United States District Court, E.D. Louisiana
HOMELIFE IN THE GARDENS, LLC ET AL.
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
Landry (“Landry”) has filed a
motion for leave to file an untimely opposition
to plaintiffs' motion for summary judgment as to
Landry's counterclaims. Landry represents to the Court
that plaintiffs oppose the motion.
Rule 7.5 provides that “[e]ach party opposing a motion
must file and serve a memorandum in opposition to the motion
with citations of authorities no later than eight days before
the noticed submission date.” The submission date for
plaintiffs' motion for summary judgment was December 27,
2017-the date on which Landry first attempted to file her
opposition. Thus, Landry's opposition was
Rule of Civil Procedure 6(b)(1) grants a district court
discretion to allow untimely responses where the party failed
to act because of excusable neglect.” Rasco v.
Potter, 265 Fed. App'x 279, 283 (5th Cir. 2008)
(internal quotation marks omitted); see Vasudevan v.
Adm'rs of Tulane Educ. Fund, No. 17-30160, 2017 WL
3616380, at *3 (5th Cir. Aug. 22, 2017) (applying the
“excusable neglect” standard to a district
court's ruling on a motion to strike an untimely
opposition). A number of factors are relevant to a
court's excusable neglect inquiry, including “the
danger of prejudice to the [non-movant], the length of the
delay and its potential impact on the judicial proceedings,
the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant
acted in good faith.” Adams v. Travelers Indem. Co.
of Conn., 465 F.3d 156, 161 n.8 (5th Cir. 2006)
(alteration in original). Landry carries the burden of
demonstrating excusable neglect. See Traffic Scan
Network, Inc. v. Winston, No. 92-2243, 1995 WL 83932, at
*1 (E.D. La. Feb. 24, 1995) (Vance, J.) (“The burden of
establishing excusable neglect is on the party seeking the
enlargement of time.”).
why her opposition is untimely, Landry explains as follows in
her motion: “Counsel for Plaintiffs' did not allow
Depositions in the matter to be taken until December 1, 2017,
transcripts needed to be returned and plaintiffs' last
amendment, among other documentary issues, was filed on
December 18, 2017.” In her memorandum in support of her
motion, Landry further alleges that “the deposition of
plaintiff, Donald Rankey, raised issues not previously known
to defendant, thus causing additional investigation as to his
testimony as it directly affected summary judgment in the
instant matter.” This explanation, however, does not
explain why Landry never filed a motion to extend her
deadline to file an opposition, nor does it explain why
Landry waited eight days until after her deadline before
first attempting to file an opposition.
then Landry shifts gears and points to an entirely different
reason for her failure to file a timely opposition:
“Regrettably, also, counsel for Leigh Landry mistakenly
calendared the due date for filing an opposition to
plaintiffs motion for summary judgment with a motion to quash
that Landry counsel was forced to file.”However, Landry
filed her motion to quash on December 20, 2017. As the Court
previously explained, she did not attempt to file an
opposition to plaintiffs' motion until December 27, 2017.
This explanation still does not explain why Landry did not
attempt to file an opposition until that time.
courts in the Fifth Circuit have routinely concluded that
calendaring errors do not constitute “excusable
neglect” under Federal Rule of Civil Procedure
60(b)(1). See, e.g., Buckmire v. Mem'l Hermann
Healthcare Sys. Inc., 456 Fed. App'x 431, 432 (5th
Cir. 2012) (affirming the district court's denial of a
Rule 60(b)(1) motion where the lawyer “forgot to
‘calendar' the deadline for a response”);
cf. Brittingham v. Wells Fargo Bank, N.A., 543 Fed.
App'x 372, 374 (5th Cir. 2013) (“We have previously
held that a district court does not abuse its discretion when
it denies a Rule 60(b)(1) motion where the proffered
justification for relief is the careless mistake of
counsel.”). The same “excusable neglect”
standard applies under both 60(b)(1) and Rule 6(b)(1).
Compare Silvercreek Mgmt., Inc. v. Banc of Am. Sec.,
LLC, 534 F.3d 469, 472 (5th Cir. 2008) (Rule 60(b)(1)),
with Adams v. Travelers Indem. Co. of Conn., 465
F.3d at 161 n.8 (Rule 6(b)(1)).
although the Court is uninformed of the reasons motivating
plaintiffs' objection to Landry's motion for leave to
file an untimely opposition,  the Court points out that the
pre-trial conference and trial dates in this case are fast
approaching.Therefore, given the length of
Landry's delay, Landry's explanation as to why she
failed to timely file her opposition and why she did not
first attempt to file an opposition until she did, and the
potential impact of Landry's untimely opposition on these
judicial proceedings, the Court concludes that-when balancing
the relevant factors-Landry has failed to demonstrate
excusable neglect under Rule 6(b)(1). Cf. Hibernia
Nat'l Bank v. Administracion Central Sociedad, 776
F.2d 1277, 1280 (5th Cir. 1985) (finding excusable neglect
under Rule 60(b)(1) where “the district judge's
notice of the filing deadline did not reach [the attorney]
until the day after the deadline had passed”).
IT IS ORDERED that Landry's motion for
leave to file an untimely opposition is
 R. Doc. No. 81
See Id. at 1.