TB v. MOUNT LAUREL BOARD OF EDUCATION

Filing 46

OPINION. Signed by Judge Jerome B. Simandle on 8/18/2011. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

T.B.,
a minor, individually and by
his Parent J.K.,

HON. JEROME B. SIMANDLE
Civil No. 09-4780 (JBS/KMW)

Plaintiff,
MEMORANDUM OPINION
v.
MOUNT LAUREL BOARD OF
EDUCATION,
Defendant.

SIMANDLE, District Judge:
This matter is before the Court on Defendant's motion to
extend the time period for filing a response to Plaintiff's
motion for attorney fees.

[Docket Item 43.]

Unfortunately, the

Court must consume time sorting out what happens when a party
seeking an extension of time to oppose a dispositive motion does
not use the automatic extension provision of L. Civ. R. 7.1(d)(5)
but instead mistakenly but timely submits a request for a Clerk's
extension of time to answer under L. Civ. R. 6.1(b).

The Court

finds as follows:
1.

Plaintiff filed his motion on July 21, 2011, making the

opposition due August 1, 2011.

Before the expiration of that

period on August 1, Defendant filed a motion for extension of
time pursuant to Local Civil Rule 6.1(b), a rule which provides,
"The time within which to answer or reply may, before its first
expiration and with or without notice, be extended once for a

period not to exceed 15 days on order granted by the Clerk."
However, Defendant asked in the body of the motion for an
extension of time to reply to "the Complaint," instead of to
respond to "the motion," with the proposed order erroneously
referencing counterclaims.

Additionally, Local Civil Rule 6.1(b)

is customarily used for extension of time to answer or reply to
pleadings, while Local Civil Rule 7.1(d)(5) is used for
extensions of time to reply to dispositive motions.
Consequently, the Clerk rejected the application, but left the
motion on the docket.
2.

On August 3, 2011, Defendant's counsel determined that

in light of the Clerk's rejection of his application and
explanation of the limited purpose of Local Civil Rule 6.1(b), it
was necessary to make a further filing, and he filed a motion
seeking to correct or convert the Local Civil Rule 6.1(b)
application to a Local Civil Rule 7.1(d)(5) application.

A

motion for fees is regarded as a dispositive motion, see Local
Civil Rule 72.1(a).

Local Civil Rule 7.1(d)(5) provides that the

period for opposing a dispositive motion may be automatically
extended by one motion cycle upon timely filing of a Rule
7.1(d)(5) letter, which in this case would require Defendant's
opposition by August 22, 2011.

If Defendant merely filed a Rule

7.1(d)(5) letter on August 1, rather than a Rule 6.1(b) request
for a Clerk's extension, defense counsel would automatically have

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received the extension to August 22.
3.

Plaintiff has opposed this motion, arguing that

Defendant previously opposed a motion by Plaintiff to file a late
brief, a motion which the Court denied; Plaintiff reasons that
the two circumstances are identical, and that the identical
result is therefore required.
4.

In fact, the circumstances are quite distinct.

Principally, unlike Plaintiff when the parallel situation arose
in October 2010, Defendant timely filed a motion seeking an
extension.

Defendant correctly observes that neither Federal

Rule of Civil Procedure 6(b) nor Local Civil Rule 6.1(b) is
expressly limited to an extension of time to answer a pleading.
The commentary to the local rule acknowledges this, stating "the
Rule's procedures clearly apply to all requests for a continuance
or extension of time mandated by a rule . . ."
Federal Practice Rules,

Lite, N.J.

L. Civ. R. 6.1 cmt. 2 (Gann).

Although

the reliance on Local Rule 6.1 instead of 7.1 was contrary to
local custom, and the brief made erroneous references to the
complaint and counterclaims, the motion was nevertheless clear by
context in the relief sought and otherwise in accord with the
text of the relevant rules.

Both the Federal Rules of Civil

Procedure and the Local Civil Rules repeatedly emphasize the
importance of diligently filing a timely notice of the need for
an extension, and indeed this is the critical factor in

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determining whether excusable neglect must be shown or not in
order to receive an extension.

If the present extension is

denied, Defendant would not receive the benefit of the automatic
extension to oppose this dispositive motion conferred by L. Civ.
R. 7.1(d)(5).
5.

Moreover, even assuming for the sake of argument that

Defendant must nevertheless now show excusable neglect, there are
a number of factors that make Defendant's showing stronger than
Plaintiff's efforts on his prior motion:

Defendant's

inadvertence was regarding customary court procedures and misused
nomenclature, not the substance of the clear text of a rule; the
excuse for the late filing — use of Rule 6.1 instead of Rule 7.1
— is not an easily manufactured excuse (having required a timely
but incorrect filing); and there is no indication that this was
anything but a good faith mistake.

Indeed, the Court is hard

pressed to imagine what benefit Defendant could possibly have
obtained by filing the motion pursuant to Local Civil Rule 6.1
instead of Local Civil Rule 7.1, since Defendant was entitled to
an automatic extension under the latter rule.

Conversely,

Plaintiff's counsel's previous dilatory filing afforded him
substantial additional time to which he was not otherwise
entitled (having previously exhausted his automatic extension).
Moreover, Defendant sought on August 1, 2011 an automatic
extension of time to submit opposition to Plaintiff's dispositive

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motion, which had just been served upon defense counsel eleven
days earlier when electronically filed on July 21, 2011.
Plaintiff's counsel, on the other hand, obtained an automatic
extension under L. Civ. R. 7.1 on October 13, 2010 [Docket Item
26] and then failed to file his opposition when due on November
1, 2010.

He thereafter filed his untimely opposition on November

15, 2010 unaccompanied by a motion for this additional extension
of time, which was not filed until November 16, 2010 [Docket Item
28], all as explained in this Court's Opinion filed June 20,
2011, addressing that situation as well as the merits of the
underlying motion.
6.

[Docket Item 37.]

Plaintiff's arguments that Defendant's errors constitute

inexcusable neglect are meritless.

Plaintiff contends that

Defendant's mistake in filing the Rule 6.1 application rises well
beyond negligence because Defendant used the words "complaint"
and "counterclaims" in the request for extension when Defendant
meant to write "motion," and that this constitutes false pleading
and is a clear showing of lack of good faith.

The Court has no

reason to think these verbal errors were anything but minor
inadvertence in copying a standard request form.

Plaintiff also

fundamentally misunderstands the nature of the inquiry into
excusable neglect, conflating the reason given for a legal error
in not properly requesting an extension (which determines whether
it is excusable) and the reason given for an extension (which is

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relevant to good cause for the extension, but not whether the
neglect in properly applying for the extension was excusable),
making several arguments based on this confusion.
7.

In short, Defendant timely filed a motion for extension

that complied with the text of the rules he cited under L. Civ.
R. 6.1(b) (if not the customary use of that local rule) and
inadvertently talked about response to a complaint instead of a
motion.

To the extent any of this constitutes substantive error

necessitating rejection of the initial application, it is
excusable neglect, and Defendant has shown good cause for
permitting the extension.

In any event, it would be unfair to

deprive Defendant of the single otherwise-automatic extension of
one motion cycle that it seeks in which to submit its opposition.
8.

A one motion cycle extension makes Defendant's

opposition brief due on August 22, 2011.

The accompanying Order

will be entered.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge

August 18, 2011
Date

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