Howard v. Nationwide Property & Casualty Insurance , 306 F. App'x 265 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0011n.06
Filed: January 8, 2009
No. 08-5220
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LIZZIE HOWARD, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
NATIONWIDE PROPERTY AND ) WESTERN DISTRICT OF TENNESSEE
CASUALTY INSURANCE CO. )
)
Respondent-Appellee.
BEFORE: MARTIN and McKEAGUE, Circuit Judges; COLLIER, District Judge.*
CURTIS L. COLLIER, District Judge. Plaintiff-Appellant Lizzie Howard appeals from
the district court’s grant of summary judgment to Defendant-Appellee Nationwide Property and
Casualty Insurance Company. In her sole assignment of error, she challenges the district court’s
decision to strike her response to Defendant’s summary judgment motion on the grounds that the
response was untimely filed. Because the district court did not abuse its discretion, we AFFIRM.
I. PROCEDURAL HISTORY
*
The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern
District of Tennessee, sitting by designation.
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Howard v. Nationwide
Plaintiff sued Defendant in state court for breach of contract and bad faith denial of an
insurance claim. The case was removed to the United States District Court for the Western District
of Tennessee based on diversity of citizenship.
Defendant moved for summary judgment on May 10, 2007, the deadline established in the
district court’s scheduling order. Because Plaintiff failed to respond within the time set by the local
rules, the court issued an order on June 19 directing her to show cause as to why her case should not
be dismissed for failure to prosecute. Plaintiff filed a response to the show cause order on July 2,
2007 and contemporaneously filed her response to the summary judgment motion. In response to
the show cause order, Plaintiff’s counsel stated he mistakenly failed to record the response date for
the summary judgment motion on his calendar and explained he did not realize the error until
receiving the court’s order to show cause. Plaintiff contended the failure to respond was excusable
neglect and had not prejudiced Defendant. Therefore, Plaintiff requested the district court allow
Plaintiff to file her response to the summary judgment motion.
On July 12, 2007, Defendant moved to strike Plaintiff’s response to the summary judgment
motion, contending Plaintiff had not established excusable neglect. In the alternative, Defendant
sought leave to file a reply brief, as required by the local rules. The next day, July 13, the district
court granted the motion to strike. Although the district court agreed with Plaintiff that Defendant
was not prejudiced by the delay, it determined there was a “significant impact on the judicial
proceedings in this case” because of the fast approaching trial date and pre-trial mediation.
Concluding that counsel’s forgetfulness does not constitute excusable neglect, the district court
struck Plaintiff’s response. The district court subsequently granted summary judgment to Defendant
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without considering Plaintiff’s response.
II. DISCUSSION
On appeal, Plaintiff does not challenge the merits of the summary judgment decision, instead
assigning error only to the district court’s decision to strike her response to the summary judgment
motion. Because Plaintiff requested an extension of the response deadline after the deadline had
passed, the district court could grant the extension only if her failure to act resulted from excusable
neglect. Fed. R. Civ. P. 6(b)(1)(B).
“We review a district court’s determination of excusable neglect, or lack thereof, under the
abuse-of-discretion standard.” Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir. 2006)
(citing Turner v. City of Taylor, 412 F.3d 629, 649 (6th Cir. 2005)). Such abuse exists if the district
court “relied on erroneous findings of fact, applied the wrong legal standard, misapplied the correct
legal standard when reaching a conclusion, or made a clear error of judgment.” Id.
The determination of excusable neglect is “an equitable one, taking account of all relevant
circumstances surrounding the party’s omission.” Pioneer Inv. Serv. Co. v. Brunswick Assocs.
P’ship, 507 U.S. 380, 395 (1993). In Pioneer, the Supreme Court set out five factors for courts to
balance when determining the existence of excusable neglect:
(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,
(4) whether the delay was within the reasonable control of the moving party, and
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(5) whether the late-filing party acted in good faith.
Nafziger, 467 F.3d at 522 (citing Pioneer, 507 U.S. at 395).1 The district court considered the
Pioneer factors and concluded they did not show excusable neglect. The court found that only the
first factor weighed in favor of Plaintiff in that Defendant was not prejudiced. But the other factors
weighed against Plaintiff, the district court concluded, because the delay significantly impacted
judicial proceedings, was not excusable, and was entirely within Plaintiff’s control.
