KIMMEL v. PONTIAKOWSKI et al

Filing 47

MEMORANDUM (Order to follow as separate docket entry) re 42 MOTION for Extension of Time to to file a motion for summary judgment. Signed by Honorable James M. Munley on 8/12/14. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DIANE KIMMEL,

:
No. 3:13cv2229
Plaintiff
:
:
(Judge Munley)
v.
:
:
ZBIGNIEW PONTIAKOWSKI and
:
SCHNEIDER NATIONAL CARRIERS, INC., :
Defendants
:
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is defendants’ motion for an
extension of time to file a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 6(b)(1)(B). (Doc. 42). This motion is fully
briefed and ripe for disposition.
BACKGROUND
The instant personal injury action arose from a motor vehicle
accident, which occurred on Interstate 81 in Luzerne County,
Pennsylvania. (Doc. 1, Notice of Removal ¶ 2). On March 24, 2011,
Plaintiff Diane Kimmel (hereinafter “plaintiff”) was driving north on
Interstate 81. (Doc. 1-4, Compl. ¶ 5). In front of plaintiff, Defendant
Zbigniew Pontiakowski was driving a tractor trailer owned by Defendant
Schneider National Carriers, Inc. (Id. ¶ 6). Plaintiff alleges that a piece of

ice broke off defendants’ tractor trailer and crashed into her front
windshield causing it to shatter. (Id. ¶ 7). As a result of this accident,
plaintiff avers that she suffered severe and permanent injuries and
incurred medical expenses. (Id. ¶¶ 9-10).
Based upon these allegations, plaintiff filed a negligence complaint
against Defendants Pontiakowski and Schneider National Carriers
(collectively “defendants”) in the Court of Common Pleas of Philadelphia
County. (See generally Compl.). Defendants removed the case to the
Federal District Court for the Eastern District of Pennsylvania on April 22,
2013. (Doc. 1, Notice of Removal). Subsequent to removal, the case was
transferred to the Middle District of Pennsylvania on September 6, 2013.
(Doc. 19).
At the conclusion of discovery, defendants filed a motion for
summary judgment. (Doc. 30). In response, plaintiff moved to strike
defendants’ summary judgment motion because it was filed after the
dispositive motion deadline. (Doc. 37). On June 26, 2014, the court
denied defendants’ motion for summary judgment without prejudice to
defendants filing a motion for an extension of time pursuant to Federal
Rule of Civil Procedure (6)(b)(1)(B).

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Defendants filed a motion for an extension of time on July 9, 2014,
and the parties briefed the issues bringing the case to its present posture.
JURISDICTION
The court has jurisdiction pursuant to the diversity statute, 28 U.S.C.
§ 1332. Plaintiff Diane Kimmel is a citizen of Pennsylvania. (Doc. 1,
Notice of Removal ¶ 7). Defendant Zbigniew Pontiakowski is a citizen of
Delaware. (Id. ¶ 6). Defendant Schneider National Carriers, Inc. is
incorporated under the laws of the State of Nevada with its principal place
of business in Wisconsin. (Id. ¶ 5). Additionally, the amount in
controversy exceeds $75,000. Because complete diversity of citizenship
exists among the parties and the amount in controversy exceeds $75,000,
the court has jurisdiction over this case. See 28 U.S.C. § 1332 (“district
courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest
and costs, and is between . . . citizens of different states[.]”). As a federal
court sitting in diversity, the substantive law of Pennsylvania shall apply to
the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir.
2000) (citing Erie R.R. v. Tomkins, 304 U.S. 64, 78 (1938)).

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DISCUSSION
Defendants seek an extension of time to file a motion for summary
judgment. The law provides that a federal district court may establish the
dispositive motion deadline. See FED. R. CIV. P. 56(b) (stating that
“[u]nless a different time is set by local rule or the court orders otherwise,
a party may file a motion for summary judgment at any time until 30 days
after the close of discovery.”). Here, the court set the dispositive motion
deadline for March 31, 2014. (Doc. 27). Defendants filed their motion for
summary judgment on April 16, 2014–sixteen (16) days after the
dispositive motion deadline. Defendants’ motion for summary judgment is
thus untimely.
The Third Circuit Court of Appeals has stated that before a court
may consider an untimely motion for summary judgment, “a party must
make a formal motion for extension of time [pursuant to Federal Rule of
Civil Procedure 6(b)(1)(B)] and the district court must make a finding of
excusable neglect, under the Pioneer factors, before permitting an
untimely motion.” Drippe v. Tobelinski, 604 F.3d 778, 784-85 (3d Cir.
2010) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380,
395 (1993)). “Under Pioneer, the excusable neglect inquiry must consider

