Jones v. Sewerage & Water Board of New Orleans et al

Filing 35

ORDER that the 29 Motion to Strike plaintiff's 28 Response/Memorandum in Opposition to Motion to Fix Attorneys' Fees is DENIED. Signed by Magistrate Judge Daniel E. Knowles, III on 11/17/14. (plh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CASSANDRA JONES

CIVIL ACTION

VERSUS

NO. 13-6288

SEWERAGE & WATER BOARD OF
NEW ORLEANS, ET AL.

SECTION "C" (3)

ORDER
Before the Court is the Ex Parte Motion to Strike Plaintiff's Opposition to Motion to Fix
Attorneys' Fees and Incorporated Memorandum. [Doc. #29]. Defendants Sewerage & Water Board
of New Orleans and Marcia St. Martin (collectively, "defendants") seek to strike plaintiff Cassandra
Jones's opposition to their motion because she filed it untimely. Jones filed her opposition on the
submission date of the motion and not eight days before the submission date, in accordance with the
local rules of this Court. The Court ordered Jones to file an opposition to the motion to strike, which
she timely did. [Doc. #34].
While plaintiff maintains that Federal Rule of Civil Procedure 12(f) applies here, she is
incorrect. Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure applies. This 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). The Fifth Circuit has held:

Relevant factors to the excusable neglect inquiry include: “the danger of prejudice
to the [non-movant], the length of the delay and its potential impact on the judicial
proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.” See Farina v.
Mission Inv. Trust, 615 F.2d 1068, 1076 (5th Cir. 1980); Pioneer Inv. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395-97, 113 S.Ct. 1489, 123 L.Ed.2d
74 (1993).
Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 162 n.8 (5th Cir. 2006).
Weighing the relevant factors, the Court concludes that defendants' motion to strike should
be denied, and plaintiff's opposition to the motion to fix attorneys' fees should be considered timely
filed. Jones will clearly be prejudiced if her opposition is disallowed. The length of the day was only
eight days and its impact on judicial proceedings is minor because the Court had not yet officially
considered the motion to fix attorneys' fees. Further, there has been no showing that Jones failed
to act in good faith. Striking Jones's opposition at this time would be a draconian remedy.
Defendants still have time to file any appropriate reply to Jones's opposition. Accordingly,
IT IS ORDERED that the Ex Parte Motion to Strike Plaintiff's Opposition to Motion to Fix
Attorneys' Fees and Incorporated Memorandum [Doc. #29] is DENIED.
New Orleans, Louisiana, this 17th day of November, 2014.

DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE

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