Rockwell Automation, Inc. v. United StatesRockwell Automation, Inc. v. United States
Alexander Vanderweide, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, New York, for Defendant. With him on the brief were Stuart F. Delery, Assistant Attorney General, and Amy M. Rubin, Assistant Director, Commercial Litigation Branch.
OPINION
RIDGWAY, Judge:
In the 11 above-captioned actions, Plaintiff Rockwell Automation, Inc. contests the classification of “certain short-body timing relays (SBTRs) used in manufacturing applications” that Rockwell imported into the United States. Plaintiff‘s Consent Motion for Leave to File Out of Time and for Extension of Time to Remain on Reserve Calendar (“Pl.‘s Out-of-Time Motion“) at 1; see also Memorandum in Support of Plaintiff‘s Amended Consent Motion for Leave to File Out of Time, and to Extend Time to Remain on Reserve Calendar (“Pl.‘s Supp. Brief“) at 2. According to Rockwell, the Bureau of Customs and Border Protection “classified the merchandise in liquidation under HTSUS 9107.00.80 as time switches with a clock or watch movement or synchronous motor, and assessed duties accordingly.” Id. Rockwell maintains that “the merchandise is properly classified under HTSUS 8536.49.00 as electrical relays, at a lower rate of duty.” Id. Rockwell advises that, “[t]o date, twenty cases concerning this issue, including the eleven at bar, have been filed” in this court. Id. Rockwell further explains that one case, Court No. 03-00007, “was selected as a ‘test case’ and was litigated on the merits,” with summary judgment entered in Rockwell‘s favor. Id.; see Rockwell Automation, Inc. v. United States, 31 CIT 692 (2007); Rockwell Automation, Inc. v. United States, 31 CIT 788 (2007).
Since the 2007 decision in the test case, according to Rockwell, its counsel has “worked diligently” with counsel for the Government “to attempt to dispose of all of the related cases.” Pl.‘s Supp. Brief at 2. Rockwell states that “[t]he parties have been able to work out stipulated judgments on agreed statements of fact . . . in seven of the cases, and continue to work toward disposition of [the 11 actions here at issue],” as well as one additional case, Court No. 13-00185, which – according to Rockwell – “is on the Reserve Calendar[] for its original eighteen-month period, through November 30, 2014.” Id. at 2-3.
Pending before the court is Plaintiff‘s Consent Motion for Leave to File Out of Time and for Extension of Time to Remain on Reserve Calendar (filed July 2, 2014), filed in each of the 11 actions, as supplemented by Plaintiff‘s Amended Consent Motion for Leave to File Out of Time, and to Extend Time to Remain on Reserve Calendar, which is, in turn, supported by Plaintiff‘s Supplemental Brief (both filed July 17, 2014).1 The Government has weighed in as well. See generally Defendant‘s Response to Plaintiff‘s Amended Consent Motion for Leave to File Out of Time, and to Extend Time to Remain on Reserve Calendar (filed July 18, 2014) (“Def.‘s Response Brief“).
As summarized below, Plaintiff‘s Amended Consent Motion for Leave to
I. Applicable Legal Standards
Two rules of the court bear on Rockwell‘s pending motions –
Of particular relevance here are two other subsections of
The second key subsection is
A case not removed from the Reserve Calendar within the 18-month period [specified in Rule 83(a), or later if that period has been extended pursuant to USCIT Rule 83(d)] will be dismissed for lack of prosecution and the clerk will enter an order of dismissal without further direction from the court unless a motion is pending. If a pending motion is denied and less than 14 days remain in which the case may remain on the Reserve Calendar, the case will remain on the Reserve Calendar for 14 days from the date of entry of the order denying the motion.
As the U.S. Court of Appeals for the Fourth Circuit has succinctly put it, “‘[e]xcusable neglect’ is not easily demonstrated, nor was it intended to be.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996). Findings of excusable neglect should be reserved for “extraordinary cases.” Id. Similarly, in the words of the Sixth Circuit, “the excusable neglect standard has consistently been held to be strict,” Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir. 2005) (quoting Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989)), and “requires ‘unique or extraordinary circumstances.‘” Duncan v. Washington, 1994 WL 232397 * 2 (6th Cir. 1994). And the Second Circuit states that, “[i]n [its] cases addressing when neglect is ‘excusable,’ [the courts] have . . . taken a hard line.” Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 368 (2d Cir. 2003).
Moreover, even where “excusable neglect” is demonstrated, the judge retains discretion to deny relief. See, e.g., McCool v. Bridgestone/Firestone North American Tire, LLC, 222 Fed. Appx. 847, 857-58 (11th Cir. 2007). An out-of-time extension of time thus “is by no means a matter of right.” See 4B C. Wright & A. Miller, Federal Practice and Procedure § 1165, pp. 531-32 & n.13 (3d ed. 2014) (“Wright & Miller“).
