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The Robert N. Brewer Family Foundation v. Huggins

United States District Court, M.D. Alabama, Northern Division

December 16, 2019

THE ROBERT N. BREWER FAMILY FOUNDATION Plaintiff,
v.
REX LARRY HUGGINS, as TRUSTEE OF THE CHRISTINE C. BREWER REVOCABLE TRUST, and individually Defendant.

          MEMORANDUM OPINION AND ORDER

          ANDREW L. BRASHER, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Rex Huggins' (“Defendant”) motion to set aside the Court's order. See Doc. 51. Defendant was previously ordered to render relief to the Robert N. Brewer Family Foundation (“Plaintiff”) because he did not respond to an order to show cause. See Doc. 50. Now, Defendant moves to strike the Court's prior order claiming excusable neglect. Upon consideration, the motion is due to be DENIED.

         BACKGROUND

         On September 5, 2019, Plaintiff filed a motion requesting relief from the Court, including an order directing Defendant to reimburse the trust assets for disbursements made to pay his lawyer. Plaintiff argued that Defendant did not provide required written notice before it used those assets to defend himself. On the following day, September 6, this Court ordered that Defendant show cause by September 26 why Plaintiff's motion should not be granted. The 26th came and went. The Court allowed Defendant more than double the time originally offered and finally, on October 18, the Court entered an order directing Defendant to disburse funds. Then, on October 21, Defendant responded by filing a motion to set aside the Court's October 18 order, arguing that his lawyer thought a response had been filed.

         STANDARD

         The Court will apply Rule 60(b)(1) of the Federal Rules of Civil Procedure, which states that an order of the court may be set aside for “mistake, inadvertence, surprise, or excusable neglect.” Defendant has here claimed excusable neglect. In order to set aside an order on the basis of excusable neglect, courts in the Eleventh Circuit come to an equitable determination, taking into account the totality of the circumstances surrounding the omission. See Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir. 2007).[1] The circumstances considered are “the danger of prejudice to the opposing party, the length of the delay and its potential impact on 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.” Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 1498, 123 L.Ed.2d 74 (1993)).

         DISCUSSION

         Defendant's motion to set aside the order of this Court provides no reason for failing to respond to the Court's show cause order. The only sentence in the motion that offers anything approaching a reason is the final sentence: “the undersigned believed it had been filed and was surprised by this Court's order indicating that it had not.” The necessary inquiry is whether “believ[ing] it had been filed” constitutes excusable neglect.

         Usually, the Eleventh Circuit provides parties with a great deal of flexibility about late filings and has a broad view of what it considers an acceptable “reason for the delay.” An excuse as simple as a “breakdown in communication” between attorneys handling the case can excuse missing filing deadlines and justify setting aside orders. See Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (holding that neglect was excusable where a secretary forgot to tell an attorney about the deadline for filing a demand for a trial de novo after an arbitration award).

         But this charitable attitude vanishes with some rapidity when a court has issued an order requiring that a response be filed and prescribing a result for a failure to do so. See Allen v. Dockery, 295 Fed.Appx. 335, 339 (11th Cir. 2008) (holding that the same “breakdown in communication” excuse would not be viable in a situation where “the deadline…missed was imposed by a court order that explicitly warned…that a failure to comply would result in the dismissal of his case”). In general, there is little sympathy where the deficiency has been explicitly brought to the attention of the party in question. See Norment v. Newton Cty. Sheriff's Dep't, 352 Fed.Appx. 316, 318 (11th Cir. 2009) (relief was not available for a party that, as a result of a clerical error, failed to file a statement of facts, because this lack of filing had been brought to their attention).

         In light of this case law, the totality of the circumstances weighs against Defendant here. There was not a great deal of prejudice to Plaintiff from Defendant's non-response to the Court's order. Nor did the delay adversely impact judicial proceedings. But a one-month delay between the filing deadline and the actual filing is nonetheless substantial, especially when Defendant responded only because the Court ruled. And the Court's show-cause order expressly warned that the motion would be granted if it were not opposed during the relevant time period.

         Most importantly, Defendant has given no reason whatsoever for not responding to the Court's show-cause order, not even a brief statement about a miscommunication or accident. The Court is left to speculate about the reason for Defendant's cavalier approach to legal requirements. The Court notes that Defendant's failure to respond to the Court's show-cause order is similar to his failure to provide the relevant notice under Florida law for using trust assets to pay his attorneys fees. Perhaps, therefore, the root of the problem is that Defendant simply does not take seriously his duties as a trustee. If so, Defendant needs to change his attitude.

         Finally, the Court has reviewed Defendant's belated response to the Court's order to show cause and finds its arguments on-the-merits unpersuasive. Plaintiff is correct that Defendant should have given the beneficiaries of the trust notice before he began using ...


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