Miller Constructions Equipment Sales, Inc. v. Clark Equipment Company

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MILLER CONSTRUCTION )
EQUIPMENT SALES, INC., )
)
Plaintiff, )
)
v. )
Case No. MC415-013
CLARK EQUIPMENT COMPANY
d/b/a DOOSAN INFRACORE
CONSTRUCTION EQUIPMENT
OF AMERICA,
(Pending in the United States District
Defendant, Court for the District of Alaska,
Civil Action No. 1 :15-cv-00007-HRH)
JCB, INC.,
Interested Party.
ORDER
This case involves “The Law of the Last Day.” Some background:
The caption above reflects an Alaska-bound case. JCB, Inc., initiated
this miscellaneous action -- as an “Interested Party” -- so it could move
to quash a Fed. R. Civ. P. 45 subpoena served upon it by defendant Clark
Equipment Company, d/b/a Doosan Infracore Construction Equipment of
America (“Doosan”). Doc. 1. The Court stayed the subpoena (doc. 2)
and the Clerk (see his July 28, 2015 docket entry) reminded Doosan that
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it must respond, per Local Rule (L.R.) 7.5’s 14-day response period, by
August 10, 2015. By local rule, the “[f]ailure to respond within the
applicable time period shall indicate that there is no opposition to a
motion.” L.R. 7.5. When Doosan failed to respond by August 10, 2015, 1
the Court, per L.R. 7.5, granted JCB’s quash motion as unopposed. Doc.
5 (filed August 14, 2015).
On that same day, however, Doosan filed its response. Docs. 6 & 7.
It now moves to vacate the Court’s denial Order. Doc. 8. Invoking Fed.
R. Civ. P. 60(b)(1) & (6), it points out that its response actually was due
August 13, 2015, as JCB served its motion by mail (which gave Doosan
three more days to respond). Nevertheless it concedes that it was a day
late. But it pleads excusable neglect (response-deadline miscalculations,
etc.). Id. at 1-4. Opposing, JCB insists, inter alia, that Doosan “offers no
explanation for why all six of [its] lawyers at three different firms failed
to check the CM/ECF docket in this Court. Furthermore, the employees
to whom [Doosan counsel Michael J.] Lockerby delegated the task of
calculating the deadline apparently understood that the response was
1 The Clerk technically erred by failing to note that JCB served it motion by mail.
Doc. 1 at 26-27. Under Fed. R. Civ. P. 6(d), three more days should have been added,
making August 13, 2015, the deadline -- something both parties correctly note in
their briefs.
2
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due on August 10, 2015 plus three days for service, but did not
understand what time zone the Court is in.” Doc. 11 at 3 n. 3.
In that procrastination is no stranger to the legal profession,
freshly minted lawyers necessarily must learn “The Law of the Last
Day” -- as in, the last day on which to do something. Missing deadlines,
after all, can be fatal. See Coleman v. Thompson , 501 U.S. 722, 752-57
(1991) (condemned prisoner pursuing state habeas relief waived right to
federal review, and thus could be executed, after his state habeas counsel
negligently missed, by three days, deadline for appealing denial of State
habeas petition); id. at 754 (applying Rest. Agency 2d § 242 (1958)
(“[M]aster is subject to liability for harm caused by negligent conduct of
servant within the scope of his employment”).
Alas, no federalism principles apply in standard commercial
litigation disputes like this, so negligent miscues are more easily
forgiven. Doosan is forgiven. There is no jurisdictional or statute of
limitations deadline implicated here, and in this context one day
constitutes a butterfly fluff in a whirlwind. Doosan’s “relief” motion
(docs. 8 & 10) therefore is GRANTED, the Court’s August 14, 2015
3
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Order (doc. 5) is VACATED, and Doosan’s response brief will be
considered.
Some housekeeping matters remain. First, JCB says that it will file
a reply brief if the Court rules for Doosan here. Doc. 11 at 2 n. 1.
Supplemental briefs are permitted but typically are subject to the
“sudden death” rule. 2 Given the error that occurred here, however, the
Court will allow JCB 14 days from the date this Order is served to file its
reply.
Second, JCB remarks that Doosan “inexplicably” filed its Rule 60
motion twice. Doc. 11 at 2 n. 2. The explanation is not on the docket but
is worth illuminating here for the benefit of the bar. After Doosan filed
its motion, doc. 8, the Clerk emailed a memo to its counsel (reproduced in
the margin) explaining that the motion was not in “machine readable”
format and thus was incompatible with the Court’s E-filing system. 3 In
2 See Waddy v. Globus Medical , Inc., 2008 WL 3861994 (S.D. Ga. Aug 18, 2008)
(“[P]arties may file as many reply briefs as they like under Local Rule 7.5.”) (citing
Podger v. Gulfstream Aerospace Corp. , 212 F.R.D. 609, 609 (S.D. Ga. 2003)); see also
L.R. 7.6 (authorizing reply briefs but imposing notice requirements and time limits);
Brown v. Chertoff , 2008 WL 5190638 at * 1 (S.D. Ga. Dec. 10, 2008) (reminding that
“[o]nce the initial round of briefs have been filed, subsequent replies run the risk of
‘sudden death.’ That is, the Court is free to issue its decision at any time.”) .
3 The August 17, 2015 memo, issued in conjunction with the Court’s E-Filing rules
available at http://sav-gasweb/Dist/ecfprocedures.pdf, in its entirety:
4
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response, counsel properly refiled the motion in machine readable
format. Doc. 10. The Court uses this opportunity to remind all litigants
that they must E-file only machine readable documents.
This 21st day of August, 2015.
UNITED SlATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
Please take notice that every E-filed document should be “machine readable”
because it enables users to search it using key words, and also mark and copy
text from it. Producing a “machine readable” .pdf file, which is required for E-
filing, is easy. Most word processors have a “publish to .pdf” or “print to .pdf”
drop-down option under a “File,” then “Print” command. Counsel should use
that feature, which produces a machine-readable .pdf.
Please do not print out a document and then run it through a mechanical
scanner, which counsel here apparently has been doing (their E-filings have
not been machine readable, thus hampering Court operations). That method
fails to produce a machine-readable .pdf. Counsel should contact the Clerk’s
office should additional guidance be needed.
Id. The Clerk is DIRECTED to docket all such future communications.
5
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