Whitaker v. Brighton Collectibles, LLC

Background

Brighton Collectibles, LLC filed a motion for summary judgment on September 26, 2022, within the court’s deadline for dispositive motions. Whitaker’s opposition was due October 11, 2022, but he did not file one. Brighton filed its reply on October 18 and noted that Whitaker had not responded. Whitaker also did not respond to that filing.

On October 26, Whitaker’s counsel learned of Brighton’s motion while reviewing the firm’s October calendar. Two days later, Whitaker moved for permission to file an opposition late and requested an additional 14 days to do so. He did not attach a proposed opposition brief.

Legal standard

Under Rule 6(b) of the Federal Rules of Civil Procedure, a court may extend an expired deadline when a party failed to act because of “excusable neglect.” The court applied the four-part test used by the U.S. Court of Appeals for the Ninth Circuit: the possible prejudice to the opposing party, the length and effect of the delay, the reason for the delay and whether it was within the moving party’s control, and whether the party acted in good faith.

Court’s analysis

The court found that the reason for the delay weighed strongly against Whitaker. His counsel acknowledged that the delay was within her control. The court noted that she received electronic filing notifications, her firm had entered the motion in its case-management calendar, Brighton’s counsel had personally indicated that a summary-judgment motion would be filed, and the dispositive-motion deadline had been set nearly a year earlier. The stated reason for missing the deadline was that counsel did not open several emails on the day Brighton filed the motion.

The court found that the prejudice to Brighton and the delay’s effect on the proceedings were modest but present. Because Whitaker requested 14 additional days and did not provide a proposed opposition, the court estimated that an opposition could have become due about 35 days after the original deadline, requiring Brighton to prepare and file another reply. The court also noted that denying leave would allow Brighton’s summary-judgment motion to proceed without an opposition, although Brighton still had to show that no genuine dispute of material fact existed and that it was entitled to judgment.

The court accepted counsel’s statement that the delay was unintentional and not made in bad faith. However, it also noted earlier problems in the case, including Whitaker’s request to reopen fact discovery after the discovery deadline and counsel’s failure to appear at a trial-setting conference. The court concluded that these circumstances did not make the missed deadline excusable.

Disposition

The court found that Whitaker had not established excusable neglect and denied Whitaker’s motion for leave to file an untimely opposition. The order did not rule on the merits of Brighton’s summary-judgment motion.