Zwerling v. Ford Motor Company

Background

Philip Zwerling brought a product-liability action involving an alleged engine defect. The opinion states that he asserted claims for fraud by omission and violation of the Magnuson-Moss Warranty Act. Ford Motor Company and Keller Ford Lincoln moved under Federal Rule of Civil Procedure 12(c) to dismiss the action. Zwerling’s opposition was due September 10, 2021, but he did not file it by that date. On October 7, he asked for permission to file the opposition late, and on October 12 he filed a proposed opposition 32 days after the deadline.

Zwerling’s counsel attributed the missed deadline primarily to Gregory Sogoyan’s failure to enter a notice of appearance, which meant he did not receive electronic court notices about Ford’s motion. Counsel also referred to a change in the firm’s calendaring software. Ford submitted emails and correspondence indicating that its counsel had referred to the motion, although Sogoyan said he did not realize that Ford had actually filed it until October 5.

Legal standard

Rule 6(b)(1)(B) permits a court to extend an expired deadline when the requesting party shows good cause and “excusable neglect.” The court applied a four-factor equitable test: the danger of prejudice to the opposing party, the length and effect of the delay, the reason for the delay and whether it was within the party’s control, and whether the party acted in good faith.

Court’s analysis

The court found that Ford identified prejudice only in the form of delay. Because Ford’s motion was not scheduled for argument until January 20, 2022, and no trial date had been set, the court found this claimed prejudice unpersuasive. It also noted that Ford had waited more than three months to challenge the operative complaint and could seek additional time for discovery if necessary. The court therefore treated the prejudice and delay factors as favoring an extension.

The court found that the reason for the delay favored Ford. It concluded that Sogoyan’s failure to enter a notice of appearance and apparently review the docket was a negligent act within counsel’s control. The court stated that the evidence placed responsibility for the missed deadline on Sogoyan and that this factor favored denying an extension.

The court found that the good-faith factor favored Zwerling. Although the evidence showed inconsistencies between Sogoyan’s declaration and the emails, the court found no evidence that Zwerling or his counsel acted to gain an improper advantage. It characterized the failure as negligence and carelessness rather than intentional misconduct.

Disposition

Three of the four factors favored Zwerling. The court granted Zwerling’s motion for a post-deadline extension and directed him to promptly re-file his opposition separately on the docket. Ford’s reply was due within seven days after the re-filing. The court also warned that future submissions violating page limits could be stricken and disregarded.