RUGGIERO v. THE GROG et al

Filing 83

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE THOMAS J. RUETER ON 11/21/2013. 11/21/2013 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSEPH RUGGIERO
v.

:

CIVIL ACTION

:

THE GROG, et al.

:

NO. 11-5999

MEMORANDUM ORDER
AND NOW, this 21st day of November, 2013, upon consideration of the Motion
of Defendants, The Grog and The Pub Group, LLC, to Strike Plaintiff’s Demand for Trial De
Novo (Doc. 75), the Motion of Defendant, Douglas Shafer, To Strike Plaintiff’s Demand For
Trial De Novo (Doc. 72), Plaintiff’s Motion Pursuant to F.R.C.P. 6(B)(1)(b) [sic] to Extend Time
to File Demand for Trial De Novo (Doc. 81), and the responses to such motions, it is hereby
ORDERED
that the motions to strike (Docs. 72 and 75) are GRANTED and Plaintiff’s Motion Pursuant to
F.R.C.P. 6(B)(1)(b) [sic] to Extend Time to File Demand for Trial De Novo (Doc. 81) is
DENIED. Furthermore, plaintiff’s request for trial de novo filed on October 28, 2013 (Doc. 70),
is hereby STRICKEN. The arbitration award of September 24, 2013 will be entered as the
judgment of the court.
The arbitration award was filed and docketed by the Clerk of the Court on
September 24, 2013. Pursuant to Local Rule of Civil Procedure 53.2 plaintiff was required to
file his demand for trial de novo “[w]ithin thirty (30) days after the arbitration award is entered
on the docket.” However, plaintiff filed a demand for a new trial on October 28, 2013, after the
deadline set by Local Rule 53.2 expired. Thus, the motions to strike must be granted. See
Bazaar v. Peck, 1996 WL 755404, at *1 (E.D. Pa. Dec. 30, 1996) (denying demand for trial de

novo because demand was not made within thirty day period set by Local Rule 53.2). Moreover,
plaintiff failed to show excusable neglect for the late filing. See Fed. R. Civ. P. 6(b)(1)(B)
(“When an act may or must be done within a specified time, the court may, for good cause,
extend the time . . . on motion made after the time has expired if the party failed to act because of
excusable neglect.”)
In multiple filings, plaintiff and his attorneys offer conflicting explanations as to
why the demand for trial de novo was filed late. In his pro se “Motion For Extension of Time To
Proceed With Appeal,” (Doc. 78), filed after the expiration of the thirty day period set by Local
Rule 53.2, plaintiff blames his attorneys of record for not filing the appeal on time, complaining
that he ‘sent all info [sic] to lawyer and [they] did not file the appeal in time allowed.” However,
in our system of representative litigation, “clients must be accountable for the acts and omissions
of their attorneys.” Pioneer Inv. Servs., Inc. v. Brunswick Assocs., Ltd., P’ship, 507 U.S. 380,
396 (1993). Plaintiff voluntarily chose his attorneys to represent him in this action, and “he
cannot now avoid the consequences of the acts or omissions of this freely selected agent.” Id. at
397 (internal citations omitted). The excusable neglect analysis does not focus on whether a
client did all he reasonably could in policing the conduct of his attorney, but whether the neglect
of the client and his counsel was excusable. Id. at 396-97.
On November 20, 2013, plaintiff’s counsel filed a motion pursuant to Federal
Rule of Civil Procedure 6(b)(1)(B) to extend time to file a demand for a trial de novo. See Doc.
81. In that motion, counsel suggests that it was the client’s fault for not timely filing the demand
for a trial de novo. Counsel claims that after the arbitration award was entered on September 24,
2013, they wrote a letter to plaintiff by certified mail, informing “Plaintiff that the fee agreement
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did not include any appeal and that counsel would not appeal the award unless and until they
were retained to do so.” Id. ¶ 9. Counsel claims that plaintiff did not retain counsel to file the
appeal. Id. ¶ 10. According to counsel, not until October 21, 2013 did plaintiff express to
counsel “his desire to appeal the Award.” Id. ¶ 11. Counsel sent an e-mail to plaintiff on
October 22, 2013 with attached paperwork, “so that Plaintiff could file the appeal pro se.” Id. ¶
12. On October 25, 2013, plaintiff called counsel “and stated that he never received the
aforementioned e-mail.” Id. ¶ 13. Plaintiff said he did not receive it because counsel had used an
outdated e-mail address. Id. ¶ 14. On October 25, 2013, counsel forwarded to plaintiff copies of
the documents by e-mail and facsimile and instructed plaintiff to sign and return them
“immediately” so that they could be filed that day by counsel. Id. ¶ 15. Counsel states that they
did not receive the signed documents from the plaintiff and, therefore, counsel did not file the
demand for trial de novo. Id. ¶¶ 16-17. It was not until October 28, 2013, that plaintiff filed a
pro se demand for a trial de novo. Id. ¶ 18. By that time, it was too late.
The Supreme Court has explained that determining whether neglect is “excusable”
requires weighing a number of factors, including “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.” Pioneer Inv. Servs., Inc., 507 U.S. at 395. The Third Circuit has explained
that “excusable neglect” described situations “where the court, after weighing the relevant
considerations is satisfied that counsel has exhibited substantial diligence, professional
competence and has acted in good faith to conform his or her conduct in accordance with the
rule, but as the result of some minor neglect, compliance was not achieved.” Consol.
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Freightways Corp. of Del. v. Carson, 827 F.2d 916, 920 (3d Cir. 1987). See also Ragguette v.
Premier Wines & Spirits, 691 F.3d 315, 322-33 (3d Cir. 2012) (discussing Consol. Freightways
Corp. of Del. and applying Pioneer’s excusable neglect analysis to determine whether a motion
for an extension of time to file an appeal was filed timely under Fed. R. App. P. 4(a)(5)).
In the instant case, it is true that there is little prejudice to the defendants by the
late filing and the delay has not significantly impacted judicial proceedings. However, the
reasons offered by plaintiff for the delay are inexcusable and the late filing was within the control
of plaintiff and his counsel. Moreover, the court finds that plaintiff did not exercise reasonable
diligence after he was informed that his counsel would no longer represent him.
According to counsel, they told their client on September 26, 2013, that they
would not appeal the award until they were retained to do so. Despite this clear admonition,
plaintiff did not act until over three weeks later, on October 21, 2013, when he expressed to
counsel his desire to appeal the award. Again, on October 25, 2013, when counsel faxed and emailed the paperwork to plaintiff and told him to file the notice of appeal “immediately,”
plaintiff failed to do so. Moreover, counsel easily could have protected plaintiff’s rights by filing
a timely protective demand for a de novo trial, pending plaintiff’s decision to retain them for the
post-arbitration proceedings. These facts demonstrate that the failure to file a timely demand for
a trial de novo was not the result of “some minor neglect,” see Consol. Freightways Corp. of
Del., 827 F.2d at 970, but was the result of the lack of reasonable diligence on the part of plaintiff

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and counsel. Accordingly, the court finds that plaintiff has not demonstrated excusable neglect
to allow the court to ignore his non-compliance with the rules of court.

BY THE COURT:

_/s/ Thomas J. Rueter________________
THOMAS J. RUETER
United States Magistrate Judge

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