The seminal decision on the definition of “excusable neglect” is the Supreme Court‘s 1993 decision in Pioneer. See generally Pioneer Inv. Services v. Brunswick Associates, 507 U.S. 380 (1993). The Supreme Court granted certiorari in that case to resolve a conflict among the Courts of Appeals as to whether a rule of procedure authorizing the granting of out-of-time extensions of time for “excusable neglect” required a movant to demonstrate that its failure to timely act was due to “circumstances beyond the movant‘s control” or whether a “more flexible analysis” applied. See Pioneer, 507 U.S. at 386-87 & n.3. The Supreme Court concluded that the “excusable neglect” standard “is not limited strictly to omissions caused by circumstances beyond the control of the movant” and that it extends beyond such circumstances to certain limited instances of “neglect” that may be “excusable.” Id., 507 U.S. at 392, 395.2
The Supreme Court expressly stated that grounds such as “inadvertence, ignorance of the rules, [and] mistakes construing the rules do not usually constitute ‘excusable’ neglect,” and held that – “at bottom” – a determination as to whether “a party‘s neglect of a deadline” is “excusable” is an “equitable” determination, “taking account of all relevant circumstances
Although Rockwell seeks to cast Pioneer as “[t]he most recent authoritative guidance on the meaning of ‘excusable neglect,‘” courts across the country have had occasion to render hundreds of decisions applying Pioneer to a very broad spectrum of fact patterns in the two decades since the Supreme Court issued that decision. See Pl.‘s Supp. Brief at 9-10; see generally, e.g., 1 Moore‘s Federal Practice § 6.06[3], pp. 6-33 to 6-47 (surveying law on “excusable neglect“); 4B Wright & Miller § 1165, pp. 523-56 (same). The reasons that Rockwell offers up here in an effort to explain away its failure to timely seek an extension of time have been considered and rejected time and again. When it comes to “excusable neglect,” there is virtually nothing new under the sun.
II. Rockwell‘s Pending Motions
Rockwell concedes, as it must, that June 23, 2014 was the Reserve Calendar deadline in all 11 of the actions at issue here. See Pl.‘s Out-of-Time Motion at 1; Order For Leave to File Out of Time, and For Extension of Time to Remain on Reserve Calendar (March 31, 2014) (extending time on Reserve Calendar through June 23, 2014, for 11 actions at bar). Thus, May 27, 2014 was the deadline for Rockwell‘s filing of a timely motion for an extension of time to remain on the Reserve Calendar. Pl.‘s Supp. Brief at 9;
The extraordinary nature of the relief that Rockwell seeks stands in stark contrast to the bare bones papers that the company filed with the court on July 2, 2014. See Pl.‘s Out-of-Time Motion. Incredibly, the motions that Rockwell filed in each of the 11 actions totals only slightly
authority and do[] little but offer up a litany of unimpressive excuses” and are otherwise “short on substance“).
Moreover, the motions that Rockwell filed on July 2, 2014 assert merely that “good cause exists” for granting the motions, notwithstanding the fact that – as set forth above – “good cause” is the standard applicable to a timely motion for an extension of time, and Rockwell‘s motions are patently untimely. See Pl.‘s Out-of-Time Motion at 1;
In addition, two of the 11 subject actions have been previously dismissed – yet another disturbing and highly probative fact that Rockwell‘s motions failed to disclose. See Order to Show Cause at 2; Order of Dismissal (Sept. 13, 2007), entered in Court No. 06-00054; Order of Dismissal (April 20, 2007) entered in Court No. 05-00269. Rockwell‘s motions further failed to mention that, apparently, the filing of its July 2, 2014 motions (like the filing of most – if not all – of its prior out-of-time motions) was prompted only by a communication from the Office of the Clerk, which alerted Rockwell to the impending dismissal of the subject actions. See Order to Show Cause at 2; Pl.‘s Supp. Brief at 12-13 (in a remarkably candid, albeit belated, admission, stating that – in “[m]any” instances in which Rockwell has filed out-of-time motions – “the Clerk even issued a reminder to counsel that the Reserve Calendar deadline had passed, and invited counsel to move out of time to extend the deadline before it dismissed the case for failure to prosecute“).
Finally, in the motions that Rockwell filed on July 2, 2014, Rockwell refers carelessly to “reinstate[ment] [of] the above-captioned [11] cases to the Reserve Calendar” and elsewhere requests that the court “reinstate these cases to the Reserve Calendar,” thus indicating (incorrectly) that the subject actions already have been dismissed. Pl.‘s Out-of-Time Motion at 1. In short, even as Rockwell prepared and filed the pending out-of-time motions in the 11
III. Order to Show Cause
As explained above, because Rockwell had no motions for extensions of time (out-of-time, or otherwise) pending on June 23, 2014 (the applicable Reserve Calendar deadline), the clerk properly should have “enter[ed] . . . order[s] of dismissal [in all 11 actions] without further direction from the court” on June 24, 2014, in accordance with the express terms of
The Order to Show Cause generally summarized the history of the 11 actions at issue, emphasizing in particular Rockwell‘s pattern of filing out-of-time motions for extensions of time to allow the cases to remain on the Reserve Calendar. See generally Order to Show Cause at 1-2. The Order to Show Cause also critiqued both the form and the substantive merits of the out-of-time motions that Rockwell filed on July 2, 2014. See generally id. And, in addition, the Order to Show Cause highlighted – for the benefit of Rockwell – numerous salient points of law concerning the “excusable neglect” standard applicable to out-of-time motions. See generally Order to Show Cause at 3.
