Dimmitt v. Ockenfels, 407 F.3d 21, 1st Cir. (2005)
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Scribd Government Docs407 F.
3d 21
Peter A. DIMMITT, Jr., Plaintiff, Appellant,
v.
Alfred OCKENFELS, et al., Defendants, Appellees.
No. 04-1618.
United States Court of Appeals, First Circuit.
Heard October 5, 2004.
Decided May 12, 2005.
Walter F. McKee, with whom Lipman, Katz & McKee, P.A. was on brief
for appellant.
Edward R. Benjamin, Jr., with whom Thompson & Bowie, LLP, was on
brief for appellees.
Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and
HOWARD, Circuit Judge.
CYR, Senior Circuit Judge.
In June 2003, Peter Dimmitt filed suit against the Town of Rockland, Maine, its
police department and several police officers, alleging that the police had used
excessive force in effecting his arrest. The defendants filed a motion for
summary judgment, as well as the required statement of material facts and
supporting record citations. See Me. U.S. Dist. Ct. Local R. 56(b).1 Dimmitt's
counsel submitted a timely opposition to the motion, but the accompanying
statement of material facts (setting forth his putative evidence relating to the
use of excessive force) did not comply with Local Rule 56(c), which requires
that the counterstatement expressly admit, deny or qualify each paragraph of the
defendants' statement of material facts.2
Defendants filed a motion to strike the Dimmitt counterstatement as
noncompliant with the local rules. Dimmitt's counsel responded that any
noncompliance was due to "excusable neglect," see Fed. R.Civ.P. 6(b), 3 and
explained:
Difficult as it may be to admit, Plaintiff's counsel's failure to properly file an
opposing statement of facts in dispute is based upon inexperience with the
requirements of the District Court and unfamiliarity with the local rules.
Counsel has not participated in a civil case in U.S. District Court for several
years (but for a busy bankruptcy practice) and is attempting to get up to speed
as soon as is humanly possible. Counsel has had extreme difficulties with
everything from perfecting his ECF participation to keeping up with the speed
of the system compared to that of the State court system, to which he is
intimately acquainted. While his pleadings may not have been set forth in the
required manner, Plaintiff has made a good-faith effort to show the Court that
there are substantial disagreements regarding the facts of this case through the
submission of his own Statement of Material Facts.
The district court granted the motion to strike. Then, in the absence of a timely
Rule 56(c) counterstatement demonstrating evidence of the use of excessive
force, it proceeded to grant summary judgment for the defendants. Dimmitt
now appeals from that judgment insofar as it rests upon the allowance of the
defendants' motion to strike the counterstatement.4
The district court ruling that Dimmitt failed to demonstrate "excusable neglect"
is reviewed only for abuse of discretion. See Fed.R.Civ.P. 6(b); Bennett v. City
of Holyoke, 362 F.3d 1, 4-5 (1st Cir. 2004). In so doing, we accord broad
deference to the special role of the district court in administering its local
procedural rules. See Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st Cir.2004).
On appeal, Dimmitt contends that the district court applied an inflexible
"excusable neglect" standard, which was explicitly rejected in Pioneer
Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S.
380, 392, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (describing "excusable
neglect" as an "elastic concept"). Dimmitt argues that his counsel presented
credible reasons for his mistake, and that there exists no evidence either that his
attorney acted in bad faith or that the 18-day delay in submitting a compliant
counterstatement prejudiced the defendants' case. See id. at 395, 113 S.Ct. 1489
(enumerating some factors pertinent to "excusable neglect" inquiry).
It is true that the "excusable neglect" inquiry involves "a significant equitable
component and must give due regard to the totality of the relevant
circumstances surrounding the movant's lapse." Bennett, 362 F.3d at 5. We can
discern no abuse of discretion, however, in the district court's equitable decision
not to excuse the late filing by Dimmitt's counsel in the present circumstances.
First, as we have repeatedly held, "even under the flexible standard prescribed
by Pioneer," counsels' inattention or carelessness, such as a failure to consult or
to abide by an unambiguous court procedural rule, normally does not constitute
"excusable neglect". See Pioneer, 507 U.S. at 392, 113 S.Ct. 1489 ("
[I]nadvertence, ignorance of the rules, or mistakes concerning construing the
rules do not usually constitute `excusable neglect.'"); Stonkus v. City of
Brockton Sch. Dep't, 322 F.3d 97, 101 (1st Cir.2003); Graphic
Communications Int'l Union, Local 12-N v. Quebecor Printing Providence,
Inc., 270 F.3d 1, 6-7 (1st Cir.2001); Hospital del Maestro v. NLRB, 263 F.3d
173, 175 (1st Cir.2001) (per curiam).
