S&R Development Estates, LLC et al v. Town of Greenburgh, New York et al
OPINION AND ORDER re: 48 LETTER MOTION for Leave to File Pre-Motion Letter addressed to Judge Cathy Seibel from James M. Woolsey III dated December 2, 2016, filed by The Department of Community Development and Conservation of the Town of Greenburgh, The Planning Board of the Town of Greenburgh, The Comprehensive Plan Steering Committee of the Town of Greenburgh, The Zoning Board of Appeals of the Town of Greenburgh, The Town Board of the Town of Greenburgh, Francis S heehan, Paul J. Feiner. The Town Defendants' request for leave to file a motion to dismiss is DENIED. They are ordered to answer by January 18, 2017. The Clerk of Court is respectfully directed to terminate the pending motion, (Doc. 48). SO OR DERED., (Paul J. Feiner answer due 1/18/2017; Paul J. Feiner answer due 1/18/2017; Francis Sheehan(Individually ) answer due 1/18/2017; Francis Sheehan(and as Chair of the Comprehensive Plan Steering Committee of The Town of Greenburg) answer due 1/1 8/2017; The Comprehensive Plan Steering Committee of the Town of Greenburgh answer due 1/18/2017; The Department of Community Development and Conservation of the Town of Greenburgh answer due 1/18/2017; The Planning Board of the Town of Greenburgh answer due 1/18/2017; The Town Board of the Town of Greenburgh answer due 1/18/2017; The Zoning Board of Appeals of the Town of Greenburgh answer due 1/18/2017.) (Signed by Judge Cathy Seibel on 1/4/17) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
S&R DEVELOPMENT ESTATES LLC,
No. 16-CV-8043 (CS)
-againstOPINION AND ORDER
TOWN OF GREENBURGH, et al.,
Michael H. Park
Consovoy McCarthy Park PLLC
New York, New York
Counsel for Plaintiff
James M. Woolsey III
Landman Corsi Ballaine & Ford P.C.
New York, New York
Counsel for Town Defendants
Before the Court is the Town Defendants’1 motion requesting leave to file an untimely
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 48). For the
reasons stated below, the motion is DENIED.
Plaintiff S&R Development Estates LLC is a property developer and owner of a vacant
parcel of land located in the Town of Greenburgh, New York (the “Town”). (Doc. 1 ¶¶ 1, 2, 48.)
On October 14, 2016, Plaintiff filed the instant suit against several parties including the Town
“Town Defendants” refers to the Town Board of the Town of Greenburgh, the Comprehensive Plan Steering
Committee (“CPSC”) of the Town of Greenburgh, the Department of Community Development and Conservation of
the Town of Greenburgh, the Planning Board of the Town of Greenburgh, the Zoning Board of Appeals of the Town
of Greenburgh, Town Supervisor Paul J. Feiner, and CPSC Chair Francis Sheehan.
Defendants. That same day, Plaintiff emailed a courtesy copy of the Complaint, (Doc. 1), to
Timothy Lewis, the Town Attorney for the Town of Greenburgh. (Doc. 52 at 1; Doc. 56 at 1.)
On November 4, 2016, Plaintiff formally served the Town Defendants with the Complaint.
(Docs. 9-16.) By letter dated November 30, 2016, Plaintiff notified the Court that the Town
Defendants had not filed an answer within 21 days as required by Federal Rule of Civil
Procedure 12(a)(1)(A)(i). (Doc. 40.) Plaintiff requested that the Court order them to serve an
answer, not a pre-answer motion to dismiss, no later than January 3, 2017. (Id.)
On December 1, 2016, the Town retained Landman Corsi Ballaine & Ford P.C.
(“Landman Corsi”), the firm that had been representing the Town with respect to other matters
involving Plaintiff, to represent the Town Defendants in this case. (Doc. 48 at 2; Doc. 54 at
37:17-23, 39:8-10.) On December 2, 2016, Plaintiff requested that the Clerk enter defaults
against the Town Defendants. (Doc. 45.) By letter dated December 2, 2016, the Town
Defendants asserted that their failure to timely answer or seek a pre-motion conference was due
to excusable neglect stemming from a “miscommunication within the Office of the Town
Attorney as to whether the Town would handle the litigation in-house or retain outside counsel to
handle this litigation (as it has done in the past with respect to matters involving S&R),” which
“resulted in the November 25, 2016 deadline not being calendared within the Office of the Town
Attorney.” (Doc. 48 at 2.) The Town appended to that same letter a pre-motion letter stating
several grounds for a potential motion to dismiss. (Id. Ex. 1.) By letter dated December 6, 2016,
the Town Defendants opposed Plaintiff’s request for entry of default, (Doc. 50), and by letter
dated December 7, 2016, Plaintiff requested that the Court deny the Town’s request for leave to
file a motion to dismiss, (Doc. 51).