Thus, for example, the Order to Show Cause explained that “excusable neglect or circumstances beyond [its] control” generally does not include a party‘s “carelessness and laxity,” or “inadvertence,” or “unfamiliarity with the Rules.” 1 Moore‘s Federal Practice § 6.06[3][c], pp. 6-45 to 6-46; Order to Show Cause at 3; see also, e.g., Pioneer, 507 U.S. at 392 (stating that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect“). The Order to Show Cause similarly noted that, while the Government‘s consent to the out-of-time motions for extensions of time (interpreted as evidence of lack of prejudice) might well be relevant in determining the existence of “excusable neglect,” such consent is by no means determinative of the existence of “excusable neglect,” and there is ample authority for the position that the most important factor is the reason for the untimely motion and whether the delay was within the reasonable control of the movant – a proposition that Rockwell itself now acknowledges. See Order to Show Cause at 37; Pl.‘s
important consideration in whether to grant leave to file out of time is the reason for the delay in filing“). In addition, the Order to Show Cause noted that “it is well-settled that the mere fact that denial of [Rockwell‘s] pending Motion[s] (and the resulting dismissal of all subject actions) would penalize [Rockwell] for the actions of its counsel is of relatively little moment.” See Order to Show Cause at 3.8 As the Supreme Court explained in Pioneer, in circumstances such as these, it is entirely appropriate to visit the sins of counsel on the client. See Pioneer, 507 U.S. at 396-97
(stating that “clients must be held accountable for the acts and omissions of their attorneys“).
The Order to Show Cause concluded by directing Rockwell “to review and remedy (as necessary) its calendaring systems to ensure that no further deadlines are missed in this or any other action, particularly in light of [the company‘s] long history of repeated out-of-time filings and the potentially very grave consequences associated with an untimely filing.” Order to Show Cause at 3. The Order to Show Cause further authorized Rockwell to supplement its pending motions, directing that Rockwell‘s supplemental brief, inter alia, “cite the Court rule and the standard applicable to out-of-time motions for extensions of time and . . . fully brief in detail and in a balanced fashion (i.e., without cherry-picking the cases cited or attempting to minimize adverse caselaw by drawing frivolous or largely meaningless distinctions) the relevant facts and law (with ample citations to Moore‘s Federal Practice and Wright & Miller, as well as to caselaw . . . .).”
In its most recent submissions, counsel for Rockwell assures the court that it “has initiated a review of its calendaring system to ensure that no further deadlines are missed” and affirms that counsel is aware that, in the future, Rockwell will be held to the letter of the rules of the court. See Pl.‘s Supp. Brief at 3-4.
Rockwell also devotes an inordinate amount of ink to a detailed overview of the Reserve Calendar process, as well as an extended discussion of Rockwell‘s counsel for Rockwell‘s “management of the Reserve Calendar” and the parties’ “behind the scenes” efforts to amicably resolve the subject cases. See generally, e.g., Pl.‘s Supp. Brief at 2-9. The purpose of these sections of Rockwell‘s papers apparently is to make it clear that “the continued presence of a case on a [Reserve Calendar], and the need to extend its presence on that calendar, is not indicative of inaction or lack of diligence in processing or prosecuting the cases.”
It may well be that “[Rockwell‘s] attorneys have spent hundreds of hours working on the processing of SBTR cases” and that “Government counsel have done the same.” Pl.‘s Supp. Brief at 9. But the fact nonetheless remains that Rockwell‘s counsel failed – both in the specific instances at bar, and repeatedly, again and again, in the past – to spend the very modest amount of time that the court‘s rules obligated them to spend in order to file routine, timely motions for extensions of time, to permit the actions at issue to remain on the Reserve Calendar.
The issue presented here is not whether Rockwell is diligently pursuing resolution of the 11 subject actions and thus would be entitled to extensions of time that were timely sought. Instead, the issue presented here is whether Rockwell has any legitimate basis to excuse its failure to seek such timely extensions of time. Rockwell‘s extended discussion of the Reserve Calendar process and the efforts that counsel have expended on the substantive merits of these actions simply have no significant bearing on that issue.
In its most recent submissions, Rockwell also addresses the four factors that the Supreme Court specifically identified in Pioneer as among the “relevant circumstances” to be considered in determining the existence of “excusable neglect.” See Pioneer, 507 U.S. at 395; Pl.‘s Supp. Brief at 11-18.10 Rockwell frames the four factors as: (1) “Prejudice
the Court“; (3) “Reason for the Delay in Filing“; and (4) “Good Faith.” See generally Pl.‘s Supp. Brief at 11-18. As summarized below (and as is typical of movants in “excusable neglect” cases), Rockwell‘s motions (as amended) demonstrate that its delay has not prejudiced the Government. In addition, in its amended motions, Rockwell makes a reasonable (although not clearly compelling)
Rockwell‘s research, analysis, and briefing of the caselaw are equally unimpressive. Of the 34 cases listed in the Table of Authorities filed with its most recent submissions, only 23 are even arguably relevant to the “excusable neglect” issue – and that figure includes cases that Rockwell cites even for very general, basic propositions, as well as cases that Rockwell cites on ancillary issues such as counsel‘s unwavering obligation to monitor the status of cases and other similar matters. See Pl.‘s Supp. Brief at i-ii (Table of Authorities) (The other 11 cases that Rockwell cites are proceedings in the lead Rockwell case and related litigation, and cases cited in Rockwell‘s extended, but irrelevant, discussion of the history and purpose of the Reserve Calendar. See generally Pl.‘s Supp. Brief at 3-9.) The extent of Rockwell‘s legal research thus bears little relationship to the high stakes here and suggests that, even now, Rockwell and its counsel fail to appreciate the gravity of their situation. That impression is only reinforced by the remarkable fact that a mere two of the 23 referenced cases date from the new millennium. See Former Employees of Tyco, 27 CIT 380, 259 F. Supp. 2d 1246 (2003) (cited in Pl.‘s Supp. Brief at 11, 16); Hilton Groups, PLC v. Branch Banking & Trust Co., 2007 WL 2022183 * 4 (D.S.C. 2007) (cited in Pl.‘s Supp. Brief at 13-14). As with its citations to Wright & Miller and Moore‘s, so too with its citations to caselaw – Rockwell‘s legal analysis is seriously out-dated, and ignores a vast (and growing) body of relevant authority.
