United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs motion for leave to
file her response to the defendants' motion to dismiss
out of time. Plaintiff filed her untimely response to the
motion to dismiss on June 7, 2019, and the Court struck it
from the record for filing error on June 10, 2019.
See DTO 57. Plaintiffs motion for leave asserts that
she failed to act timely because of excusable neglect under
Rule 6(b)(1)(B), Federal Rules of Civil Procedures, as her
counsel was "both out of town and dealing with a family
emergency for a majority of the seven-day period after
Defendants filed their Motion to Dismiss." (Doc. 59 at
2.) Plaintiff also asserts that her missing of the seven-day
deadline was inadvertent, "Counsel for Plaintiff acted
expeditiously and in good faith to submit Plaintiffs
answer," and defendants are not prejudiced by the delay.
the Court issued a docket text order striking plaintiffs
untimely response memorandum, plaintiff s counsel sent an
e-mail to the Court's case manager that stated in part,
"The motion was filed on 05/29/2019 and my answer was
filed on 06/07/2019. The response was due within 10 days
of filing, which actually would have been 06/08/2019, so
I actually filed a day early." (Emphasis added.) See
E-mail from Chelsea K. Merta, Esq. to Michele Crayton (June
10, 2019, 2:01 p.m.), attached to this Order. The emphasized
statement in Ms. Merta's e-mail to the Court's case
manager is incorrect.
stated in Docket Text Order 57, the response time is governed
by Local Rule 4.01(B), which states in pertinent part,
"Except as otherwise provided in these rules or by order
of the Court, each party opposing a motion shall file, within
seven (7) days after being served with the motion, a
memorandum" in opposition. E.D. Mo. L.R. 4.01(B).
Further, pursuant to the 2016 Amendment to Rule 6(d), Fed. R.
Civ. P., "service by electronic means under Rule
5(b)(2)(E) [was removed] from the modes of service that allow
3 added days to act after being served." Rule 6(d)
Advisory Committee Comments, 2016 Amendments. Thus,
plaintiffs response was due seven days after the motion to
dismiss was filed, not ten.
6(b)(1)(B) permits a court to extend time "on motion
made after the time has expired if the party failed to act
because of excusable neglect." In determining whether a
showing of excusable neglect has been made, the
"following factors are particularly important: (1) the
possibility of prejudice to [the opposing party]; (2) the
length of the [moving party's] delay and the possible
impact of that delay on judicial proceedings; (3) [the moving
party's] reasons for delay, including whether the delay
was within its reasonable control; and (4) whether [the
moving party] acted in good faith." Sugarbaker v.
SSM Health Care. 187 F.3d 853, 856 (8th Cir. 1999).
the possibility of prejudice to the defendants is minimal, as
plaintiffs Response was originally filed two days out of time
and she filed the instant motion for leave the day after her
response was stricken. This short delay has no adverse impact
on judicial proceedings. The Court accepts plaintiffs
counsel's representation that she was out of town and
dealing with a family emergency during the seven-day period
for filing a response, and has no reason to doubt her good
faith. It would appear, however, that the delay was due at
least in part to counsel's error as to how to calculate
filing deadlines under the applicable rules.
Eighth Circuit has held that '"excusable
neglect' includes 'late filings caused by
inadvertence, mistake or carelessness.'" Johnson
v. Dayton Elec. Mfg. Co.. 140 F.3d 781, 784 (8th Cir.
1998) (quoting Pioneer Inv. Servs. v. Brunswick Assocs.
Ltd. P'ship. 507 U.S. 380, 388 (1993)). Considering
all of the circumstances, the Court concludes that plaintiffs
failure to comply with the Local Rule's deadline for
responding to defendants' motion to dismiss, though to
some extent within her own control, was nonetheless excusable
being said, plaintiffs motion for leave contains an incorrect
statement that must be corrected so plaintiffs counsel does
not continue to file out of time in the future.
Defendants' motion to dismiss was filed May 29, 2019.
Plaintiff erroneously states in the motion for extension of
time that her response was due June 6, 2019 (Doc. 59 at 1),
which is different than the date plaintiffs counsel
referenced in her e-mail to the Court's case manager.
Neither of the dates plaintiffs counsel referenced is the
correct deadline under the applicable rules.
provisions of Rule 6(a), Fed. R. Civ. P., govern the
computing of any time period specified in the Federal Rules
of Civil Procedure, any local rules, or a court order. When a
period of time to act is stated in days or a longer unit of
time, Rule 6(a)(1) instructs:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays,
Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day
is a Saturday, Sunday, or legal holiday, the period continues
to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday.
6(a)(1)(A)-(C), Fed. R. Civ. P.
the motion to dismiss was filed on Wednesday, May 29, 2019.
The seven-day response period began the next day, Thursday,
May 30, 2019. When seven days are counted, the last day of
the period is Wednesday, June 5, 2019, and this is the day
plaintiffs response was due. Plaintiffs assertion that her
filing was due on ...