Idlisan v. SUNY Upstate Medical University et al
Filing
30
MEMORANDUM-DECISION AND ORDER denying 19 Motion to Dismiss. Signed by U.S. District Judge Mae A. D'Agostino on 10/28/2013. [copy mailed to pro se plaintiff 10/28/2013] (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
KRZYSZTOF DOROZ,
Plaintiff,
vs.
6:12-CV-391
(MAD/ATB)
TECT UTICA CORP.,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
BOSMAN LAW OFFICE
6599 Martin Street
Rome, New York 13440
Attorneys for Plaintiff
AJ BOSMAN, ESQ.
DANIEL W. FLYNN, ESQ.
CLARK HILL PLC
200 Ottawa Avenue NW
Suite 500
Grand Rapids, Michigan 49503
Attorneys for Defendant
STEPHEN D. TURNER, ESQ.
Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On November 11, 2011, Plaintiff Krzysztof Doroz commenced this action by filing a
notice with summons in New York State Supreme Court. Following Defendant's removal of the
action to the United States District Court for the Northern District of New York, Plaintiff filed a
complaint alleging that Defendant discriminated and retaliated against him based upon his
national origin in violation of 42 U.S.C. § 2000e ("Title VII") and 42 U.S.C. § 1981. Currently
before the Court is Defendant TECT Utica Corp.'s motion to dismiss Plaintiff's First and Second
Causes of Action, Dkt. No. 14, and Plaintiff's cross-motion to amend, Dkt. No. 17.
II. BACKGROUND
Plaintiff initiated this proceeding by filing a notice with summons in New York State
Supreme Court. After Defendant was served with the notice and summons, Defendant properly
removed this case to federal court on March 1, 2012. See Dkt. No. 1. Thereafter, Plaintiff filed a
complaint on April 9, 2012, see Dkt. No. 3, which Defendant answered, see Dkt. No. 5. On July
6, 2012, Defendant filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c)
or, in the alternative, a motion for summary judgment pursuant to Fed. R. Civ. P. 56(a). See Dkt.
No. 8. In a January 28, 2013, Memorandum-Decision and Order ("January 28 Order"), this Court
declined to convert Defendant's motion into a motion for summary judgment, granted without
prejudice Defendant's motion for judgment on the pleadings on Plaintiff's First and Second
Causes of Action for failure to plead exhaustion of administrative remedies, and denied the
motion for judgment on the pleadings in all other respects. See Dkt. No. 13. Specifically, the
January 28 Order held:
Given the circumstances, the Court will grant defendant's motion to
dismiss plaintiff's first and second cause of action without prejudice
to plaintiff's amending his complaint to fully plead exhaustion.
Should plaintiff fail to properly amend his complaint within the
allotted time, the Court will, upon motion by defendant, dismiss
these claims with prejudice.
Id. at 13 (emphasis added). The January 28 Order expressly required that Plaintiff amend his
complaint within thirty (30) days of the date of the order. Id. Accordingly, Plaintiff's deadline to
amend his complaint was February 27, 2013.
Plaintiff did not file an amended complaint within thirty days of the January 28 Order and
on March 8, 2013, Defendant filed the instant motion to dismiss. Plaintiff's counsel AJ Bosman
thereafter submitted a letter on March 11, 2012, "request[ing] an extension of time to file an
amended complaint up to and including Friday, March 15, 2013." Dkt. No. 15. This request was
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based upon counsel's claim that her "computers have been down since Friday and we have not
had access to our files, . . . the [February 27] deadline was not entered in our new electronic
calendar," and the "oversight was unintentional and the missed deadline was clearly the product
of inadvertence." Id. The following day, the Court issued a Text Order which denied Plaintiff's
letter request for an extension of time as procedurally deficient, and directed Plaintiff to file a
timely response to Defendant's motion to dismiss in the form of an opposition or cross motion to
amend. See Dkt. No. 16. Plaintiff thereafter timely filed an opposition to Defendant's motion to
dismiss and a cross-motion to amend, see Dkt. No. 17, which Defendant opposes, see Dkt. No.
19. The Court assumes the parties' familiarity with the allegations in Plaintiff's complaint, as set
forth in the January 28 Order.