It appears that Rockwell actually did relatively little, if any, independent legal research, and largely confined itself to a handful of cases with which it apparently began and the decisions that were cited in those cases. The result of this methodology is not only that the caselaw cited is all relatively old, but, in addition, it is skewed, because, inter alia, decisions that reach a particular outcome or approach an issue in a particular way are more likely to rely on other decisions that do the same (and are less likely to cite and discuss decisions that reach the opposite outcome or approach an issue differently). This fact further undermines the soundness of Rockwell‘s research and briefing and limits its utility for the court.
Finally, as discussed above, Rockwell was specifically instructed not to limit its research solely “to the decisions of this Court and the Court of Appeals for the Federal Circuit.” Order to Show Cause at 4; see also n.9, supra. However, only 11 of the 23 referenced decisions (including Pioneer) were from other courts; and five of those 11 cases were cited as part of Rockwell‘s misguided attempt to blame the office of the clerk of the court for Rockwell‘s failure to seek timely extensions of time in the 11 actions at issue. See Pl.‘s Supp. Brief at 13-14; see also section IV.C, infra.
showing on the length of the delay and the impact of that delay on judicial proceedings and judicial administration. The two remaining Pioneer factors weigh very heavily against Rockwell, however. Rockwell‘s case on the most important of the four factors – i.e., the reason for Rockwell‘s delay (including whether the reason for the delay was within its control) – is wholly lacking in merit. And, finally, these 11 cases are among those rare “excusable neglect” cases where the movant cannot credibly claim that it has acted in good faith.
Rockwell‘s showing as to each of the four Pioneer factors is analyzed below, in turn.
A. Prejudice to the Defendant
Rockwell asserts broadly that “[n]o harm will befall the [Government]” if the company‘s pending out-of-time motions for extensions of time to permit the 11 subject actions to remain on the Reserve Calendar are granted. See generally Pl.‘s Supp. Brief at 15-16. It is true that the Government gave its consent to the motions that Rockwell filed on July 2, 2014 (as well as to all prior extensions of time, including all motions for leave to file out-of-time). See
reserve calendar would provide the parties with an efficient means to [dispose] of these actions without further litigation,” to the extent that the merchandise and issues presented in the actions are “substantially the same as those covered by the test case, Rockwell Automation, Inc. v. United States, 31 CIT 692 (2007).” See
B. Impact on the Court
The Supreme Court in Pioneer identified “the length of the [movant‘s] delay” and the “potential impact [of the delay] on judicial proceedings” and “efficient judicial administration” as another factor to be considered in evaluating claims of “excusable neglect.” Pioneer, 507 U.S. at 395, 398.
Rockwell here is silent on the length of the delay, a consideration to which courts typically accord relatively little weight, because (for a variety of reasons) the length of the delay in most cases is minimal, both in absolute and relative terms.12 In the 11 cases here at bar, however, the length of the delay is (at least relatively speaking) significant. In these 11 cases, not only did Rockwell fail to seek timely extensions of time, but, in fact, Rockwell delayed action for so long (i.e., 36 days) that the Reserve Calendar deadline itself expired, and - by court rule - all 11 cases should have been automatically dismissed by the Office of the Clerk more than a week before Rockwell‘s out-of-time motions were filed. See
In one oft-cited case, the First Circuit sustained a finding of “no excusable neglect” even though “the delay in [the] case was only one day and . . . there was little danger of prejudice to the other party,” the delay did not negatively impact the proceedings, and the movant acted in good faith, where the reason for the delay was weak. See Hospital del Maestro v. Nat‘l Labor Relations Board, 263 F.3d 173, 175 (1st Cir. 2001) (per curiam) (emphasis added).13 Here, although the length of the delay (like the other remaining factors) is of relatively little significance compared to the primary factor (i.e., the reason for the delay, discussed below), the length of the delay is nonetheless a consideration that arguably could weigh - at least to some modest extent - against granting the relief that Rockwell seeks. If nothing else, the rules of the court (and
As to the broader, related issue of the impact of Rockwell‘s untimeliness on “judicial proceedings,” Rockwell asserts that granting the pending motions would not “interfere with the efficiency of judicial administration.” Pl.‘s Supp. Brief at 16. Rockwell emphasizes that the effect of
Rockwell‘s claims of its diligence in the prosecution of the instant actions and Rockwell‘s impassioned protestations about the prospect of potential injustice have a rather hollow ring given Rockwell‘s unwillingness to invest the very modest resources necessary to take the timely action required to maintain the actions on the Reserve Calendar. Still, Rockwell‘s analysis of this factor is generally sound - at least as far as it goes. The interest that is typically the focus of this factor is any potential negative effects of a movant‘s tardiness vis-a-vis ongoing judicial proceedings. By definition, in the context of the Reserve Calendar - where no such judicial proceedings are ongoing - there can be no such potential negative effects. There are, however, other judicial administration interests at stake.
First, there are the judicial resources that have been consumed in the past, and continue to be consumed, by Rockwell‘s longstanding pattern and practice of filing out-of-time motions for extensions of time to remain on the Reserve Calendar. Contrary to Rockwell‘s assertions (see Pl.‘s Supp. Brief at 3, 12),14 it is not true that all consent motions for extensions of time in Reserve Calendar cases are disposed of by clerk‘s office staff, such that judicial resources are spared.