During a conference on December 9, 2016, the Town Defendants’ counsel reiterated to
the Court that the missed deadline was the result of a miscommunication within the Office of the
Town Attorney regarding whether the matter would be handled internally or by Landman Corsi.
(Doc. 54 at 36:24-37:6.) Upon questioning by the Court, he explained that a decision had
initially been made to keep the case in-house, (id. at 37:7-19), and was unable to explain why, if
a decision had been made to handle the case internally, no one in the Office of the Town
Attorney had filed an answer, (id. at 37:24-38:3). The Court then set a schedule for further
submissions. (Id. at 40:16-41:7.) On December 15, 2016, Plaintiff submitted a letter further
outlining its opposition to the Town’s request to file a motion to dismiss. (Doc. 52.) On
December 19, 2016, the Town submitted a letter and an affidavit by Mr. Lewis offering a new
explanation for the failure to meet the deadline, (Doc. 53), to which Plaintiff replied on
December 21, 2016, (Doc. 56).
Federal Rule of Civil Procedure 6(b)(1)(B) “provides that courts may accept late filings
from a party ‘on motion made after the time has expired if the party failed to act because of
excusable neglect.’” Bloom v. Rock, No. 06-CV-6301, 2010 WL 2267468, at *11 (S.D.N.Y.
May 27, 2010) (quoting Fed. R. Civ. P. 6(b)(1)(B)). Four factors are considered in evaluating
excusable neglect: “‘ the danger of prejudice to the [non-movant],  the length of the delay
and its potential impact on judicial proceedings,  the reason for the delay, including whether it
was within the reasonable control of the movant, and  whether the movant acted in good
faith.’” Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003) (alterations in
original) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395
(1993)).2 The Second Circuit has “taken a hard line” in “addressing when neglect is
‘excusable,’” id. at 368, and has “strictly limited what attorney error [can] be considered
excusable neglect,” In re Johns-Manville Corp., No. 04-CV-8001, 2006 WL 1676392, at *2
(S.D.N.Y. June 14, 2006) (collecting cases), aff’d, 476 F.3d 118 (2d Cir. 2007). “[A]lthough a
late filing will ordinarily not be excused by negligence, that possibility is by no means
foreclosed.” Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997)
(internal quotation marks omitted). At the same time, “failure to follow the clear dictates of a
court rule will generally not constitute . . . excusable neglect.” Id.
As to the first factor, there is no prejudice to Plaintiff in allowing the Town Defendants to
move to dismiss because other Defendants plan to so move and therefore a motion by the Town
Defendants would not delay the proceedings. As to the second factor, the length of the delay
here was not significant given that the deadline to answer was November 25, 2016, and the Town
Defendants filed their letter requesting leave to move to dismiss on December 2, 2016. With
respect to the fourth factor, there are no facts suggesting intentional or bad faith conduct on
counsel’s part in failing to timely respond to the Complaint.3 This is thus the typical case “in
The Pioneer standard relied on in Silivanch has been applied by courts in the Second Circuit outside of the
contexts in which those cases arose – bankruptcy proofs of claim and notices of appeal, respectively. See, e.g.,
Yahoo, Inc. v. Nakchan, No. 08-CV-4581, 2011 WL 666678, at *1 (S.D.N.Y. Feb. 22, 2011) (applying Pioneer to
request for extension to file answer after deadline to do so had expired); Beckles v. The City of N.Y., No. 08-CV3687, 2010 WL 1841714, at *3 (S.D.N.Y. May 10, 2010) (applying Pioneer to untimely motion for
reconsideration); Knox v. Palestine Liberation Org., 229 F.R.D. 65, 68-69 (S.D.N.Y. 2005) (applying Pioneer to
untimely objections to a report and recommendation); Blandford v. Broome Cty. Gov’t, 193 F.R.D. 65, 69 (N.D.N.Y.
2000) (applying Pioneer to request for extension to file answer after deadline to do so had expired); In re Paine
Webber Short Term U.S. Gov’t Income Fund Sec. Litig., No. 94-CV-3820, 1995 WL 498805, at *2 (S.D.N.Y. Aug.
