UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TONEY TUCKER, Individual,
Plaintiff-Appellant,

and

PAUL HOBBS,
Plaintiff,
                                                                  No. 97-1364
v.

CHRYSLER CREDIT CORPORATION;
PAUL BINKO; CHRYSLER
CORPORATION; GREGORY RYMAN,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-95-3961-DKC)

Argued: April 8, 1998

Decided: May 29, 1998

Before WILLIAMS, Circuit Judge, PHILLIPS, Senior Circuit Judge,
and G. ROSS ANDERSON, JR., United States District Judge for
the District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Jack Wheeler, Jr., WILLIAM WHEELER &
ASSOCIATES, Philadelphia, Pennsylvania, for Appellant. Mark
Christopher Kopec, WHITEFORD, TAYLOR & PRESTON, L.L.P.,
Baltimore, Maryland, for Appellees. ON BRIEF: Richard J. Magid,
Carmina Perez-Fowler, WHITEFORD, TAYLOR & PRESTON,
L.L.P., Baltimore, Maryland, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Toney Tucker appeals from the district court's order granting the
motion to dismiss of Chrysler Credit Corporation ("Chrysler Credit"),
Chrysler Corporation ("Chrysler") and Paul Binko (collectively "de-
fendants"). As basis for this appeal, Tucker challenges the district
court's refusal to grant two untimely motions for enlargement of time
to enable him to file opposition papers to defendants' motion to dis-
miss, and dismissal of his claim under the Automobile Dealers' Day
in Court Act, 15 U.S.C. § 1221 et seq. ("ADDCA" or "Act"). We
affirm.

I.

Plaintiff Toney Tucker is the owner, President, Chief Executive
Officer and sole shareholder of Toney Tucker Enterprises, Inc.
("Tucker Enterprises"), t/a Lexington Park Chrysler, Plymouth, Jeep
Eagle ("Lexington Park"). This case arises from a financing agree-
ment entered into between Chrysler Credit and Lexington Park (e.g.,
Tucker Enterprises), which provided that Chrysler Credit would give
"floor plan" financing to Lexington Park for its new and used automo-
bile inventory. The dealership ultimately incurred an indebtedness of
approximately $400,000.00 to Chrysler Credit.

According to Tucker, Chrysler Credit agreed to extend post-
petition credit to the dealership if it voluntarily filed a bankruptcy

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petition. On December 29, 1994, Tucker Enterprises filed a voluntary
Chapter 11 Bankruptcy Petition, and Chrysler Credit submitted a
post-petition credit petition with the bankruptcy court. That petition
was withdrawn before a ruling was rendered by the court. Thereafter,
the United States Trustee's motion to convert the case to a Chapter
7 liquidation was granted. Also during this period, a trustee was
appointed to represent the estate and Tucker Enterprises ceased func-
tioning as a dealership.

Tucker then brought two actions in the Circuit Court for Prince
George's County, Maryland. Both actions were removed to the
United States District Court for the District of Maryland, referred to
the bankruptcy court, and after stipulations between the trustees and
approval of the bankruptcy judge, dismissed with prejudice. Tucker
thereafter filed a third action in the United States District Court in his
individual capacity and on behalf of Tucker Enterprises. The claims
asserted by Tucker Enterprises were dismissed in the bankruptcy
court, and Tucker's individual claims were dismissed by the district
court.

In May 1995, the trustee representing Tucker Enterprises executed
an agreement with Chrysler for the waiver, compromise, discharge
and release of all potential claims against Chrysler, Chrysler Credit,
and all their respective employees and affiliates. This agreement was
ratified by the bankruptcy judge by order dated June 16, 1995.

Tucker then filed the instant federal question action, which alleges,
inter alia, racial discrimination in violation of 42 U.S.C. § 1981, vio-
lation of the Automobile Dealers' Day in Court Act, 15 U.S.C § 1221
et seq., civil conspiracy, intentional misrepresentation and tortious
interference with contractual relations. Defendants moved to dismiss
all causes of action on January 25, 1996.

