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