Every litigator should fear making a mistake that impacts the claims of his or her client. Missing a deadline can sometimes be cured, but “excusable neglect” is not synonymous with “neglect.” A federal judge in California recently found that the failure of two plaintiffs’ attorneys in a putative class action to timely prosecute their case, despite the COVID-19 pandemic, was not excusable, and dismissed the class allegations. Deleon, et al. v. Denny’s Inc., Case No. 2:20-cv-1082 (C.D. Cal. July 22, 2020).
After the class-action wage-and-hour claims were filed against Denny’s in state court, the matter was removed to the federal court in February 2020, where a standing order was issued directing the parties to “begin to actively conduct discovery” and followed by a scheduling order setting a June 2, 2020, deadline for filing class-certification motions. June 2 came and went, and the plaintiffs failed to issue any discovery requests, responded late to Denny’s discovery requests, and failed to file a class-certification motion. Denny’s moved to strike the class allegations from the complaint.
In response, the plaintiffs’ counsel argued that “excusable neglect” had caused them to miss the deadline, and the time to file class-certification motions should be extended. As grounds for the purported excusable neglect, the plaintiffs’ counsel stated that the person responsible for calendaring the deadlines had been on medical leave, and other support staff had been furloughed as a result of California’s COVID-related shelter-in-place order. The court found these excuses unavailing for several reasons. As a factual matter, the court noted that the scheduling order entered on March 4 preceded the paralegal’s medical leave by more than a week and preceded the shelter-in-place order by more than two weeks. The plaintiffs had not offered any explanation for why the deadline was not calendared before staff became unavailable. The court also noted that counsel had misrepresented the paralegal’s role to the court, indicating initially that the person was an associate, and later revealing that he was a paralegal.
As a legal matter, the court also held that a lawyer’s mistake does not constitute neglect that is excusable. Reviewing cases in which attorneys had pled inadvertence, ignorance of the rules, mistakes in construing the rules, or even lack of awareness of a change in the rules of procedure, all of which were not within the scope of excusable neglect, the court found a failure to calendar a deadline to be similarly insufficient.
The factors examined in making such a determination include:
- prejudice to the defendants;
- the length of the delay;
- the potential impact on judicial proceedings;
- the reason for the delay;
- whether the delay was within the reasonable control of the party seeking relief; and
- whether that party acted in good faith.
Id. at 4–5 (citing Pioneer Investment Svcs. Co. v. Brunswick Assocs. Ltd. P’Ship, 507 U.S. 380, 395 1993)). In this case, the court noted that, regardless of staffing issues, “it is still counsel of record’s responsibility to manage deadlines and comply with local rules and standing orders.”
The court found a “complete lack of diligence” in the plaintiffs’ counsel’s representation of the putative class, and that such lack of diligence threw into doubt whether they would adequately protect the interests of the class members. The complete failure to issue timely discovery requests meant that five months had been lost, causing unavoidable delay in the judicial process of moving the case forward. The court concluded that the failure to calendar deadlines was not excusable neglect, and allowed Denny’s motion to strike the class allegations.
In addition to the obvious lesson here (i.e., do not miss your deadlines), a few more nuanced observations were made by the court. First, excusable neglect by one attorney of record will not excuse another record attorney’s responsibility to calendar and meet deadlines. Second, repeated instances of neglect may well be considered by a court, even if not directly related to the motion under consideration. Also, the fact that the law firm’s website held out counsel as experienced in litigating both class and wage-and-hour actions was noted by the court in observing that they “should have taken heed of such a critical deadline”. Finally, blaming staff for, as the court put it, allowing a client’s case to fester, is not likely to succeed as an argument for excusable neglect.
Michael Roundy is a partner at Bulkley Richardson in Springfield, Massachusetts.