United States District Court, N.D. Mississippi, Oxford Division
ORDER GRANTING MOTION FOR EXTENSION OF TIME
PERCY UNITED STATES MAGISTRATE JUDGE.
March 1, 2019, Defendant Dakota L. Byrd filed a motion for an
extension of time to respond to Plaintiff's Complaint.
Docket 7. Byrd's deadline for answering the Complaint was
February 22; however, the motion states that Byrd did not
notify counsel that he had been served until after the
deadline for responding had passed. Id. at 1-2.
Therefore, Byrd seeks an additional ten (10) days to respond
under Federal Rule of Civil Procedure 6(b). Id.
Plaintiff responded in opposition to Byrd's motion and
separately filed a Motion for Entry of Default against Byrd.
request for an extension of time is made before the
expiration of a deadline, “this court grants additional
time almost as a matter of course.” Casey v.
Quality Restaurants and Concepts, No. 1:10CV309-NBB-DAS,
2012 WL 3261367 at *2 (N.D. Miss. Aug. 8, 2012). However, the
more stringent standards of Federal Rule of Civil Procedure
6(b)(1)(B) apply when the time for a response expires without
a motion for additional time. Rule 6(b)(1)(B) provides that
“when 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.”
extension under this Rule requires a showing of both
good cause and excusable neglect. Casey, 2012 WL
3261367 at *2. “[P]art of the good cause showing
generally required by this court includes an explanation for
why a timely request for additional time could not
have been made before the expiration of time.”
Id. (citing Johnson v. Bolivar County, No.
2:08CV226-M-D, 2009 WL 4855988, *3-4 (N.D. Miss. Dec. 9,
2009)). The excusable neglect standard rests on an equitable
determination that considers all relevant circumstances
including “the danger of prejudice […], the
length of 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.” Midwest Employers
Cas. Co. v. Williams, 161 F.3d 877 (5th Cir. 1998)
(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P'ship, 507 U.S. 380, 395 (1993)).
of explanation, counsel for Byrd states that Byrd was
“unaware of the significance of his receipt of the
Complaint” and “did not appreciate the need to
notify counsel of service….” Docket 7 at 1-2.
Plaintiff concedes that “a client being unaware of the
significance of a complaint and not appreciating the duty to
notify his attorney is certainly understandable;”
however, Plaintiff contends that counsel for Byrd was
retained in January 2019 and notified via voicemail on
January 30, 2019, about the Complaint, prior to service of
process on Byrd which occurred on February 1, 2019. Docket 8
at 2. On this basis, Plaintiff contends that Byrd's
explanation is merely an excuse for counsel's failure to
“periodically monitor the court docket” and is
insufficient to establish good cause. Id. at 3.
Court finds that Byrd's explanation for why a timely
request for additional time could not have been made
before the expiration of time is sufficient to establish good
cause. Counsel for Byrd states that he was not notified that
Byrd had been served until March 1, 2019, at which time he
immediately filed the instant motion. Docket 7; Docket 7-1 at
¶3. Despite counsel for Plaintiff's averments that
on January 30, 2019, he “left a detailed message on
Timothy Peeple's answering machine with a message to call
Counsel for Plaintiff back if he was, in fact, representing
Byrd, ” there is no allegation that counsel for Byrd
had actual notice that Byrd had been served until March 1,
2019. Docket 8-1 at ¶11.
established good cause, the Court turns to Byrd's attempt
to show excusable neglect. Byrd argues that “it would
be extremely prejudicial to allow the plaintiff in this case
to establish liability against Byrd [by way of a default
judgment] on a claim that has no basis in the law.”
Docket 7 at 3 (citing Baldwin v. Layton, 300
Fed.Appx. 321, 323 (5th Cir. 2008) (holding that there is no
individual liability under Title VII). Plaintiff acknowledges
that default judgment is a severe remedy, yet cites In re
Knight, 833 F.2d 1515, 1516 (11th Cir. 1987), in which a
default judgment was upheld “where a party offers no
good reason for the late filing of its answer.” In
re Knight, 833 F.2d at 1516. In In re Knight,
the court noted that “at no time did the lawyer attempt
to show excusable neglect” which distinguishes it from
the instant action. Without further explanation, Plaintiff
simply states that she would be prejudiced if Byrd is
permitted to respond. Docket 8 at 4.
asserts that the length of delay is minimal. Docket 7 at 3.
Byrd's answer was due on February 22, 2019, and he filed
the instant motion only seven days later. Id. Byrd
notes that co-defendant Dollar General Corporation has until
late March 2019 to file a responsive pleading and no
deadlines have been set in this case. Id.
asserted in support of his argument for a finding of good
cause, Byrd claims that the reason for delay is his
“misunderstanding of the proceedings, ” namely,
his misunderstanding that action was needed after being
served with the Complaint. Docket 7 at 3. Plaintiff disputes
this argument on the basis that counsel for Byrd was
contacted via voicemail on January 30, 2019, prior to service
of process on Byrd on February 1, 2019. Docket 8 at 2.
Plaintiff argues that “the reasons for the delay in
answering … are weak at best.” Id. at
whether Byrd has acted in good faith, Byrd claims that he
“has done nothing to intentionally thwart the
plaintiff's pursuit of her claims.” Docket 7 at 3.
Byrd states that granting his motion will not prejudice
Plaintiff and will “avoid the potential for a finding
of liability against an individual who is not liable for the
claims asserted in this lawsuit as a matter of law.”
Id. Plaintiff counters this argument with her
conclusory belief that Byrd's motion was not made in good
faith. Docket 8 at 4.
the current posture of this litigation, the Court declines to
find that Plaintiff would be prejudiced if Byrd is granted an
extension of time to respond to the Complaint. The Court
believes it should rule on the substantive merits of a case
wherever possible. The length of delay here is minimal and
has had no effect on judicial proceedings as the Court has
not yet entered the Rule 16.1 Initial Order scheduling a Case
Management Conference. The Court, having accepted Byrd's
explanation sufficient to establish good cause, similarly
finds his reasons for delay sufficient to support a showing
of excusable neglect. Finally, the Court finds no basis to
conclude that Byrd has not acted in good faith in immediately
contacting counsel for Plaintiff to request a voluntary
extension of time and immediately moving for an extension of
time when that request was denied.
Dakota L. Byrd's Motion for Extension of Time to File
Responsive Pleading or, Alternatively, for Leave to File
Responsive Pleading is GRANTED. Byrd has ten
(10) days from the date of this Order to file a responsive
pleading to Plaintiff's Complaint. Based on the
foregoing, Plaintiff's Motion for Entry of Default is