RDLG, LLC v. RPM Group, LLC et al

Filing 24

ORDER denying 15 Motion for Entry of Default; granting 23 Motion for Extension of Time to Answer re 1 Complaint. Dexter Hubbard answer due 12/13/2010. Signed by Magistrate Judge Dennis Howell on November 2, 2010. (jhg)

-DLH RDLG, LLC v. RPM Group, LLC et al

Doc. 24

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA A S H E V IL L E DIVISION 1 :1 0 cv 2 0 4 R D L G , LLC, P l a i n t if f , V s. R P M GROUP, LLC; RPM GROUP B R O K E R A G E , LLC; FRED M. L E O N A R D , III, a/k/a CHIP L E O N A R D ; JESSICA LEWIS L E O N A R D ; JASON BENTON; N IC K JAMES; and DEXTER H UBBA RD , D efen d a n ts. _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER

T H IS MATTER is before the court on Dexter Hubbard's Motion to Extend T im e to File Responsive Pleadings (#23) and plaintiff's Motion for Entry of Default (# 1 5 ). Inasmuch as defendant seeks to reopen the time for filing a responsive p lead in g , he must show excusable neglect under Rule 6(b)(1)(B), Federal Rules of C iv il Procedure. For cause, defendant has shown that he was misinformed by his co-defendants th at their counsel would seek an extension of time on his behalf, which apparently did

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n o t occur.1 Counsel for defendant states that this defendant met with counsel for his co -d efen d an ts, who allegedly informed him that such extension was not sought on his b e h a lf . "Excusable neglect" is an elastic concept where courts have the discretion to a llo w late filings even where the delay was the result of inadvertence or mistake. P io n eer Invs. Serv. Co. v. Brunswick Assoc. Ltd. P'shp, 507 U.S. 380, 392 (1993). The determination of whether neglect is excusable is at the bottom an eq u itab le one, taking account of all relevant circumstances surrounding th e party's omission. These circumstances include: (1) `danger of p r e ju d ic e'; (2) `length of delay and its potential impact on judicial p ro ceed in g s'; (3) `reason for the delay'; and (4) `whether the movant ac ted in good faith.' Fontell v. MCGEO UFCW Local 1994, No. AW-09-2526, 2010 WL 3086498, at *2 (D . Md. 6 Aug. 2010) (internal quotations omitted in part). Defendant has shown a realistic mistake concerning representation; there simply can be no prejudice to p lain tiff as these proceedings are at an early stage; the delay is minimal to nonex isten t as the remaining defendants have not yet responded; and this defendant a p p e a r s to have acted in good faith in that he inquired as to representation and was ap p aren tly misinformed that a joint defense would be mounted. Considering all of the relev an t factors, and it appearing that the proposed reopening and extension will in

The court would have preferred that Mr. Hubbard submit such statement in the form of an affidavit. -2-

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n o manner prejudice plaintiff as the proposed extension coincides with the responsive d e a d lin e for the other defendants, the request will be allowed. Consistent with that d eterm in atio n , the motion for entry of default will also be denied as a matter of h o u s e k e e p in g .2

ORDER IT IS, THEREFORE, ORDERED that Dexter Hubbard's Motion to Extend T im e to File Responsive Pleadings (#23) is GRANTED, and Mr. Hubbard is allowed u p to and inclusive of December 13, 2010, to so Answer or otherwise respond to the C o m p lain t. Plaintiff's Motion for Entry of Default (#15) is DENIED as a matter of h o u s e k e e p in g .

Signed: November 2, 2010

Motions for entry of default are routinely resolved by the Clerk of this court; however, inasmuch as the court has taken up a conjoined motion, the undesigned will dispose of the request for default. -3-

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