And On The 15th Day It Was Too Late

Posted on | February 11, 2010 | No Comments

2010-1143 Juniper Networks v. GraphOn Corp.
ED/VA 09-cv-287
Judge Gerald Bruce Lee

Defendants GraphOn et al appeal from the order of Judge Gerald Bruce Lee striking their motion for attorneys’ fees under § 285 for being late:  the motion was filed on December 10, 2009—15 days after the Clerk entered the order of dismissal.

Fed. R. Civ. P. 54(d)(2)(B)(i) provides that a motion for attorneys’ fees must “be filed no later than 14 days after entry of judgment” unless a statute or court order provides otherwise.

Because the filing of motion for attorneys’ fees is an act required to be done “within a specified amount of time,” the Court found that Fed. R. Civ. P. 6(b)(1) applies:

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.

Because defendants did not timely request more time under part (A)–which only would require a showing of “good cause,”, Judge Lee ruled that the late filing could only be accepted if defendants could show “excusable neglect.”

Defendants argued that such neglect occurred because (1)they miscounted by skipping over Thanksgiving Day and (2) they were somehow confused because the dismissal entry did not say “with prejudice.”

“Excusable neglect,” sayeth Judge Lee, is:

an equitable concept, and courts will consider “the relevant circumstances surrounding the party’s omission” to determine whether an extension is warranted under Rule 6(b)(2).  Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). However, “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect.”  Id. at 392.

Based on this, Judge Lee found no excusable neglect.  Opinion, pp. 3-4.

Defendants argue that their delay was due to a miscalculation given the intervening Thanksgiving holiday and the fact that the Court’s Order did not state that dismissal was “with prejudice.” The Court finds Defendants’ reasons insufficient to establish excusable neglect. Federal Rule of Civil Procedure 6 makes clear that intervening holidays are included in the fourteen days allowed for a Rule 54(d) (2) (B) motion. Defendants’ miscalculation does not constitute excusable neglect.

. . .

[and] to the extent that Defendants were unclear about whether the Court’s Order dismissing the case for lack of jurisdiction constituted a dismissal with prejudice, Defendants could have moved for clarification.

2010-1143 Order

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