Just three weeks we posted “How Do I File a Motion To Enlarge/ Extend Time?”
Last week the Tennessee Court of Appeals considered the issue in the context of a plaintiff seeking more time to take action required under Tenn. R. Civ. P. 25.01.
In Stephen v. Hill, No. M2022-00672-COA-R3-CV (Tenn. Ct. App. Jan. 12, 2023) (memorandum opinion), plaintiff filed suit against defendant after a car accident. On August 4, 2021, defendant’s counsel filed a suggestion of death of the defendant. Pursuant to Tennessee Rule of Civil Procedure 25.01(1), plaintiff had 90 days to file a motion for substitution, but she failed to do so. On November 16, 2021, defendant’s counsel filed a motion to dismiss. Eight days later, plaintiff filed a motion to substitute as well as a motion to enlarge time under Rule 6.02. After a hearing, the trial court denied plaintiff’s motion to enlarge time and motion to substitute and dismissed the case. The Court of Appeals reversed that ruling.
Rule 6.02 allows for a motion to enlarge time which is filed after the expiration of the relevant time period to be granted “where the failure to act was the result of excusable neglect.” When considering “whether a failure to act was the result of excusable neglect,” courts should consider four factors: “(1) the risk of prejudice to the parties opposing the late filing, (2) the delay and its potential impact on proceedings, (3) the reasons why the filings were late and whether the reasons were within the filer’s reasonable control, and (4) the good or bad faith of the filer.” (internal citation omitted).
In this case, plaintiff’s counsel explained at oral argument that “the failure to timely file a motion for substitution was a result of an oversight during a transition period in his office due to the COVID-19 pandemic.” After the motion to enlarge was denied, plaintiff’s counsel explained in an exhibit attached to a motion to alter or amend that he had forwarded the suggestion of death to his staff to be calendared, but that the appropriate date was inadvertently not recorded. At the time, his staff was still working in person and remotely, he was undergoing staffing transitions, and he had recently lost his paralegal.
In its analysis, the Court of Appeals found that the trial court had only considered factor three, the reason for the delay, in its decision to deny the motion to enlarge time. The Court reasoned:
Having considered all of the factors based on the facts of this case, we find that the trial court erred in failing to find excusable neglect on the part of Plaintiff’s counsel pursuant to Rule 6.02. The concept of excusable neglect has been described as broad enough to apply to simple, faultless omissions to act, and, more commonly, to omissions caused by carelessness. The excusable neglect concept may also apply to situations in which failure to comply with a filing deadline is attributable to a filer’s negligence. We conclude that the present situation appears to fall within that category. Moreover, based on Plaintiff’s counsel’s declaration, there is no indication that his failure to timely file the motion to substitute was willful or egregious. …[T]his Court has previously accepted rather feeble excuses by parties when the other factors for excusable neglect favor parties so heavily that such a finding of excusable neglect is appropriate. We find similarly here. There is no indication that Defendant was prejudiced by the delay of filing, nor was there any significant impact on the litigation as the motion to dismiss and Plaintiff’s motion to substitute were filed within days of one another. Moreover, we do not find any evidence of bad faith on the part of Plaintiff as it appears that once he became aware of his failure to timely file the motion to substitute he took prompt action in an attempt to rectify the matter by filing the motion to substitute and motion for an enlargement of time. Although it is certainly arguable that Plaintiff’s counsel’s actions here were negligent, we do not find them to be so egregious that it warrants a dismissal of the matter, especially in light of the strong preference embodied in the Tennessee Rules of Civil Procedure that cases stating a valid legal claim brought by Tennessee citizens be decided on their merits.
(internal citations and quotations omitted). Dismissal was thus reversed.
While this is a memorandum opinion, it is interesting in that it found the protocols and confusion existing in plaintiff’s counsel’s law office to amount to excusable neglect. It is submitted that it would be a mistake to assume that a trial or appellate court would reach the same conclusion in a situation not involving the impact of a global pandemic on a law office.
In addition, we suggest that if for whatever reason you find you need more time to meet a deadline imposed by rule or court order you seek permission rather than forgiveness, i.e. you file a motion to end time before the deadline expires rather than after it has expired. Read the earlier post on motions to enlarge / extend time to learn why this is important.
UPDATE: Readers may want to review Joshlin v. Halford, No. W2020-01643-COA-R3-CV (Tenn. Ct. App. Jan. 6, 2023), which held that a misinterpretation of the law was not “excusable neglect” and thus the failure to timely substitute parties under Rule 25 required dismissal of the action.