Lu v. Hulme et al

Filing 24

MOTION for Extension of Time to June 27, 2013 to File Answer by George Hulme, Trustees of Boston Public Library. (Attachments: # 1 Memorandum of Law in Support of Motion for Leave to File Late Answers, # 2 Exhibit A, # 3 Exhibit B)(Driscoll, Caroline)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-11117-MLW

FRIEDRICH LU,
Plaintiff,
v.
GEORGE HULME, in his individual
capacity and in his official capacity,
TRUSTEES OF THE BOSTON PUBLIC
LIBRARY,
Defendants.

DEFENDANTS GEORGE HULME AND THE TRUSTEES OF THE BOSTON PUBLIC
LIBRARY’S MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE
LATE ANSWERS
Defendants George Hulme (“Hulme”), in his individual and official capacities, and the
Trustees of the Boston Public Library (“Trustees”) (collectively, “Defendants”) hereby submit
this memorandum of law in support of their Motion for Leave to File Late Answers pursuant to
Federal Rule of Civil Procedure 6(b)(1)(B). Answers for both Defendants, which were
previously filed with this court, are attached to this Motion as Exhibits A and B, respectively.
Defendants’ late answers are due entirely to a misinterpretation by defense counsel of this
Court’s prior Order and Memorandum regarding Defendants’ Motion to Dismiss. See
Memorandum and Order at 26, Docket Entry No. 16 (C.A. No. 12-11117-MLW) (hereinafter
“Order”). As such, Defendants’ delay is attributable to excusable neglect and has not caused any
harm to the Plaintiff, who has admitted to waiting for further action in this matter. See Plaintiff’s
Motion to Strike Docket Entry No. 22, at para. 5 (C.A. No. 12-11117-MLW) (hereinafter
“Motion to Strike”).

ARGUMENT
The Supreme Court has found that the individual circumstances of each case determine
whether or not excusable neglect may exist. See Pioneer Inv. Servs. Co. v. Brunswick Associates
Ltd. P'ship, 507 U.S. 380, 381 (1993). Overall, the term “excusable neglect” is interpreted
flexibly. Id. at 389; Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 6 n.8 (1st Cir. 2006). Thus,
district courts “enjoy great leeway in granting or refusing enlargements.” See Maldonado-Denis
v. Castillo-Rodriguez, 23 F.3d 576, 583-84 (1st Cir. 1994).
Multiple factors contribute to a decision pursuant to Rule 6(b)(1)(B). These include:
consideration of potential prejudice to the non-moving party, the length of delay and its potential
impact on the proceedings, the reason for the delay, and whether the movant acted in good faith.
See Pioneer Inv. Servs. Co., 507 U.S. at 396.
Here, the potential prejudice to the non-moving party is refuted by Plaintiff’s Motion to
Strike, which states that Plaintiff was “wait[ing] to see what was going on,” rather than filing a
motion to default or taking other action. See Motion to Strike, ¶ 5. Unlike cases where a delay
could cause a severe detriment to a party’s interest, Defendants’ delay does not appear to have
harmed Plaintiff’s interests. See, e.g., In re New England Mutual Life Ins. Cp. Sales Practices
Litigation, 204 F.R.D. 6, 13-14 (D.Mass. 2001) (declining to find excusable neglect on a Rule
60(b) motion where plaintiff’s delay affected defendants’ liability). Rather, if this Court strikes
Defendants’ Answers, the Defendants would likely face immense difficultly in establishing their
defense.
As for the length of the delay and the reasons behind it, the delay is attributable entirely
to counsel who misinterpreted the court’s order, and moved to correct her failure by filing
Answers as soon as she discovered her error. While defense counsel acknowledges that this

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Court has previously declined to find excusable neglect based purely on mistake or claims of an
overwhelming caseload, the present case is distinguishable. See Deo-Agbasi v. Parthenon
Group, 229 F.R.D. 348, 352-354 (D.Mass. 2005)(discussing rejection of other “excusable
neglect” claims due to missed deadlines or preoccupation with other matters); see also, Crevier
v. Town of Spencer, 05-40184-FDS, 2007 WL 120237, at *4 (D.Mass. Jan. 12, 2007) (noting that
“the four factors in Pioneer factors do not carry equal weight… the reason-for-delay factor will
always be critical to the inquiry”).
At this juncture, defense counsel does not claim to be overwhelmed with work or to have
lost track of a deadline. Counsel’s error is due to her interpretation of the following sentence
from the Order: “After the issue of whether [Plaintiff] will be represented by counsel is
resolved, the court will establish a schedule for the remainder of this case.” See Order, at 26.
Having reviewed the court’s Order, which contained a lengthy analysis of the issues present in
this litigation, counsel understood the court’s final sentence to mean that all deadlines going
forward, including a date for filing answers would be set by this Court.1
In retrospect, defense counsel should not have overlooked the fourteen (14) day deadline
for filing answers per Rule 12(a)(4)(A), but should have sought clarification from the court
regarding its Order. Counsel’s mistake was not made with any intent to delay these proceedings
nor committed in bad faith. Moreover, if any harm was done to the Plaintiff, Defendants have
not received any notice of such harm and cannot foresee how this delay would cause undue
prejudice to Plaintiff’s interests at this stage of the litigation.

1

A brief review of the docket in this matter will reveal that defense counsel has been actively engaged in this matter
and met all other deadlines.

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CONCLUSION
For the reasons stated above, Defendants, the Trustees of the Boston Public
Library and George Hulme, respectfully request that this Court grant their Motion for Leave to
File Late Answers.
Respectfully submitted,
DEFENDANTS GEORGE HULME, in his
individual capacity and in his official capacity
and TRUSTEES OF THE BOSTON PUBLIC
LIBRARY
William Sinnott
Corporation Counsel
By their attorneys:

Date: June 27, 2013

/s/Caroline O. Driscoll_________
Caroline O. Driscoll, BBO# 647916
Assistant Corporation Counsel
City of Boston Law Department
City Hall, Room 615
Boston, MA 02201
[phone]
[e-mail]

LOCAL RULE 7.1 CERTIFICATION
I certify that on June 26, 2013, I attempted to contact Plaintiff via email to consult with
him regarding the relief sought in this motion. As of the time of filing, Plaintiff has not
responded to my email. I also certify that on June 27, 2013, I filed this document through the
Court’s CM/ECF system and that an electronic copy will be sent via email to those identified as
non-registered participants per agreement with Plaintiff.

/s/Caroline O. Driscoll
Caroline O. Driscoll

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