FT Express v. Conley et al
Filing
17
ORDER DENYING APPELLANT'S MOTION FOR RECONSIDERATION AND MOTION FOR LEAVE TO ACCEPT BRIEF INSTANTOR (Doc. 15 ). Signed by Judge Timothy S. Black on 3/4/2013. (mr1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
FT EXPRESS,
Appellant,
Case No. 3:12-cv-393
Judge Timothy S. Black
vs.
JAMES F. CONLEY,
Appellee.
ORDER DENYING APPELLANT’S MOTION FOR RECONSIDERATION
AND MOTION FOR LEAVE TO ACCEPT BRIEF INSTANTOR (Doc. 15)
This civil action is before this Court on appeal from the bankruptcy court. (Doc.
1). Pursuant to the standard briefing schedule, Appellant was required to file an appellant
brief by December 10, 2012. (Doc. 4). 1
Appellant requested a 30 day extension to file the brief until January 10, 2013,
which request the Court granted. (Doc. 5). Subsequently, Appellant requested another
extension until January 31, 2013. (Doc. 7). Appellee opposed the extension. The Court
granted Appellant’s extension, but expressly noted that “no additional extensions will be
granted.” (1/16/13 Notation Order).
Despite the Court’s admonition, on January 31, 2013, Appellant filed yet another
motion for extension of time. (Doc. 8). The Court denied the motion, but gave Appellant
an additional 4 days (until February 4, 2013) to file the brief. The Court warned that
“failure to abide by this Order may result in dismissal of the appeal.” (2/1/13 Notation
1
The standard briefing schedule provides that Appellant shall have 14 days to file its brief; Appellee shall then have
14 days to file its brief; and then Appellant shall have 14 days to file its reply brief. The three days for mail service
are included within the 14 days. This standard briefing schedule permits the district court to resolve expeditiously
all appeals from the bankruptcy court.
Order). Still, Plaintiff failed to comply with the Court’s Order and requested yet another
extension, of two more days (until February 6, 2013), which request the Court again
gratuitously granted. (Doc. 9).
Inexplicably, Appellant failed to timely file the brief on February 6, 2013 as
required and did not request any further extensions. 2
On February 7, 2013, this Court dismissed the action and entered Judgment
pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute and failure to comply with Court
Orders. (Docs. 10, 11).
More than three weeks later, Appellant has now filed a motion to reconsider and
motion for the Court to accept the appellant brief instantor. (Doc. 15).
Appellant does not specify whether it brings its motion to reconsider/alter
judgment pursuant to Rule 59(e) or 60(b). Both rules govern post-judgment motions
attacking a district court’s decision.
Under Rule 59(e), “[a] court may grant a motion to alter or amend judgment only
if there was (1) a clear error of law; (2) newly discovered evidence; (3) an intervening
change in controlling law; or (4) a need to prevent manifest injustice.” Collins v. Ford
Motor Credit Com., No. 5:12cv2677, 2012 U.S. Dist. LEXIS 180956, at *2 (N.D. Ohio
Dec. 21, 2012). 3
2
Here, in toto, counsel had 77 days to file the appellant brief from the date it filed the
notice of appeal.
3
See also Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.
1998) (“parties should not use [motions under Rule 59(e)] to raise arguments which could, and
should, have been made before judgment issued [and] must either clearly establish a manifest
error of law or must present newly discovered evidence.”).
2
Rule 60(b) establishes that upon motion “the Court may relieve a party or a party’s
legal representative from final judgment, order, or proceeding” for specific reasons. For
Rule 60(b) purposes, “excusable neglect” includes “situations in which the failure to
comply with a filing deadline is attributable to negligence.” Pioneer Inv. Serv. Co. v.
Brunswick Assoc., 507 U.S. 380, 394 (1993). In Pioneer, the Supreme Court set forth the
following factors for determining whether neglect is excusable: (1) the danger of
prejudice to [the non-moving party], (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; (4) and whether the movant acted in good faith.” Id. at
395. 4
The Court finds that Appellant fails to meet the requisite criteria pursuant to either
Rule 59(e) or 60(b). At best, counsel describes an over-crowded work schedule without
providing any basis for concluding that extraordinary circumstances or excusable neglect
led to or contributed to the problem. The circumstances Appellant’s counsel describes
frequently arise for litigators, and do not by themselves constitute extraordinary
circumstances sufficient to justify the present request for reconsideration.