III. DISCUSSION
Plaintiff makes two arguments in opposition to Defendant's instant motion to dismiss and
in support of his cross-motion to amend. First, Plaintiff argues that his time to file an amended
complaint should be extended for good cause under Federal Rule of Civil Procedure 6(b) because
his failure to abide by the deadline set forth in the January 28 Order was the result of excusable
neglect. Second, Plaintiff argues that Defendant's motion failed to meet the requirements of
N.D.N.Y. Local Rule 7.1 and should therefore be denied.
A.
Excusable Neglect Under Fed. R. Civ. P. 6(b)(1)(B)
Plaintiff's counsel has represented to the Court, in a sworn affirmation, that "due to an
oversight in failing to calendar the deadline [to file an amended complaint] in our new electronic
case management software, the amended complaint was not filed within the time limit set forth in
the Court's Order of January 28, 2013." Dkt. No. 17-1 ¶ 4. Plaintiff's counsel states that her
failure to file the amended complaint by the deadline established by the Court was "the product of
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excusable neglect," and that "it would be in the interests of justice" to grant Plaintiff further leave
to amend. Id. ¶ 8. Plaintiff's counsel also asserts that such leave should be granted because "there
is no prejudice to the Defendant." Id.1
In his memorandum of law in opposition to Defendant's motion to dismiss and in support
of his motion to amend, Plaintiff argues that the circumstances resulting in his failure to adhere to
the Court's deadline constitute "excusable neglect" under Federal Rule of Civil Procedure 6(b).
For the reasons set forth below, the Court finds this argument to be unsupported by controlling
case law or the facts of this case.
Plaintiff is correct that a party must show excusable neglect under Fed. R. Civ. P.
6(b)(1)(B) to extend a deadline that has already passed: "When 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." Fed. R. Civ. P.
6(b)(1)(B). In addressing what constitutes excusable neglect in the context of Federal Rule of
Bankruptcy Procedure 9006(b)(1), which parallels Fed. R. Civ. P. 6(b)(1)(B), the Supreme Court
referred to "excusable neglect" as an "elastic concept," implying a
determination that is "at bottom an equitable one, taking account of
all relevant circumstances surrounding the party's omission."
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 v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003), cert. denied sub nom. Essef
Corp. v. Silivanch, 540 U.S. 1105 (2004) (quoting Pioneer Inv. Servs. v. Brunswick Assocs. Ltd.
Ms. Bosman has apparently elected not to pursue the argument, initially raised in her
March 11, 2012, letter to the Court, that her computers were down and she did not have access to
her files.
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P'ship, 507 U.S. 380, 392, 395 (1993)) (internal citations omitted) (alterations in original). The
Second Circuit has held that the Supreme Court's "definition of excusable neglect is applicable
beyond the bankruptcy context where it arose." Canfield v. Van Atta Buick/GMC Truck, Inc., 127
F.3d 248, 250 (2d Cir. 1997) (citations omitted).
In most cases, as here, the first, second, and fourth Pioneer factors favor the movant. See
Silivanch, 333 F.3d at 366 (noting that "delay always will be minimal in actual if not relative
terms, and the prejudice to the non-movant will often be negligible, . . . [a]nd rarely in the decided
cases is the absence of good faith at issue") (quotation and citation omitted). Courts in the
Second Circuit, however, "focus[] on the third factor: 'the reason for the delay, including whether
it was within the reasonable control of the movant.'" Id. (quoting Pioneer, 517 U.S. at 395); see
also Williams v. KFC Nat. Mgmt. Co., 391 F.3d 411, 415-16 (2d Cir. 2004) (emphasizing "that it
is the third factor – the reason for the delay – that predominates, and the other three are significant
only in close cases").
Following the Supreme Court's decision in Pioneer, the Second Circuit has "taken a hard
line in applying the Pioneer test," In re Enron Corp., 419 F.3d 115, 122 (2d Cir. 2005) (quotation
and citation omitted), and construes the concept of excusable neglect narrowly:
As one court explained it, Pioneer "noted that inadvertence,
ignorance of the rules, or mistakes construing the rules do not
usually constitute 'excusable neglect.' Thus, although a late filing'
will ordinarily not be excused by negligence, that possibility is by
no means foreclosed." In accordance with that holding, a finding
that the failure to comply with a filing deadline was excusable may
in some circumstances be appropriate. For example, neglect may
be excusable where the language of a rule is ambiguous or
susceptible to multiple interpretations, or where an apparent conflict
exists between two rules. Other grounds may exist, but we need not
canvass them today.
