United States District Court, District of Columbia
CAMEROON WHITERU, Individually and as Personal Representative of the Estate of Okiemute C. Whiteru, et ux., Plaintiffs,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
MEMORANDUM OPINION REGARDING THIS COURT'S GRANT
OF DEFENDANT'S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL
MOTION FOR SUMMARY JUDGMENT
KETANJI BROWN JACKSON UNITED STATES DISTRICT JUDGE
Before
this Court at present is Defendant Washington Metropolitan
Area Transit Authority's (“WMATA's”)
motion for leave to file a supplemental motion for summary
judgment based on decedent Okiemute Whiteru's alleged
contributory negligence. (See Def.'s Mot. for
Leave to File Supplemental Mot. for Summary Judgment
(“Def.'s Mot.”), ECF No. 71; Def.'s Mem.
in Supp. of Def.'s Mot. (“Def.s' Mem.”),
ECF No. 71-1, at 2-3.)[1] Plaintiffs object to WMATA's motion,
arguing that WMATA has not shown good cause, and that this
Court already rejected WMATA's meritless contributory
negligence argument. (See Pls.' Opposition to
Def.'s Mot. (“Pls.' Opp'n”), ECF No.
73, at 1.)
On
December 6, 2018, this Court issued an order that
GRANTED WMATA's motion. (See
ECF No. 77.) This Memorandum Opinion briefly explains the
reasons for that order. In short, the established factors
that federal trial courts consider when determining whether
or not to permit an out-of-time filing of a summary judgment
motion under Federal Rule of Civil Procedure 6 weigh heavily
in favor of allowing WMATA to file the instant motion, and
given the significance of the proposed filing, this Court has
exercised its considerable equitable discretion to authorize
WMATA to seek summary judgment at this time.
I.
This
Court has already written an opinion in this case that
details the pertinent factual background. See Whiteru v.
Wash. Metro. Area Transit Auth., 258 F.Supp.3d 175
(D.D.C. 2017). Therefore, only a brief explanation of the
relevant procedural history is necessary here. On January 21,
2016, this Court issued an initial scheduling order that set
deadlines for discovery and for dispositive motions.
(See Scheduling Order, ECF No. 24.) WMATA timely
filed its initial motion for summary judgment, which the
Court denied on July 7, 2017. See Id. at 177.
Thereafter, the Court scheduled pretrial conferences and a
trial date. (See Minute Entry of December 21, 2017.)
On May
4, 2018, at the initial pretrial conference, this Court
granted Plaintiffs' request to reopen expert discovery
nearly two years after it had closed (over WMATA's
objection) and vacated the trial date to accommodate
Plaintiffs' request for further discovery. (See
Transcript of Pretrial Conference on May 4, 2018, at 34-41;
see also Minute Entries of May 4, 2018, and May 22,
2018.) On July 25, 2018, WMATA entered new counsel of record
(see ECF No. 69), and on September 28, 2018,
WMATA's new counsel filed the instant motion for leave to
file a supplemental motion for summary judgment (see
Def.'s Mot.).
In the
motion for leave, WMATA's new counsel asserts that he
acted as expeditiously as possible to move to file for
summary judgment on the potentially dispositive issue of
contributory negligence after discovering prior counsel's
omission. (See Def.'s Mem. at 2-3; see
also Def.'s Reply to Pls.' Opp'n
(“Def.'s Reply”), ECF No. 75, at 3-4.)
Plaintiffs oppose the motion, insisting that the deadline to
file summary judgment motions has long passed, and that there
is no reason for the Court to excuse delay or allow pretrial
litigation of contributory negligence. (See
Pl.'s Opp'n at 1-2.)
II.
Federal
Rule of Civil Procedure 6 allows a Court to permit a party to
file an out-of-time motion for summary judgment if the moving
party can demonstrate “excusable neglect.”
Fed.R.Civ.P. 6(b)(1)(B). The Supreme Court has made clear
that, in order to determine whether a party's delay
amounts to “excusable neglect, ” courts must
consider “the danger of prejudice to the [opposing
party], 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 the movant acted in good faith.”
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395 (1993).
“‘Excusable neglect' under Rule 6(b) is a
somewhat ‘elastic concept' and is not limited
strictly to omissions caused by circumstances beyond the
control of the movant.” Id. at 392.
Furthermore, the district court enjoys “broad
discretion” in this determination. See Wilson v.
Prudential Financial, 218 F.R.D. 1, 3 (D.D.C. 2003);
see also Yesudian v. Howard Univ., 270 F.3d 969, 971
(D.C. Cir. 2001) (describing the “great
deference” owed to district courts in their
“case-management decisions” under Rule 6(b)
(internal quotation marks and citation omitted)).
