Engineering & Construction Innovations, Inc. v. Bradshaw Construction Corp. et al

Filing 149

ORDER denying 145 Defendant Bradshaw Construction Corporation's Motion for Leave to File Memorandum in Opposition to Plaintiff's Motion to Compel Instanter. Signed by Magistrate Judge Tony N. Leung on 4/27/2021. (Written Opinion) (LAS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Engineering & Construction Innovations,
Inc.,

Case No. 20-cv-808 (WMW/TNL)

Plaintiff,
ORDER

v.
Bradshaw Construction Corporation and
Travelers Casualty & Surety Company of
America,
Defendants.

Ernest F. Peake, Patrick J. Lindman, and Paul Shapiro, Taft Stettinius & Hollister LLP, 80
South Eighth Street, Suite 2200, Minneapolis, MN 55402 (for Engineering & Construction
Innovations, Inc.); and
Dean B. Thomson and Julia J. Douglass, Fabyanske Westra Hart & Thomson, PA, 333
South Seventh Street, Suite 2600, Minneapolis, MN 55402 and Rachael L. Russo and
Thomas Louis Rosenberg, Roetzel & Andress, LPA, 41 South High Street, Huntington
Center, Columbus, OH 43215 (for Bradshaw Construction Corporation and Travelers
Casualty & Surety Company of America).
This matter is before the Court on Defendant Bradshaw Construction Corporation’s
(“Bradshaw”) Motion for Leave to File Memorandum in Opposition to Plaintiff’s Motion
to Compel Instanter (ECF No. 145). In this motion, Bradshaw sought leave to file its
response on April 26, 2021. (Id. at 2.) Bradshaw also filed its responsive memorandum.
(ECF No. 146; see also ECF No. 145 at 1.)
On April 15, 2021, Plaintiff filed a motion to compel Bradshaw to produce certain
documents requested by Plaintiff. (ECF No. 137.) A hearing on this motion is scheduled

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for April 29, 2021. (ECF Nos. 138, 143-44.) According to this district’s local rules,
Bradshaw’s response to Plaintiff’s motion was due on or before April 22, 2021. See D.
Minn. LR 7.1(b)(2) (“Within 7 days after filing of a nondispositive motion . . . . the
responding party must file and serve [its response].”)
Under Federal Rule of Civil Procedure 6(b)(1)(B), “[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.”
“Excusable neglect is an ‘elastic concept’ that empowers courts to accept, ‘where
appropriate, . . . late filings caused by inadvertence, mistake, or carelessness, as well as by
intervening circumstances beyond the party’s control.’” Chorosevic v. MetLife Choices,
600 F.3d 934, 946 (8th Cir. 2010) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 392 (1993). Whether neglect is excusable “is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s
omission.” Pioneer Inv. Servs. Co., 507 U.S. at 395. “Four factors inform this decision:
(1) the possibility of prejudice to the opposing party; (2) the length of delay and the possible
impact of the delay on judicial proceedings; (3) the party’s reasons for delay, including
whether the delay was within the party’s ‘reasonable control’; and (4) whether the party
acted in good faith.” HSK, LLC v. United States Olympic Comm., 248 F. Supp. 3d 938,
942 (D. Minn. 2017) (citing Chorosevic, 600 F.3d at 946).
Counsel for Bradshaw, Thomas L. Rosenberg, states in the motion that he was out
of town for an approximately two-week long trial that began on April 8, 2021. (ECF No.
145 at 1.) Mr. Rosenberg attaches an email he sent to counsel for Plaintiff on April 23,
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2021, one day after the response was due, stating the same. (ECF No. 145-1 at 2.) In this
email, Mr. Rosenberg requested if he could file the responsive memorandum on April 26.
(Id.)

Plaintiff’s counsel replied on April 24 that Plaintiff did not agree with Mr.

Rosenberg’s request to file an untimely brief. (Id. at 1.)
Mr. Rosenberg concludes in his motion that “[b]ased on the lack of professional
courtesy, Defendant Bradshaw is left with no option other than to seek leave from the Court
to file its Memorandum in Response.” (ECF No. 145 at 2.) As an initial matter, as
Bradshaw seeks to alter a deadline after the time has already expired, Mr. Rosenberg would
have needed to file this motion regardless of Plaintiff’s position on the matter. See Fed. R.
Civ. P. 6(b)(1)(B).
Further, the Court finds that Bradshaw’s neglect was not excusable. Though Mr.
Rosenberg was in trial, he is one of four attorneys assigned to this case. Nowhere in the
motion or in his attached email does he mention why the other three attorneys representing
Bradshaw could not contact Plaintiff’s counsel or the Court prior to the deadline to file a
response. Nor does Plaintiff’s objection to the late filing demonstrate why Bradshaw was
incapable of filing its response either due to inadvertence, mistake, carelessness, or a lack
of circumstance beyond its control. Considering the four factors, the Court finds they
weigh in favor of denying Bradshaw’s motion, particularly because Plaintiff would be
prejudiced in considering the late filing three days prior to the motion hearing; Bradshaw
has not demonstrated that its delay was outside its reasonable control; and Bradshaw has
not acted in good faith by using the crux of its argument to lay the blame for its delay at
the feet of Plaintiff.
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Therefore, based on the foregoing, IT IS HEREBY ORDERED THAT:
1. Defendant Bradshaw Construction Corporation’s Motion for Leave to File
Memorandum in Opposition to Plaintiff’s Motion to Compel Instanter (ECF No.
145) is DENIED. The Court will not consider Bradshaw’s untimely response to
Plaintiff’s motion (ECF No. 146).
2. All prior consistent orders remain in full force and effect.
3. Failure to comply with any provision of this Order or any other prior consistent
Order shall subject the non-complying party, non-complying counsel and/or the
party such counsel represents to any and all appropriate remedies, sanctions and the
like, including without limitation: assessment of costs, fines and attorneys’ fees and
disbursements; waiver of rights to object; exclusion or limitation of witnesses,
testimony, exhibits and other evidence; striking of pleadings; complete or partial
dismissal with prejudice; entry of whole or partial default judgment; and/or any
other relief that this Court may from time to time deem appropriate.
Date: April

27 , 2021

s/Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Eng’g & Constr. Innovations, Inc. v.
Bradshaw Const. Co., et al.
Case No. 20-cv-808 (WMW/TNL)

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