Awah v. Midland Credit Management of America
Filing
24
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 8/24/2011. (c/m 8/26/11 rs) (rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EDMUND AWAH,
Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT
OF AMERICA,
Defendant.
*
*
*
*
*
*
*
*
*
*
*
*
Case No.: RWT 10cv885
MEMORANDUM OPINION
Plaintiff Edmund Awah’s (“Awah”) pro se complaint alleges violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, and the Fair Credit Reporting Act, 15 U.S.C. § 1681
by Defendant Midland Credit Management of America (“Midland”). For the reasons stated
below, the Court will grant Midland’s motion to strike Awah’s amended complaint and direct the
Clerk to close this case.
BACKGROUND
By memorandum opinion dated October 14, 2010, the Court dismissed Awah’s complaint
for failure to state a claim. See Awah v. Midland Credit Management of America, No. RWT 1000885 at *8 (D. Md. Oct. 14, 2010). Pursuant to the Court’s October 14 order, Awah’s sole
opportunity to revive this case was to file an amended complaint on or before November 15,
2010. See ECF No. 17.
On November 15, 2010, Awah mailed his amended complaint, and an accompanying
motion for leave to amend, to counsel for Midland and the Clerk of the Court. See ECF No. 19.
Predictably, the amended complaint and accompanying motion were not received by the Clerk of
the Court until November 16, 2010, one day after the Court imposed deadline. See id.
On November 30, 2010, Midland filed a Motion to Strike Plaintiff’s Motion to File an
Amended Complaint and/or Motion to Dismiss Complaint, which Awah opposed. Midland
urges the Court to strike Awah’s amended complaint and dismiss the case for failure to file by
the date specified in the Court’s order. See Def.’s Mot. to Strike, ECF No. 20. Awah responds
that he fully complied with the Court’s order because he mailed the motion first class, return
receipt requested, on the Court imposed deadline. See Pl.’s Opp’n Def.’s Mot. to Strike, ECF
No. 21 (emphasis added). Awah also requests the issuance of a scheduling order in this case.
See ECF No. 22.
ANALYSIS
As an initial matter, the Court previously granted Awah leave to file an amended
complaint on or before November 15, 2010. See ECF No. 17. Thus, Awah’s motion for leave to
file an amended complaint will be denied as moot.
In regard to the timing of the filing of the amended complaint, Awah misunderstands the
law. Awah does not dispute that the district court received his amended complaint one day after
the court imposed deadline; he merely contends that he was in full compliance with the court’s
order because he mailed his amended complaint on the specified date. See Pl.’s Opp’n Def.’s
Mot. to Strike.
However, with the exception of incarcerated individuals, a civil litigant’s
pleading is not considered filed until receipt by the district court. See, e.g., Stone Street Capital,
Inc. v. McDonald’s Corporation, et al., 300 F. Supp. 2d 345, 347 (D.Md. 2003) (explaining that
“[f]iling . . . is not complete until the document is delivered and received” and that the “mailbox
rule” for filing is limited to prisoners housed in penal institutions) (emphasis added); see also
2
Greeson v. Sherman, 265 F.Supp. 340, 342 (W.D. Va. 1967) (finding that a complaint is filed
when “the complaint is delivered to an officer of the court who is authorized to receive it”); Fed.
R. Civ. P. 5(d)(2) (“A paper is filed by delivering it to the clerk. . .”).
The Court’s October 14 order clearly states that Awah was to “file” any amended
complaint on or before November 15, 2010. ECF No. 17.
Awah admittedly failed to do so,
opting instead to drop it in the mail on the court imposed deadline. “Having chosen to transmit
the [amended] complaint by mail service, [Awah] assumed the risk of any untimely delivery and
filing of [his amended complaint].” In re Bad Bubba Racing Products, Inc., 609 F.2d 815, 816
(5th Cir. 1980) (concerning the filing of a notice of appeal in the context of a bankruptcy
proceeding); see also Clark v. Paragon Systems, Inc., No. 06-30934, 2007 WL 1026447, at *1
(5th Cir. April 3, 2007) (applying the same “well settled principle” to a pro se litigant’s filing of a
complaint). Moreover, despite being a veteran pro se litigator1 and having been afforded ample
opportunity to do so, Awah has neither offered an explanation for his tardiness, nor has he
requested leave to file his amended complaint out of time.
Requests for an extension after a deadline has passed are governed by Fed R. Civ. P.
6(b)(1)(B), which provides that a 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.” The Fourth
Circuit has noted that “ ‘[e]xcusable neglect’ is not easily demonstrated, nor was it intended to
be.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996).
In determining whether neglect is excusable, “the determination is at bottom an equitable
one, taking account of all relevant circumstances surrounding the party’s omission,” including
“the danger of prejudice to the [nonmoving party], the length of the delay and its potential
impact on judicial proceedings, the reason for the delay, including whether it was within the
1 See ECF No. 21, Ex. 1, 2.
3
reasonable control of the movant, and whether the movant acted in good faith.” Pioneer
Investment Services Co. v. Brunswick Associates, 507 U.S. 380, 395 (1993). The most important
of the factors identified in Pioneer for determining whether neglect is excusable is the untimely
party’s reason for delay. Thompson, 76 F.3d at 534; see also United States v. Munoz, 605 F.3d
359, 372 (6th Cir. 2010) (“[T]he Pioneer factors do not carry equal weight; the excuse given for
the late filing must have the greatest import.”)
Here, the only excuse given for the delay, if any, is that Awah mailed the amended
complaint by the Court imposed deadline. See Pl.’s Opp’n Def.’s Mot. to Strike 1. Even if the
other Pioneer factors counsel in favor of Awah, his failure to file by the court ordered deadline is
not excusable for the reasons stated above. Moreover, the amended complaint was not even
complete as filed. Awah states in his motion for leave to file the amended complaint that
“[r]elevant exhibits will reach the court at the appropriate time.” ECF No. 18. As clearly stated
in the Court’s October 14 order, the appropriate time to file the amended complaint, and to attach
any exhibits thereto, was November 15, 2010. Awah not only failed to meet this deadline, he has
yet to file the promised exhibits to his amended complaint over ten months later. Although
pleadings prepared by pro se litigants are to be liberally construed, the same cannot be said for
the interpretation of procedural rules in ordinary civil litigation. See McNeil v. United States,
508 U.S. 106, 113 (1993).
4
CONCLUSION
Accordingly, the Court will, by separate order, deny as moot Awah's motion for leave to
file an amended
complaint,
grant Midland's
motion to strike Awah's
untimely
amended
complaint, deny as moot Awah's motion requesting the issuance of a scheduling order, and direct
the Clerk of the Court to close this case .
Date:
.2-4-, 2011
5
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?