate attorney would himself be out of town when the
deadline occurred, he told a secretary to advise lead counsel of the deadline. The
secretary seemingly did not do so. Id. at 850 (“The reason for the delayed filing was a
failure of communication between the associate attorney and the lead counsel. . . . The
non-filing was simply an innocent oversight by counsel.”). When the lawyers realized
the failure of the secretary to deliver the message, the necessary motions, including one
for more time, were promptly filed, resulting in little or no prejudice to the other side.
As a result, the Court of Appeals reversed the district court’s refusal to entertain a
motion to set aside the judgment on timeliness grounds, remanding the case for a
review of the merits of the claim. Id. (“On balance, the lack of prejudice to [nonmovant], the minimal degree of delay and the reason therefor, and the lack of impact
on the judicial proceedings, when coupled with the lack of bad faith on the part of
[movant], require a finding by the district court that the neglect of [movant’s] counsel
was ‘excusable.’ ”).
That result does not follow, however, when counsel makes a mistake of law
where an untimely filing is caused by counsel’s misconstruction of a rule. Attorney
error based on a misunderstanding of the law is an insufficient basis for excusing a
failure to comply with a deadline. See, e.g., Cavaliere v. Allstate Ins. Co., 996 F.2d
1111, 1115 (11th Cir. 1993); Committee v. Yost, 92 F.3d 814, 825 (9th Cir. 1996);
Prizevoits v. Indiana Bell Tele. Co., 76 F.3d 132, 133 (7th Cir. 1996); Weinstock v.
Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir. 1994).
Indeed, the Eleventh Circuit distinguished Cheney in a later case that squarely
held that “[t]oday, we follow the other circuits and hold, as a matter of law, that an
attorney’s misunderstanding of the plain language of a rule cannot constitute
excusable neglect such that a party is relieved of the consequences of failing to comply
with a statutory deadline. Nothing in Pioneer indicates otherwise, and we believe that
the law in this area remains as it was before Pioneer.” Advanced Estimating Sys., Inc.
v. Riney, 130 F.3d 996, 998 (11th Cir. 1997). In Advanced, counsel had misinterpreted
the then-existing rule requiring notices of appeal to be filed ten days from entry of
judgment (as opposed to ten days from notice of receipt of a judgment). That mistake
of law would not constitute excusable neglect because the Cheney analysis could not
apply. “Cheney was a miscommunication case or a clerical-error case: a mistake of fact
was made about whether a message was delivered.
This case, however, is a
mistake-of-law case; the reason for [counsel’s] failure to file timely a notice of appeal
was an apparent failure to review or to appreciate the relevant rules, which clearly
indicate that a party has ten days from the entry of judgment to file the kind of
post-trial motions that will toll the filing period for a notice of appeal. The ancient legal
maxim continues to apply: ignorance of fact may excuse; ignorance of law does not
excuse.” Id. at 999.
Here, arguably this case involves two different types of error by counsel. On the
one hand, counsel’s preparation of a draft to timely respond to the motion for extension
was inadvertently not filed. That is a prototypical clerical error that constitutes a
mistake of fact. On the other hand, counsel also claimed in the amended motion for
reconsideration that her calculation of the due date for the response was September
11th, not September 6th. That negligent construction of the Court’s Local Rule is a
classic mistake of law, just as in Advanced Estimating, which cannot form the basis of
excusable neglect.
But the former situation does present this Court with a mistake of fact problem
which allows for reconsideration based upon excusable neglect. Of course, even if
possible, no excusable neglect could be found if there was material prejudice to the
Plaintiff. In Pioneer, the Supreme Court focused primarily on absence of prejudice to
the nonmoving party and to the interest of efficient judicial administration in
determining whether the district court had abused its discretion. Id. at 398-99.
Similarly, the lack of prejudice to Plaintiff is equally significant.
The response to the motion for extension was due September 6th. The untimely
response was filed September 11th on the heels of the Court’s Docket Order granting
the motion. There is no claim, nor could there be one, that this five-day delay in the
filing of Defendants’ response affected the outcome or resulted in material prejudice
to Plaintiff. Counsel’s immediate filing of the motion for reconsideration also placed
Plaintiff on immediate notice of a mistake, which further minimized what little
prejudice there would otherwise have been.