As the records in these 11 actions reflect, contrary to Rockwell‘s claims, the court‘s standard practice is that the clerk‘s office refers all out-of-time motions for extensions of time to a judge for disposition. See, e.g., Order (April 1, 2014) (Eaton, J.) (granting Rockwell out-of-time motion for extension of time), entered in Court No. 05-00269; Order (Sept. 26, 2013) (Carman, J.) (same), entered in Court No. 05-00269.15 Moreover, out-of-time
Nor is “judge time” the only judicial administration resource that Rockwell continues to tax heavily. Rockwell apparently also is placing demands on the staff of the clerk‘s office as well. For example, to the extent that Rockwell‘s motions for extensions of time are not referred to judges, they are disposed of by the clerk‘s office staff. More importantly, Rockwell‘s most recent submissions make it clear that the clerk‘s office staff is expending precious time tracking Rockwell‘s Reserve Calendar cases and alerting Rockwell to case deadlines - a questionable role for the clerk‘s office staff to play, and an inappropriate drain on the resources of the court. See Pl.‘s Supp. Brief at 12-13 (stating that, in one of the 11 cases at issue, where Rockwell has sought 20 out-of-time extensions of time, “[m]any of those times, the Clerk even issued a reminder to counsel that the Reserve Calendar deadline had passed, and invited counsel to move out of time to extend the deadline before it dismissed the case for failure to prosecute“).
The long and the short of it is that any claim by Rockwell that judicial resources are being conserved by maintaining these 11 actions on the Reserve Calendar must be weighed carefully against other considerations, including, inter alia, the judicial and other court resources consumed by Rockwell‘s history of repeatedly filing out-of-time motions for extensions of time to maintain the 11 actions on the Reserve Calendar. As a result, it is a close call; but, on balance, this factor tips slightly in Rockwell‘s favor.
On occasion, when a litigant fails to caption an out-of-time motion as such, that motion may not be referred to a judge and may instead be disposed of by the clerk‘s office staff.
C. The Reason for the Delay in Filing
Under Pioneer, a critical (and in many, if not most, cases, decisive) consideration in ruling on an out-of-time motion for an extension of time is “the reason for the delay, including whether it [i.e., the delay] was within the reasonable control of the movant.” Pioneer, 507 U.S. at 395 (emphasis added). Indeed, as Rockwell has acknowledged, the weight of the authority nationwide holds that this factor is the single most important consideration in determining whether, in fact, neglect is “excusable.” See Pl.‘s Supp. Brief at 11-12 (noting that “the most important consideration in whether to grant leave to file out of time is the reason for the delay in filing“); see also n.7, supra (summarizing select leading cases concerning the primacy, among the four Pioneer factors, of “the reason for the [movant‘s] delay, including whether [the delay] was within the reasonable control of the movant,” in evaluating claims of “excusable neglect“).
According to Rockwell, its failure to file timely motions for extensions of time in the 11 actions here “reasonably resulted from events both practical and circumstantial.” Pl.‘s Supp. Brief at 12; see generally id. at 11-15. In an unseemly display of chutzpah, Rockwell lays the bulk of the blame for its failure to file timely motions for extensions of time at the feet of the staff of the Clerk of the Court. See id. at 12-14. Rockwell argues that “Reserve Calendar practice can, and usually does, take place entirely outside of the oversight of a judge,” and argues that “[t]his . . . is the twentieth time [in one of the 11 actions] that [Rockwell] has moved out of time to extend the Reserve Calendar deadline, and in each and every case the Clerk has granted leave, without any intervention
Even as Rockwell points its finger at the Office of the Clerk, Rockwell concedes that it is not permitted to “rely . . . on reminders from the Clerk‘s office to meet court deadlines,” that it alone bears “responsib[ility] for meeting litigation deadlines,” and that it understands that the fault here lies solely with Rockwell and its counsel. See Pl.‘s Supp. Brief at 13. Rockwell acknowledges that “[a]n attorney has a responsibility to monitor proceedings with some degree of diligence.” Prior Prods., Inc. v. Southwest Wheel-NCL Co., 805 F.2d 543, 546 (5th Cir. 1986) (quoted in Pl.‘s Supp. Brief at 13).17 And Rockwell admits that “a party plaintiff has a primary and independent obligation to prosecute any action brought by it - from the moment of commencement to the moment of final resolution. That primary responsibility never shifts to anyone else and entails the timely taking of all steps necessary for its fulfillment.” Caterpillar Inc. v. United States, 22 CIT 1169, 1170 (1998) (quoting Avanti Prods., Inc. v. United States, 16 CIT 453, 453-54 (1992)) (quoted in Pl.‘s Supp. Brief at 13). Further, the court has squarely held that counsel is charged with knowledge of the deadline for removal of cases from the Reserve Calendar and the risk of automatic dismissal for failure to prosecute pursuant to
Suffice it to say that none of the cases cited by Rockwell even remotely parallels the facts of this case.19 Rockwell does not claim, for example, that there was some sort of ambiguity in the court rules governing the deadline for filing timely motions for extensions of time and that it relied on the representations of one particular member of the staff of office of the clerk of the court for clarification that ultimately turned out to be in error.20
