                                      State of Vermont
                           Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Union Bank                                                           Docket No. 7-1-12 Vtec
(Appeal from District #5 Environmental Commission Decision)

Title: Appellant’s Conditional Motion for Enlargement of Time (Filing No. 3)
Filed: Mar. 12, 2012
Filed By: Appellant Union Bank
Response in Opposition filed on 3/29/12 by Interested Person Village of Jeffersonville
Statement in Support of Response filed on 4/2/12 by Cross-Appellant Jean Jenkauskas
Reply filed on 4/9/12 by Appellant

___ Granted                   ___ Denied                      X   Other

       Currently before the Court is Union Bank’s (“Appellant”) conditional motion for
enlargement of time to file its opposition to Jean Jenkauskas’ (“Cross-Appellant”) motion to
dismiss, strike, or clarify Appellant’s Questions. Cross-Appellant filed her motion on February
15, 2012; Appellant responded with a memorandum in opposition on March 12, 2012.
Appellant makes a number of arguments in its conditional motion for enlargement of time as to
why this Court should accept its memorandum in opposition. The chief issue, however,
appears to be whether the 15-day deadline established by V.R.C.P. 78 for filing memoranda in
opposition to written motions applies to responses made to pre-judgment motions. Appellant
does not contest that it failed to file its response within 15 days of receiving Cross-Appellant’s
motion. Rather, Appellant contends that V.R.C.P. 78 does not apply to pre-judgment motions
and that a deadline of 30 days from the date of service of a pre-judgment motion is more
appropriate.
        Generally, proceedings before this Court are governed by the Vermont Rules of Civil
Procedure. V.R.E.C.P. 5(a)(2). V.R.C.P. 78(b)(1) states that “[a]ny party opposed to the granting
of a written motion shall file a memorandum in opposition thereto, not more than 15 days after
service of the motion, unless otherwise ordered by the court.” In Driver v. Driver, 148 Vt. 560,
561 (1987), the Vermont Supreme Court clearly indicated that the 15 day deadline imposed by
Rule 78 on responses to written motions applies to memoranda in opposition of motions to
dismiss. Furthermore, this Court has traditionally applied the Rule 78 filing deadline to
responses to motions to dismiss. See In re Gaujac Final Plan Review PUD, No. 145-9-10 Vtec,
slip op. at 2 n.3 (Vt. Super. Ct. Envtl. Div. Dec. 14, 2010) (Durkin, J.) (reminding parties that in
responding to a motion to dismiss, they must comply with the 15 day deadline in Rule 78); In
re: Appeals of Woodard and Flatow, Nos. E95-140 and E95-142, slip op. at 1 (Vt. Envtl. Ct. Feb.
20, 1996) (Wright, J.) (noting that appellants failed to file a response to a motion to dismiss
either by the 10 business day deadline set by the Court, or “by the 15-day deadline provided in
V.R.C.P. 78”). In this case, the Court did not issue a scheduling order setting out alternate
In re Union Bank, No. 7-1-12 Vtec (E.O. on Mot. for enlargement of time) (11-8-12)                        Pg. 2 of 2.


deadlines for filing motions and responses until March 27, 2012, after the motions at issue were
filed. Thus, Appellant was bound by the 15 day filing deadline contained in Rule 78 for filing
its response. By missing this deadline, Appellant filed a late response.
        However, Rule 78 grants the Court discretion to consider a late response. V.R.C.P.
78(b)(1) (“If a memorandum in opposition is not timely filed when required under this rule, the
court may dispose of the motion without argument.” (emphasis added)). In its opposition
memorandum to Appellant’s conditional motion for enlargement of time, the Village of
Jeffersonville contends that Appellant’s late filing of its response to Cross-Appellant’s motion to
dismiss was prejudicial to the Village, insofar as it allowed Appellant to respond to the Village’s
memorandum in support of Cross-Appellant’s motion prematurely. This argument is
unpersuasive. Even if Appellant had submitted its response to Cross-Appellant’s motion to
dismiss before the Village submitted its memorandum in support, Appellant could have
subsequently filed a supplemental reply addressing the Village’s arguments. Moreover, the
Vermont Supreme Court has expressed a preference for courts to “resolv[e] litigation on the
merits, to the end that fairness and justice are served.” Desjarlais v. Gilman, 143 Vt. 154, 158–59
(1983); see also Shahi v. Ascend Fin. Servs., Inc., 2006 VT 29, ¶ 3 n.*, 179 Vt. 434 (“Because due
process favors decisions on the merits, we are reluctant to overturn a trial court's decision to
allow a late filing.”) (citing Dougherty v. Surgen, 147 Vt. 365, 366 (1986)).
        Accordingly, in its discretion, this Court will consider Appellant’s memorandum in
opposition in ruling on Cross-Appellant’s motion to dismiss, strike, or clarify certain of
Appellant’s Questions, despite the fact that Appellant filed its memorandum after the Rule 78
deadline. In light of our exercise of discretion, we need not reach the question of whether
Appellant’s late filing constitutes excusable neglect sufficient for this Court to grant a motion
for enlargement of time pursuant to V.R.C.P. 6(b).




_________________________________________                                          November 8, 2012
       Thomas S. Durkin, Judge                                                         Date
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Date copies sent: ____________                                                Clerk's Initials: _______
Copies sent to:
 Annie Dwight, Attorney for Appellant Union Bank
 Brice C. Simon, Attorney for Cross-Appellant Jean Jenkauskas
 David W. Rugh, Attorney for Interested Person Village of Jeffersonville
 John H. Hasen, Attorney for Interested Person Natural Resources Board, LU Panel
 Elizabeth Lord, Attorney for Interested Person Agency of Natural Resources
