Institute for Policy Studies v. United States Central Intelligence Agency

246 F.R.D. 380, 2007 U.S. Dist. LEXIS 92206
CourtDistrict Court, District of Columbia
DecidedDecember 18, 2007
DocketCivil Action No. 06-0960 (HHK/JMF)
StatusPublished
Cited by27 cases

This text of 246 F.R.D. 380 (Institute for Policy Studies v. United States Central Intelligence Agency) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Institute for Policy Studies v. United States Central Intelligence Agency, 246 F.R.D. 380, 2007 U.S. Dist. LEXIS 92206 (D.D.C. 2007).

Opinion

MEMORANDUM OPINION

JOHN M. FACCIOLA, United States Magistrate Judge.

This case has been referred to me for resolution of Plaintiffs Notice of Motion and Motion to Stay Summary Judgment Briefing and to Permit Limited Discovery and Supporting Memorandum of Points and Authorities, and Motion to Shorten Time and Supporting Memorandum (“Motion”), insofar as it seeks permission to conduct discovery.

BACKGROUND

Plaintiff Institute for Policy Studies (“IPS”) moves to stay the summary judgment briefing schedule in this action for a period of sixty (60) days and to permit Plaintiff to undertake limited discovery related to material facts presented in Defendant Central Intelligence Agency’s (“CIA”) Supplemental Motion for Summary Judgment and Opposition to Plaintiffs Motion for Summary Judgment and supporting declarations.1 Motion at 1. [382]*382Plaintiff filed its Motion on September 13, 2007. Defendant therefore had eleven (11) days, or until September 24, 2007, within which to serve and file a memorandum of points and authorities in opposition to the motion. See LCvR 7(b). This deadline would have been extended three days to September 27, 2007, if defendant had filed and served its opposition electronically. See Fed.R.Civ.P. 6(d).2 Any opposition filed after that date would have required a motion for enlargement evidencing excusable neglect. See Fed.R.Civ.P. 6(b)(1)(B).

Defendant’s Opposition to Discovery (“Opposition”) was filed on October 1, 2007. This court struck the Opposition, noting that it was untimely and not accompanied by a motion for enlargement evidencing excusable neglect pursuant to what was then Rule 6(b)(2) of the Federal Rules of Civil Procedure and Smith v. District of Columbia, 430 F.3d 450, 457 (D.C.Cir.2005). Minute Order, Oct. 9, 2007 (“Order”).

On October 9, 2007, in response to the Order, defendant filed its Unopposed, Motion to Extend Nunc Pro Tunc (“Consent Motion”). Defendant proffered in its Consent Motion that its Opposition was untimely because of an “inadvertent[ ] mis-calendaring3 of the due date.” Consent Motion at 1. In further support, defendant states that “Plaintiff will not opposed (sic) Defendant’s request for relief.” Id.

DISCUSSION

a. Rule 6(b)

“[D]elays are a particularly abhorrent feature of today’s trial practice. They increase the cost of litigation, to the detriment of the parties enmeshed in it; they are one factor causing disrespect for lawyers and the judicial process; and they fuel the increasing resort to means of non-judicial dispute resolution. Adherence to reasonable deadlines is critical to restoring integrity in court proceedings.” Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir.1990).

A district court may not consider a late-filed response that falls short of the requirements of Rule 6(b) of the Federal Rules of Civil Procedure. Smith, 430 F.3d at 457. Rule 6(b) states, in relevant part:

(b) Extending Time.
(1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

Fed.R.Civ.P. 6(b).

Because defendant did not move for enlargement prior to the expiration of the time permitted by Local Rule 7(b) and Rule 6(d) of the Federal Rules of Civil Procedure, its Opposition can be accepted only “on motion made ... if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). It is an abuse of the court’s discretion to consider an untimely filing in the absence of such a motion. Smith, 430 F.3d at 457; cf Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 898, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (reversing appellate court’s holding that trial court abused its discretion in rejecting untimely affidavits filed without a motion demonstrating excusable neglect). Courts routinely refuse to accept filings under these circumstances even where the delay is minor and no prejudice would result. See, e.g., Everson v. Medlantic Healthcare Group, No. 00-cv-226, 2006 WL 297711, at *1 (D.D.C. Feb.7, 2006) (striking motions in limine filed three days late not accompanied by motion filed pursuant to Rule 6(b)); Wild v. Alster, No. 01-cv-479, 2005 WL 1458283, at *2 [383]*383(D.D.C. June 17, 2005) (denying defendants’ bill of costs filed one day late).

A request for an extension under Rule 6(b)(1)(B) should be made upon formal application for an order in compliance with the provisions of Rule 7(b)(1) relating to motions. Because Rule 7(b)(1)(B) requires that the application state with particularity the grounds therefore, the movant must allege the facts constituting excusable neglect; the mere assertion of excusable neglect unsupported by facts has been held to be insufficient. Casanova v. Marathon Corp., 499 F.Supp.2d 32, 34 (D.D.C.2007); 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (3d ed.2002).

It is questionable whether the Consent Motion meets the standard required by the Federal Rules of Civil Procedure. As an initial matter, defendant did not acknowledge its failure to file a timely opposition until prompted by the court’s Order. Even then, despite the court having directed defendant to the proper authority,4 no reference was made to excusable neglect or Rule 6(b) of the Federal Rules of Civil Procedure.

b. Excusable Neglect

Even if the court were to deem the Consent Motion a motion to enlarge pursuant to Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, defendant must still demonstrate that the delay was the result of excusable neglect. The Supreme Court has designated four factors for determining when a late filing may constitute “excusable neglect.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,

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Cite This Page — Counsel Stack

Bluebook (online)
246 F.R.D. 380, 2007 U.S. Dist. LEXIS 92206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/institute-for-policy-studies-v-united-states-central-intelligence-agency-dcd-2007.