Plaintiff’s counsel’s failure to place the deadline for responding on his calendar was
inadvertence. The Supreme Court dealt with inadvertence in Pioneer, which noted that inadvertence
“do[es] not usually constitute” excusable neglect. 507 U.S. at 392. But Plaintiff emphasizes the
Supreme Court’s pronouncement that “‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic
concept’ and is not limited strictly to omissions caused by circumstances beyond the control of the
movant.” Id. (footnotes omitted). Thus, in Pioneer the Supreme Court found excusable neglect
where there was no prejudice to the opposing party or efficient judicial administration, combined
with good faith by counsel and his client. Id. at 397-98. Also significant was that the deadline in
Pioneer was “outside the ordinary course” and the announcement of the deadline contained a
“dramatic ambiguity.” Id. at 398. Those circumstances required a finding of excusable neglect. Id.
at 398-99.
But Pioneer dictates a different result in this case. The Supreme Court noted it would not
1
Although Pioneer arose from a bankruptcy proceeding, its discussion of excusable
neglect also applies to Federal Rule of Civil Procedure 6(b). See Pioneer, 507 U.S. at 391
(noting that the applicable bankruptcy rule was patterned after Rule 6(b)); Nafziger, 467 F.3d at
522 (applying the Pioneer factors to a Rule 6(b) excusable neglect decision).
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have found an abuse of discretion if there was any evidence of, inter alia, prejudice to judicial
administration. Id. In this case, the district court concluded there was a “significant impact on the
judicial proceedings.” The three-week delay interfered with the district court’s ability to expediently
resolve the summary judgment motion prior to trial and mediation. Although Plaintiff acknowledges
the district court’s time to consider and rule on the summary judgment motion was shortened, she
contends there was still sufficient time for it to rule, and in fact the court had already received her
response when it made its decision. But the time for the court to consider the motion was shortened,
especially considering that the district court would have also needed to wait for Defendant’s reply
brief and that mediation was to take place prior to trial. Therefore, the district court’s reasonable
determination of how much time it needed to consider the motion was not clearly erroneous.
Furthermore, Plaintiff points to no precedent requiring a court to consider a late-filed brief just
because it was filed before the court issued its decision.
Plaintiff argues she should not be punished for her attorney’s error, but Pioneer also prevents
us from accepting this argument. In affirming the Sixth Circuit in Pioneer, the Supreme Court
nevertheless took issue with this Court’s analysis that it would be inappropriate to penalize clients
for their attorney’s omissions. 507 U.S. at 396. The Supreme Court rejected that analysis, noting
that “clients must be held accountable for the acts and omissions of their attorneys.” Id. at 396-97.
See also Nafziger, 467 F.3d at 524; Allen v. Murph, 194 F.3d 722, 723 (6th Cir. 1999).
Plaintiff also points to cases involving excusable neglect under worse circumstances, e.g.,
Morgan v. Gandalf, Ltd., 165 F. App’x 425, 429 (6th Cir. 2006) (inadvertent eight-month delay in
filing answer), and cases not involving excusable neglect under worse circumstances, e.g., Nifzager,
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467 F.3d at 523 (party who was 37 days late and had numerous instances of dilatory conduct
accompanied by repeated warnings); Allen, 194 F.3d at 724 (counsel left the country in spite of a
pending deadline and another attorney took no action to preserve their client’s rights despite a
request from the clients). In short, Plaintiff contends the inadvertence here was not so bad relative
to other cases. But there is no easy line to be drawn. The district court concluded there was
significant harm to the judicial administration of the case, a finding that is not clearly erroneous and
which permitted the district court to conclude Plaintiff’s delay did not result from excusable neglect.
On review, we do not substitute our judgment for that of the district court unless “we can say with
‘a definite and firm conviction’ that this particular district court ‘committed a clear error of judgment
in the conclusion it reached upon a weighing of the relevant factors.’” Nafziger, 467 F.3d at 524.
Therefore, we conclude the district court did not abuse its discretion.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
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