Under the local rules, Tucker had until February 12, 1996 to
respond to defendants' motion. Five days after the expiration of the
response period, Tucker requested defense counsel grant him an
extension to file a response to the motion to dismiss. Defense counsel
refused, and Tucker thereafter filed a motion for enlargement of time
on March 18, 1996, alleging that travel commitments, pressing public
duties and inclement weather rendered him unable to file a timely

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response. In addition, Tucker's counsel informed the district court
that he advised Tucker to seek alternate counsel. The district court
granted the motion, extending the time period to respond until March
29, 1996. Once again, Tucker failed to respond to the motion to dis-
miss.

Tucker's new counsel filed a second and third motion for enlarge-
ment of time on May 21, 1996 and October 28, 1996, respectively.1
Among other rulings in its February 14, 1997 memorandum and opin-
ion, the district court denied the second and third motions for enlarge-
ment of time, and dismissed Tucker's claim under the ADDCA
pursuant to Fed. R. Civ. P. 12(b)(6). Tucker appeals.

II.

We review a district court's ruling on a motion for enlargement of
time under Fed. R. Civ. P. 6(b)(2) for abuse of discretion. See United
States v. Borromeo, 945 F.2d 750, 754 (4th Cir. 1991). We review the
district court's decision to grant a motion to dismiss under Rule
12(b)(6) de novo. See Brooks v. City of Winston Salem, North
Carolina, 85 F.3d 178, 181 (4th Cir. 1996). We are required to accept
as true the factual allegations in the plaintiff's complaint and are
required to construe those facts in the light most favorable to the
plaintiff. See Estate Constr. Co. v. Miller & Smith Holding Co., Inc.,
14 F.3d 213, 217-18 (4th Cir. 1994). We may affirm the district
court's dismissal for failure to state a claim where it appears beyond
doubt that the plaintiff is entitled to no relief under any set of facts
he could prove in support of his claim. See Rogers v. Jefferson-Pilot
Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989).

III.

Tucker argues that the district court abused its discretion in deny-
ing the second and third motions for enlargement of time to respond
to the motion to dismiss. Tucker contends that excusable neglect
existed for his failure to timely respond because additional time was
needed to secure alternate counsel. Tucker further complains that the
_________________________________________________________________
1 The third motion included, in the alternative, a request to transfer. The
motion to transfer, however, is not part of this appeal.

                    4
district court's delay in ruling on the second and third motions
amounts to excusable neglect. We find no error.

Federal Rule of Civil Procedure 6(b)(2) governs motions for
enlargement of time sought after expiration of the specified time
period. The rule provides a district court with discretion to order an
extension even after the expiration of a specified time period, but only
for "cause shown" and if the failure to act in a timely fashion is the
result of "excusable neglect." See Fed. R. Civ. P. 6(b)(2).

The Supreme Court defined the meaning of excusable neglect in
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507
U.S. 380 (1993), a case dealing with late filings in bankruptcy pro-
ceedings. In defining neglect, the Supreme Court reasoned that courts
could accept late filings due to inadvertence, mistake or carelessness,
and intervening circumstances beyond a parties control. See Pioneer
Inv. Servs. Co., 507 U.S. at 388. To ascertain whether a delay in filing
is excusable, courts must consider "all relevant circumstances sur-
rounding the party's omission." Id. at 395. Factors relevant to this
inquiry include:

          the danger of prejudice to the [nonmovant], the length of the
          delay and its potential impact on judicial proceedings, the
          reason for the delay including whether it was within the rea-
          sonable control of the movant, and whether the movant
          acted in good faith.

Id.