Because Rockwell‘s claim that it was misled by the actions of the clerk‘s office is so patently lacking in merit, there is no need to further dissect that argument. It is nevertheless worth noting that - in general - parties rarely succeed in arguing that they were entitled to rely on statements (much less actions, or failures to act) of personnel in a court clerk‘s office. See, e.g., Osterneck v. Ernst & Whinney, 489 U.S. 169, 178-79 (1989) (sustaining court of appeals’ decision rejecting particular member of the clerk‘s office staff advised the company or its counsel that compliance with the rules of the court (or any particular rule or order) was unnecessary. Nor could Rockwell reasonably make any such claims. Instead, Rockwell claims, in effect, that it believed that it was - for some reason known only to it - exempt from complying with the clear and unambiguous rules and orders of the court. Such a claim cannot be seriously credited. Contrary to Rockwell‘s assertions, counsel here have repeatedly “demonstrate[d] a [blatant] disregard [for] pertinent rules.” See Pl.‘s Supp. Brief at 14 (quoting Napp Systems, Inc. v. United States, 22 CIT 1106, 1107 (1998)).21
At issue in Napp was a plaintiff‘s Motion for Reconsideration of Order of Dismissal and Reinstatement of Case, where the clerk of the court had automatically dismissed the plaintiff‘s action on the Reserve Calendar for lack of prosecution in accordance with
Distilled to its essence, at least part of Rockwell‘s argument seems to be that, because Rockwell‘s actions were not automatically dismissed for lack of prosecution pursuant to
Curiously, counsel for Rockwell touts the law firm‘s “robust system for docketing court deadlines,” underscoring that “[the firm‘s] professional liability insurance policy requires, as a condition of coverage, that the firm have two independent monitoring systems.” See Pl.‘s Supp. Brief at 14. According to Rockwell, “[the] firm‘s first system, based on the Time Matters software platform, is administered by . . . the firm‘s Administrator since [the firm‘s] founding in 1998.” Id. Rockwell states that the firm‘s Administrator “is responsible for entering deadlines . . . into Time Matters, which generates deadline reports on demand. These reports are circulated regularly to the attorneys at the firm.” Id. According to Rockwell, “[the] second system is predicated on feeds from court CM/ECF systems, including this Court‘s system, which allows the firm to establish a consolidated calendar based on the records of the courts themselves.” Id. Rockwell adds that “the firm conducts monthly ‘tickler meetings’ for attorneys, chaired by [the firm‘s Administrator] and . . . one of the firm‘s partners.” Id. According to Rockwell, “upcoming deadlines are reviewed and identified” at these monthly meetings, “and attorneys are tasked with filing necessary motions or taking other required actions.” Id. But Rockwell fails to explain how the
In an apparent effort to explain the failure of the law firm‘s calendaring system here, Rockwell asserts that “[t]he months of May and June [2014] were tumultuous for counsel,” “prevent[ing] the firm from holding its regular Calendar Meetings.” See generally Pl.‘s Supp. Brief at 14-15. However, even if the alleged “tumult” could explain away the pending out-of-time motions in the 11 cases at issue here (which it cannot), the recent two months of “tumult” cannot begin to explain the long history of missed deadlines and out-of-time motions in these actions.
According to Rockwell, the “tumultuous” nature of May and June 2014 were due to the mid-June hospitalization of its lead counsel for several days, as well as the relocation of the firm‘s offices, and the “robust travel schedule” that the firm‘s attorneys maintain. See Pl.‘s Supp. Brief at 14-15. As Rockwell itself has noted, however, the deadline for Rockwell‘s filing of a timely motion for an extension of time to remain on the Reserve Calendar was May 27, 2014. See Pl.‘s Supp. Brief at 9;
Moreover, although Rockwell posits illness as “a circumstance most certainly ‘beyond the control of the party‘” (see Pl.‘s Supp. Brief at 14-15), the law on “excusable neglect” is not so readily forgiving. See, e.g., Cordero-Soto v. Island Finance, Inc., 418 F.3d 114, 117-18 (1st Cir. 2005) (affirming
Moreover, even assuming (notwithstanding all of the above) that Rockwell‘s failure to timely seek the extensions of time at issue here were - in some fashion, to some minor degree - attributable to the health of its lead counsel, Rockwell fails to explain why another member of the law firm could not have filed a timely motion for an extension of time. Rockwell itself states that, during lead counsel‘s illness, “a number of his duties were handled on an emergency basis by the other attorneys in the firm.” Pl.‘s Supp. Brief at 15; see also, e.g., Beckles v. City of New York, 2010 WL 1841714 * 3 (S.D.N.Y. 2010) (denying out-of-time motion for extension of time where, inter alia, counsel on medical leave could have “asked a colleague in his office to [file a timely motion for an extension of time] if he was unable to do so“); Knott v. Atlantic Bingo Supply, Inc., 2005 WL 3593743 * 1-2 (D. Md. 2005) (denying out-of-time extension of time where counsel who was “incapacitated due to . . . ‘sarcoidosis,’ which on occasion required bed rest and treatment by steroids,” could have asked a colleague in his office to ensure that process was served, “or in the alternative at least timely seek an extension“); Turner v. Hudson Transit Lines, Inc., 1991 WL 123966 * 3 (S.D.N.Y. 1991) (explaining that counsel claiming “excusable neglect” for failure to file timely motion for extension of time “could have readily arranged for another attorney to cover for him” and such other attorney could have sought timely extension).
