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Whiteru v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

December 17, 2018

CAMEROON WHITERU, Individually and as Personal Representative of the Estate of Okiemute C. Whiteru, et ux., Plaintiffs,



         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.


         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.)


         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 ...

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