                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 RYAN NOAH SHAPIRO, et al.,

                Plaintiffs,
        v.
                                                           Civil Action No. 13-555 (RDM)
 DEPARTMENT OF JUSTICE,

                Defendant.


                        MEMORANDUM OPINION AND ORDER

       On September 5, 2019, the Court extended Defendant’s deadline to file a renewed motion

for summary judgment from September 4, 2019 to September 6, 2019 at 3:00 p.m. Minute Order

(Sept. 5, 2019). Defendant missed that deadline by nine-and-a-half hours, filing its motion at

12:31 a.m. on September 7, 2019. Dkt. 132. In light of that missed deadline, Plaintiffs now

move to strike Defendant’s renewed motion for summary judgment as untimely, Dkt. 134, and

Defendant moves for an extension nunc pro tunc, arguing that the missed deadline constitutes

excusable neglect, Dkt. 137. Plaintiff has also moved to stay this proceeding pending the Court’s

resolution of its motion to strike. Dkt. 135.

       Rule 6(b) of the Federal Rules of Civil Procedure permits a court to extend deadlines,

even after the time to act has expired, if there is good cause and the party “failed to act because

of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). “Excusable neglect is an equitable concept

that considers ‘all relevant circumstances’ surrounding the failure to act.” Cohen v. Bd. of Trs. of

the Univ. of the Dist. of Columbia, 819 F.3d 476, 479 (D.C. Cir. 2016) (quoting Pioneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). “Generally[,]

‘excusable neglect’ does not require counsel to have been faultless, and ‘inadvertence, mistake,
or carelessness’ can fall within the rule.” Id. (quoting Pioneer, 507 U.S. at 388). In determining

what constitutes excusable neglect, the D.C. Circuit has instructed that a court must consider the

four factors set forth by the Supreme Court in Pioneer: “(1) the risk of prejudice to the other

side; (2) the length of the delay and the potential impact on judicial proceedings; (3) the reason

for the delay and whether it was within counsel’s reasonable control; and (4) whether counsel

acted in good faith.” Id. (citing Pioneer, 507 U.S. at 395).

       Applying the Pioneer factors here, the Court concludes that Defendant’s missed deadline

was attributable to excusable neglect.

       First, as Defendant observes, there has been no identifiable prejudice by the

Department’s filing of its motion nine-and-a-half hours later than it was required to do so. See

Dkt. 137 at 2. Instead, Plaintiffs focus on the multiple times that Defendant has moved for

summary judgment and on Defendant’s allegedly incorrect representation to the Court that

Plaintiffs consented to a two-day, rather than a one day, extension. See Dkt. 134 at 1–3. But the

fact that Defendant has been allowed to move for summary judgment on several occasions has

no bearing on whether Plaintiffs were prejudiced by the missed deadline, and Plaintiffs do not

seek the imposition of sanctions for what they contend was a misrepresentation to the Court.1

Plaintiffs, moreover, do not claim that Defendant has engaged in a pattern of missed deadlines or

dilatory tactic, and they disregard the fact that the case involves not only the interests of the




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  Plaintiffs separately advised the Court of the alleged misrepresentation but simply “defer[ed]
to the Court as to the appropriate remedy to address counsel for Defendant’s misrepresentation to
the Court.” Dkt. 131. On review of Defendant’s motion for extension, the Court is unpersuaded
that counsel misrepresented the facts. Although Counsel’s factual representation could have
been clearer, his motion is reasonably construed to assert that (1) he sought consent “only until
tomorrow” but (2) subsequently determined that he would need an additional day. Dkt. 130.
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parties but also the privacy interests of third parties not before the Court. See, e.g., Dkt. 132-1 at

2 (arguing that disclosure would cause “a clearly unwarranted invasion of . . . personal privacy”).

       Second, the “delay was brief, and there is no suggestion that it had a material effect on

the proceedings.” Yesudian ex rel. United States v. Howard Univ., 270 F.3d 969, 971 (D.C. Cir.

2001). Indeed, it is difficult to imagine what “material effect on the proceedings” would have

resulted from the missed deadline had Plaintiffs simply filed their brief in opposition to

Defendant’s motion for summary judgment and cross-motion for summary judgment on the

established schedule—or, if necessary, had sought an additional nine-and-a-half hours to do so.

       Third, as to the reason for delay, counsel for Defendant asserts that he missed the

deadline because he misread the Court’s order. Dkt. 137 at 1. That lack of attention to detail

falls short of what the Court expects from counsel. Counsel also did himself little good by

waiting six weeks to seek an extension nunc pro tunc (moving only after Plaintiffs moved to

strike Defendant’s motion for summary judgment). Plaintiffs are also correct that the Court had

previously cautioned that “[n]o further extensions of time will be granted absent a showing of

extraordinary circumstances,” see Dkt. 138 (quoting Minute Order (Dec. 14, 2018)), and that the

explanation offered by counsel for the Defendant falls short of that mark. But the Court’s

response must, nonetheless, be proportionate to counsel’s error, and a nine-and-a-half-hour delay

ought not carry the draconian consequence the Plaintiffs propose. Indeed, if the Court were to

accept Plaintiffs’ invitation to strike Defendant’s motion, it would have to decide complex

questions of law and fact that bear on the interests of persons not a party to this litigation without

the benefit of adversarial briefing. That sanction is too harsh under the circumstances.

       Fourth, and finally, although counsel’s mistake was “[f]oolish . . . there is no suggestion

of bad faith.” Yesudian, 270 F.3d at 971.



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       It is, accordingly, hereby ORDERED that Defendant’s motion for extension, Dkt. 137, is

GRANTED, and Plaintiffs’ motion to strike, Dkt. 132, and Plaintiffs’ motion to stay, Dkt. 135,

are hereby DENIED as MOOT; it is further ORDERED that Plaintiffs shall file their opposition

to Defendant’s motion for summary judgment and cross-motion on or before July 2, 2020; it is

further ORDERED that Defendant shall file its reply brief and opposition to Plaintiffs’ cross-

motion on or before July 16, 2020; and it is further ORDERED that Plaintiffs shall file their

final reply brief on or before July 23, 2020. The parties are cautioned that further extensions will

be granted only if sought at least three business days before the relevant deadline and if

supported by extraordinary circumstances.

       SO ORDERED.

                                                      /s/ Randolph D. Moss
                                                      RANDOLPH D. MOSS
                                                      United States District Judge


Date: June 23, 2020




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