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‘all relevant circumstances surrounding the party’s omission. These
include . . . the danger of prejudice . . . , 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.’” Id. (quoting Pioneer, 507 U.S. at
395); see also In re O’Brien Envtl. Energy, Inc., 188 F.3d 116, 125 n.7 (3d
Cir. 1999) (explaining that the Pioneer factors apply to all excusable
neglect inquiries mandated under the Federal Rules of Civil Procedure).
The determination of whether neglect is excusable “is at bottom an
equitable one, taking account of all relevant circumstances surrounding
the party’s omission.” Pioneer, 507 U.S. at 395.
As to the first Pioneer factor, the Court finds no evidence to support
a finding of prejudice if defendants are permitted to file their untimely
summary judgment motion. “Prejudice is not an imagined or hypothetical
harm; a finding of prejudice should be a conclusion based on facts in
evidence.” In re O’Brien Envtl. Energy, Inc., 188 F.3d at 127. To
demonstrate prejudice, a party “must assert loss of available evidence,
increased potential for fraud or collusion, or substantial reliance upon the
judgment.” Id. (quoting Feliciano v. Reliant Tooling Co., 691 F.2d 653,

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657 (3d Cir. 1982)). The loss of an advantageous litigation position is not
the type of prejudice considered relevant to a court’s inquiry. Id. (citing
Pratt v. Philbrook, 109 F.3d 18, 22 (1st Cir. 1997)).
In the instant case, the court has not entered a judgment. Rather,
defendants filed a motion for summary judgment, which the parties have
fully briefed. Ergo, permitting an untimely motion for summary judgment
will not unduly prejudice plaintiff.
The court next addresses the length of delay and the impact on
judicial proceedings. In assessing delay, “the length of the delay should
be considered in absolute terms and not by reference to the import of
intervening circumstances.” In re Orthopedic Bone Screw Products Liab.
Litig., 246 F.3d 315, 325 (3d Cir. 2001) (citing In re O’Brien Envtl. Energy,
Inc., 188 F.3d at 130). Stated differently, the delay’s effect is judged by
comparing when the motion should have been filed with when the motion
was filed. In re O’Brien Envtl. Energy, Inc., 188 F.3d at 130; see also In re
Orthopedic Bone Screw Products Liab. Litig., 246 F.3d at 325 (noting that
the relevant inquiry focuses on how a litigant’s “failure to comply with [a
particular] deadline will deter the expedient and just resolution of claims.”).
The court set the dispositive motion deadline for March 31, 2014.

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Defendants filed their summary judgment motion on April 16,
2014–sixteen (16) days after the dispositive motion deadline. A sixteen
(16) day delay is minimal; especially, in light of the court’s previous orders
extending the case management deadlines on two prior occasions. (See
docs. 23 & 27). As such, defendants’ sixteen (16) day delay is minimal
weighing in favor of excusable neglect.
The third Pioneer factor addresses the reason for the delay. Rather
than incur the expense and consume judicial resources associated with
filing a summary judgment motion, the parties engaged in substantive and
meaningful settlement discussions culminating in a Rule 68 Offer of
Judgment on March 19, 2014.1 Plaintiff’s counsel strongly recommended
settlement to plaintiff. (Doc. 33, Pl.’s Counsel’s Mot. to Withdraw ¶ 10).
Furthermore, plaintiff’s counsel sent an e-mail confirming his settlement
recommendation to defense counsel on Friday, April 4, 2014. (Doc. 42-2,
Ex. A, E-Mail from Mark Kardos dated 4/4/14).

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Federal Rule of Civil Procedure 68 provides that “[a]t least 14 days
before the date set for trial, a party defending against a claim may serve
on an opposing party an offer to allow judgment on specified terms, with
the costs then accrued. If, within 14 days after being served, the opposing
party serves written notice accepting the offer, either party may then file
the offer and notice of acceptance, plus proof of service. The clerk must
then enter judgment.” FED. R. CIV. P. 68.
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Plaintiff’s counsel’s April 4th email states that he would follow-up
with defendants’ attorney regarding acceptance of the Rule 68 offer on
Wednesday, April 9, 2014. (Id.) Plaintiff’s counsel did not follow-up with
defendants’ counsel until April 15, 2014. (Doc. 42-2, Ex. B, E-Mail from
Mark Kardos dated 4/15/14). In his e-mail, plaintiff’s attorney advised
defendants’ counsel that plaintiff would not settle. (Id.) The following day,
April 16, 2014, defendants filed a motion for summary judgment. (Doc.
30).
The delay was not caused by any incompetence on the part of
defense counsel. Rather, defense counsel’s actions establish a
professional courtesy to plaintiff’s counsel and his client to review the
settlement offer prior to continuing litigation. Accordingly, the totality of
the circumstances demonstrates that the parties were working amicably
toward settlement, which weighs in favor of a finding of excusable neglect.
Finally, the good-faith factor also weighs in favor of finding
excusable neglect. The court finds no evidence that defendant acted in
bad faith in failing to file a timely motion for summary judgment.
Specifically, defendants filed their motion for summary judgment the day
after plaintiff alerted defendants that she rejected the settlement offer.

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Defendants did not wait a week, month or until the eve of trial to file their
motion. Instead, defendants filed their summary judgment motion as soon
as it became clear that plaintiff did not share a reciprocal desire to settle
the case. Thus, defendants’ good-faith actions weigh in favor of
excusable neglect.
CONCLUSION
For the reasons stated above, we find that the filing of the untimely
motion for summary judgment was due to excusable neglect. All relevant
circumstances surrounding defendants’ untimely summary judgment
motion weigh in favor of this finding. Therefore, the court will grant
defendants’ motion for an extension of time pursuant to Federal Rule of
Civil Procedure 6(b)(1)(B). An appropriate order follows.

Date: 8/12/14

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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