Brokaw v. Social Security, Commissioner of
Filing
22
ORDER DENYING Plaintiff's Request for Extension 19 Response (Free), Response to Order to Show Cause filed by Stacy R. Brokaw AND STRIKING Plaintiff's Motion for Summary Judgment form the Docket D/E 18 ., ( Defendant 039;s Motion for Summary Judgment due by 5/1/2017, Plaintiff's Response due by 5/22/2017, Defendant's Reply due by 6/1/2017)--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STACY R. BROKAW,
Plaintiff,
v.
Case No. 2:15-cv-13914
District Judge David M. Lawson
Magistrate Judge Anthony P. Patti
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________________/
ORDER DENYING PLAINTIFF’S REQUEST FOR EXTENSION (DE 19),
STRIKING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT FROM
THE DOCKET (DE 18), AND SETTING A BRIEFING SCHEDULE
Plaintiff, Stacy R. Brokaw, (who is represented by counsel), filed this action
under 42 U.S.C. §§ 405(g) and 1383(c)(3) for a review of a final decision of the
Commissioner of Social Security denying her application for social security
disability benefits. (DE 1.) Plaintiff’s motion for summary judgment was due on
October 20, 2016. (DE 16.) On February 17, 2017, when no motion had been
filed, the Court issued an order to show cause on or before March 3, 2017, as to
why the case should not be dismissed for her failure to comply with the scheduling
order. (DE 17.)
On March 6, 2017, Plaintiff, through counsel, filed a purported response to
the Court’s show cause order. (DE 19.) Specifically, she filed her motion for
summary judgment (DE 18), accompanied by a request for extension of time that
doubled as the response to show cause order. (DE 19.) However, the response did
not, as required by my order, explain why the Court should not dismiss this action
for lack of prosecution; nor did it demonstrate excusable neglect, as required by
Rule 6(b)(1)(B) when a motion to extend deadlines is made “after the time has
expired . . . .” Accordingly, the Court set the matter for a show cause hearing, at
which Plaintiff’s counsel was to appear in-person and Defendant’s counsel was to
appear by telephone. (DE 20.) On the date and time set for that hearing, Plaintiff’s
counsel attempted to appear by telephone. As such, the Court re-set the showcause hearing for Monday, March 20, 2017 at 3:00 P.M. The parties appeared as
set forth in the order at that time.
When asked why Plaintiff’s motion for summary judgment was months late,
counsel had no explanation other than his own large case load and insufficient
calendaring system. Counsel apologized to the Court and asked that his client not
be punished for his carelessness. Defendant’s counsel deferred to the Court’s
judgment on this matter.
The Court concludes that Plaintiff has not shown good cause for missing
multiple deadlines. Plaintiff provides no explanation for missing deadlines in her
request for extension. (DE 19.) Nor did counsel provide an explanation during the
hearing, other than his own workload. The normal press of business generally does
2
not rise to the good cause standard required to grant motions for extension. See
Rainey v. U.S. Bank Nat. Ass’n, No. 11-2520, 2011 WL 4954154, at *1 (E.D.
Mich. Oct. 18, 2011). Further, Plaintiff’s counsel has an ethical duty, pursuant to
the Michigan Rules of Professional conduct, to control his workload “so that each
matter can be handled adequately.” (M.R.P.C. 1.3 (comments)).
Moreover, Rule 6(b)(1), allows the Court to extend a deadline for good
cause only where a “request is made [] before the original time or its extension
expires.” Fed. R. Civ. P. 6(b)(1)(A) (emphasis added). When the motion is made
(as here) after the deadline has expired, an extension may be granted if the party
“failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). As the
Sixth Circuit has explained, unlike the somewhat amorphous “good cause” test, the
heightened “excusable neglect” standard requires a “balancing of five principal
factors: (1) the danger of prejudice to the nonmoving party, (2) the length of the
delay and its potential impact on judicial proceedings, (3) the 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.” Nafziger v. McDermott Int’l,
Inc., 467 F.3d 514, 522 (6th Cir. 2006).
A balancing of the five excusable neglect factors does not weigh in
Plaintiff’s favor. First, although there is no specific indication of prejudice on the
part of Defendant, this case has been pending since November 5, 2015 and the
3
Commissioner has been dealing with uncertain timelines in this matter since she
was served on July 12, 2016. Second, the length of Plaintiff’s delay in this case,
with a motion for summary judgment filed four and a half months after its due
date, has greatly extended the Court’s timeline in this action. Third, as noted
above, Plaintiff has not provided good reasons for the delay. Fourth, the delay was
completely within Plaintiff’s control, as it was entirely based on her counsel’s
workload and calendaring system. Finally, while the question of whether Plaintiff
was acting in good faith remains unclear, it is clear that counsel continued to miss
deadlines even after the issuance of my second show-cause order in this case.1
Based on the foregoing, the Court concludes that Plaintiff has not even shown
good cause, let alone the higher standard of excusable neglect, for an extension of
the deadline.
Although Plaintiff’s counsel has failed to show cause as to why the
undersigned should not recommend that this matter be dismissed pursuant to Rule
41(b), the Court has an interest in deciding this case on its merits. Accordingly, I
will not make a recommendation that this matter be dismissed, but will instead
1
I have also issued show cause orders for missed deadlines in two of my other
three cases involving Plaintiff’s counsel. (See Malone v. Comm’r of Soc. Sec., No.
15-cv-10226 (E.D. Mich. August 13, 2015) and Payment v. Comm’r of Soc. Sec.,
No. 15-cv-14426 (E.D. Mich. June 1, 2016)). The fourth case, Watson v. Comm’r
of Soc. Sec., No. 16-14355, is awaiting an answer from the Commissioner before a
scheduling order is issued.
4
exercise my authority as it relates to the scheduling order. Specifically, Plaintiff’s
request for extension is DENIED (DE 19) and her brief is hereby STRICKEN
from the Court’s docket. (DE 18.) Defendant shall file her motion for summary
judgment ON OR BEFORE MAY 1, 2017. Thereafter, Plaintiff may file a
response brief in strict conformity with the Federal Rules of Civil Procedure, the
Local Rules of this District, and my Practice Guidelines in all respects, including
page limitations and format, ON OR BEFORE MAY 22, 2017 and Defendant
may file a reply ON OR BEFORE JUNE 1, 2017. No further briefing will be
allowed.
I will hold the issue of whether further sanctions should be issued under
advisement. Plaintiff’s counsel is cautioned that no further extensions will be
granted in this case and is urged to put an appropriate calendaring system in place
in order to avoid this issue going forward. Similar instances in the future (in this
case and any others) will likely result in a recommendation that the action be
dismissed for failure to prosecute. This Court’s deadlines, including briefing
schedules, are not optional.
IT IS SO ORDERED.
Dated: March 21, 2017
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
5
I hereby certify that a copy of the foregoing document was sent to parties of record
on March 21, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
6
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?