Similarly, Rockwell never specifies the exact dates of the consolidation and relocation of its counsel‘s offices, referring only generally to the “tumult” of May and June 2014. See generally Pl.‘s Supp. Brief at 15. But, even more to the point, such events ordinarily do not constitute “excusable neglect.” See, e.g., In re Harlow Fay, Inc., 993 F.2d 1351, 1352-53 (8th Cir. 1993) (holding that relocation of counsel‘s offices to another state and reduction of firm‘s staff not sufficient grounds for “excusable neglect“); Selph v. Council of City of Los Angeles, 593 F.2d 881, 883 (9th Cir. 1979) (holding that “confusion” and associated disruption of “normal calendaring practices” as result of law firm‘s relocation of offices not “excusable neglect“), overruled on other grounds, United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265 (9th Cir. 1985); Knox v. Palestine Liberation Organization, 229 F.R.D. 65, 69 (S.D.N.Y. 2005) (rejecting claim of “excusable neglect,” holding that “impending move, though it may have caused ‘turmoil and disorganization’ . . . does not amount to a factor outside of Defendants’ ‘reasonable control,’ . . . justifying their failure to submit a timely request for an extension of time“). To the same end, the Supreme Court in Pioneer “[gave] little weight to the fact that counsel [in Pioneer] was experiencing upheaval in his practice” at the time of the out-of-time filing there at issue, due to counsel‘s “withdrawal from his former law firm.” See Pioneer, 507 U.S. at 384, 398.
The busy travel schedules of counsel to Rockwell are an even weaker excuse. See, e.g., Airline Professionals Ass‘n v. ABX Air, Inc., 109 F. Supp. 2d 831, 834 (S.D. Ohio 2000) (holding that “[an] attorney‘s ‘travel schedule’ . . . [is a] circumstance[] reasonably anticipated in the legal profession,
It is also significant that the action that Rockwell and its counsel failed to timely take - the filing of routine, timely motions for extensions of time to permit the 11 actions at issue to remain on the Reserve Calendar - “does not require much time or deliberation,” particularly by comparison to the time that Rockwell contends the parties were devoting to resolving the substantive merits of those cases. See, e.g., Baker v. Raulie, 879 F.2d 1396, 1399-1400 (6th Cir. 1989) (reversing district court‘s finding of “excusable neglect” where attorney was in trial in another matter from August 22 to September 2 deadline for filing notice of appeal, reasoning that “[h]ere, the notice of appeal contains 37 words. Even if [the] attorney was in trial 12 hours a day continuously from August 22 onwards, he could have found a few minutes sometime before September 2 to draft and deliver to the district court such a simple and important document“); Pinero Schroeder v. Federal Nat‘l Mortgage Ass‘n, 574 F.2d 1117, 1118 (1st Cir. 1978) (rejecting claim of “excusable neglect,” emphasizing that “[f]iling a notice of appeal does not require much time or deliberation“).
It is worth noting that, although Rockwell expressly acknowledges in the abstract the primacy of the reason for the delay in filing as a factor in evaluating the existence of “excusable neglect” - including, in particular “whether it [i.e., the delay] was within the reasonable control of the movant” - Rockwell never addresses the “control” issue in the context of the specific facts of these 11 cases. See Pioneer, 507 U.S. at 395 (highlighting significance of “the reason for the delay, including whether it [i.e., the delay] was within the reasonable control of the movant“) (emphasis added).
Here, it is clear that none of the reasons cited by Rockwell precluded the filing of
Under these circumstances, the most important of the four Pioneer factors - i.e., the reason for Rockwell‘s delay in seeking an extension of time - weighs decisively against a finding that Rockwell‘s neglect here is “excusable.”
D. Good Faith
The last of the four factors specifically identified in Pioneer to be considered in determining the existence of “excusable neglect” is “whether the movant acted in good faith” in attempting to fulfill its obligations in a timely fashion. See Pioneer, 507 U.S. at 395. As discussed immediately above, courts across the country have identified “the reason for the delay, including whether it [i.e., the delay] was within the reasonable control of the movant” as the single most important factor in an “excusable neglect” analysis. In contrast, “rarely in the decided cases is the absence of good faith at issue.” Silivanch, 333 F.3d at 366. The egregious facts make this one of those rare cases.
Rockwell argues that its good faith “is evidenced primarily by the amount of work it has done, both internally and with counsel for the Government, in seeking to resolve these [11] technically complex cases.” See generally Pl.‘s Supp. Brief at 17-18. Rockwell‘s argument completely misses the mark.
Rockwell‘s diligence in pressing the merits of its actions may be relevant to the “good cause” showing which is the predicate for a timely extension of time. Here, however, Rockwell seeks an out-of-time extension of time, and the issue instead is whether or not “excusable neglect” exists. As such, the relevant “good faith” inquiry here is whether - although Rockwell obviously did not succeed - Rockwell demonstrated good faith either by taking steps to seek to remove the 11 actions at issue from the Reserve Calendar before the June 23, 2014 deadline for doing so, or by taking steps to seek to extend the time for those actions to remain on the Reserve Calendar before the May 27, 2014 deadline for filing timely motions for extensions of time.23 There is no evidence to indicate that Rockwell made any effort toward either of these ends. And there is compelling evidence that Rockwell did not.
In contrast, in this case Rockwell‘s track record speaks for itself, and it speaks volumes. Not only does Rockwell not even allege (much less proffer any proof) that it took steps in good faith to secure timely extensions of time in the 11 actions at issue, but - indeed - the procedural history of these actions belies any suggestion that Rockwell‘s practice in general has been to make good faith efforts to track and comply with applicable deadlines. As a practical matter, the exercise of good faith by Rockwell and its counsel in this context could not yield the abysmal track record of out-of-time motions for extensions of time that Rockwell has amassed. To the contrary, Rockwell‘s track record smacks of a blatant disregard for the rules of the court governing actions on a Reserve Calendar.