Moreover, among the factors enumerated in Pioneer, by far the most critical is
the asserted reason for the mistake. See Hospital del Maestro, 263 F.3d at 175.
Here, Dimmitt's counsel proffered two reasons for the lapse: (i) he was
accustomed to practicing in the state-court system, and was having difficulty
adapting to "the speed of the [federal-court] system"; and (ii) he was unfamiliar
with the local district court rules relating to summary judgment. Neither
explanation warrants relief.
10
Had Dimmitt's counsel been experiencing difficulty in meeting the 21-day
deadline for submitting the opposition in a compliant manner, he need simply
have moved for an extension prior to its expiration, which could have been
allowed under the more liberal "good cause" or "cause shown" standard. See
Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 187 (1st Cir.2004);
accord Hamby v. Thomas Realty Assocs., 617 A.2d 562, 564 (Me. 1992)
(noting, in analogous context, that "`good cause' standard is less stringent than
the . . . `excusable neglect' standard"); cf. Me. R. Civ. P. 6(b). Indeed, the
district court already had demonstrated its willingness to accommodate
counsel's purported lack of familiarity with one aspect of federal-court practicethe use of the electronic filing system-by granting counsel's request for an
exemption from it.
11
Further, both the state and the federal rules prescribe the identical 21-day
deadline for filing an opposition to a summary judgment motion, see Me. Local
R. 7(c)(2) & (3) ("Any party opposing any other motion shall file a
memorandum and any supporting affidavits or other documents in opposition to
the motion not later than 21 days after the filing of the motion, unless another
time is set by the court.... A party failing to file a timely memorandum in
opposition to a motion shall be deemed to have waived all objections to the
motion."), and counsel never explained how he could have been overwhelmed
by federal summary judgment deadlines, yet not by identical state deadlines.
12
Finally, the requirement that the counterstatement of a party opposing summary
judgment must reference each numbered paragraph of the moving party's
statement of material facts, and expressly admit, deny or qualify the facts
alleged therein, likewise are identical in the federal rules and local state rules.
Thus, it is simply not plausible that counsel submitted this noncompliant
counterstatement of material facts because he would have done so in the Maine
Superior Court.
13
As Dimmitt's counsel proffered no valid reason for the noncompliance, the
protestations of good faith and insistence that defendants were not prejudiced
by his mistake plainly do not suffice as grounds for setting aside the district
court determination that his mistake could not be considered "excusable
neglect." See Hospital del Maestro, 263 F.3d at 175 (noting that, since the
proffered reason for the mistake is the most pivotal factor, a finding of bad faith
is not a prerequisite to the conclusion that a party's neglect was inexcusable);
Gucci Am., Inc. v. Gold Ctr. Jewelry, 158 F.3d 631, 635 (2d Cir.1998) (same).
14
Affirmed.
Notes:
1
Local Rule 56(b) requires the filing of a "separate, short, and concise statement
of material facts, set forth in numbered paragraphs, as to which the moving
party contends there is no genuine issue of material fact to be tried. Each fact
asserted in the statement shall be supported by a record citation." Me. U.S. Dist.
Ct. Local R. 56(b)
Local Rule 56(c) provides, in pertinent part:
A party opposing a motion for summary judgment shall submit with its
opposition a separate, short, and concise statement of material facts. The
opposing statement shall admit, deny or qualify the facts by reference to each
numbered paragraph of the moving party's statement of material facts and
unless a fact is admitted, shall support each denial or qualification by a record
citation as required by this rule.
Me. U.S. Dist. Ct. Local R. 56(c).
Rule 6(b) provides:
When by these rules or by a notice given thereunder or by order of court an act
is required or allowed to be done at or within a specified time, the court for
cause shown may at any time in its discretion (1) with or without motion or
notice order the period enlarged if request therefor is made before the
expiration of the period originally prescribed or as extended by a previous
order, or (2) upon motion made after the expiration of the specified period
permit the act to be done where the failure to act was the result of excusable
neglect.
Fed.R.Civ.P. 6(b).
4
The district court cited alternate grounds for allowing specific aspects of the
defendants' summary judgment motion, but Dimmitt does not challenge these
grounds on appeal
