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Cottman v. Naskrent

United States District Court, D. Arizona

November 30, 2018

Robert P. Cottman, et al., Plaintiffs,
David G. Naskrent, et al., Defendants.


          Dominic W. Lanza United States District Judge

         Pending before the Court is Plaintiffs' Motion for Leave to File Late the Revised Consent Form and Opt-In Notice (Doc. 63). For the following reasons, the Court grants the motion.


         The background facts of this civil action under the Fair Labor Standards Act are described in broad strokes in the Court's Order conditionally certifying a collective action, pursuant to 29 U.S.C. 216(b), of all delivery drivers employed by Rosati's Pizza (“Rosati's”) on or after May 24, 2014. (Doc. 57.) The Court found that Plaintiffs “submitted declarations . . . that aver that Defendants did not pay an hourly salary but instead paid drivers cash per pizza delivered, often resulting in a salary below minimum wage, ” that the “policy applied to every delivery driver employed by Rosatti's, ” and that the affidavits submitted by Defendants “do not actually serve to rebut the bulk of Plaintiffs' allegations.” (Id. at 5.) The Court further found that Plaintiffs introduced sufficient evidence “to support the allegation that Defendants failed to compensate drivers for overtime hours worked.” (Id.) The Court therefore concluded that “there is sufficient evidence in the record to conclude that Plaintiffs and potential opt-in plaintiffs were victims of a single decision, plan, or policy, ” such that it was appropriate to certify an FLSA collective action. (Id. at 6 (internal quotation marks omitted).) However, the Court determined that the applicable statute of limitations narrowed the group of similarly situated employees proposed by Plaintiffs-who sought a collective action for “all current and former delivery drivers of Defendants who worked at any point from January 1, 2007 through the present date” (Doc. 26 at 2; id. at Ex. E)-to only those drivers employed by Rosati's on or after May 24, 2014. (Doc. 57 at 6-7.)

         The Court noted that Plaintiffs had attached a proposed Notice of Opportunity to Opt-In to Lawsuit (“Notice”) and an Opt-In Consent Form (“Consent”) to their Motion to Certify. (Doc. 57 at 9 (citing Doc. 26 at Ex. E, F).) Although Defendants had not objected to the contents of these forms, the Court ordered Plaintiffs to “submit a revised proposed Notice and Consent form to the Court no later than October 5, 2018” to incorporate the substance of the Court's Order, adding that “[t]he final Notice to potential plaintiffs and consent to become party plaintiff should be mailed no later than 14 days after the Court issues final authorization of the Proposed Notice.” (Id. at 10.)

         So far, so good. Unfortunately, Plaintiffs failed to submit their revised proposed Notice and Consent by the October 5, 2018 deadline. The parties do not dispute that on October 25, 2018, Plaintiffs' counsel telephoned Defendants' counsel to explain that Plaintiffs' counsel had made some kind of mistake causing the deadline to lapse unheeded and to request a stipulation to file the revised forms, and that Defendants' counsel refused the request. (Doc. 66 at 2-3.) The following day, on October 26, 2018, Plaintiffs' counsel filed the Motion presently before the Court, attributing the missed deadline to “a clerical error, ” as the deadline had been “inadvertently calendered [sic] as October 25 rather than October 5, ” and taking “personal responsibility for the oversight of the deadline.” (Doc. 63 at 2.) Defendants filed a Response opposing the Motion on November 9, 2018 (Doc. 66), and Plaintiffs filed a Reply on November 16, 2018 (Doc. 67).


         I. Legal Standard

         Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure provides that “[w]hen an act may or must be done within a specified time, the 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.” The Supreme Court has explained that “excusable neglect, ” in this context, can encompass mistakes and carelessness: “Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388 (1993).[1]

         Whether the neglect is “excusable” is a flexible standard, “at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Id. at 395. At a minimum, courts assessing whether neglect is “excusable” must consider four factors: “[1] the danger of prejudice to the [non-moving party], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.” Id. Failure to consider all four factors constitutes an abuse of discretion. Lemoge v. United States, 587 F.3d 1188, 1192-93 (9th Cir. 2009). No. single factor is determinative. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 n.2 (9th Cir. 1997).

         When assessing whether a failure to act was caused by “excusable neglect, ” a court may not impose per se rules. Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (“We now hold that per se rules are not consistent with Pioneer . . . .”). There can be “no rigid legal rule against late filings attributable to any particular type of negligence.” Id. at 860 (affirming that a paralegal's calendaring error was “excusable negligence.”). Even when the reason for the delay is weak, where the equities favor excusing the negligence, the court must do so. Bateman, 231 F.3d at 1224-25 (reason for delay was travel, jet lag, and the time it took to sort through mail).

         Once a district court has considered and weighed all four Pioneer factors, and any other factors it deems appropriate on a case-by-case basis, the court has broad discretion to grant or deny the motion. Pincay, 389 F.3d at 859 (“[T]he decision whether to grant or deny an extension of time . . . should be entrusted to the discretion of the district court because the district court is in [the best position] to evaluate factors such as whether the lawyer had otherwise been diligent, the propensity of the other side to capitalize on petty mistakes, the quality of representation of the lawyers . . ., and the likelihood of injustice if the appeal was not allowed.”).

         II. Analysis

         The Court first considers the danger of prejudice to Defendants. This factor weighs strongly in favor of Plaintiffs because Defendants suffered no prejudice under the circumstances. Plaintiffs originally filed proposed Notice and Consent forms in November 2017 (see Doc. 26-1) and the Court spelled out, in its September 11, 2018 Order, the narrow revisions that needed to be made before Plaintiffs were to refile them (see Doc. 57). Thus, Defendants knew exactly what the revised filings would contain. Defendants cannot claim to have altered their strategy in any way due to the delay. Lemoge, 587 F.3d at 1196 (“The [non-movant] does not indicate how it would have changed its strategy . . ., or that a different strategy would have benefitted [it].”). The only prejudice Defendants can claim is the loss of a “quick but unmerited victory, the loss of which ...

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