# Cohen v. Board of Trustees of the University of the District of Columbia

> District Court, District of Columbia · December 9, 2014 · 307 F.R.D. 287

URL: https://www.frixlaw.com/law-library/cases/2758683

## Case

- **Full name:** Robert COHEN, Plaintiff, v. BOARD OF TRUSTEES OF the UNIVERSITY OF the DISTRICT OF COLUMBIA, Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** December 9, 2014
- **Citations:** 307 F.R.D. 287; 2014 U.S. Dist. LEXIS 169759
- **Precedential status:** Published
- **Opinion:** Opinion by Sullivan
- **Judges:** Judge Emmet G. Sullivan
- **Nature of suit:** Civil
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
ROBERT COHEN, )
)
Plaintiff, )
)
v. ) Civ. Action No. 14-754 (EGS)
)
BOARD OF TRUSTEES OF THE )
UNIVERSITY OF THE DISTRICT OF )
COLUMBIA, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

Plaintiff Robert Cohen failed to file a timely opposition to a

motion to dismiss. Over one week late, his counsel sought an

extension of time. The defendants opposed, and Mr. Cohen was

required to demonstrate excusable neglect for his tardiness. Mr.

Cohen admitted that his counsel received notice of the motion to

dismiss, but reviewed only the exhibits that were attached to

that motion. His counsel concluded that the motion had been

improperly filed and that no response was necessary. The Court

previously held that this did not constitute excusable neglect,

denied the request for an extension of time, and granted the

motion to dismiss as conceded. Plaintiff now moves for

reconsideration. Upon consideration of the motion, the

defendants’ response, the applicable law, and the entire record,

the Court DENIES plaintiff’s motion.
I. Background

The background of this case may be gleaned from the Court’s

prior Opinion. See Cohen v. Bd. of Trustees, No. 14-754, 2014 WL

3047503 (D.D.C. July 7, 2014). In sum, the defendants moved to

dismiss this case on May 7, 2014 and “plaintiff’s opposition was

due on May 27, 2014.” Id. at *1. On June 5, 2014, plaintiff

filed an untimely motion to extend that deadline. See id. He

argued that his tardiness was excusable:

Mr. King, plaintiff’s counsel, asserts that he failed
to file an opposition brief because, on the day the
motion to dismiss was filed, he “downloaded and opened
the document but believed that the PDF document was
incomplete because it appeared to start on a random
page, and the pages that appeared were the exhibits to
the motion.” Rather than reviewing all docket entries
associated with the motion to dismiss, Mr. King
concluded “that the filing was made in error,” “waited
for a corrected version or a supplement to be filed,”
and “asked a staff member to also check the filing to
confirm that it was missing the actual motion.” The
staff member also . . . “found the filing to be
incomplete.”

Approximately one week later, Mr. King “checked the
docket again and saw no new entries on the docket to
correct the filing.” He continued to assume that the
motion to dismiss had been entered in error. . . . He
now understands that “when he originally attempted to
download the motion he simply incorrectly clicked on
the wrong link (exhibits instead of leading
document).”

Id. at *2 (citations omitted).1

1
On June 20, 2014—nearly one month after his opposition to the
motion to dismiss was due—plaintiff filed his opposition and a
motion for leave to amend his complaint. See id. at *1 n.3.

2
On July 7, 2014, the Court denied the motion for extension of

time. The Court analyzed the four factors provided by the

Supreme Court for considering whether excusable neglect exists

and found that two factors supported the defendants: (1) the

impact-of-delay factor supported the defendants because of

numerous delays caused by plaintiff’s failures to comply with

deadlines throughout this litigation; and (2) the reason-for-

delay factor supported the defendants because plaintiff’s

explanation of his counsel’s failure to read documents

associated with a dispositive motion did not constitute a

reasonable excuse. See id. at *2–4 (citing Pioneer Inv. Servs.

Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993)).

The Court was thus presented with a motion to dismiss to which

no timely opposition had been filed. Accordingly, the Court

granted that motion as conceded. See id. at *4–5. In light of

this, the Court also denied as moot the plaintiff’s motion for

leave to amend his complaint. See id. at *1 n.3. As an

additional basis for denying the motion to file an amended

complaint, the Court noted that “the motion to amend fails to

comply with Local Civil Rule 7(m) because it does not ‘include .

. . a statement as to whether the motion is opposed.’” Id.

(alteration in original).

On August 4, 2014, the plaintiff filed the pending motion to

amend the Court’s judgment pursuant to Federal Rule of Civil

3
Procedure 59(e), or for reconsideration pursuant to Rule

60(b)(1), (6). See Mot. to Reconsider, ECF No. 15. The

defendants filed their opposition on August 20, 2014. See Opp.,

ECF No. 16.

II. Analysis

A. Plaintiff is Not Entitled to Relief Under Rule 60(b).

Federal Rule of Civil Procedure 60(b) provides, in relevant

part, that “[o]n motion and just terms, the court may relieve a

party . . . from a final judgment . . . for . . . (1) mistake,

inadvertence, surprise, or excusable neglect [or] . . . (6) any

other reason that justifies relief.” “The movant has the burden

to establish that [he is] entitled to relief under Rule 60(b).”