But we do not believe that the possibility that a court may properly
find excusable neglect on such grounds alters the principle that
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failure to follow the clear dictates of a court rule will generally not
constitute such excusable neglect. . . . 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.
Canfield, 127 F.3d at 250-51 (citations omitted) (emphasis added); see also Silivanch, 333 F.3d at
368 (finding that "the legal system would groan under the weight of a regimen of uncertainty in
which time limitations were not rigorously enforced" and observing that "[i]n our cases
addressing when neglect is 'excusable,' we have therefore taken a hard line"); Weinstock v.
Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir. 1994) (affirming district court's
denial of motion to extend time because "[t]he excusable neglect standard can never be met by a
showing of inability or refusal to read and comprehend the plain language of the federal rules")
(quotation and citation omitted); In re Johns-Manville Corp., No. 04 Civ. 8001, 2006 WL
1676392, *2 (S.D.N.Y. June 14, 2006) (collecting cases in which the Second Circuit and other
courts "have strictly limited what attorney error could be considered excusable neglect").
Ms. Bosman has offered no cognizable explanation for her office's failure to adhere to the
deadline which would constitute excusable neglect.2 Plaintiff asserts that "[a]n attorney's
inadvertent failure to timely file within a Court set deadline is law office error and constitutes
excusable neglect." Dkt. No. 17-2 at 1. This is simply not correct. "Law office failure rarely
constitutes an excusable neglect." Shervington v. Village of Piermont, 732 F. Supp. 2d 423, 425
(S.D.N.Y. 2010) (citation omitted) (emphasis added). "Attorneys have a duty to be aware of
entries on the docket of their client's cases and are on constructive notice of such entries."
Plaintiff's counsel has also failed to articulate any support for the conclusory assertion
that the Court should permit amendment at this time because "there is no prejudice to the
Defendant." In addition, the Court has not been presented with any argument as to how allowing
amendment would be "in the interests of justice" or whether such an inquiry is relevant in the first
instance. See Dkt. No. 17-1 ¶ 8.
2
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Friedman v. State Univ. of New York at Binghamton, No. 06-cv-399, 2006 WL 2882980, *3
(N.D.N.Y. Oct. 5, 2006) (citations omitted). "Preoccupied and 'overworked' staff does not
establish excusable neglect, and neither does inadvertence." In re Bank of Am. Corp. Sec., Deriv.,
and ERISA Litig., No. 10 Civ. 2284, 2013 WL 2443748, *6 (S.D.N.Y. June 5, 2013) (citing In re
Enron, 419 F.3d at 126).
The cases cited by Plaintiff in support of the proposition that mere inadvertence
constitutes excusable neglect are inapposite. E.g., In re Hess, 347 B.R. 489, 500 (Bankr. D. Vt.
2006) (finding "exigent circumstances" under a bankruptcy provision, 11 U.S.C. § 109, where
attorney "suffered a catastrophic, life threatening illness that caused her to be out of her office for
several months and unable to work"). Plaintiff has made no showing of the types of
circumstances, such as severe illness, which are a recognized basis for a finding of excusable
neglect.
In fact, the excuse of computer problems was advanced by Plaintiff's counsel, Ms.
Bosman, and rejected a year ago by a fellow judge in an unrelated case pending in the Northern
District of New York. See Miller v. City of Ithaca, No. 10-cv-597, 2012 WL 1565110 (N.D.N.Y.
May 2, 2012) (rejecting the plaintiff's late-filed papers in support of opposition to motion for
summary judgment despite counsel's arguments that "computer errors and the need to
traditionally file certain documents" constituted excusable neglect). The argument finds no more
merit now than it did a year ago.
Plaintiff also argues that he "failed to replead the first and second causes of actions due to
an oversight by his attorneys. Plaintiff's failure was not intentional or willful, but instead
inadvertent. The delay is therefore excusable neglect." Dkt. No. 17-2 at 3-4. As the Supreme
Court held in Pioneer, clients must "be held accountable for the acts and omissions of their
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chosen counsel." Pioneer, 507 U.S. at 397. Plaintiff voluntarily chose this attorney as his
representative and cannot now avoid the consequences of the acts or omissions of his freely
selected agent.
