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MAUPIN v. U.S. DEPARTMENT OF ENERGY

November 18, 2005.

ELLIS MAUPIN, Plaintiff,
v.
U.S. DEPARTMENT OF ENERGY, Defendant.



The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge

MEMORANDUM OPINION

This matter is before the Court on defendant's motion to dismiss for failure to state a claim and defendant's motion to dismiss for failure to prosecute or, in the alternative, to treat defendant's motion to dismiss for failure to state a claim as conceded. Upon consideration of defendant's motions to dismiss, and in the absence of any opposition from plaintiff, the Court concludes that defendant's motion to dismiss for failure to prosecute should be granted, defendant's motion for failure to state a claim should be denied as moot, and this case should be dismissed with prejudice.

This case was filed on May 30, 2003. Since that date, plaintiff's counsel, C. Sukari Hardnett, has not met a single original filing deadline. The following is a list of the deadlines that have come and gone since this suit was filed.

  1. When this case was filed, the National Treasury Employees Union ("NTEU") was named as a co-defendant with the Department of Energy ("DOE"). On July 25, 2003, defendant NTEU filed a motion to dismiss for lack of jurisdiction. According to Local Civil Rule ("LCvR") 7(b), "[w]ithin 11 days of the date of service or at such other time as the court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion." Rule 6(e) of the Federal Rules of Civil Procedure adds three days to this deadline. The consequences of failing to meet this deadline can be severe: "If such a memorandum is not filed within the prescribed time, the court may treat the motion as conceded." Because defendant NTEU filed its motion to dismiss on July 25, 2003, plaintiff was required to respond by August 8, 2003. Barring a substantive response, plaintiff's counsel could have requested an enlargement of time so long as she did so "before the expiration of the period originally prescribed or as extended by a previous order." Fed.R.Civ.P. 6(b). Ms. Hardnett did not do so.

  Instead, on August 14, 2003, 6 days after the deadline to file an opposition or request an enlargement of time had passed, plaintiff's counsel submitted a motion for enlargement of time indicating first, that she had begun her computation of the deadline beginning with the day she says she received the mailed hard copy of the motion to dismiss, August 1, 2003. Second, she stated that she had calculated the 11 day deadline by excluding Saturdays, Sundays, or legal holidays, according to Rule 6(a) of the Federal Rules of Civil Procedure. Plaintiff's counsel therefore concluded that she had met her 11 day deadline because counting from August 1, 2003 and excluding the weekend days of excluded August 2, 3, 9, and 10, her deadline to file was on August 14, 2003.

  First, Ms. Hardnett was wrong to calculate her deadline beginning with August 1, 2003. She ignores the fact that defendant NTEU filed its motion to dismiss electronically on July 25, 2003. According to Local Civil Rule 5.4(d)(1), "[e]lectronic filing of any document operates to effect service of the document on counsel or pro se parties who have obtained CM/ECF passwords." Plaintiff's counsel has an CM/ECF password, as is evidenced by the fact that she filed the initial complaint and plaintiff's subsequent filings electronically and by the fact that all attorneys are required under Local Civil Rule 5.4(b)(1) to obtain such a password. Furthermore, "[a]n attorney or pro se party who obtains a CM/ECF password consents to electronic service of all documents, subsequent to the original complaint . . . Such counsel and pro se parties are responsible for monitoring their e-mail accounts, and, upon receipt of notice of an electronic filing, for retrieving the noticed filing." LCvR 5.4(b)(6). The electronic receipt from the NTEU filing on July 25, 2003 shows that a copy of it was sent to plaintiff's counsel's e-mail address. Plaintiff's counsel obliquely acknowledges the fact of the electronic filing in her August 14, 2003 motion for enlargement of time by offhandedly remarking that she "does not know how the rules apply to email filings and what constitutes service." Ms. Hardnett would know how the rules apply to e-mail filings and what constitutes service if she had read the Local Rules.

