Blazer v. Chrisman Mill Farms LLC

Filing 88

OPINION & ORDER: DENYING Chrisman Mill Farms, LLC's 80 Motion to Compel; denying the portion requesting substantive discovery relief as untimely filed under Rule 6(b). Signed by Magistrate Judge Robert E. Wier on 2/28/18. (KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
BRIAN ROBERT BLAZER, d/b/a
CARPENTER BEE SOLUTIONS,
Plaintiff,
v.
CHRISMAN MILL FARMS, LLC,
Defendant.

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No. 5:17-CV-430-DCR-REW
OPINION AND ORDER

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On January 30, 2018, the Court ordered Defendant Chrisman Mill Farms, LLC
(CMF), to file “a motion concerning all discovery topics in dispute . . . within 10 days.”
DE #79, at 1. That deadline passed, and CMF made no filing. Later, on February 16,
2018, Defendant, without seeking or receiving Court authorization, filed such a discovery
motion, a week tardy. See DE #80 (Motion to Compel). The Court, thus, ordered CMF to
show cause “concerning its lack of compliance with DE #79 and why the Court should
not dismiss DE #80 as untimely filed.” DE #81 (Order). CMF responded. DE #84.
Plaintiff then responded to DE #80, seeking timeliness-based dismissal. DE #87
(Response). The matter is ripe for consideration.
As this District recently reminded litigants, “deadlines are important things.
[W]hen the Court establishes deadlines, the parties are obliged to follow them. If a party
attempts to file an untimely motion, the Court will not blithely [evaluate] it without
considering the reasons for the delay.” Century Indem. Co. v. Begley Co., ___ F. Supp. 3d
___, No. 5:17-cv-138-JMH, 2018 WL 272576, at *1 (E.D. Ky. Jan. 3, 2018).

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Specifically, under Rule 6, as to an expired deadline, the Court “may” extend the time
“for good cause,” but only “on motion made after the time has expired if the party failed
to act because of excusable neglect.” See Fed. R. Civ. P. 6(b)(1)(B) (“When an act may
or must be done within a specified time, the court may, for good cause, extend the time: .
. . (B) on motion made after the time has expired if the party failed to act because of
excusable neglect.”).1 CMF nowhere in DE ##80 or 84 addresses the standards of Rule 6.
Excusable neglect is an equitable balance of five factors: (1) prejudice to the
nonmoving party; (2) length of delay and potential impact on judicial proceedings; (3)
reason for the delay; (4) whether the delay was within the reasonable control of the
moving party; and (5) whether the late-filing party acted in good faith. See Nafziger v.
McDermott Int'l, Inc., 467 F.3d 514, 522 (6th Cir. 2006) (citing Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 113 S. Ct. 1489 (1993)); see also, e.g., Howard v.
Nationwide Prop. & Cas. Ins. Co., 306 F. App’x 265, 266-67 (6th Cir. 2009) (“The
determination of excusable neglect is an equitable one, taking account of all relevant
circumstances surrounding the party’s omission.”). Although mostly unaided by Movant,
the Court considers each factor in turn.
Prejudice to Blazer. The Court, in these circumstances, sees prejudice to Plaintiff.
Indeed, Blazer directly asserted that he “is prejudiced by CMF’s late filing in numerous
ways.” DE #87, at 5. Specifically, Blazer says that if CMF had timely filed, the parties
“might have been able to rectify some of the issues complained of by CMF.” Id. Further,
Blazer bemoans the discovery period now being “closed” and, instead of responding to

