German v. Akal Security, Inc. et al

Filing 36

MEMORANDUM. Signed by Judge Catherine C. Blake on 4/10/12. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
:
:
:
:
:
:
:
:

SANDRA GERMAN
v.
AKAL SECURITY, INC., MARYLAND
AVIATION ADMINISTRATION

Civil No. CCB-11-1242

MEMORANDUM
The court previously dismissed Sandra German’s claims for employment
discrimination and gave her 21 days to file an amended complaint. Ms. German failed to ask
for an extension of time prior to the deadline, and then filed an amended complaint after the
court-ordered deadline expired. Defendants Akal Security, Inc. (“Akal”) and the Maryland
Aviation Administration (“MAA”) have filed motions to strike the amended complaint (ECF
Nos. 27 & 29), and Ms. German has filed a motion for extension of time under Fed. R. Civ.
P. 6(b). (ECF No. 28). The motions have been briefed, and no oral argument is necessary.
See Local Rule 105.6 (D. Md. 2011). For the reasons described below, defendants’ motions
will be granted.
The relevant facts of the case have been described in the court’s prior opinion. (ECF
No. 24) There, the court dismissed Ms. German’s complaint for failure to state a claim,
dismissing her state law claims with prejudice and her federal law claims without prejudice.
The court noted Ms. German had, in her opposition brief, “requested the opportunity to
amend her complaint in the event this court determines her pleadings to be insufficient.” (Id.
1

at 17.) Giving weight to an EEOC statement that “credible witness testimony was obtained
in support of Plaintiff's allegations of racial harassment,” the court stated that “Plaintiff will
be granted leave to seek to amend her Title VII claims only.” (Id. at 18.) In the attached
order, the court stated “plaintiff may seek leave to amend the complaint to cure deficiencies
as to the Title VII claims in Counts I, II, and III within 21 days of the date of this Order.”
(ECF No. 25 (emphasis added).)
Ms. German filed an amended complaint with the court on January 29, 2012, more
than a month after the specified deadline. Akal subsequently filed a motion to strike the
amended complaint, noting that Ms. German had not filed a motion to extend the deadline as
required by Fed. R. Civ. P. 6(b)(1)(B). On February 6, 2012, Ms. German then filed a
motion for extension of time, requesting this court extend the deadline sufficiently to accept
her previously filed amended complaint as timely. Ms. German explained that her counsel
inadvertently missed the deadline, having misread the memorandum opinion and believing
that the memorandum opinion had already granted her leave to file an amended complaint.
This mistake was compounded by “the congested workweeks during the busy holiday season
in December and early January.” (Pl.’s Opp. to Def. Akal’s Mot. to Strike 2, ECF No. 31.)
Where “a motion for extension of a court-ordered deadline is filed after the date
specified,” Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure “requires a
demonstration that the failure to act within the time required was the result of ‘excusable
neglect.’” Whichard v. Specialty Rests. Corp., 220 F.R.D. 439, 440–41 (D. Md. 2004)
(quoting Fed. R. Civ. P. 6(b)(1)(B));1 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 895-96

1

Fed. R. Civ. P. 6(b)(1) states:

2

(1990).
“Although inadvertence, ignorance of the rules, or mistakes construing the rules do
not usually constitute ‘excusable’ neglect, it is clear that ‘excusable neglect’ under Rule 6(b)
is a somewhat ‘elastic concept’ and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.” Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993). “It is not surprising, then, that in applying
Rule 6(b), the Courts of Appeals have generally recognized that ‘excusable neglect’ may
extend to inadvertent delays.” Id. at 391–92 (1993) (citing, among others, United States v.
Borromeo, 945 F.2d 750, 753–754 (4th Cir. 1991)).
“To ascertain whether a delay in filing is excusable, courts must consider ‘all relevant
circumstances surrounding the party's omission.’” Dwonzyk v. Baltimore Cnty., 328 F. Supp.
2d 572, 577 (D. Md. 2004) (quoting Pioneer, 507 U.S. at 395, and applying the Pioneer
standard to a Rule 6(b) motion). “The excusability determination” takes into account
[1] the danger of prejudice to the debtor [or non-movant], [2] the length of
the 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.
In re SPR Corp., 45 F.3d 70, 72 (4th Cir. 1995) (quoting Pioneer, 507 U.S. at 385). The
Fourth Circuit has stated, as to a failure to timely file an appeal, that “[t]he most important of
the factors identified in Pioneer for determining whether ‘neglect’ is ‘excusable’ is the
reason for the failure.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th

When 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 a 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.

