Malone v. Cemetery

• Court: District Court, D. New Hampshire
• Decided: June 8, 1995
• Docket: CV-94-339-B
• Status: Published

Opinion

Malone v. Cemetery CV-94-339-B 06/08/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Steven E. Malone and John Cady

v. Civil No. 94-339-B

Cemetery Street Development, Inc. and Raymond W. Godbout

O R D E R

Plaintiffs, Steven Malone and John Cady, seek relief from

summary judgment granted on May 18, 1995, in favor of the

defendants on two counts of plaintiffs' complaint. To prevail,

plaintiffs must show that they failed to respond to defendants'

motion within the time allowed due to excusable neglect. Fed. R.

Civ. P . 6(b)(2).

Defendants filed their motion for summary judgment on April

24, 1995. Plaintiffs were obligated to respond no later than May

15. Summary judgment was granted in favor of the defendants on

May 18. Plaintiffs filed their motion for enlargement of time,

to reconsider summary judgment, and their objection to

defendants' motion for summary judgment on May 19.

Plaintiffs argue that their late filing was due to

excusable neglect because defendants answered their

interrogatories on May 15, the day that their response was due.

They imply that they were waiting for defendants' answers in order to respond to defendants' motion. They have not explained,

however, why they were unable to file either a motion for

enlargement of time within the time allowed or a timely objection

to the motion premised on Fed. R. Civ. P. 56(f). Nor have they

shown what information they anticipated from the interrogatories

that reguired delaying their objection. In fact, I find no

reference in plaintiffs' late-filed objection to defendants'

interrogatory answers.

Tactical decisions about whether or when to file necessary

and available materials are not excusable neglect. See Slaughter

v. Southern Talc Co., 919 F.2d 304, 307 (5th Cir. 1990). Because

the plaintiffs have failed to make an affirmative showing of

excusable neglect, I decline to accept their late-filed

materials. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 894-

98 (1990).

Even if plaintiffs could show excusable neglect to justify

their late objection, however, I conclude that summary judgment

was properly granted. Plaintiffs object to summary judgment only

as to count II, intentional misrepresentation, not count VI,

breach of the implied duty of good faith and fair dealing. In

support of their misrepresentation claim, plaintiffs argue that

the defendants' intentional effort to cause them to perform

2 services without pay may be inferred from the sequence of events.

Plaintiffs recite the dealings among the parties, supported by

Malone's affidavit, that show that they intended to form a joint

venture that never materialized and that they performed some

services in furtherance of the parties' joint effort in

anticipation of payment. Plaintiffs' facts show no more than

disappointed expectations and a business deal that did not work

out. Although intent may be inferred from circumstantial

evidence, see, e.g., EPIC v. Elio, 39 F.3d 1239, 1245 (1st Cir.

1994), the circumstances recited, even if undisputed, do not

support a reasonable inference that the defendants intended to

mislead the plaintiffs.

CONCLUSION

For the foregoing reasons plaintiffs' motions for

enlargement of time, to reconsider, and objection to summary

judgment (document nos. 32 and 33) are denied.

SO ORDERED.

Paul Barbadoro United States District Judge June 8, 1995 cc: Frank Spinella, Esq. Jonathan Flagg, Esq.