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Although CMF has filed no motion seeking permission to make the late filing, the
Court, on this record and to ensure full and fair consideration, treats DE ##80 and 84 as
impliedly including such a request.
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the motion to compel on the merits, having “to devote its [o]pposition to the timeliness of
CMF’s [m]otion.” Id.
The Court adds the following additional observations. The Court set a particular
motion filing deadline, which CMF let pass with no action. Blazer surely (as the Court
did) then presumed that either (1) the parties had resolved their disputes or (2) CMF
made an election, in the rough and tumble of litigation, to drop contestation of the issues.
The Court designed the 10-day motion deadline, a period that ended on February 9, 2018,
to tee the issues up in advance of the overall fact discovery cutoff, February 16, 2018. See
DE #26, at 3. Instead, CMF ignored the Court’s Order, let the issues fester, and bided its
time until arrival of the discovery deadline itself to file the motion to compel. This
disrupted (or could have disrupted) the imposed schedule, the orderly progression of the
litigation, Blazer’s expectations, and the Court’s organizational effort.
CMF surprised Blazer with a discovery motion a week after the deadline to file
passed, and on the day that discovery in the case ended. Blazer, thinking any potential
need to defend against discovery disputes had abated, see DE #87, at 5, now faces
prejudice in having to brief and defend the issues anew—post-filing-deadline, and postdiscovery-close—in the forms of, for instance, (1) unexpected time to be spent on the
issues instead of, for example, preparing for the upcoming Markman hearing; (2)
additional money expended in paying counsel to litigate the issues, which he thought had
been dropped; and (3) the very surprise and disruption itself inherent in noncompliance
with a case deadline. See, e.g., Cooper v. Shelby Cnty., Tenn., No. 07-2283-STA-cgc,
2010 WL 1780139, at *5 (W.D. Tenn. Apr. 29, 2010) (countenancing “incur[ring]
additional expense” as a prejudice marker); EQT Prod. Co. v. Magnum Hunter Prod.,

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Inc., No. 5:16-CV-150-JMH-REW, 2017 WL 2295906, at *4 (E.D. Ky. May 25, 2017)
(“Simply put, there is harm in case disruption, paired with the attendant negative effects
on the non-defaulting and innocent party.”). The prejudice factor, thus, weighs against
finding excusable neglect.
Length of Delay / Impact on Proceedings. The length of the delay, as the Court
has recounted, was one week—a week of unwarranted disruption and delay in the orderly
progression of the case. Further, as the Court just described, that week was an important
one in view of the overall schedule. CMF elected to postpone litigation of the discovery
issues until the date of the discovery cutoff itself, a meaningful period of delay vis-à-vis
the other case proceedings—and one that threatens to cause further delays in case
resolution, as the appropriate times for a Markman hearing and other case events quickly
approach. See, e.g., Pogue v. Nw. Mut. Life Ins. Co., 2016 WL 3124649, at *4 (W.D. Ky.
June 1, 2016) (bemoaning the “further delays in the progression of this case” that
permitting the late filing would engender). This factor, too, although to a slightly lesser
degree, in the Court’s view, weighs against finding excusable neglect.
Reason for the Delay. The Sixth Circuit has noted that this factor has “the greatest
import” in the excusable neglect inquiry. Morgan v. Gandalf, Ltd., 165 F. App’x 425, 429
(6th Cir. 2006). Despite this factor’s “always critical” nature, id., CMF did not address
timeliness whatsoever (and, thus, did not even attempt to justify the filing delay) in DE
#80. In DE #84, CMF states that the reason for the delay was simply that the deadline
“had been calendared incorrectly in counsel’s system.” Id. at 1.
CMF’s counsel’s negligence—inadvertence, pure and simple—in failing to
accurately keep track of and account for case deadlines, especially given the intensity of

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the litigation surrounding these discovery issues, militates strongly against an excusable
neglect finding. See, e.g., Allen v. Murph, 194 F.3d 722, 724 (6th Cir. 1999) (“[A] fairminded judge could easily find that the carelessness of th[is] attorney[] . . . was
inexcusable.”). The Court does not lightly excuse such carelessness. Simply put,
“attorney error or inadvertence will not ordinarily support a finding of excusable
neglect,” Morgan, 165 F. App’x at 429, and the Court sees no reason to come to a
different conclusion on these facts, involving straightforward and unjustified attorney
deadline mis-calendaring. See, e.g., Shorette v. Harrington, 234 F. App’x 3, 5 (2d Cir.
2007) (holding a “law office calendaring error” not sufficient for an excusable neglect
finding); In re Cade, 552 B.R. 800, 806 (Bankr. S.D. Ohio 2014) (“In considering a
request to extend a deadline which asserts that miscalendaring the date constitutes
excusable neglect, numerous courts have found to the contrary and held that
miscalendaring a deadline does not constitute excusable neglect.” (collecting cases));
Gohl v. Livonia Pub. Schools, No. 12-cv-15199, 2016 WL 2848421, at *2 (E.D. Mich.
May 16, 2016) (“[C]ounsel’s inadvertence in calendaring the clear and unambiguous
deadline . . . does not constitute excusable neglect.”); Halmon v. Jones Lang Wootton
USA, 355 F. Supp. 2d 239, 242 (D.D.C. 2005) (calling mis-calendaring a “lame excuse”
for tardy filing). This scenario appears to be “nothing more than a classic example of
attorney error[, and] the federal courts are practically unanimous in holding that . . .
attorney error is not ‘excusable neglect.’” Peake v. First Nat’l Bank & Trust Co. of
Marquette, 101 F.R.D. 544, 546-57 (W.D. Mich. 1984).
Whether the Delay was within CMF’s Reasonable Control. The delay here was
squarely within CMF’s sole control. CMF knew of the discovery issues well in advance