22, 1995) (applying Pioneer to Fed. R. Civ. P. 60(b)); see also United States v. Hooper, 9 F.3d 257, 259 (2d Cir.
1993) (Pioneer “opinion is based on the term ‘excusable neglect’ and draws upon the use of that term in other
federal rules. . . . [N]othing in Pioneer limits its interpretation of ‘excusable neglect’ to the Bankruptcy Rules . . . .”)
As discussed below, the Town Defendants have provided this Court with multiple, conflicting, explanations for
their failure to timely respond to the Complaint. While the Court finds this troubling, it does not show that the
original failing was the result of bad faith.
which three of the factors usually weigh in favor of the party seeking the extension.” Silivanch,
333 F.3d at 366. But “the Pioneer factors are not given equal weight,” In re Quebecor World
(USA), Inc., No. 15-CV-2112, 2015 WL 4877422, at *1 (S.D.N.Y. Aug. 14, 2015), appeal
dismissed (2d Cir. Nov. 4, 2015), and courts “focus on the third factor: the reason for the
delay, including whether it was within the reasonable control of the movant.” Silivanch, 333
F.3d at 366 (internal quotation marks omitted); Williams v. KFC Nat. Mgmt. Co., 391 F.3d 411,
415-16 (2d Cir. 2004) (reason for delay is most important factor, and “the other three are
significant only in close cases”).
By letter dated December 2, 2016, (Doc. 48), the Town claimed that the missed deadline
was the result of a miscommunication regarding whether the case would be handled internally or
by outside counsel. During the conference on December 9, 2016, counsel indicated that it was
not lack of clarity on that issue that caused the problem, although he did not know what had
caused the problem. Now, without explanation, in its more recent submission on this subject, the
Town has provided a new reason for why the deadline was ignored. Town Attorney Lewis states
by declaration that he consulted with members of the Town Board during the week of November
7, 2016, that it was decided that the case would be handled by the Town Attorney’s Office, and
that an attorney was assigned to prepare a motion to dismiss. (Doc. 53 Ex. 2 ¶¶ 5-6.) He further
alleges that neither he nor his staff calendared the November 25, 2016 deadline to respond to the
Complaint “[i]n light of the assignment of the handling of this case (including the motion to
dismiss) to the attorney in [his] office and, due to the fact that the Town Defendants had been
considering assigning outside counsel . . . .” (Id. ¶ 7.) During the week of November 21, 2016,
the same week that the answer was due, he was informed by the assigned attorney that he or she
would be unable to determine the grounds for a motion to dismiss or otherwise prepare a
submission to the Court because of his or her “relative inexperience in federal practice and given
the extensive factual background, the numerous named Town Defendants, and complexity of the
claims involved in Plaintiff’s Complaint.” (Id. ¶ 8.) Mr. Lewis asserts that because neither he
nor his staff had calendared the November 25, 2016 deadline, he did not make alternative
arrangements to meet it, as he would have done had he been aware of it. (Id. ¶¶ 9-10.)
The Town Defendants’ explanation for the delay, as evolved over time, does not
constitute excusable neglect. Failing to calendar the deadline for filing an answer is the type of
law office error that “rarely constitutes an excusable neglect.” Shervington v. Vill. of Piermont,
732 F. Supp. 2d 423, 425 (S.D.N.Y. 2010). It is unclear to the Court why assigning an attorney
to the case and/or contemplating hiring outside counsel resulted in no one calendaring the
deadline and Mr. Lewis being unaware of it. Indeed, “each party is responsible for knowing the
pertinent procedural rules and principles and for taking such steps as are needed to protect its
own interests.” Silivanch, 333 F.3d at 369 (internal quotation marks omitted). The assigned
attorney working on the motion to dismiss should surely have been aware of the deadline, and
once the decision was made to keep the case in-house, Mr. Lewis surely knew that a timely
response was his office’s responsibility.
The Town Defendants appear to place blame on the attorney assigned to handle the case.
(Doc. 53 Ex. 2 ¶¶ 6-10). He or she told Mr. Lewis he or she was dropping the ball, and Mr.
Lewis – who acknowledges that, “ultimate responsibility for the handling of this matter” lay with
him, (id. ¶ 6 n.6), – did not arrange for anyone to pick it up in a timely fashion. As Plaintiff
notes, it is not clear why the rapidly approaching deadline was not communicated. (Id. ¶¶ 5-8;
Doc. 56 at 1.) Frankly, it is shocking that in a conversation in which a junior lawyer informed
his or her boss that he or she could not complete a task assigned two weeks before, the junior
lawyer did not mention the looming deadline and the boss, knowing he or she would have to staff
the case, did not ask. Even if Mr. Lewis did not know the exact date the answer was due, he had
discussed the case with the Town Board two weeks earlier and thus had to know that the 21-day
deadline was looming. It would have been a simple matter to calculate the exact date.
