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Leon v. Koch Industries

United States District Court, S.D. Texas, Corpus Christi Division

November 14, 2017

ROB LEON, Plaintiff,



         Before the Court are Plaintiffs Motion for Leave to Amend Pleadings Pursuant to FRCP 15(a), Motion to Enlarge Response Time to 12(b)(6) Motions Pursuant to FRCP 6(b)(2), and Alternatively, Motion to Vacate Judgment Pursuant to Rule 60(b), filed September 29, 2017. For the reasons that follow, Plaintiffs motions are DENIED.

         I. Factual and Procedural Background

         Plaintiff Rob Leon originally filed his complaint against Defendant on June 22, 2017, in the County Court at Law Number 1 of Nueces County Texas. Plaintiff alleged that he was discriminated against on the basis of his gender and national origin in violation of Title VII of the Civil Rights Act of 1964 and that Defendant retaliated against him after he reported "violations of law" and "policy violations." On August 25, 2017, Defendant Koch Industries removed this case to this Court under 28 U.S.C. § 1441(a).

         On September 1, 2017, Defendant filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) on two grounds: (1) for failure to exhaust administrative remedies, and (2) failure to plead facts establishing his stated claims. Plaintiff failed to respond to Defendant's motion to dismiss before his response deadline of September 22, 2017. Local Rules 7.3 and 7.4 of the U.S. District Court for the Southern District of Texas require that any response to a motion be filed no later than 21 days after the motion is filed. Plaintiff neglected to file a response, amend his complaint, or request an extension of time to respond. The Court granted Defendant's motion to dismiss on September 27, 2017, ruling that "it is therefore ordered, adjudged, and decreed that judgment be entered in Defendant's favor of Plaintiff s claims, and that the same be dismissed without prejudice."

         On September 29, 2017-one week after his response was due but promptly after notice of the Court's decision-Plaintiff filed a motion for leave to amend his complaint under Rule 15(a), a motion for an extension of time to respond to Defendant's motion to dismiss under Rule 6(b)(2), and alternatively, a motion to vacate the Court's judgment under Rule 60(b). The motions were supported by an affidavit from Plaintiffs counsel which attested to the following: (1) Plaintiffs counsel and his family evacuated Corpus Christi from August 25, 2017 until September 4, 2017 due to Hurricane Harvey, which created a "backlog of work"; (2) Plaintiffs counsel experienced "technical issues" with his PACER account beginning around September 4, 2017 which hindered his ability to access documents filed in this case and delayed his ability to respond to Defendant's motion; and (3) Plaintiffs counsel had mistakenly entered the deadline to respond to Defendant's motion in his calendar as October 25, 2017, which was the date of the initial pretrial conference.

         On October 19, 2017, the Court held a hearing regarding Plaintiffs motion. Plaintiffs counsel offered the three reasons in the affidavit in support of his argument that excusable neglect existed warranting relief under Rule 60(b). The Court questioned Plaintiffs counsel at length during the hearing and now concludes the affidavit is not reliable.

         Hurricane Harvey was not a factor. It made landfall in Corpus Christi on August 25, 2017. Plaintiffs counsel evacuated Corpus Christi on August 25, 2017 and returned on September 4, 2017. The Court notes that the hurricane did not cause significant damage or disruption to Corpus Christi as it did to neighbors to the north along the Texas gulf coast. Defendant's motion to dismiss was filed on September 1, 2017-only days before Plaintiffs counsel returned to his office. Plaintiffs counsel stated he was aware a motion had been filed when he returned on September 4, 2017, giving him several weeks to prepare a response.

         No "technical issue" interfered with notice of the Defendant's motion. Plaintiffs counsel could not access his PACER account because he had not paid the balance due ($30.00). He admitted at the hearing that he did not experience any "technical issues." Plaintiffs counsel was informed of the unpaid balance in June 2017, and stated that he found on his return to Corpus Christi he could not access any documents in this case. Plaintiffs counsel could have obtained a copy of Defendant's motion if he had inquired with Defendant's counsel or this Court. After he paid his account balance, Plaintiffs counsel had full access to his PACER account on September 21, 2017-the day before his deadline to respond to Defendant's motion. Plaintiffs counsel's inability to access PACER also did not affect his ability to file a response, a motion to amend his complaint, or a motion for an extension of time to respond.

         Carelessness does not count. Plaintiffs counsel mistakenly entered October 25, 2017 as the response deadline, which was nearly two months after Defendant's motion was filed. Plaintiffs counsel was aware of the motion by September 4, 2017. Local Rules 7.3 and 7.4 of the U.S. District Court for the Southern District of Texas state that any response to a motion must be filed within 21 days. Counsel's mistake is not good cause, but instead reflects his lack of knowledge of and attention to the Federal Rules of Civil Procedure and this Court's local rules for implementing them.

         II. Legal Standard

         Under Rule 15(a)(2), "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2).

Although Rule 15(a)(2) vests the district judge with virtually unlimited discretion to allow amendments by stating that leave to amend may be granted when "justice so requires, " there is a question concerning the extent of this power once a judgment has been entered or an appeal has been taken. Most courts faced with the problem have held that once a judgment is entered the filing of an amendment cannot be allowed until the judgment is set aside or vacated under Rule 59 or Rule 60.

6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1489 (3d ed. 2017). Under Rule 60(b)(1), the Court may relieve a party from a final judgment for "mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1). In determining whether "excusable neglect" exists, a court should consider "prejudice to the opposing party, length of the delay, and reason for the delay in determining whether the claimant's neglect was excusable and the delay was made in good faith." Silvercreek Mgmt, Inc. v. Banc of Am. Sec, LLC,534 ...

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