In this
Court's view, each of the Pioneer factors weighs
in favor of granting WMATA's motion. First of all, it is
clear to this Court that, at this phase of the litigation, a
slight delay for consideration of a dispositive motion will
not prejudice Plaintiffs; indeed, in their brief in
opposition to WMATA's motion, Plaintiffs have not alleged
any such prejudice. (See generally Pls.'
Opp'n; see also Def.'s Reply at 1, 6.)
Regarding the length of WMATA's delay in filing this
motion and its potential impact on the pending judicial
proceedings, the Court notes that WMATA's new attorney
moved to file a supplemental motion just two months after
WMATA's change of counsel. More important, this Court
finds that the tardiness of the instant summary judgment
filing, which comes more than two years after the initial
deadline for dispositive motions, is unlikely to impact the
overall proceedings for two reasons: first, because there are
several pending motions in limine related to the legal issue
of the availability of a contributory negligence defense
(see Pls.' Mot. in Limine to Preclude Argument
of Contributory Negligence, ECF No. 45; Pls.' Mot. in
Limine to Preclude Argument of Assumption of Risk, ECF No. 46
(together, “Pls.' Contributory Negligence
MILs”)); and second, because another trial date has not
yet been set, and this Court will not be available to try
this case for several months-not until the late summer of
2019, at the earliest.
Turning
to the third factor in the excusable neglect analysis,
WMATA's posited reason for the delay is “oversight
by WMATA's prior counsel.” (See Def.'s
Mem. at 3.) The D.C. Circuit has made clear that
“‘excusable neglect' does not require counsel
to have been faultless, and ‘inadvertence, mistake, or
carelessness' can fall within the rule.” Cohen
v. Bd. of Trustees of the Univ. of D.C., 819 F.3d 476,
479 (D.C. Cir. 2016) (quoting Pioneer, 507 U.S. at
388). Moreover, the Circuit has explicitly declined “to
adopt a per se rule that garden variety attorney
inattention can never constitute excusable neglect.”
In re Vitamins Antitrust Class Actions, 327 F.3d
1207, 1209 (D.C. Cir. 2003).
This
Court is fully aware that judges frequently exercise their
discretion to reject untimely filings where the justification
for such a filing is minor attorney error, like noncompliance
with deadlines or filing procedures. See Inst. For Policy
Studies v. CIA, 246 F.R.D. 380, 384-85 (D.D.C. 2007)
(collecting cases). But the error alleged here is neither
minor nor the kind of “mere oversight” that
courts may find insufficient to support excusable neglect,
see Gadsden v. Jones Lang Lasalle Americas, Inc.,
210 F.Supp.2d 430, 436 (S.D.N.Y. 2002) (quotation marks and
citation omitted): instead, it is a significant legal issue
of substantive judgment, the omission of which might well
have bordered on ineffectiveness by prior counsel. In
addition, new counsel worked quickly to prepare a
supplemental motion for summary judgment and to ask for leave
to file it under Federal Rule of Civil Procedure 6(b)(1)(B).
(See Def.'s Reply at 2-5.)
Notably,
there is precedent in this district for the granting of
similar WMATA motions. In a nearly identical situation, when
new counsel acted expeditiously, the court found excusable
neglect and granted the motion for a late-filed summary
judgment “supplement[]”-notwithstanding its
“reservations” about excusing prior counsel's
oversight. See McFadden v. Wash. Metro. Area Transit
Auth., No. 14-1115 (Walton, J.), Order
(“McFadden Order”), ECF No. 153, 3-4
(D.D.C. Feb. 26, 2018). Here, this Court further observes
that the delay in filing the supplemental motion appears to
be entirely attributable to WMATA's change of counsel;
Plaintiffs have not offered any evidence that WMATA
intentionally withheld this summary judgment argument or
otherwise acted in bad faith.
When
weighing the Pioneer factors, courts must remember
that the excusable neglect determination “is at bottom
an equitable one, taking account of all relevant
circumstances surrounding the party's omission.”
Pioneer, 507 U.S. at 395. In the instant case, not
only does each factor point toward granting WMATA leave to
file the supplemental motion, but broad equitable
considerations also support WMATA's contention that its
motion should be granted, because this Court previously
vacated the trial it had scheduled in this case in order to
give Plaintiffs leave to correct an oversight of
theirs (i.e., leave to conduct additional expert discovery)
more than two years after expert witness discovery had
closed. (See Initial Pretrial Conf. Tr., 33-41, May
4, 2018; Min. Order of May 22, 2018; see also
Def.'s Reply at 1-2.) Given the potential significance of
the omission by prior WMATA counsel; the swiftness with which
new counsel ...