Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, E.D. Pennsylvania

January 29, 2004.


The opinion of the court was delivered by: RICHARD SURRICK, District Judge


Presently before the court is Defendants' Motion for Enlargement of Time, (Doc. No. 24), to file its claim for attorneys' fees and costs. For the following reasons, Defendants' Motion will be granted.

After Defendants were sued under the Employee Retirement Income Security Act ("ERISA") 29, U.S.C. § 1001, et seq., they prevailed on their motion for summary judgment but failed to file a timely motion for attorneys' fees and costs. Federal Rule of Civil Procedure 54(d)(2)*fn1 requires a motion for attorneys' fees and costs to be filed within fourteen days of the Page 2 entry of judgment, unless the court orders otherwise. Defendants moved for an enlargement of time to file their motion for fees and costs, approximately six weeks after the fourteen-day deadline had passed.


  Plaintiff, Joseph Pascuzzo, filed an ERISA Complaint against the Defendants after he was terminated from his employment and denied an enhanced severance package under Aetna U.S. Healthcare's Employee Benefit Plan (the "Plan"). Plaintiff filed a Complaint alleging that by denying him an enhanced severance package, Defendants had violated 29 U.S.C. § 1132(a)(1)(B). We granted Defendants' Motion for Summary Judgment on March 28, 2003, and the Order was entered on March 31, 2003. (Doc. No. 22.) Defendants seek to recover attorneys' fees and costs pursuant to 29 U.S.C. § 1132(g)(1), which provides as follows:

In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party.
  Defendants' Motion was not timely filed, therefore, pursuant to FED. R. Civ. P. 6, Defendants request that this Court grant them an enlargement of time and consider their Motion for Attorneys' Fees and Related Non-Taxable Expenses. Rule 6 reads as follows:

  When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect . . . Page 3

 FED. R. Civ. P. 6.

  Defendants agree that the Clerk of the Court faxed copies of the Order on March 31, 2003, but that due to technical difficulties with their fax machine and voicemail systems on that day, they did not receive notice of the Order until May 13, 2003, when they checked the docket. (Defs.' Reply Mem. In Supp. of Mot. For Enlargement of Time at 3.) Defendants also claim that they did not receive a March 31, 2003, phone message about the Order from Plaintiffs counsel.


  In considering a motion for enlargement of time after the expiration of a deadline, courts consider whether the moving party has made a showing of `excusable neglect.' Georgine v. Amchem Prods., Inc., No. Civ.A.93-0215, 1995 WL 251402, at *4 (E.D. Pa. Apr. 26, 1995). "Even upon a finding of excusable neglect, it is still in the district court's discretion to grant the extension or not." Id. (citing FED. R. Civ. P. 6(b)(2)).

  In Pioneer Inv. Serv. Co v. Brunswick Assoc. Ltd. P'ship, the Supreme Court held that a court's consideration of what constitutes excusable neglect should be an equitable determination that takes into account all "relevant circumstances surrounding the party's" failure to act. 507 U.S. 380, 395 (1993). These circumstances include "the danger of prejudice to the nonmovant, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether movant acted in good faith." Georgine, 1995 WL 251402, at *4. The Third Circuit has included additional factors in the analysis of excusable neglect: "(1) whether the inadvertence reflected professional incompetence such as ignorance of rules of procedure, (2) whether an asserted inadvertence reflects and easily manufactured excuse incapable of verification by the court; and (3) a complete Page 4 lack of diligence." Id. (citing Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988)).


  In the instant case, if Defendants are indeed entitled to the fees, there would be little prejudice in allowing Defendant to move for those fees just six weeks past the deadline. While we do not condone a party's failure to meet a deadline, to permit an inadvertent oversight, such as the one with which we are dealing here, to prevent a party from seeking that to which they could be legally entitled, would be unduly harsh. It is also apparent that Defendants' delayed Motion had limited impact on these judicial proceedings. Summary judgment had been granted and neither Plaintiff nor this Court were forced to delay their own work while waiting for Defendants' filing. Of course, there is always a benefit to the judicial process when both the Court and the parties are able to rely upon their belief that a matter has reached a resolution, Schake v. Colt Indus. Operating Corp. Severance Plan for Salaried Employees, 960 F.2d 1187, 1193 (3d Cir. 1992), however, the fact that Defendants' Motion was delayed was of little consequence in the litigation.

