Jeffries v. Commissioner of Social Security

Filing 12

ORDER/OPINION The Court finds Plaintiff has demonstrated good cause, based on excusable neglect, for her failure to timely file her Motion for Summary Judgment. Plaintiff's Motion for Summary Judgment 11 is therefore ordered filed. Defendant shall have thirty (30) days from the date of entry of this Order to file his Motion for Summary Judgment in response. Signed by Magistrate Judge John S. Kaull on 2/18/2013. (kd)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
AMY DAWN JEFFRIES,
Plaintiff,
v.

CIVIL ACTION NO. 1:12CV162

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
ORDER/OPINION
This matter is before the undersigned pursuant to a January 31, 2013, Order to Show Cause
and Plaintiffs’ Memorandum and Statement of Good Cause for Late Filing dated February 13, 2013
[DE 10]. On October 16, 2012, the plaintiff, Amy Dawn Jeffries, by Montie VanNostrand, her
attorney, filed a Complaint in this matter [DE 1]. On December 17, 2012, Defendant filed his
Answer to the Complaint, along with a copy of the Transcript of the Administrative Proceedings in
this matter [DE 5, 6, 7]. Plaintiff’s Motion for Summary Judgment was therefore due on or before
January 16, 2013. Plaintiff had not filed her Motion for Summary Judgment and Memorandum in
Support thereof as of January 30, 2013.
Counsel for Plaintiff represents that a glitch in the Outlook program at her office computer
caused pending email messages to the email account address provided to the Court for notification
by CM/ECF to be “wiped off” her home office computer and her assistant’s office computer.
Counsel represents to the Court that as soon as the problem was located (not until this Court’s Order
to Show Cause) she contacted the IT tech who had set up and installed the program on all her
computers, to temporarily fix the problem. She also registered with the Court additional email
addresses as a back-up and will retain further computer technician services to make a permanent

correction.
The Court disagrees with counsel’s argument that this failure does not represent neglect or
negligence in the handling of the case. The method used by counsel to calendar cases, in which the
computers at her staffed office use one system but her home office computer uses another, and that
she does not check her home office computer’s email daily, despite her assertion that office is the
“hub” of her firm, is fraught with the opportunity for missed communications. The Court itself,
acknowledging the possibility of glitches in computer systems, backs up its computerized notice and
calendering in Social Security cases by keeping a manual file in WordPerfect with the case number
and name, starting as soon as a Complaint is filed. The date the Answer is due it manually written
into the document. When the Answer is filed, the date for Plaintiff’s Motion for Summary Judgment
is written into the document, etc. It was in this manner–not by any computerized system– that the
absence of any motion by Plaintiff was noticed.
The Court also notes that counsel’s firm had a similar problem in 2005, when at least seven
Social Security cases were neglected. The Court allowed for late filing after counsel represented
that a trusted employee had not only dropped the ball, but had misled counsel as to the filing of the
motions. The Court raises this previous issue to reiterate the fact that the lawyer is responsible for
the filing and the deadlines–not the lawyer’s employees or computer calendaring system.
Under Rule 6(b)((1)(B) of the Federal Rules of Civil Procedure, “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.” “‘Excusable neglect” is a somewhat “elastic concept” and not limited strictly
to omissions caused by circumstances beyond the control of the movant.” Pioneer Inv. Service Co.
v. Brunswick Associates Lit. Partnership, 507 U.S. 380 (1993). In assessing what constitutes
“excusable neglect” the Supreme Court has set forth the following factors: 1) danger of prejudice

to the opposing party, 2) the length of 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. Id. (adopted by the Fourth Circuit in the context of Rul
4(a)(5) in Thompson v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530 (4th Cir. 1996).
Based upon the facts of this case, the Court finds no prejudice to the defendant, and will
extend the time for Defendant to respond to the Motion. The Court further finds the length of delay
was quite short, due to the Court’s prompt discovery of the missing Motion and Order to Show
Cause, and also therefore finds little impact on the judicial proceedings in this case. The Court also
finds the movant acted in good faith. The question of whether the reason for the delay was within
the reasonable control of the movant is more problematic, but the Court will give counsel’s client
the benefit of the doubt and also find in her favor on this factor.
Based upon all of which, the Court finds Plaintiff has demonstrated good cause, based on
excusable neglect, for her failure to timely file her Motion for Summary Judgment. Plaintiff’s
Motion for Summary Judgment is therefore ordered filed.1 Defendant shall have thirty (30) days
from the date of entry of this Order to file his Motion for Summary Judgment in response.
It is so ORDERED.
The Clerk is directed to send a copy of this Order to counsel of record.
DATED: February 18, 2013.
s/]É{Ç fA ^tâÄÄ
JOHN S. KAULL
UNITED STATES MAGISTRATE JUDGE

1

The Court notes counsel filed the Motion concurrently with the Response to the Show
Cause Order, and directs counsel hereafter to file such a Motion as an attachment to the
Response.