Therefore, this most significant issue counsels in favor of granting
reconsideration and examining the merits of the matter. Moreover, the other Pioneer
factors point in the same direction. The result for the delay here was unintentional
carelessness. There is no claim that counsel deliberately disregarded Local Rule 7.1
or that she intended to damage Plaintiff or obtain some type of advantage. “The
nonfiling was simply an oversight by counsel.” Cheney, 71 F.3d at 850. We thus find
no bad faith in the record not to excuse that neglect so as to allow a full consideration
of the merits of the issue on the pending motion.
Accordingly, excusable neglect having been amply demonstrated in this record,
the Court will grant the motion for reconsideration in so far as it requires a substantive
examination of the issues raised in the motion and the response.
C.
Extensions of Time Under Rule 68
We then turn to the original question presented by the motion for extension of
time, to which Defendants object. Plaintiff’s motion is itself predicated on an excusable
neglect question. Plaintiff did not have the opportunity to review the second offer of
judgment before it expired due to his counsel’s own misfeasance. As a result, Plaintiff
requested additional time to accept the second offer of judgment that had already
expired on July 1st.
Defendants object on various grounds. First, they contend that there is no
authority under Rule 68 to extend the time for acceptance of an offer of judgment under
any circumstances. Second, Defendants argue that any such authority, if it existed,
does not extend to an offer that is already deemed withdrawn under the Rule because
it was not timely accepted. Third, they also argue that Plaintiffs’ own failure to timely
respond to the pending motion for reconsideration is grounds enough to grant the
motion.
Rule 68 is a straightforward mechanism “to encourage settlement and avoid
litigation.” Marek v. Chesny, 473 U.S. 1, 5 (1985); Adv. Comte. Note on Rules of Civil
Procedure, Report of Proposed Amendments, 5 F.R.D. 433, 483 n.1 (1946). The Rule
“prompts both parties to a suit to evaluate the risks and costs of litigation, and to
balance them against the likelihood of success upon trial on the merits.” Marek, 473
U.S. at 5. Courts generally apply traditional principles of contract law to interpret
offers of judgment made under Rule 68, except where doing so would undermine the
purposes behind the Rule. See, e.g., Johnson v. University College of Univ. of Alabama,
706 F.2d 1205, 1209 (11th Cir. 1983); Pope v. Lil Abner’s Corp., 92 F. Supp. 2d 1327,
1328 (S.D. Fla. 2000) (Jordan, J.).
The Rule expressly provides that unaccepted offers are deemed withdrawn after
the 14-day period for acceptance. The consensus among the federal courts applying the
Rule is that this automatic withdrawal is required by the express language of the Rule,
the flip-side of which is that an offer cannot be revoked prior to that 14-day period.
“[A] a consensus has emerged regarding the automatic withdrawal of an Offer of
Judgment following the statutory 14-day period under Rule 68(a). . . . A plain reading
of the relevant provisions of Rule 68 in conjunction – Rule 68(a) and (b) – indicates that
a deadline exists between service on an opposing party and their ability to guarantee
an entry of judgment based on the terms of the Offer of Judgment: 14 days.”
Whitehouse v. Target Corp., 279 F.R.D. 285, 289 (D.N.J. 2012) (citing C. Wright, et al.,
12 Fed. Prac. & Proc. § 2004 (“Withdrawal of Offer”) (“Rule 68 gives the offeree ten
days in which to accept the offer, and provides that if the offer is not accepted in that
time it ‘shall be deemed withdrawn.’ ”)); see, e.g., Pope, 92 F. Supp. 2d at 1328 (“Rule
68 offers of judgment, however, are irrevocable offers.”); Richardson v. National R.R.
Passenger Corp., 49 F.3d 760, 764-65 (D.C. Cir. 1995) (“a Rule 68 offer is simply not
revocable during the 10–day period”); Butler v. Smithfield Foods, Inc., 179 F.R.D. 173,
174-75 (E.D.N.C.1998) (same); United States v. Hendricks, 1993 WL 226291, at * 2-3
(N.D. Ill. June 24, 1993) (same); see also Webb v. James, 147 F.3d 617, 620-21 (7th Cir.
1998) (Rule 68 offers are not subject to recission); Colonial Penn Ins. Co. v. Coil, 887
F.2d 1236, 1240 (4th Cir. 1989) (suggesting that Rule 68 offers may be revoked only in
“exceptional factual circumstances”); Radecki v. Amoco Oil Co., 858 F.2d 397, 402 n.6
(8th Cir. 1988) (noting that federal courts deem Rule 68 offers to be irrevocable).
As a result, an intervening event that occurs before the acceptance period
expires, like a negative summary judgment order (Perkins v. U.S. West Comm., 138
F.3d 336 (8th Cir. 1998)) or a plaintiff’s counteroffer that would under traditional
contract principles allow for revocation (Pope, 92 F. Supp. 2d at 1328), do not allow a
defendant/offeror to rescind the offer.
