Wickware v. Manville

Filing 62

ORDER granting 55 Motion to Strike Plaintiff's Brief in Response and Objection to Defendant's Motion for Costs as Untimely; Striking 54 Plaintiff's Brief in Response and Objection to Defendant's Motion for Costs. Signed by Honorable Timothy D. DeGiusti on 1/8/2015. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VERNELL WICKWARE, JR.,
Plaintiff,
v.
JOHNS MANVILLE,
Defendant.

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Case No. CIV-13-424-D

ORDER
Before the Court is Defendant’s Motion to Strike Plaintiff’s Brief in Response and
Objection to Defendant’s Motion for Costs as Untimely [Doc. No. 55]. Plaintiff has
responded in opposition to the Motion to Strike, which is fully briefed.
The Court granted summary judgment to Defendant on November 7, 2014, and
Defendant filed its Bill of Costs on November 18, 2014, pursuant to Fed. R. Civ. P. 54(d)(1)
and LCvR54.1. Plaintiff did not file an objection within the 14-day period set by LCv54.1
but, instead, filed a response brief within the 21-day deadline applicable to motions under
LCv7.1(g). For this reason, Defendant moves to strike Plaintiff’s filing as untimely.
Defendant argues that LCv54.1 establishes an inflexible deadline and Plaintiff waived any
objection to its Bill of Costs by failing to meet the deadline. Plaintiff concedes that his
counsel made a filing error and asks the Court to allow his objection to be considered by the
Clerk at the hearing set for January 29, 2015.
The Court is authorized by the Federal Rules of Civil Procedure to extend a filing
deadline, subject to certain exceptions not applicable here, “on motion made after the time

has expired if the party failed to act because of excusable neglect.” See Fed. R. Civ.
P. 6(b)(1)(B). However, Plaintiff has neither filed a proper motion for relief under Rule 6(b),
nor does he contend that his counsel’s error constitutes excusable neglect.1 Further, were the
Court to reach the issue of whether to excuse Plaintiff’s late filing, the Court would find that
Plaintiff has failed to demonstrate the delay was caused by excusable neglect.
The Supreme Court has held that a finding of “excusable neglect” within the meaning
of Rule 6(b)(1)(B) should take into account “all relevant circumstances.” See Pioneer Inv.
Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993).2 “Such circumstances
include ‘[1] the danger of prejudice to the [nonmoving 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, and [4] whether the movant acted in good
faith.’” United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004) (quoting Pioneer, 507
U.S. at 395). These factors do not carry equal weight; “fault in the delay remains a very
important factor – perhaps the most important single factor – in determining whether neglect
is excusable.” Torres, 372 F.3d at 1163 (internal quotation omitted).
The circumstances presented in this case include a short period of delay and no
suggestion of bad faith. Defendant has not identified any substantial prejudice caused by
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Plaintiff purports to combine with his response in opposition to Defendant’s Motion to Strike, his
own “Motion to File Out of Time.” This filing violates LCvR7.1(c), which requires a motion to be a separate
document and clearly states: “A response to a motion may not also include a motion or a cross-motion made
by the responding party.” The filing also does not comply with LCvR7.1(h) regarding requests for extensions
of time.
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The Supreme Court was considering Rule 9006(b)(1) of the Federal Rules of Bankruptcy
Procedure, which contains a provision substantially similar to Rule 6(b)(1)(B).

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Plaintiff’s delay; Defendant argues only that its counsel will need to appear at the hearing on
costs if a written objection is filed. However, the sole reason for the delay is that Plaintiff’s
counsel confused the filing deadlines for responses to motions and objections to bills of costs.
In Pioneer, the Supreme Court stated that “inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute ‘excusable’ neglect.” Pioneer, 507 U.S. at 391.
Applying Pioneer, the court of appeals held in Torres that a district court abused its
discretion in finding a defendant’s delay in filing a notice of appeal was the result of
excusable neglect under similar circumstances, where the reason for the delay “was simply
that defense counsel confused the filing deadlines for civil and criminal appeals.” Torres,
372 F.3d at 1163. Following Torres, the court of appeals has held: “Because it is well
established that inadvertence, ignorance of the rules, and mistakes construing the rules do not
constitute excusable neglect for purposes of Rule 6(b), the district court acted well within its
discretion in refusing to consider [a prevailing plaintiff’s] untimely motion” for attorney fees
and costs. See Quigley v. Rosenthal, 427 F.3d 1232, 1238 (10th Cir. 2005).
In this case, for the reasons that Plaintiff has not properly sought relief under
Rule 6(b)(1)(B) and he has failed to establish excusable neglect, the Court finds that
Plaintiff’s late filing of a written objection to Defendant’s Bill of Costs should not be
permitted.
IT IS THEREFORE ORDERED that Defendant’s Motion to Strike Plaintiff’s Brief
in Response and Objection to Defendant’s Motion for Costs as Untimely [Doc. No. 55] is
GRANTED.
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IT IS FURTHER ORDERED that Plaintiff’s Brief in Response and Objection to
Defendant’s Motion for Costs [Doc. No. 54] is STRICKEN and shall be disregarded.
IT IS SO ORDERED this 8th day of January, 2015.

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