Simmon-Roman et al v. ABC Insurance Company et al

2020 | Cited 0 times | D. Puerto Rico | October 15, 2020



RICHARD SIMMON-ROMAN, et al Plaintiffs v. ABC INSURANCE COMPANY, et al Defendants

CIVIL NO. 17-1180(RAM)

OPINION AND ORDER RAÚL M. ARIAS-MARXUACH, U.S. District Judge Pending before the Court is Plaintiffs Urgent Notice of Appearance and Motion for Reconsideration. (Docket No. 55). For the reasons discussed below, Plaintiffs request for reconsideration at Docket No. 55 is DENIED.

I. BACKGROUND - Marrero filed a Motion to Withdraw Legal Representation. (Docket No. 38). The Court held said motion in abeyance and granted Plaintiffs until July 10, 2020 to appoint new counsel and for the latter to enter an appearance. (Docket No. 39). Subsequently, the Court granted Plaintiffs extensions of time to file their new and 48).

On September 3, 2020, attorney Fredeswin Perez-Caballero -C filed a motion informing the court that he had

been contacted by Plaintiffs, and was inclined to accept being retained, but wanted more time to review the case file before deciding. (Docket No. 51 ¶¶ 2-3). Therefore, Mr. Perez-Caballero [ed] an additional term until October 5, 2020 to announce legal representation. The ample term is requested in the event I am unable to appear, so they have sufficient time to secure Id. ¶ 4. The Court granted this request but [n]o further extensions shall be

by 10/5/2020, the Court will dismiss the case without prejudice. (Docket No. 52). (emphasis added).

appearance on October 5, 2020, as ordered by the Court. Accordingly, on October 6, 2020, the Court dismissed the case without prejudice. (Docket No. 53). That same day, Plaintiffs, through attorney Perez-Caballero, filed an Urgent Notice of Appearance and Motion for Reconsideration stating that Perez-

entered into his calendar 10/10/2020 as the deadline to announce legal representa ¶¶ 3-4). The Court ordered Defendants to respond. (Docket No. 56). On October 13, 2020, Defendants filed a Motion in Compliance with Order alleging that Plaintiffs have not justified their failure to comply with the

or to diligently prosecute their claims. (Docket No. 57).

II. LEGAL STANDARD A. Fed. R. Civ. P. 6(b)(1)(B)

Generally, litigants must show good cause when seeking an extension of a court deadline. In the ordinary course, a litigant who seeks an extension of time must show good cause for the desired extension. Rivera-Almodovar v. Instituto Socioeconomico Comunitario, Inc., 730 F.3d 23, 26 (1st Cir. 2013) (citing Fed.R.Civ.P. 6(b)(1)). When the deadline in question has expired, Fed. R. Civ. P. 6(b)(1)(B) requires more, namely: the litigant failure to request an extension in a timeous manner constitutes excusable neglect. Id. Id.

and specifically

analyze the following factors: [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 whe Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395, (1993). See also Tubens v. Doe, 2020 WL 5834736, at *3

(1st Cir. 2020) (applying Pioneer to cases regarding excusable neglect in the context of Fed. R. Civ. P. 6(b)(1)(B) controversies). The First Circuit has held that although each of should be weighed, there is ultimately a thumb on the scale because [w]ithin the constellation of relevant factors, the most important is the reason for the particular oversight. Skrabec v. Town of N. Attleboro, 878 F.3d 5, 9 (1st Cir. 2017) (quoting Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d 33, 38-39 (1st Cir. 2013)) (emphasis added).

B. Fed. R. Civ. P. 59(e)

The Federal Rules of Civil Procedure do not provide for the filing of motions for reconsideration. A motion that asks court to modify its earlier disposition of a case because of an allegedly erroneous legal result is brought under Fed. R. Civ. P. Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 7 (1st Cir. 2005). See also United States v. Pérez-Greaux, 382 F.Supp.3d 177, 178 (D.P.R. 2019). The United States Court of Appeals for the First has held that altering or amending a judgment United States ex rel. Ge v. Takeda Pharm. Co., 737

F.3d 116, 127 (1st Cir. 2013) (internal quotation omitted). Consequently, the decision to deny a Rule 59(e) motion is within the sound discretion of the district court. See McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).

Thus, a district court may grant reconsideration only if there , or in certain other narrow situations [such as a change in controlling United States v. Peña-Fernández, 394 F.Supp.3d 205, 207 (D.P.R. 2019) (quoting Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014)). The moving party bears the burden of proving that one of these three conditions exist to warrant reconsideration. See Sutherland v. Ernst & Young LLP, 847 F. Supp. 2d 528, 531 (S.D.N.Y. 2012).

III. ANALYSIS In the case at bar, Plaintiffs have not met their burden under Rule 6 or Rule 59 of Federal Civil Procedure. Specifically, -page Urgent Notice of Appearance and Motion for Reconsideration does not address (1) the concept of excusable neglect nor (2) any grounds on which reconsideration would be proper. (Docket No. 55).

Plaintiffs have not established good cause, let alone excusable negligence to warrant an additional extension after the time allotted by the Court had expired as required by Fed. R. Civ. P. 6. Plaintiffs originally had until July 10, 2020 to enter their Court subsequently granted three extensions, i.e. until October 5, 2020, for Plaintiffs to comply. (Docket Nos. 40, 48, 52). In fact, the Court s first extension was granted sua sponte, after Plaintiffs

had failed to comply with the original July 10, 2020 deadline. (Docket No. 40). Plaintiffs were repeatedly warned that failure to enter a notice of appearance would warrant dismissal without prejudice. (Docket Nos. 40, 48, 52). Plaintiffs only proffered reason for their lack of compliance is that Mr. Perez-Caballero, (Docket No. 55 ¶¶ 3-4). Notably, Plaintiffs do not address the

other three factors established by the Supreme Court in Pioneer. The First Circuit has repeatedly held that a inattention or carelessness, without more, normally does not

Rivera-Almodovar, 730 F.3d at 27 (quoting Dimmitt v. Ockenfels, 407 F.3d 21, 24 (1st Cir.2005)). See also Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 101 (1st Cir. 2003) The stated reasons for the neglect confusion over filing dates and busyness hold little water. . Thus, Plaintiffs have not established that their failure to comply with


Similarly, Plaintiffs have not articulated a manifest error of law, newly discovered evidence, a change in controlling law or any other circumstance that would warrant the extraordinary remedy that is reconsideration. See Peña-Fernández, 394 F.Supp.3d 205;

Takeda Pharm. Co., 737 F.3d 127. Therefore, Plaintiffs have not met their burden and reconsideration is not proper.

IV. CONCLUSION In light of the above, the Court DENIES Urgent Notice of Appearance and Motion for Reconsideration at Docket No. 55.

IT IS SO ORDERED. In San Juan, Puerto Rico, this 15 th

day of October 2020. S/ RAÚL M. ARIAS-MARXUACH United States District Judge

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