In Pioneer, the Supreme Court laid out the “range of possible explanations for a party‘s failure to comply with a court-ordered filing deadline“:
At one end of the spectrum, a party may be prevented from complying [with a deadline] by forces beyond its control, such as by an act of God or unforeseeable human intervention. At the other [end of the spectrum], a party simply may choose to flout a deadline. In between lie cases where a party may choose to miss a deadline although for a very good reason, such as to render first aid to an accident victim discovered on the way to the courthouse, as well as cases where a party misses a deadline through inadvertence, miscalculation, or negligence.
Pioneer, 507 U.S. at 387-88. Clearly these 11 cases are not at the end of the spectrum where a movant is prevented from complying with the applicable deadlines “by forces beyond its control, such as . . . an act of God or unforeseeable human intervention.” Nor are these in-between cases, where a movant chooses to miss a deadline for a very good reason “such as to render first aid to an accident victim discovered on the way to the courthouse” or where a movant “misses a deadline through inadvertence, miscalculation, or negligence.” According to Rockwell, it was basically oblivious to the applicable deadlines (much as it has ignored such deadlines in these cases so frequently in the past, relying heavily (albeit unreasonably) on the clerk‘s office staff to monitor the dockets in Rockwell‘s actions and to alert counsel in the event of impending dismissals). These cases thus fall close to the far end of the spectrum outlined in Pioneer, near the parties that have made a choice to flout deadlines.
As this court has previously underscored in Napp (which - like the 11 actions at issue here - involved
[Lawyers] . . . have the duty to protect their clients by ensuring that important
filing deadlines are met; they may not follow careless procedures that demonstrate a disregard or ignorance of pertinent rules. The concept of a time limitation for filing is basic. A court may insist upon compliance with its local rules and it may refuse to set aside a judgment or order . . . even when there is no showing of substantial prejudice. U.S. v. Proceeds of Sale of 3,888 Pounds Atlantic Sea Scallops, 857 F.2d 46, 49 (1st Cir. 1988). “Neither ignorance nor carelessness on the part of a litigant or his attorney provides grounds for relief under Rule 60(b)(1).” Avon Products, Inc. v. United States, 13 CIT 670, 672 (1989) (citations omitted).
Napp, 22 CIT at 1107 (quoting Wang Labs., Inc. v. United States, 16 CIT 468, 472, 793 F. Supp. 1086, 1089 (1992)) (emphasis added).
The deadlines that are established in court rules and court orders must mean something. They must be respected and honored by the parties and they must be enforced by the court, unless, of course, they are extended pursuant to a timely-filed motion. As the Second Circuit has sagely observed in one well-known case, “the legal system would groan under the weight of a regimen of uncertainty in which time limitations were not rigorously enforced - where every missed deadline was the occasion for the embarkation on extensive trial and appellate litigation to determine the equities of enforcing the bar.” Silivanch, 333 F.3d at 368.
To find Rockwell‘s neglect here to be “excusable” would serve only to condone the company‘s continued “carelessness and inattention in practice” and would send a message that other litigants might expect comparable treatment at the hands of the court in the future. See Graphic Communications Int‘l Union v. Quebecor Printing Providence, Inc., 270 F.3d 1, 8 (1st Cir. 2001). Both would be unwarranted results.
Here - as in one leading Seventh Circuit case - “the rule is crystal clear, the error egregious, [and] the excuses so thin as to leave the lapse not only unexcused but inexplicable.” Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464 (8th Cir. 2000) (quoting Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 134 (7th Cir. 1996)). In such circumstances, the haunting spectre is of a rapid race to the bottom: “If we were to apply the excusable neglect standard to . . . deem [Rockwell‘s] neglect excusable in this case, it is hard to fathom the kind of neglect that we would not deem excusable.” Lowry, 211 F.3d at 464. Where would it end?
Two principles at the heart of the concept of the rule of law are (1) that rules and laws are applied as they are written, and (2) that rules and laws apply with equal force to all. In the grander scheme of things, the conduct of Rockwell and its counsel is fundamentally unfair to other practitioners before the Court, who undertake the time, effort, and expense required to scrupulously maintain and monitor their calendars, in order to ensure that they comply with all rules and orders of the Court and meet all deadlines, including those applicable to Reserve Calendar actions. So too the conduct of Rockwell and its counsel places judges and the clerk‘s office staff in the position of either outright denying relief to Rockwell based on the company‘s unrepentant, wholesale failure to fulfill even its most basic procedural obligations or, alternatively, swallowing hard, holding their collective noses, and joining Rockwell in diminishing and debasing the rule of law (as the court does here) by granting the requested relief notwithstanding the company‘s systemic, flagrant, and repeated failures and refusals to comply with court orders and court rules.
V. Conclusion
For the reasons set forth above, Plaintiff‘s Amended Consent Motion for Leave to File Out of Time, and to Extend Time to Remain on Reserve Calendar is granted as to all 11 captioned actions, with the understanding that great significance is being attached to the Government‘s representations as to its lack of prejudice (notwithstanding the fact that the greatest weight should be accorded to the reason for a movant‘s delay), with the understanding that judgment is nevertheless expressly withheld as to whether - balancing all applicable factors and circumstances - Rockwell has made (or could make) the requisite showing of “excusable neglect,” and with the understanding that - particularly in light of Plaintiff‘s history of repeated out-of-time motions in these actions - Rockwell should expect no leniency whatsoever in the future.
A separate order will enter accordingly.
/s/ Delissa A. Ridgway
Delissa A. Ridgway
Judge
Dated: August 18, 2014
New York, New York