Miller v. City of Ithaca, New York et al

Filing 276

DECISION AND ORDER denying Plaintiff's 263 Letter Brief and directing documents 256 , 257 , 258 , 260 , 261 , 262 , 265 , 266 , 267 , 268 , 269 , 270 , 271 , 272 , 273 , 274 , and 275 will not be considered in connection w/the instant motion. Signed by Senior Judge Thomas J. McAvoy on 5/2/2012. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------CHRISTOPHER MILLER,
Plaintiff,
v.

3:10-cv-597

CITY OF ITHACA, et al.,
Defendants.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Plaintiff, Christopher Miller, through his attorney, A.J. Bosman, submitted a letter
brief on April 30, 2012 seeking permission to: (1) file his statement of material facts in
opposition to Defendants’ pending motion for summary judgment on May 1, 2012 (apparently
due to a computer malfunction that has been continuing since April 27, 2012); (2) file a Rule
56(d) motion on either May 1 or May 2; and (3) to file certain supporting documents and
deposition transcripts on May 1, 2012. Defendants oppose the motion contending that
Plaintiff’s filings are untimely under the applicable rules.
Because Plaintiff’s requests to the Court were filed after April 27, 2012 (the date
opposition papers were due),1 the result in this matter is governed by Fed. R. Civ. P.
6(b)(1)(B). That Rule provides that a 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.” Fed.

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See discussion infra. H ad Plaintiff m ade the request before the expiration of the applicable
deadline, a m ore lenient standard w ould have applied.

R. Civ. P. 6(b)(1)(B). “Excusable neglect is an ‘elastic concept’ that ‘at bottom [is] an
equitable one, taking account of all relevant circumstances surrounding the party's omission.”
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003) (citations omitted).
“Factors to be considered in evaluating excusable neglect include ‘[1] the danger of prejudice
to the [non-movant], [2] the length of the delay and its potential impact on judicial
proceedings, [3] the reason for the delay, including whether it was within the reasonable
control of the movant, and [4] whether the movant acted in good faith.’” Silivanch, 333 F.3d
at 366 (alteration in original) (quoting Pioneer Inv. Services Co. v. Brunswick Associates Ltd.
Partnership, 507 U.S. 380 (1993)). The Court places the most weight on the third factor. See
Silivanch, 333 F.3d at 366. The Second Circuit has repeatedly held that “where the rule is
entirely clear, we continue to expect that a party claiming excusable neglect will, in the
ordinary course, lose under the Pioneer test. Silivanch, at 366-67; see also Redhead v.
Conference of Seventh-Day Adventists, 360 Fed. Appx. 232 (2d Cir. 2010); Canfield v. Van
Atta Buick/GMC Truck Inc., 127 F.3d 248, 251 (2d Cir. 1997).
Here, the applicable rule is entirely clear and, therefore, Plaintiff is unable to
establish excusable neglect. Defendants’ motion for summary judgment was made
returnable on the Court’s May 14, 2012 motion calendar. The Local Rules of this Court
provide that papers in opposition to a motion for summary judgment must be filed seventeen
days before the return date. N.D.N.Y.L.R. 7.1(b)(1). The Court’s Local Rules are readily
available and easily understood. Accordingly, opposition papers were due on or before April
27, 2012. In addition to being able to calculate the filing deadline from the return date, the
deadline for filing opposition papers was set forth in Defendants’ notice of motion and the
relevant docket entry. See Dkt. No. 244 (“MOTION for Summary Judgment Motion Hearing
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set for 5/14/2012 10:00 AM in Albany before Senior Judge Thomas J. McAvoy Response to
Motion due by 4/27/2012 Reply to Response to Motion due by 5/3/2012.”). Accordingly,
Plaintiff was well aware of the date opposition papers were due.
On April 27, 2012, Plaintiff filed a responsive statement of material facts, his own
affidavit, and a memorandum in law in opposition to Defendants’ motion. These materials
are timely and will be considered in opposition to the motion for summary judgment. By letter
dated April 27, 2012, but filed on April 28, 2012, Plaintiff’s attorney stated:
due to the confidentiality stipulation in this case, I am not permitted to electronically
file in complete form the deposition transcripts in this matter. They will be delivered
to the Court in traditional form. So too will the affidavits of Doug Wright and Robert
Brotherton. Additionally, a CD of the recording of the May 7, 2010 meeting
between Plaintiff and Defendants Vallely, Barber and Tyler will also be delivered.
Furthermore, up-loading of my affirmation with exhibits would not happen. I will try
again tomorrow.
Dkt. No. 259. On Saturday, April 28, 2012, Plaintiff filed three affidavits in opposition to the
motion for summary judgment. Dkt. Nos. 256-258. On Monday, April 30, 2012, Plaintiff filed
an attorney’s affirmation with exhibits, another personal affidavit, a “revised” memorandum of
law in opposition to the motion for summary judgment, and several deposition transcripts.
For the reasons previously discussed, all materials not filed on or before April 27,
2012, the date such papers were due, must be rejected and will not be considered in
connection with the instant motion. Aside from potential computer errors and the need to
traditionally file certain documents, Plaintiff offered no explanation for the untimely filing.
Thus, there is no proper basis upon which to excuse the untimely filing. With respect to the
attorney’s affirmation, any technical failure on Plaintiff’s part is not a valid excuse for an
untimely filing. See General Order 22, § 10.2 (“Problems with the Filing User’s system . . .

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will not . . . excuse an untimely filing.”). Lastly, those exhibits that Plaintiff sought to file
traditionally were required to be submitted on or before April 27, 2012; not at some later time
of Plaintiff’s choosing. See e.g., id. at § 4.4 (allowing parties to “timely file” additional
excerpts or the complete document). Accordingly, Dkt. Nos. 256, 257, 258, 260, 261, 262,
265, 266, 267, 268, 269, 270, 271, 272, 273, 274, and 2752 will not be considered in
connection with the instant motion.
Lastly, Rule 56(d) requires the nonmovant to show by affidavit or declaration that
“for specified reasons, it cannot present facts essential to justify its opposition. . . .” Thus, the
time for seeking relief pursuant to Fed. R. Civ. P. 56(d) (formerly Rule 56(f)) was on or before
opposition papers were due. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d
Cir. 1994) (“ A reference to Rule 56(f) [now Rule 56(d)] and to the need for additional
discovery in a memorandum of law in opposition to a motion for summary judgment is not an
adequate substitute for a Rule 56(f) affidavit . . .and the failure to file an affidavit under Rule
56(f) is itself sufficient grounds to reject a claim that the opportunity for discovery was
inadequate. . . .”).
For the foregoing reasons, the request sought in Plaintiff’s letter brief is DENIED.
IT IS SO ORDERED.
Dated: May 2, 2012

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O r any other docum ents Plaintiff m ay file in connection with the pending m otion for sum m ary
judgm ent.
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