Fujitrans USA (FT Express) v. Barko Enterprises Inc

Filing 12

ORDER DENYING APPELLANT'S MOTION FOR RECONSIDERATION AND MOTION FOR LEAVE TO ACCEPT BRIEF INSTANTOR (Doc. 9 ). Signed by Judge Timothy S. Black on 3/4/2013. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
FUJITRANS USA,
Appellant,

Case No. 3:12-cv-419

vs.
Judge Timothy S. Black
BARKO ENTERPRISES, INC.,
Appellee.
ORDER DENYING APPELLANT’S MOTION FOR RECONSIDERATION AND
MOTION FOR LEAVE TO ACCEPT BRIEF INSTANTOR (Doc. 9)
This civil action is before this Court on appeal from the bankruptcy court. (Doc.
1). Pursuant to the briefing schedule, Appellant was required to file an appellant brief by
January 5, 2013. (Doc. 3). Appellant requested an extension until January 26, 2013 to
file the brief, which the Court granted. (1/7/13 Notation Order). Subsequently,
Appellant requested another extension until February 8, 2013. (Doc. 6). The Court
granted the extension. (1/25/13 Notation Order). Subsequently, Appellant filed what
was titled its final motion for extension of time, requesting an extension until February
26, 2013. (Doc. 7). Appellee opposed the extension. The Court granted Appellant’s
extension, but expressly noted that “no additional extensions will be granted and failure
to timely file the Appellant Brief may result in dismissal of the appeal.” (2/11/13
Notation Order). Appellant failed to timely file the brief on February 26, 2013 as
required and did not request any further extensions.
On February 27, 2013, this Court dismissed the action pursuant to Fed. R. Civ. P.
41(b) for failure to prosecute and failure to comply with Court Orders. (Doc. 27).

On February 28, 2013, Appellant filed a motion to reconsider and motion for the
Court to accept the appellant brief instantor. (Doc. 9).
Appellant does not specify whether it brings the 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). 1
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

1

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.”).
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reasonable control of the movant; (4) and whether the movant acted in good faith.” Id. at
395. 2
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. “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). 3 To accomplish this, “[a]
lawyer must control the lawyer’s work load so that each matter can be handled
competently.” Id. (Official Comment 2). 4
Despite three extensions of time, and an admonition that no additional extensions
would be entertained, Appellant failed to timely file the appellant brief as required.
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“[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

“[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…”).
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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 filed in this District, he has
sought repeated extensions of time, even after admonitions from the Court that no further
extensions would be permitted. See, e.g., Taylor v. W. S. Fin. Group, 3:12cv332; FT Express v.
James Conley, 3:12cv393; 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.
3

Appellant willfully disregarded an Order of this Court to timely file the appellant brief.
Moreover, counsel was warned that “failure to timely file the Appellant Brief may result
in dismissal of the appeal.” (2/11/13 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). Here, the
failures indicate a complete lack of professionalism both to opposing counsel, the 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). 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).

4

Accordingly, Appellant’s motion for reconsideration and motion for leave to
accept brief instantor (Doc. 9) 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.
IT IS SO ORDERED.
Date: March 4, 2013

s/ Timothy S. Black
Timothy S. Black
United States District Judge

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