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Bridges v. Cook's Pest Control

United States District Court, N.D. Alabama, Middle Division

August 8, 2018

JAMES A. BRIDGES, Plaintiff,
v.
COOK'S PEST CONTROL, Defendant.

          MEMORANDUM OPINION AND ORDER

          VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE

         I. Introduction

         Before the Court is Plaintiff James A. Bridges's Motion To Reconsider (the “Motion”). (Doc. 8). Defendant Cook's Pest Control (“CPC”) responded. (Doc. 9). The Motion is ripe for review and, for the reasons stated in today's opinion, is due to be GRANTED.

         II. Standard

         The Eleventh Circuit has extensively discussed the excusable neglect standard:

Rule 60(b)(1) of the Federal Rules of Civil Procedure authorizes a court to relieve a party from a final judgment or order upon a showing of “mistake, inadvertence, surprise, or excusable neglect.” “Rule 60(b) motions are directed to the sound discretion of the district court, and we will set aside the denial of relief from such motion only for abuse of that discretion.” Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 849 n. 2 (11th Cir.1996).
Excusable neglect is generally an “equitable inquiry” based upon the particular circumstances of the case. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 1495, 123 L.Ed.2d 74 (1993). In Pioneer, the Court held that an attorney's inadvertent failure to timely file a proof of claim can constitute excusable neglect under Bankruptcy Rule 9006(b)(1). Looking to other rules for guidance on the meaning of “excusable neglect, ” the Court considered Rule 60(b)(1) and observed that “for purposes of Rule 60(b), ‘excusable neglect' is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.” Id. at 394, 113 S.Ct. at 1497.
The Court identified four factors pertinent to the determination: “the danger of prejudice to the [opposing party], the length of the delay and its potential impact on the judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. at 395, 113 S.Ct. at 1498.
This Court applied the Pioneer factors in Cheney v. Anchor Glass Container Corp., 71 F.3d 848 (11th Cir.1996), holding that the plaintiff's counsel's late filing of a request for a trial de novo following a non-binding arbitration award was excusable neglect. The delayed filing resulted from a miscommunication between the plaintiff's lead counsel and his associate who handled the arbitration while the lead counsel was on vacation-each had assumed that the other had filed a demand for trial de novo. Id. at 849. The court held that the district court abused its discretion in failing to find excusable neglect. We noted that the Pioneer factors weighed in favor of excusable neglect because the defendant was not prejudiced by the late filing. Id. at 850. We also observed that although the error was within counsel's control, the miscommunication was attributable solely to negligence. Id. Finally, there was no indication that the delay was the result of bad faith, i.e., an attempt to gain a tactical advantage through the late filing. Id.

Connecticut State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1355-56 (11th Cir. 2009).

         III. Analysis

         Mr. Bridges filed his Complaint on January 12, 2018. (Doc. 1). He failed to serve CPC within the time allotted by Rule 4(m). Cognizant of that fact and the opportunity to quickly dispose of the case, CPC filed a motion to dismiss on April 20, 2018. (Doc. 4). The time for briefing came and went with no response from Mr. Bridges. Noting that the record reflected “total ‘radio silence' from [Mr. Bridges, ]” the Court dismissed the case on May 21, 2018. (Doc. 6 at 4-5).

         The very next day, Mr. Bridges's counsel filed the present Motion. (Doc. 8 at 2).[1] In the Motion, Mr. Bridges's attorney, Gina D. Coggin (hereinafter “Plaintiff counsel”), sheds light on what happened. (See Id. at 1-4). Plaintiff's counsel was apparently unaware that CPC was never served until the Court dismissed the case. (See Id. at 1-2). She was under the impression that CPC had been served because her firm used an address that had successfully served CPC only a few weeks prior. (See Id. at ¶1); (see also Id. at 5) (affidavit from Plaintiff counsel's legal assistant describing what occurred).

         Plaintiff's counsel also admits that she did not read her email informing her of CPC's motion to dismiss. (See Id. at ¶3). She indicates that she was out of the office at the time the email notification was sent. (See Id. at ¶3). Finally, Plaintiff's counsel informs the Court that she experienced a family tragedy and “that several emails were never opened for several days in April and May of 2018.” (See Id. at ΒΆ4). At bottom, Plaintiff's ...


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