Among the many obligations—and, indeed, specialties—that comes with the practice of law is a hyper-awareness of deadlines and the precision and planning to meet those deadlines. Indeed, missing any filing deadline is a lawyer’s worst nightmare. Sometimes, however, inattentiveness or the pressures of the practice of law may lead to a filing deadline being missed. Even the most sophisticated law firms with the most state-of-the-art calendaring and docketing vendors and internal practices and controls can suffer the nightmare of having a filing deadline fall through the cracks. See, Pincay v. Andrews, 389 F.3d 853, 854-855 (9th Cir. 2004).
Thankfully, in the context of litigation in federal court (and in federal administrative proceedings that adhere to the Federal Rules of Civil Procedure), a missed filing deadline may not prejudice your case or your client’s interests. The Federal Rules of Civil Procedure provide equitable safeguards for an inadvertently missed deadline. But because these fail-safe provisions are equitable in nature, whether a missed deadline falls under these provisions is not always clear and is generally subject to a fact-specific inquiry by the judge.
Specifically, the Federal Rules contain a unique concept known as “excusable neglect” to mitigate the harshness of being completely barred from filing your paper or document by a missed filing deadline. Excusable neglect is mentioned twice in the Federal Rules—first, excusable neglect acts to extend time to respond to court-mandated deadlines during the proceeding, and second, excusable neglect can act as a reason for relief from judgment after proceedings have, at least initially, concluded.
First, Rule 6(b)(1)(B) provides that for any act that must be done by a party to a federal court proceeding within a specified time frame, the court may “for good cause, extend the time…after the time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Second, Rule 60(b)(1) provides for a party or their legal representative to obtain relief from an adverse judgment of a federal court for “mistake, inadvertence, surprise or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Both types of excusable neglect can only be obtained by motion to the court.
In theory, a motion under Rule 6(b)(1)(B) may be filed at any time during the pendency of the proceeding. However, if you, or your party, are filing a motion for relief from judgment due to excusable neglect (usually in the context of an entry of default judgment), then there is a strict deadline of one year from the date of the entry of judgment for you to file a motion under Rule 60(b). Fed. R. Civ. P. 60(c)(1).
Excusable neglect is, at bottom, an equitable doctrine, without a precise definition in the Federal Rules. Pioneer Investment Services Co. v. Brunswick Associates, Ltd. Partnership, 507 U.S. 380, 395 (1992). Luckily, the U.S. Supreme Court has provided guidance on what constitutes excusable neglect in the Pioneer case, where the Court laid out a four-factor balancing test for what constitutes excusable neglect under either Rule 6 or Rule 60. In a passing reference endorsing the standard of excusable neglect enunciated by the court below, the factors to be considered in excusable neglect are (in no particular order):
- Whether the delay in filing was within the reasonable control of the movant;
- The length of the delay and the delay’s potential impact on judicial proceedings;
- The danger of prejudice to the non-moving party; and
- Whether the movant acted in good faith.
In practice, the most important—and contentious—of these factors are the length of delay and the danger of prejudice to the non-movant. Almost always, the missed deadline would be within the reasonable control of the moving party. After all, if one has missed a deadline, even inadvertently, it is difficult to argue that the missed deadline is completely out of that person’s control. On the other side, it is often difficult—absent any hard evidence—for the non-movant to prove that the moving party did not act in good faith (much less acted in bad faith) in the missing of the filing deadline.
So, the motion, if contested, will generally be decided by the court on the basis of weighing the length of delay against the danger of prejudice to the non-moving party. But be warned, the longer the delay in making a motion under either Rule 6 or Rule 60, the more likely the risk of prejudice to the non-moving party will increase.
However, keep in mind that one of the underlying premises of the excusable neglect doctrine is that it exists to prevent victories by default. Newgen, LLC. v. Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016) (observing that it is “the general rule that default judgments are ordinarily disfavored). It is an oft-stated but often undervalued principle of the federal civil procedure system that cases should, in the main, be decided on the merits, not on technicalities. Rodriguez v. Village Green Realty, LLC, 788 F.3d 31, 47 (2d. Cir. 2015) (citing Cargill, Inc. v. Sears Petroleum & Transp. Corp., 334 F. Supp. 2d 197, 247 (NDNY 2014) and observing that there is a strong preference for resolving disputes on the merits). So if the reason for a missed deadline is simple negligence or inadvertence, it is possible—and maybe even likely, depending on the judge you’re coming before—that your deadline may be extended.
Tips for What to Do When Your Side Has Missed a Deadline
With that said, here are a few tips for what to do if you find yourself missing a deadline:
Don’t panic. If the missed deadline is the result of an inadvertence, often the delay in filing by the deadline is not more than a few days, maybe as much as two weeks. Depending on the procedural posture of the case, this kind of delay may not be significant, let alone prejudicial, to the interests of the other side. Moreover, if the preceding pages have demonstrated anything, it is that a missed deadline does not necessarily, or even likely, mean that you/your side will not be able to file the paper for which the deadline was missed.
File the motion to reopen or motion for relief from judgment as soon as possible. However, upon discovering that a deadline was missed, file your Rule 6 or Rule 60 motion as soon as possible. While you will need a bit of time to draft a motion that will keep your side in good stead, that does not mean that time is not of the essence in filing the same. So be sure to get your excusable motion in as soon possible to avoid any further delay in filing your original paper.
Argue in your motion that the missing of the deadline was inadvertent, you have acted expeditiously and in good faith to get the paper submitted, and that the other side has not been prejudiced. This is the heart of the matter. For excusable neglect to be determined, the missing of the deadline had to be “excusable.” Rule 60 is even clearer and includes “inadvertence” in its list of reasons for which relief from judgment can be obtained. So, in your motion you want to emphasize any facts—with accompanying affidavits—that go towards the mistake being inadvertent, that you and your client acted expeditiously to correct the matter and file the document and motion, and that due to the short length of delay, that the opposing party has not been prejudiced.
Have the paper that should have been filed by the deadline ready to go when you file your excusable neglect motion. Also, if possible, have the document to which the missed deadline pertained ready to file along with your motion. That way there will be no need for any further delay or extensions of time beyond the time between the deadline and the filing of the excusable neglect motion.
Attempt to get the consent of the other side to the late filing / excusable neglect motion. Since you are filing the motion, it is your side’s position that the Pioneer factors apply to you and, as such, there is no undue delay that affects the orderly course of the proceedings and you are acting in good faith. So, it may be useful to attempt to get the other side to consent to the motion and the late filing. However, please note that even if you receive consent from the opposing side to the motion to reopen or motion for relief from judgment, you still need to file a motion under Rule 6 or Rule 60. Excusable neglect relief from a missed deadline can only be obtained “on motion made,” according to both rules. So, if you have obtained consent, file the motion and indicate either within the motion or as a supplemental memorandum that consent from the opposing side has been obtained.
As a practice pointer for attorneys representing the non-moving party: when you are faced with a motion to reopen under Rule 6(b)(1)(B), if you are able and (of course) consistent with your client’s directives, it may be better—and more consistent with your duties of professionalism and fairness toward counsel and opposing litigants—to consent to the filing. It will make you look magnanimous to the court, it may give you an argument that your side deserves an extension of time if you would need one later on in the proceedings, and will save your time and your client’s money in opposing a motion that, depending on the merits of the motion, will likely be granted by the court anyway.
Daniel R. Cooper is with Cooper & Kurz in Stamford, Connecticut.