  As to the second assertion, that she could calculate the 11 day deadline excluding the intervening weekends, plaintiff's counsel is simply incorrect. The 11 day deadline under Local Civil Rule 7(b) does not exclude Saturdays, Sundays and holidays. Rule 6(a) of the Federal Rules of Civil Procedure governs the computation of deadlines. Under Rule 6(a), Saturdays, Sundays, and legal holidays are included in the computations of the period of time allowed except where that period of time "is less than 11 days." (emphasis added).*fn1 11 days is not less than 11 days. The 11 day deadline was August 5, 2003. Adding three days to the deadline under Rule 6(e), the final deadline for plaintiff's opposition was August 8, 2003. Therefore, Plaintiff's response to NTEU's motion to dismiss was overdue.

  Under circumstances in which a motion for enlargement is filed late, the Court may grant it where "the failure to act was the result of excusable neglect." Fed.R.Civ.P. 6(b). In this instance, the Court exercised its discretion and granted plaintiff's counsel's late-filed motion for enlargement of time.*fn2

  2. On September 12, 2003, defendant DOE filed a partial motion to dismiss. Over the course of the next year plaintiff neither responded to this motion nor requested an enlargement of time within which to respond. Accordingly, the Court treated the motion as conceded and granted it on September 30, 2004.

  3. On October 22, 2003, defendant NTEU filed a motion for sanctions against plaintiff's counsel. Plaintiff's opposition or request for an enlargement of time to file that opposition was therefore due on November 5, 2003. See LCvR 7(b); Fed.R.Civ.P. 6(b), 6(e). Plaintiff's counsel filed a motion for an enlargement of time three days after her deadline had passed, on November 8, 2003. The Court granted the late-filed motion and extended plaintiff's deadline to November 18, 2003. Plaintiff filed nothing between November 8, 2003 and February 19, 2004. On February 19, 2004, the Court issued an order directing plaintiff to show cause on or before March 1, 2004 why the Court should not grant defendant NTEU's motion for sanctions. On March 1, 2004, almost four months to the day after plaintiff's original deadline, plaintiff finally filed an opposition to defendant NTEU's motion for sanctions.

  4. On December 7, 2004, defendant DOE moved for leave to file a second motion to dismiss and filed the proposed motion electronically.*fn3 The Court granted it leave to late-file on December 13, 2004. Again, under Local Civil Rule 7(b), plaintiff had 11 days to respond to this motion or request an enlargement of time, and because of Rule 6(b) of the Federal Rules of Civil Procedure, plaintiff's counsel had three days beyond the 11 day deadline. December 27, 2004 came and went. On January 13, 2005, plaintiff's counsel filed a motion for an enlargement of time, citing the Christmas holidays and difficulties with her office space and accessing the internet for her late filing. Defendant DOE graciously consented to the motion, and it was granted. Plaintiff was given until January 18, 2005 to respond to defendant DOE's second motion to dismiss.

  Incredibly, Ms. Hardnett did not respond. Nor did she request an additional enlargement of time. Plaintiff's counsel communicated nothing to this Court. On January 25, 2005, the Court granted defendant DOE's motion to dismiss and dismissed plaintiff's complaint in its entirety. On January 26, 2005, the day after her client's case had been dismissed, plaintiff's counsel filed a motion for reconsideration and her long overdue opposition to defendant DOE's second motion to dismiss. Plaintiff's counsel stated in her motion for reconsideration that she and her daughter had been sick and that because she, "is a solo practitioner . . . [she] does not have the ability to delegate responsibility of drafting and filing motions to another individual." January 26, 2005 Motion for Reconsideration at ΒΆ 6(a).

  After plaintiff's motion for reconsideration was fully briefed, the Court granted it on August 9, 2005. In the Memorandum Opinion issued on that date, the Court noted that "plaintiff has a history of untimely filing in this case." Furthermore, the Court cautioned plaintiff in the first paragraph of the Opinion that "any further failure to meet this Court's deadlines will result in dismissal of this case with prejudice." August 9, 2005 Memorandum Opinion at 1.

  5. On August 24, 2005, defendant DOE (at this time, the only remaining defendant) filed a motion to dismiss for failure to state a claim. Plaintiff's opposition was due on September 9, 2005.*fn4 On September 8, 2005, the Court issued an order staying discovery pending the disposition of defendant's motion to dismiss and ordering (in effect reminding) plaintiff to file an opposition on or before ...


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