The well-established irrevocable nature of the 14-day period supports
Defendants’ argument that, notwithstanding any good cause cited in Plaintiff’s motion
for extension of time, the Court cannot as a matter of law “extend” the 14-day period.
To do so would in effect undermine the “rather finely tuned procedure” that Rule 68
establishes. Richardson, 49 F.3d at 765 (“The Rule is thus designed to put significant
pressure on the plaintiff to think hard about the likely value of its claim as compared
to the defendant’s offer. In return, the plaintiff, as we understand the scheme, is
guaranteed 10 days to ponder the matter (as though the plaintiff had paid for a 10-day
option).”) (citations omitted).
There are not many examples of cases that have addressed extensions of time
for a plaintiff to accept an offer under Rule 68. One case cited by Defendants holds
that, based upon the procedure contemplated by Rule 68, a court cannot extend that
period under any circumstances. Staffend v. Lake Central Airlines, 47 F.R.D. 218, 21920 (N.D. Ohio 1969) (holding that allowing an extension of time to accept would defeat
the intent of Rule 68). Applying that rule here would require the Court to deny
Plaintiff’s original motion for extension of time and vacate its September 11th Docket
Order. See also Parental Guide of Texas, Inc. v. Thomson, Inc., 446 F.3d 1265, 1270
(Fed. Cir. 2006) (“Under Rule 68, the terms of a judgment are agreed upon by the
parties; the court has no input or discretion to alter or modify any of the terms.”); cf.
Leach v. Northern Telecom, Inc., 141 F.R.D. 420, 428 (E.D.N.C. 1991) (“Plaintiff
alternatively requests that this court toll the period in which she may accept the offer
[pending court’s resolution of motion to strike offer]. This request will be denied
primarily because this order so significantly changes the posture of the case that it
would not be fair to hold defendant to the earlier offer.”).
There is, however, contrary authority that relies upon Rule 6(b). Rule 6(b)(1)
provides that “[w]hen an act may or must be done within a specified time, the court
may, for good cause, extend the time . . . (A) with or without motion or notice if the
Court acts, or if the request is made, before the original time or its extension expires;
or (B) on motion made after the time has expired if the party failed to act because of
excusable neglect.”
Significantly, that Rule (Rule 6(b)(2)) exempts specific Rules from its application
but not Rule 68: “A court must not extend the time to act under Rules 50(b) and (d),
52(b), 59(b), (d), and (e), and 60(b).” Based upon the effect of this Rule governing
computation of time for “any time period specified in these rules[,]” Rule 6(a), one
district court has held that a Court may extend the time period for acceptance under
Rule 68 because nothing on the face of that Rule precludes an extension and Rule 6(b)
would otherwise apply. See Coleman v. McLaren, 1981 WL 380691, at *2, 33 Fed. R.
Serv. 2d 593 (N.D. Ill. June 26, 1981) (entering judgments upon acceptance of Rule 68
offers; “Both extensions granted by [the court] were made before expiration of the
period set by Rule 68 (in the case of the second extension, before expiration of a
permissible previous extension). Nothing in either Rule 68 or Rule 6(b) even remotely
supports [defendant’s] contention.”).
The Federal Rules were designed to be interdependent, meaning that in
interpreting the rules Courts should try and harmonize them with one another. See
Weiss v. Regal Collections, 385 F.3d 337, 342 (3d Cir. 2004). Hence, one Rule should
take precedence over another only where truly irreconcilable conflicts arise. Id.
Our harmonization of the Rules yields the same conclusion that the Court in
Coleman reached. Rule 6(b) authorizes, for good cause shown, extensions of time prior
to expiration of any time period. Lujan v. National Wildlife Federation, 497 U.S. 871,
896 (1990). The Court has broad discretion under this Rule. E.g., Hetzel v. Bethlehem
Steel Corp., 50 F.3d 360, 367 (5th Cir. 1995). Where there is nothing on the face of the
Rule that precludes an extension of time for good cause shown, we see little reason to
find that the Court could not, in a particularly unique case, enlarge the acceptance
period under Rule 68.
