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Hill v. First Tennessee Bank, N.A.

United States District Court, N.D. Texas, Dallas Division

May 30, 2018

ALBERT G. HILL, JR., Plaintiff,
v.
FIRST TENNESSEE BANK, N.A., Defendant.

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay United States District Judge.

         Before the court is Margaret Keliher (“Keliher”), as Temporary Administrator of the Estate of Albert G. Hill, Jr.'s (“Hill Jr.”) Unopposed Motion to Extend the Federal Rule of Civil Procedure 25(a) Deadline, filed May 25, 2018 (Doc. 55). By her motion, Keliher seeks an extension of the deadline to file a motion to substitute pursuant to Federal Rule of Civil Procedure 25(a) to June 11, 2018.[1] Having considered the motion, the lack of opposition by Defendant First Tennessee Bank, National Association (“FTB”), record, and applicable law, the court grants Keliher's Unopposed Motion to Extend the Federal Rule of Civil Procedure 25(a) Deadline (Doc. 55).

         I. Background

         The court assumes the parties' familiarity with this case and limits its recitation of background facts to those directly relevant to Keliher's Unopposed Motion to Extend the Federal Rule of Civil Procedure 25(a) Deadline. On January 2, 2018, counsel for Hill Jr. filed a Suggestion of Death, stating, “on the record, pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, the death of [Hill Jr.], Defendant, on December 2, 2017.” Statement Noting Death (Doc. 51). On April 24, 2018, twenty-two days after the expiration of the ninety-day deadline to file a motion to substitute under Rule 25, Keliher filed, without leave, her unopposed Motion to Substitute in this action. On May 22, 2018, the court issued an order denying Keliher's Motion to Substitute as untimely, stating:

[O]n January 2, 2018, counsel for Hill Jr. filed a Suggestion of Death, stating, “on the record, pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, the death of [Hill Jr.], Defendant, on December 2, 2017.” Statement Noting Death (Doc. 51). Under Rule 25(a)(1), Keliher had ninety (90) days-until April 2, 2018-to move to substitute. See Fed. R. Civ. P. 25(a)(1). Keliher filed her Motion to Substitute on April 24, 2018. As more than the ninety days have passed since the Suggestion of Death was filed, the court denies Keliher's Motion to Substitute. See Fed. R. Civ. P. 25(a)(1) (“[i]f the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.”).

Mem. Op. & Order 3 (Doc. 53). The court denied Keliher's Motion to Substitute without prejudice, however, noting that “[t]hough couched in mandatory terms, the Advisory Committee Notes to Rule 25 indicate that the ninety-day period may be extended” pursuant to Federal Rule of Civil Procedure 6(b)(1).” Id. (citing cases).

         II. Legal Standard

         Rule 6(b)(1)(A) of the Federal Rules of Civil Procedure provides that, “for good cause, ” a court may extend a deadline before the original deadline or its extension expires. A party seeking an after-the-fact extension, however, bears the heavier burden of demonstrating both “good cause” and “excusable neglect.” See Fed. R. Civ. P. 6(b)(1)(B) (“[T]he court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.”) (emphasis added). There are four non-exclusive factors for determining whether a late filing may constitute “excusable neglect”: (1) the danger of prejudice to the other party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993); see also Silvercreek Mgmt., Inc. v. Banc of Am. Sec., LLC, 534 F.3d 469, 472 (5th Cir. 2008) (listing four factors). At bottom, “excusable neglect” is an equitable concept that must take account of all relevant circumstances of the party's failure to act within the required time. Pioneer Inv. Servs., 507 U.S. at 395.

         “[Rule 6(b)(1)(B)'s] requirements are quite flexible, and the district judge enjoys broad discretion to grant or deny an extension[.]” 4B The Late Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (4th ed. Supp. 2018). As further stated:

Excusable neglect is intended and has proven to be quite elastic in its application. In essence it is an equitable concept that must take account of all relevant circumstances of the party's failure to act within the required time. Common sense indicates that among the most important factors are the possibility of prejudice to the other parties, the length of the applicant's delay and its impact on the proceeding, the reason for the delay and whether it was within the control of the movant, and whether the movant has acted in good faith.

Id. (internal citations omitted).

         Courts have applied Rule 6(b)(1) to requests for extensions of time to file motions to substitute under Rule 25. See, e.g., Rowland v. GGNSC Ripley, LLC, 2015 WL 12999757, at *2 (N.D. Miss. Nov. 23, 2015) (“While couched in mandatory terms, the Advisory Committee Notes to Rule 25 indicate that the 90-day requirement may be extended by Federal Rule of Civil Procedure 6(b).”) (citation omitted); Trigo v. TDCJ-ID Officials, 2011 WL 335090, at *6 (S.D. Tex. Jan. 31, 2011) (collecting cases) (“Notwithstanding the mandatory language of Rule 25(a)(1), courts have held that a Rule 6(b) motion to enlarge the time within which to move for substitution under Rule 25(a), even one brought delinquently, may be entertained by a court within its discretion if the moving party shows excusable neglect.”); Yazdchi v. American Honda Fin. Corp., 2006 WL 2456495, at *3 n.2 (N.D. Tex. Aug. 23, 2006) (Lindsay, J.) (same) (citing Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir.1993)).

         III. ...


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