Carlson v. BNSF Railway Company

Background

Jason Carlson moved under Federal Rule of Civil Procedure 6(b)(1)(B) for permission to file late materials opposing BNSF Railway Company’s motions for summary judgment and to exclude expert testimony. The court had ordered Carlson to file his responses by July 30, 2021. Carlson filed the responses on July 31, between four and 48 minutes after the deadline, along with affidavits and exhibits.

The court later discovered that only 15 of the 27 exhibits identified in counsel’s affidavit had been filed. After the court notified the parties, Carlson filed a corrected affidavit and all 27 exhibits on August 23, including more than 500 pages that had not previously been filed correctly. Counsel attributed the problems to an assisting attorney’s resignation and departure from the firm, technical difficulties accessing and using the court’s electronic filing system, and electronic files that the system rejected as corrupted or malformed. BNSF did not oppose Carlson’s motion.

Analysis

Rule 6(b)(1)(B) permits a court to extend a deadline after it expires when the party’s failure to act resulted from excusable neglect. The court considered four factors: possible prejudice to BNSF, the length and effect of the delay, the reason for the delay and whether it was within counsel’s reasonable control, and whether counsel acted in good faith.

The court found that BNSF had not identified prejudice and had not disputed Carlson’s statement that courtesy copies of the omitted exhibits had previously been provided to BNSF. Most filings were only minutes late. Although the missing exhibits required delaying the hearing so the court could review them, the court found that the resulting delay would be relatively minimal and would not significantly delay a ruling on BNSF’s motions.

The court recognized that counsel remained responsible for timely and correct filings, including understanding and correcting problems with the electronic filing system. Nevertheless, it found that the delays were relatively minimal and inadvertent and were, to some extent, outside counsel’s reasonable control. The court also found good faith based on counsel’s prompt efforts to correct the filings, notify BNSF, investigate the filing errors, and seek permission to excuse the delay.

Ruling

The court held that Carlson had demonstrated excusable neglect. It granted Carlson’s motion to excuse the untimely filings, accepted the late materials, and stated that it would consider them in connection with BNSF’s pending motions for summary judgment and to exclude expert testimony. The court also cancelled the September 1, 2021 hearing and rescheduled it for September 28, 2021, at 9:00 a.m. for an in-person hearing. The order did not decide BNSF’s underlying motions.