F.S. v. District of Columbia, No. 10-1203, 2014 WL 4923025, at

*2 (D.D.C. Oct. 2, 2014). Plaintiff’s motion never clearly

explains how the circumstances of the Court’s judgment fall

within these provisions; rather, he seeks to relitigate the

Court’s finding that his delay was not “excusable neglect.”

First, Mr. Cohen suggests that the Court “resolve all doubts

against dismissing the case without addressing the merits.” Mot.

at 12. The Court has already recognized the “general presumption

in favor of resolving disputes on their merits.” Cohen, 2014 WL

3047503, at *1. “This presumption, however, cannot overrule

legal requirements.” Id. Accordingly, the D.C. Circuit and this

Court regularly enforce Local Civil Rule 7(b), which requires

4
that a motion be opposed “[w]ithin 14 days of the date of

service” and permits a Court to treat an unopposed motion “as

conceded.” See, e.g., FDIC v. Bender, 127 F.3d 58, 67–68 (D.C.

Cir. 1997); Twelve John Does v. District of Columbia, 117 F.3d

571, 577–78 (D.C. Cir. 1997); Inst. for Policy Studies v. U.S.

Cent. Intelligence Agency, 246 F.R.D. 380, 386 (D.D.C. 2007);

Wilson v. Prudential Fin., 218 F.R.D. 1, 3–4 (D.D.C. 2003);

Ramseur v. Barreto, 216 F.R.D. 180, 182–83 (D.D.C. 2003);

Stephenson v. Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002).2

Second, Mr. Cohen asserts that the Court misapplied the

factors relevant to determining whether his failure timely to

oppose the motion to dismiss was due to excusable neglect. He

claims that the Court failed to analyze each of the factors. See

Mot. at 13–16. In fact, the Court analyzed each factor and noted

2
Plaintiff’s reliance on Pulliam v. Pulliam, 478 F.2d 935 (D.C.
Cir. 1973) does not alter this conclusion. That case involved a
default judgment, the propriety of which was not timely
appealed. Id. at 935, 937. The D.C. Circuit stated that “a
resolution on the merits is preferable to a judgment by default”
and that “[w]here the default was a result of counsel’s error,
his oversight should be forgiven even if it would not be
‘excusable neglect’ for the purposes of rule 60(b).” Id. at 935,
936 n.3. Pulliam did not address the grant of an unopposed
motion as conceded and, in any event, more recent D.C. Circuit
precedent permits such action. See Bender, 127 F.3d at 67–68;
Twelve John Does, 117 F.3d at 577–78.

5
that “two of the four factors weigh in plaintiff’s favor and two

weigh against him.” Cohen, 2014 WL 3047503, at *3.3

Mr. Cohen’s objection appears to be that the Court relied

primarily on a very strong showing on one factor—the reason for

delay. See Mot. at 14–15. This objection is misplaced. As the

Court emphasized, “‘the reason for the delay is the most

important [factor], particularly if it weighs against granting

the extension.’” Cohen, 2014 WL 3047503, at *3 (quoting Embassy

of Fed. Republic of Nigeria v. Ugwuonye, 901 F. Supp. 2d 92, 99

(D.D.C. 2012) (alteration in original); see also Webster v.

Pacesetter, Inc., 270 F. Supp. 2d 9, 14 (D.D.C. 2003); Inst. for

Policy Studies, 246 F.R.D. at 382–83; D.A. v. District of

Columbia, No. 7–1084, 2007 WL 4365452, at *3 (D.D.C. Dec. 6,

2007)).4 To be sure, the D.C. Circuit has declined to adopt a per

3
Plaintiff devotes much of his motion to arguing that the
pattern of delay the Court found is excusable. See Mot. at 16–
22. If anything, plaintiff’s discussion of four different
excuses for four different delays underscores the Court’s
concern regarding an ongoing pattern of delay.
4
The Third Circuit decisions cited by plaintiff are consistent
with this analysis. In re American Classic Voyages Co., 405 F.3d
127, 133 (3d Cir. 2005) relied on the fact that three of the
four Pioneer factors weighed against finding excusable neglect
and emphasized that “[a]ll [Pioneer] factors must be considered
and balanced; no one factor trumps the others.” Nonetheless, the
Court admittedly “rel[ied] . . . primarily on the third Pioneer
factor” where the “[d]elay was the direct result of the
negligence of . . . counsel in failing to review the Notice sent
to him.” Id. at 134. George Harms Const. Co. v. Chao, 371 F.3d
156, 164 (3d Cir. 2004) merely held that “the ‘control’ factor

6
se rule “that garden variety attorney inattention can never

constitute excusable neglect,” In re Vitamins Antitrust Class

Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003), but neither is it

the case that a strong showing that the reason for delay is

especially inexcusable can never outweigh the other three

Pioneer factors.5 Excusable neglect remains an “elastic concept.”