Courts are especially reluctant to find excusable neglect based upon attorney oversight
where, as here, the deadline was "crystal clear." E.g., Kapner v. Riverside Wine & Liquor, Inc.,
No. 09-CV-6565, 2011 WL 5154608, *8 (W.D.N.Y. Oct. 28, 2011) (rejecting the plaintiff's
argument of "office neglect" where counsel claimed personnel changes led to failure to adhere to
a local rule). Here, the January 28 Order specifically stated that an amended complaint was to be
filed within thirty days. Computation of the deadline required no reference to or interpretation of
the Federal Rules of Civil Procedure or any other authority. This is nothing more than "gardenvariety attorney inattention that fails to rise to excusable neglect." In re Johns-Manville Corp.,
2006 WL 1676392, at *3 (quotation and citations omitted). Other courts have considered, and
rejected, arguments similar to those interposed by Plaintiff here:
[D]efendant proffers that the "mis-calendaring of the due date" was
likely the result of counsel having "opened the ECF notification
[sent on Thursday, September 13, 2007] on Monday the 17th of
September and miscalculated the due date from the 17th." This
mistake could have been remedied by a simple look at the docket or
the ECF notification's time-stamp. The day has long since arrived
whereby an attorney can view a docket in an instant at any time
from anywhere, thanks to electronic case filing. With that change
has come a lessening of sympathy by the court for docket-related
errors. Defendant's failure to timely file the Opposition was not the
result of excusable neglect.
Inst. for Policy Studies v. United States Cent. Intelligence Agency, 246 F.R.D. 380, 385 (D.D.C.
2007) (alternation in original) (citation omitted); see also Friedman, 2006 WL 2882980, at *4
(holding that a failure to diligently check the court's docket does not constitute excusable
neglect). Under these circumstances, the Court must reject Plaintiff's claim of excusable neglect.
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See Silivanch, 333 F.3d at 369 (finding that "counsel knew there was a thirty-day limitation, but
neglected to consult a calendar to determine when it expired"); Canfield, 127 F.3d at 249 (noting
that defaulting lawyer had been specifically reminded of the time limitation that he ultimately
missed).
The Court is compelled to draw attention to a concern that has arisen in addressing the
instant motion. As noted above, this is not the first time that Plaintiff's counsel, Ms. Bosman, has
argued excusable neglect based upon a computer-related malfunction. See Miller, 2012 WL
1565110. As discussed above, the Court finds the argument here to be entirely unsupported by
the law and the facts. The Court does not doubt that some oversights in the practice of law are
owed to legitimate issues with information technology and/or personnel that may, in certain
circumstances, give rise to a finding of excusable neglect. However, this argument, now twice
raised in two separate actions by Plaintiff's counsel, has no factual or legal basis under these
circumstances.
B.
N.D.N.Y. Local Rule 7.1(a)
Local Rule 7.1(a) requires that "all motions and opposition to motions require a
memorandum of law, supporting affidavit, and proof of service on all the parties." L.R. 7.1(a).
Plaintiff argues that Defendant's motion should be denied because the Notice of Motion and
Motion to Dismiss, see Dkt. No. 14, lacks a memorandum of law, supporting affidavit, and proof
of service on all parties, see Dkt. No. 17-2 at 4.
The Court will not deny Defendant's motion on these grounds. "A district court has broad
discretion to determine whether to overlook a party's failure to comply with local court rules."
Liparulo v. Onondaga Central School Dist., No. 06-CV-1068, 2009 WL 3790187, *1 (N.D.N.Y.
Nov. 12, 2009) (quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)).
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Defendant's Notice of Motion sufficiently described the basis for the Motion to Dismiss:
Plaintiff's failure to meet the thirty-day deadline set forth in the Court's January 28 Order. That is
all that was required to put Plaintiff and the Court on notice as to the grounds for Defendant's
motion.
The parties have extensively briefed the underlying motion to dismiss and the Court will
not and need not revisit those issues again. Defendant's underlying motion to dismiss was granted
without prejudice, and Plaintiff failed to meet the conditions set forth in the January 28 Order
which would avoid conversion of that dismissal into one with prejudice. Under these
circumstances, requiring Defendant to submit a memorandum of law and affidavit in support of
the instant motion would unnecessarily place form over substance.
Defendant is nevertheless respectfully reminded to submit a certificate of service with all
future filings for which one is required, pursuant to the Northern District of New York's Local
Rule 7.1 and General Order No. 22.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant's motion to dismiss is GRANTED and Plaintiff's First and
Second Causes of Action are DISMISSED WITH PREJUDICE; and the Court further
ORDERS that Plaintiff's cross-motion to amend is DENIED; and the Court further
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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: October 28, 2013
Albany, New York
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