North Florida Radiological Institute, PC v. Central Mississippi Radiology, LLC et al

Filing 39

ORDER finding as moot 33 Motion for Entry of Default; granting 34 Motion for Extension of Time to Answer. Robert L. Cirillo. Signed by Jane M Virden on 3/8/13. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

ROBERT L. CIRILLO
V.

PLAINTIFF
CIVIL ACTION NO. 4:11-CV-00024-SA-JMV

CENTRAL MISSISSIPPI
RADIOLOGY, LLC, ET AL.

DEFENDANTS

ORDER
Before the court are Plaintiff’s motion [34] for an extension of time to file an answer to
Defendants’ counterclaims and Defendant’s motion for the clerk’s entry of default [33] against
Plaintiff for failure to answer or otherwise respond to their counterclaims. The court has
thoroughly considered the submissions of the parties, the record of this case, and the applicable
law and is of the opinion that Plaintiff’s motion for an extension of time in which to answer
Defendants’ counterclaims should be granted, and Defendants’ request for a decree of default
should be denied.
While Plaintiff’s request for an extension comes some twenty one months after the
deadline for responding to Defendants’ counterclaims– which were filed together with their
answer and a motion to dismiss [9, 10]– the court does not find there was willful conduct or bad
faith on the part of Plaintiff. The court finds that the procedural history of this case is pertinent to
the determination herein.
Defendants filed their answer and counterclaims simultaneously with a motion to dismiss
the complaint on May 11, 2011. By Order [13] dated June 14, 2011, the court stayed all
proceedings in this case pending a ruling on Defendants’ motion to dismiss. By Order [25] dated
January 9, 2013, the court denied Defendants’ motion to dismiss, and the stay was lifted on
January 10, 2013. Defendants filed their motion for a clerk’s entry of default on February 21,
2013, and Plaintiff requested an extension of time to respond to the counterclaims the same day.

Then, on February 25, 2013, though no permission had been granted by the court, Plaintiff filed
his proposed answer [35] to Defendants’ counterclaims.
In support of his request for an extension, Plaintiff states that “through some unknown
error” he did not timely respond to Defendants’ counterclaims and that his counsel did not
discover the error until February 20, 2013. In opposition, Defendants argue that the amount of
time that has passed is evidence of willful delay and “establishes prejudice simply by virtue of the
amount of time that has passed.” While the court acknowledges that the delay in this case was
extended, the court finds there is no proof that it was willful or that Defendants have been
prejudiced. First, Defendants have presented the court with no case law or other authority in
support of their arguments. Most importantly, however, Defendants’ argument that they have
been prejudiced by the delay is a bit disingenuous considering that this case was in a stay posture
for over a year and a Case Management Order [31] was only recently entered on February 20.
Finally, the court is compelled to point out that its entry of an order staying all proceedings except
those related to Defendants’ motion to dismiss might reasonably have caused Plaintiff to overlook
his obligation to respond to Defendants’ counterclaims. Accordingly, the court notes that it has
broad discretion concerning this issue and that the circumstances of this case support a finding of
excusable neglect under FED.R.CIV.P. 6(b)(1)(B). Therefore, Plaintiff’s motion for an extension
of time in which to respond to Defendants’ counterclaims is GRANTED, and Plaintiff’s answer
[35] is hereby accepted and deemed timely filed. Defendants’ motion for the clerk’s entry of
default is deemed moot.
THIS, 8th day of March, 2013.

/s/ Jane M. Virden
U. S. MAGISTRATE JUDGE

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