Moreover, it appears that Mr. Lewis waited another full week to retain counsel, when he had to
have known that the deadline to respond to the Complaint had to be coming up rapidly, if it had
not already passed.4
Failure to properly supervise staff assigned to handle a filing is not excusable neglect.
See United States v. Hooper, 43 F.3d 26, 29 (2d Cir. 1994) (“[F]ailure to timely file due to the
poorly supervised assistant’s ignorance of the deadline set by Rule 4(b) was not ‘excusable
neglect.’”); Christiani v. Metro-N. Commuter R. Co., No. 92-CV-4494, 1994 WL 74881, at *2
(S.D.N.Y. Mar. 7, 1994) (“Failure to supervise an associate is not excusable neglect.”). The
“relative inexperience” of the associate assigned to the case is also not grounds for a finding of
excusable neglect. The Second Circuit has “repeatedly stated that “[c]ounsel’s lack of familiarity
with federal procedure is not an acceptable excuse.” Silivanch, 333 F.3d at 369 (quoting
Hooper, 43 F.3d at 29); see Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503
(2d Cir. 1994). Similarly, “[l]ack of communication between counsel is an insufficient basis for
excusable neglect.” Thyroff v. Nationwide Mut. Ins. Co., No. 00-CV-6481, 2004 WL 1529246,
at *2 (W.D.N.Y. July 1, 2004).
Mr. Lewis had been served with a courtesy copy of the Complaint on October 14, 2016, (Doc. 52 at 1; Doc. 56 at
1); the Town was formally served on November 4, 2016, (Docs. 9-16); and he discussed staffing the case with the
Town Board during the week of November 7, 2016, (Doc. 53 Ex. 2 ¶ 5). When his subordinate came to him
somewhere around November 21-23, 2016, (see Doc. 53 Ex. 2 ¶ 8), he could not have thought much time, if any,
remained on Federal Rule of Civil Procedure 12’s 21-day clock. Even with the upcoming Thanksgiving holiday,
someone in the office could have written the Court requesting an extension of that deadline.
Meeting the deadline was well within the control of the Office of the Town Attorney.
The Town Defendants have presented no facts suggesting that outside forces impacted their
ability to meet the deadline. See Beckles, 2010 WL 1841714, at *3 (untimely filing of motion for
reconsideration not excusable neglect where the delay and prejudice from submitting the motion
two days after deadline was minimal and counsel acted in good faith, but “the delay was well
within counsel’s reasonable control”). Further, there was no ambiguity regarding when the
answer was due under Federal Rule of Civil Procedure 12. Where, as here, the deadline was
“crystal clear,” courts are “especially reluctant to find excusable neglect based on attorney
oversight.” Doroz v. TECT Utica Corp., No. 12-CV-391, 2013 WL 5786641, at *4 (N.D.N.Y.
Oct. 28, 2013) (internal quotation marks omitted); see Silivanch, 333 F.3d at 366-67 (“[W]here
the rule is entirely clear . . . a party claiming excusable neglect will, in the ordinary course, lose
under the Pioneer test.”) (internal quotation marks omitted); Hernandez v. Goord, No. 01-CV9585, 2014 WL 4058662, at *9 (S.D.N.Y. Aug. 14, 2014) (calendaring mistake not excusable
neglect because “there was no ambiguity in determining the date of the [required action,]” given
that rule “sets forth a clear and unmistakable deadline”).
For these reasons, the Town Defendants’ failure to meet the November 25, 2016 deadline
to respond to the Complaint was not the product of excusable neglect. Plaintiff reasonably
requests only that the Town Defendants be precluded from filing a motion to dismiss under
Federal Rule of Civil Procedure 12(b) and instead be required to answer. The Court concurs that
that is an appropriate outcome and orders the Town Defendants to answer by January 18, 2017.
For the reasons stated above, the Town Defendants’ request for leave to file a motion to
dismiss is DENIED. They are ordered to answer by January 18, 2017. The Clerk of Court is
respectfully directed to terminate the pending motion, (Doc. 48).
Dated: January 4, 2017
White Plains, New York
CATHY SEIBEL, U.S.D.J.
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