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of DE #79 and the imposed filing deadline, see DE #76 (attaching communication
regarding the disputes); see also DE #80, at 8 (stating that the undersigned gave CMF
“[l]eave to file this motion . . . on January 30,” but not acknowledging or accounting for
the associated deadline), yet, apparently due to counsel’s unexplained mis-calendaring,
chose not to comply with the Court’s Order. The discovery topics had been hotly debated
and were no secret to the litigants or the Court; nevertheless, CMF, due only to its own
choices and attorney’s error, failed to comply with the filing deadline. This factor also,
thus, weighs heavily against permitting consideration of the untimely motion.
Whether CMF Acted in Good Faith. The Court does not, on this record, question
CMF’s or its counsel’s good faith in filing the motion, but good faith does not here alone
justify an excusable neglect finding. See, e.g., First Tech. Capital, Inc. v. BancTec, Inc.,
No. 5:16-cv-138-REW, 2016 WL 7444943, at *7 (E.D. Ky. Dec. 27, 2016) (concluding
“that BancTec has not established excusable neglect” although “the Court d[id] not
question BancTec’s or its counsel’s good faith in bringing the matter to the Court’s
attention”); Pogue, 2016 WL 3124649, at *5 (denying an extension although not
questioning movant’s good faith); Cooper, 2010 WL 1780139, at *5-6 (upholding
magistrate judge’s ruling that a party’s “neglect was not excusable” when “[f]our of the
five factors” weighed against an excusable neglect finding).
On balance, considering all the excusable neglect factors and case circumstances,
the Court holds that CMF has not established excusable neglect, under Rule 6(b)(1)(B),
to permit consideration of the tardily-filed motion to compel.2 Accordingly, the Court

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To the extent CMF generally falls back “on the ‘elastic’ and ‘at bottom . . .
equitable’ nature of the excusable-neglect standard,” Nafziger, 467 F.3d at 524, invoking,
for example, “the interest of justice” and Blazer’s own perceived “dilatory conduct,” DE
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DENIES the portion of DE #80 requesting substantive discovery relief as untimely filed
under Rule 6(b).
* * * *

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The Court issues this Order resolving a non-dispositive pretrial matter under 28
U.S.C. § 636(b)(1)(A). Any party objecting to this Order should consult the statute and
Federal Rule of Civil Procedure 72(a) concerning its right of and the mechanics for
reconsideration before the District Court. Failure to object waives a party’s right to
review.
This the 28th day of February, 2018.

#84, at 1-2, such dependence simply “is misplaced.” Nafziger, 467 F.3d at 524. The Court
attempted to resolve the discovery disputes on their merits, see DE #79 (Order for
plenary briefing), but CMF, due to its inexcusable neglect concerning motion filing,
missed its opportunity for such consideration. Instead, to “accept [CMF’s] argument[s]
would deprive the term ‘deadline’ of much of its meaning.” Nafziger, 467 F.3d at 523.
Further, CMF originally paired its motion with a request to extend discovery by
two months. CMF then dropped that request. Thus, Defendant, which has been quick to
complain and essentially implacable throughout discovery, wants this Court to excuse its
late filing, wade into the full discovery-dispute merits, and then grant relief in discovery,
all despite the discovery period being fully closed. This process seems ill sequenced and
ill advised.
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