  In evaluating Defendants' reason for delay, we conclude that Defendants were to blame for their failure to receive both this Court's faxed opinion and Plaintiff attorney's voicemail message. Defendants contend that their fax machine and voicemail systems were being replaced on March 31, 2003, and that technical difficulties during the replacement process rendered both systems inoperable. In this case, Defendants' attorneys, Kathryn Schilling and Eric Bronstein, had consented to notice by electronic means. When Defendants' attorneys became aware that the main fax machine number was not accepting faxes, but that there were two other fax numbers that were accepting faxes, it was incumbent upon Defendants' counsel to notify the Office of the Page 5 Clerk of Courts — not only in this District, but in any court where the Defendants' counsel had previously consented to service via electronic means. In Hall v. Cmty. Mental Health Ctr. of Beaver County, the court refused to find excusable neglect where an error in the Office of the Clerk of Courts caused the appellant to miss the deadline for filing a motion to vacate. 772 F.2d 42, 43 (3d Cir. 1985). The court found that notwithstanding the error, the attorney should not have waited five months to make an inquiry about a possible judgment. Defendants in the instant case also failed to contact the Court to inquire into the status of their case. However, their delay was only six weeks, not five months. Moreover, this factor alone does not foreclose the possibility of finding excusable neglect. We must consider all of the factors as a whole. Georgine, 1995 WL 251402, at *4 ("The Supreme Court has stated that the determination of whether a party's neglect of a deadline is excusable is an equitable one, taking account of all relevant circumstances surrounding the party's lapse.") (emphasis added).

  With regard to Defendants' good faith, there is nothing on the record to indicate that Defendants' delay was an act of bad faith. In fact, we find it difficult to imagine that attorneys would purposely delay in requesting fees to which they believe they are entitled. Rather, it seems clear that this delay was in fact caused by Defendants' failure to take the appropriate precautions when their fax and voicemail systems failed, and was not motivated by an attempt to intentionally harm Plaintiff.

  In evaluating the additional factors used by the Third Circuit we find nothing in the record to indicate that Defendants "inadvertence reflected professional incompetence such as ignorance of the rules of procedure" or that Defendants "displayed a complete lack of diligence." Defendants admittedly made an error in judgment by not contacting the Court on the day they Page 6 experienced technical difficulties, but such an error does not reflect the kind of professional incompetence envisioned by the Third Circuit. The events of this case certainly do not suggest that Defendants failed to understand what was required of them under the rules. Concerning Defendants' diligence, the facts indicate that a higher degree of diligence on Defendants' part would have avoided this entire situation, but considering Defendants' level of professionalism leading up to their failure to receive the Court's Order, we cannot agree that Defendants have shown a complete lack of diligence.

  We are also satisfied that Defendants have not "manufactured [an] excuse incapable of verification by the court." In light of the affidavits of Attorney Bronstein, (Defs.' Reply Mem. in Supp. of their Mot. for Enlargement of Time, Ex. at ¶ 8), and Mary Beth Shoemaker, Bronstein's office manager, (id., Ex. B at ¶ 4), stating under penalty of perjury, that Defendants' law offices were having technical difficulties in implementing new fax and voicemail systems on March 31, 2003, and in light of the office memoranda written on March 31, 2003, which indicate that Bronstein's office was experiencing technical difficulties, (id. at Exs. 1 and 2), we conclude that Defendants' excuse was legitimate.

  Pioneer makes it clear that "by empowering the courts to accept late filings `where the failure to act was the result of excusable neglect,' . . . Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control." Pioneer, 507 U.S. at 388. After weighing all of the above factors, we conclude that Defendants have made a showing of excusable neglect, sufficient to support an extension of time to file a motion for attorneys' fees and costs. Page 7

  An appropriate Order follows. Page 8


  AND NOW, this day of January, 2004, upon consideration of Defendants' Motion for Enlargement of Time, (Doc. No. 24), and all papers filed in support thereof and in opposition thereto, it is ORDERED that Defendants' Motion is GRANTED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.