United States District Court, E.D. Pennsylvania
January 29, 2004.
JOSEPH M. PASCUZZO
AETNA, INC., AETNA U.S. HEALTHCARE, AETNA LIFE INSURANCE CO., AETNA LIFE AND CASUALTY CO., AETNA SERVICES, INC. and PLAN ADMINISTRATIVE COMMITTEE
The opinion of the court was delivered by: RICHARD SURRICK, District Judge
MEMORANDUM AND ORDER
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
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.
I. FACTUAL BACKGROUND
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
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 . . .
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.
II. LEGAL FRAMEWORK
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
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
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.")
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
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
An appropriate Order follows.
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.
IT IS SO ORDERED.