Pioneer, 507 U.S. at 392. Accordingly, an especially strong

showing on the reason-for-delay factor may, at least in the

unusual circumstances presented in this case, outweigh the other

three factors. The unique circumstances of plaintiff’s counsel’s

conduct were, in the Court’s view, particularly inexcusable. See

does not necessarily trump all the other relevant factors,” not
that it may never do so.
5
On this point, Mr. Cohen over reads the D.C. Circuit’s decision
in Vitamins and a related decision, Yesudian ex rel. United
States v. Howard Univ., 270 F.3d 969 (D.C. Cir. 2001). Those
decisions “rested less on substance than on the deference
afforded the trial court in assessing whether particular facts
constitute excusable neglect.” Inst. for Policy Studies, 246
F.R.D. at 385; see Vitamins, 327 F.3d 1210 (the determination
“is within the discretion of the district court and the court
did not abuse its discretion”); Yesudian, 270 F.3d at 971
(emphasizing the “great deference that we owe district courts in
what are effectively their case-management decisions”)
(quotation marks omitted). Neither decision indicated that
excusable neglect must be found when there is a very strong
showing on the reason-for-delay factor, but the other three
factors weigh in favor of finding excusable neglect.

7
Cohen, 2014 WL 3047503, at *3–4. Accordingly, there is no basis

for reconsideration under Rule 60(b)(1).6

B. Plaintiff is Not Entitled to Relief Under Rule 59(e)

Federal Rule of Civil Procedure 59(e) permits the filing of

“[a] motion to alter or amend a judgment.” “The law in this

Circuit is clear: A ‘Rule 59(e) motion may not be used to . . .

raise arguments or present evidence that could have been raised

prior to the entry of judgment.’” F.S., 2014 WL 4923025, at *1

(quoting GSS Group Ltd. v. Nat’l Port Auth., 680 F.3d 805, 812

(D.C. Cir. 2012) (alteration in original). For this reason

alone, Mr. Cohen’s request under Rule 59(e) that the Court

reconsider its denial of the motion for extension of time and

grant of the motion to dismiss as conceded must be DENIED. A

Rule 59(e) motion, moreover, “need not be granted unless the

district court finds that there is an intervening change of

controlling law, the availability of new evidence, or the need

to correct a clear error or prevent manifest injustice.”

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per

6
Mr. Cohen cited Rule 60(b)(6) in his motion, but never
explained why this case warrants reconsideration under that
provision. It is well-established that Rule 60(b)(6) “should
only be sparingly used” in situations involving “extraordinary
circumstances” and rarely by “a party who has not presented
known facts . . . when it had the chance.” Lightfoot v. District
of Columbia, 555 F. Supp. 2d 61, 70 (D.D.C. 2008) (quotation
marks omitted). In the absence of an explanation why Rule
60(b)(6) applies, the Court cannot find any basis for
reconsideration under that provision.

8
curiam) (quotation marks omitted). As discussed previously, the

Court’s denial of his untimely motion for extension of time and

grant of defendants’ unopposed motion to dismiss were proper.

See supra Part II.A.

Mr. Cohen raises a third issue: whether this Court erred in

denying his motion to file an amended complaint. See Mot. at 25–

26. Although he does not explain how that issue falls within

Rule 59(e) or 60(b), the Court assumes that he intends to argue

under Rule 59(e) that the Court’s denial of that motion was

“clear error” or constitutes a “manifest injustice.” This

argument must be rejected. To begin, the Court noted that Mr.

Cohen’s motion for leave to file an amended complaint failed to

comply with Local Civil Rule 7(m), which requires a party to

confer with his opponent regarding any nondispositive motion “in

a good-faith effort to determine whether there is any opposition

to the relief sought and, if there is, to narrow the areas of

disagreement” and to “include in its motion a statement that the

required discussion occurred, and a statement as to whether the

motion is opposed.” No such statement was included in Mr.

Cohen’s motion and it appears that no such conference ever took

place. See Opp. to Mot. to Amend, ECF No. 12 at 3–4. For that

reason, the motion was properly denied. See, e.g., Ellipso, Inc.

v. Mann, 460 F. Supp. 2d 99, 102 (D.D.C. 2006); Alexander v.

FBI, 186 F.R.D. 185, 187 (D.D.C. 1999).

9
The motion was also properly denied in light of Mr. Cohen’s

failure to oppose the motion to dismiss. Mr. Cohen relies on the

fact that motions for leave to file an amended complaint are

“freely [granted] when justice so requires.” Fed. R. Civ. P.

15(a)(2). That does not permit Mr. Cohen to use a motion for

leave to file a Second Amended Complaint—submitted nearly one

month after the lapsed deadline for opposing a motion to

dismiss—to circumvent the requirements of Local Civil Rule 7(b).

If, as here, the underlying motion to dismiss is granted as

unopposed and the case is dismissed, any subsequently filed

motion to amend is rendered moot.

III. Conclusion

For the foregoing reasons, the Court DENIES plaintiff’s motion

for reconsideration. An appropriate Order accompanies this

Memorandum Opinion.

Signed: Emmet G. Sullivan
United States District Judge
December 9, 2014

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2758683. Public record. Not legal advice.