United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION FOR LEAVE TO AMEND, MOTION FOR EXTENSION OF TIME, OR
ALTERNATIVELY MOTION TO VACATE JUDGMENT
W. HEAD, JR. SENIOR UNITED STATES DISTRIT JUDGE.
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.
Factual and Procedural Background
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.
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."
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
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.
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.
"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
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.
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 ...