Tucker has failed to establish the requisite showing of excusable
neglect. We are not persuaded by his argument that excusable neglect
existed because of his need to obtain alternate counsel. Tucker's orig-
inal attorney did not file a motion to withdraw as counsel, and Tucker
was therefore represented in this matter at all times during the pen-
dency of defendants' motion to dismiss. In any event, there is no basis
for finding excusable neglect in light of alternate counsel's failure to
file the second motion for enlargement of time until three weeks after
being admitted pro hac vice. We also wholly reject Tucker's argu-
ment that the district court's failure to rule on the second and third
motions for enlargement of time excuse his neglect. The district court

                    5
did not abuse its discretion in denying the motions. Accordingly, we
affirm the district court on this ground.

IV.

Tucker next contends that the district court erred in finding he
lacked standing, in his individual capacity, to bring suit under the
ADDCA. In support, Tucker maintains that the franchise agreement
relied on an active, continuing and substantial relationship between
the dealership and Tucker in his individual capacity. That is, Tucker
believes that the franchise agreement called for his active personal
participation, and thus entitles him to sue under the ADDCA. We dis-
agree.

Tucker did not raise this argument in the district court because of
his failure to respond to the motion to dismiss. Ordinarily, we will not
consider arguments raised for the first time on appeal. See National
Wildlife Fed'n v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988). In very
limited circumstances, however, we have recognized that consider-
ation of such issues is appropriate where an error is plain and refusal
to consider the issue would result in a miscarriage of justice. See
Stewart v. Hall, 770 F.2d 1267, 1271 (4th Cir. 1985).

Tucker is unable to establish plain error or a miscarriage of justice,
as he lacks standing, in any event, to sue under the ADDCA in his
individual capacity. The statute plainly applies only to an "automobile
dealer," which is defined as "any person, partnership, corporation,
association, or other form of business enterprise . . . operating under
the terms of a franchise and engaged in the sale or distribution of pas-
senger cars, trucks, or station wagons." See 15 U.S.C. § 1221(c)
(emphasis added).

Tucker contends he is a party to the franchise agreement, and is
thus entitled to protection under the ADDCA, because the franchise
agreement calls for his active, substantial and continuing participa-
tion. In support of this contention, Tucker principally relies on York
Chrysler-Plymouth, Inc. v. Chrysler Credit Corp., 447 F.2d 786 (5th
Cir. 1971), which found that individual dealership owners essential to

                    6
the operation of a dealership under a franchise agreement could sue
under the ADDCA.2

We find Tucker's reliance on York misplaced, and instead find the
reasoning of Vincel v. White Motor Corp., 521 F.2d 1113 (2nd Cir.
1975), more persuasive. In Vincel, the court found that where a
dealership acts in its corporate capacity, the ADDCA's established
principle is that the corporation enjoys the right of action. Id. at 1120.
The court reasoned that because the dealership's claims were released
in bankruptcy, and approved by the bankruptcy court, no justification
existed for allowing the shareholders to maintain suit in their individ-
ual capacity. Id.

We find no justification for permitting Tucker to maintain suit in
his individual capacity. The circumstances present in York Chrysler-
Plymouth, Inc., which compelled the court to permit individual share-
holders to maintain suit, are notably absent here. The franchise agree-
ment in this case does not make Tucker essential to the operation of
the dealership. The claims in the present action, which belong to the
corporation, were dismissed in bankruptcy. Accordingly, we find that
Tucker is not entitled to maintain suit in his individual capacity.

V.

For the reasons stated above, the judgment of the district court is

AFFIRMED.
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2 The parties were considered essential in York based on 1) a recitation
in the franchise agreement that Chrysler relied on the parties active, sub-
stantial and continuing personal participation; 2) a requirement the par-
ties maintain beneficial ownership and control of the stock of the
dealership; 3) a clause permitting termination if the parties died, failed
to actively continue to participate in the management of the dealership,
or were convicted of certain crimes; and 4) a clause permitting termina-
tion by Chrysler if it believed a disagreement between the parties might
adversely affect the business. York Chrysler-Plymouth, Inc., 447 F.2d at
790-91.

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