3

Cir. 1996) (applying the Pioneer factors to a determination under Fed. R. App. P. 4(a)(5)).2
The court assumes good faith on the part of Ms. German and finds no substantial
prejudice to defendants. After three years awaiting the EEOC determination, an additional
delay would only marginally affect the memories of witnesses, and granting leave to amend
after the delay would not foreclose any arguments that otherwise would have been available
to defendants. The other two Pioneer factors, however, weigh heavily against finding
excusable neglect.
Ms. German’s explanation for the delay is weak. The court’s order contained an
express 21-day deadline for filing a motion for leave to amend. The order was expressly
incorporated into the opinion memorandum, which stated that “[a] separate order follows.”
(ECF No. 24, at 18.) A plausible misreading of a court order may weigh in favor of
excusable neglect, Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 631 (1st Cir. 2000), but plaintiff
here fails to identify any ambiguity in the language of the memorandum opinion or the
order.3 The only plausible inference is that plaintiff’s counsel either did not read the order or
did not prioritize meeting the deadline. It should go without saying that a congested
schedule does not excuse the failure to, at the very least, request an extension of time prior to
a deadline.
In reviewing the length of delay, the court notes that the missed deadline is not

2

This is not necessarily always the case. In cases involving forfeiture, the degree of prejudice is “perhaps
the most important” factor. United States v. Borromeo, 945 F.2d 750, 753 (4th Cir. 1991); U.S. v.
$12,914.00 in U.S. Currency, --- F.Supp.2d ----, 2011 WL 6178892 at *2 (D. Md. Dec. 2, 2011).
3
Plaintiff’s counsel, straining to identify ambiguity in the court’s instructions, goes so far as to misstate the
language of the memorandum opinion. According to Ms. German’s motion for extension of time, the
opinion states that “Plaintiff will be granted leave to amend her Title VII claims.” (ECF No. 28-1, at 1.)
The opinion in fact stated that Plaintiff “will be granted leave to seek to amend her Title VII claims.” (ECF
No. 24, at 18 (emphasis added).)

4

plaintiff’s first failing in this case. The need to amend was prompted by failure to satisfy
basic federal civil pleading standards in the original complaint. After defendants filed
motions to dismiss, Ms. German could have addressed the deficiencies in her complaint by
filing an amended complaint as of right. See Fed. R. Civ. P. 15(a)(1)(B). Instead, Ms.
German filed an opposition brief supported in part by outdated authority. In considering the
length of delay affecting the proceedings, therefore, the court includes the six-month delay
and multiple briefings necessitated by plaintiff’s conduct over the full course of this case.
Cf. Cronin v. Henderson, 209 F.R.D. 370, 372 (D. Md. 2002) (considering a ten month delay
to be “substantial” and a factor weighing against excusable neglect).
The court acknowledges there is no indication that Ms. German is personally at fault
here.

Nonetheless, the Supreme Court has foreclosed the argument that a client’s

blamelessness alone can justify a finding of excusable neglect. A party voluntarily chooses
her attorney in civil litigation, and she therefore cannot later “avoid the consequences of the
acts or omissions of this freely selected agent.” Pioneer, 507 U.S. at 396 (quoting Link v.
Wabash R.R. Co., 370 U.S. 626, 633–634 (1962)). This principle “requires that [a party] be
held accountable for the acts and omissions of their chosen counsel.” Id. at 397.4
Accordingly, for all of the above reasons, defendants’ motion to strike the amended
complaint will be granted, and Ms. German’s motion for extension of time will be denied
with prejudice.

4

Though it does not necessarily affect the determination of excusable neglect, the court also notes that it is
not clear plaintiff’s motion for leave to amend would have been granted even if timely filed. The proposed
amended complaint does not appear to address the memorandum opinion’s most pointed questions,
including the court’s request for more specific dates and for any proffered explanations for the FBI
investigation, plaintiff’s demotion, or her ultimate termination.

5

A separate order follows.

April 10, 2012
Date

/s/
Catherine C. Blake
United States District Judge

6