The Court’s discretion under Rule 6(b), however, is quite limited. An extension
of time should not be granted, of course, where doing so would materially prejudice the
non-moving party. So, if a Court were asked to extend the acceptance period for a
limited period, during which no other litigation costs would be incurred, there would
be little prejudice to a defendant. But, if an extension was sought for a large or
indefinite period, during which the litigation machinery would have to continue and
thereby unduly burden the offering defendant, a court could not in fairness grant that
extension no matter what the good cause was. See Staffend, 47 F.R.D. at 220 (“The
value of any lawsuit for settlement purposes varies from time to time and often from
day to day. . . . No sensible defendant would make an offer of judgment if he knew the
offer might be kept open for an indefinite period of time, even though the value of the
litigation might change.”).
The Court’s discretion is even further limited by Rule 6(b) in cases where an
extension is sought after the expiration of the original time period. In such a case, good
cause would not be enough; the Court would have to find that the extension was
warranted by excusable neglect in failing to comply with the original time period. See
Staley v. Owens, 367 F. App’x 102, 105 (11th Cir. 2010). Demonstrating excusable
neglect in these circumstances is not easily done. See Thompson v. E.I. DuPont de
Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996); Spears v. City of Indianapolis,
74 F.3d 153, 157 (7th Cir. 1996) (“When parties wait until the last minute to comply
with a deadline, they are playing with fire.”).
And because the first Pioneer consideration for excusable neglect is the prejudice
to the opponent, in the Rule 68 context prejudice can be presumed in a case where an
extension of time is sought after the initial 14-day period expires. That is the case
because the unaccepted offer results in a withdrawal of the offer immediately upon the
expiration of the original time period. So, by definition, a motion for extension cannot
be filed or granted when the acceptance period has already been deemed withdrawn
by operation of the rule. That is not functionally different from the principle that a
plaintiff cannot accept a stale offer. E.g., Whitehouse, 279 F.R.D. at 290 (“Plaintiff's
acceptance of said Offer cannot be valid as it was made after the Offer was withdrawn,
56 days after the Offer was filed and served on her.”). A contrary result would also
undermine the “rather finely tuned procedure” that Rule 68 establishes. Richardson,
49 F.3d at 765.
Another way to put it is that Rule 68 does not expressly preclude a Rule 6(b)
extension, except where Rule 68 already deems the offer withdrawn when the 14-day
period expires. An order extending a stale and already expired period would indeed be
in derogation of Rule 68 and would always prejudice the defendant. Therefore, in Rule
6(b) parlance, the court could not grant such an extension because any neglect on the
part of the plaintiff could not possibly be excused in that circumstance.
D.
The September 11th Docket Order Must be Vacated
Applying these principles in our case yields only one ultimate conclusion: the
Court’s Order extending the time for Plaintiff to accept the second offer of judgment
must be vacated. That is because the original motion for extension of time should not
have been granted on its merits. The motion for extension of time was a Rule 6(b)
motion filed after expiration of the 14-day acceptance period. By operation of Rule 68,
at the time the motion was filed the original offer was deemed withdrawn. In other
words, it was already null and void.
And even if we again find, as we did back in September, that good cause was
demonstrated by Plaintiff’s motion due to his counsel’s malfeasance, we erred in not
applying an excusable neglect standard under Rule 6(b)(1)(B). Had we applied that
more stringent standard, we could not have found that Defendants were not prejudiced
by the extension as per Rule 68. Under Pioneer, therefore, we could not have found
counsel’s neglect to be excusable under those circumstances.
Where the motion for reconsideration has set forth a good case for manifest
injustice if the Docket Order is not vacated, we are regretfully obligated to grant it so
as to deny the original motion for extension of time. And we must strike Plaintiffs’
acceptance of the second offer of judgment. We say regretfully, by the way, because by
doing so we continue this litigation even though it most probably should have been
resolved on the terms set forth in the second offer of judgment.
If Defendants
ultimately suffer negative consequences from this strategy, they will remember the
axiom “be careful what you wish for; you just may get it.”
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED:
1.
Defendants’ Amended Motion for Reconsideration [D.E. 36] is
GRANTED.
2.
The Court’s Docket Order entered September 11, 2013 [D.E. 34] is
VACATED.
3.
Plaintiff’s Motion for Extension of Time [D.E. 33] to accept the second
offer of judgment is DENIED.
4.
Defendants’ Motion to Strike [D.E. 38] Plaintiff’s notice of acceptance is
GRANTED.
5.
Defendants’ Motion to Strike [D.E. 45] Plaintiff’s response is DENIED as
6.
An amended scheduled Order shall be entered following entry of this
moot.
Order. Trial in this case shall be specially re-set for August 4, 2014.
DONE AND ORDERED in Chambers at Miami, Florida this 15th day of May,
2014.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?