4
“[A] motion for reconsideration should not provide the parties with an opportunity for a second
bite at the apple.” In re Christie, 222 B.R. 64, 66 (Bankr. D. N.J. 1998).
3
“A lawyer shall act with reasonable diligence and promptness in representing a
client.” Rule 1.3, Ohio Rules of Professional Conduct (effective Feb. 1, 2007). 5 To
accomplish this, “[a] lawyer must control the lawyer’s work load so that each matter can
be handled competently.” Id. (Official Comment 2). 6
Despite four extensions of time, and repeated warnings that no additional
extensions would be entertained, Appellant failed to file the appellant brief as required.
Appellant willfully disregarded multiple Orders of this Court to timely file the appellant
brief. For example, despite express language that “no additional extensions will be
granted,” counsel nonetheless filed two additional motions for extension of time.
Moreover, counsel was warned that “[w]hile the Court prefers to decide cases on the
merits, failure to abide by this Order may result in dismissal of the appeal.” (2/1/13
Notation Order).
A pattern of failing to meet deadlines or failing to apply for an extension before
the deadline has passed is considered misconduct. See ABA Standard 9.22(c). The
failures here indicate a complete lack of professionalism both to opposing counsel, the
5
“[T]he Ohio Rules of Professional Conduct govern in this district.” Big Idea Co. v. Parent
Care Res., No. 2:11-cv-1148, 2012 U.S. Dist. LEXIS 131239, at *7 (S.D. Ohio Sept. 14, 2012);
see also S.D. Ohio Civ. R. 83.3(h) and Rule IV(B), Model Federal Rules of Disciplinary
Enforcement (“The Rules of Professional Conduct adopted by this Court are the Rules of
Professional Conduct adopted by the highest court of the state in which this Court sits…”).
6
It is clear from the motion for reconsideration that counsel has failed to manage his caseload
in such a manner as to competently represent his client. Moreover, it appears to be a pattern and
practice with counsel. In many of the cases Appellant’s counsel has filed in this District, he has
sought repeated extensions of time, even after admonitions from the Court that no further
extensions will be permitted. See, e.g., Taylor v. W. S. Fin. Group, 3:12cv332; Fujitrans USA v.
Barko Enter., Inc., 3:12cv419; Fowlkes v. United States Nat’l Archive & Records Admin., Case
No. 3:09cv6, Doc. 13. See also Campbell v. Clark Cnty. Sheriff’s Dep’t, 3:09cv435, Doc. 42.
4
Civil Rules that govern our profession, and the Court. Granting Appellant’s motion
would, in essence, undermine the importance of our Rules and their import in all
subsequent cases.
“Although attorney carelessness can constitute excusable neglect[], attorney
inattentiveness to litigation is not excusable, no matter what the resulting consequences
the attorney’s somnolent behavior may have on a litigant.” Easley v. Kirmsee, 382 F.3d
693, 698 (7th Cir. 2004). Here, there is no reasonable basis to excuse the number of
times that counsel ignored the deadlines. It is well-established that motions for
reconsideration “[d]o not provide a vehicle for a party to undo its own procedural
failures.” Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). In sum, counsel’s
neglect of this case is not excusable. Thus, Appellant’s motion for reconsideration is
unavailing and the judgment stands as entered. Easley, 392 F.3d at 697-98 (finding that
plaintiff’s counsel’s failure to comply with motions deadlines was not excusable neglect).
Gross carelessness or inadvertent conduct that results in judgment will not give rise to a
successful claim of excusable neglect if the facts demonstrate a lack of diligence. B&D
Partners v. Pastis, No. 05-5954, 2006 U.S. App. LEXIS 11901, at *3 (6th Cir. May 9,
2006).
Accordingly, Appellant’s motion for reconsideration and motion for leave to
accept brief instantor (Doc. 15) is DENIED, and this Court and reaffirms its
DISMISSAL pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute and failure to
comply with Court Orders.
5
IT IS SO ORDERED.
Date: March 4, 2013
s/ Timothy S. Black
Timothy S. Black
United States District Judge
6
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