United States District Court, M.D. Florida, Fort Myers Division
FORT MY FEDERAL TRADE COMMISSION and STATE OF FLORIDA, Plaintiffs,
VYLAH TEC LLC, EXPRESS TECH HELP LLC, TECH CREW SUPPORT LLC, ANGELO J. CUPO, ROBERT CUPO and DENNIS CUPO, Defendants.
MCCOY, UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiffs' Motion to Strike
Defendants' Jury Trial Demand filed on September 27,
2017. (Doc. 112). Defendants failed to file a timely
response. On February 1, 2018, Defendants filed an Opposed
Motion for Leave to File Opposition to Plaintiffs' Motion
to Strike Jury Trial Demand. (Doc. 166). Defendants attached
their proposed untimely response to Plaintiffs' Motion
(Doc. 166-1). Plaintiffs timely filed a response in
opposition. (Doc. 177). These matters are ripe for review.
For the reasons explained below, Defendants' Opposed
Motion for Leave to File Opposition to Plaintiffs' Motion
to Strike Jury Trial Demand (Doc. 166) is
DENIED and Plaintiffs' Motion to Strike
Defendants' Jury Trial Demand (Doc. 112) is
brought this action alleging that Defendants engaged in a
deceptive technical support scam operating nationwide. (Doc.
2). On June 6, 2017, Defendants filed their Answer and
Affirmative Defendants. (Doc. 63). In their Answer,
Defendants demanded a “trial by jury on all claims so
triable.” (Id. at 6).
Defendants reiterated their jury trial demand as part of the
parties' Joint Case Management Report. (Doc. 74 at 3).
The Case Management Report, however, indicated that the issue
was contested. (See id.). Defendants subsequently
obtained new counsel. (See Doc. 87). On August 8,
2017, the Court conducted a Preliminary Pretrial Conference,
at which the issue of Defendants' jury demand was
discussed. (Doc. 93). Ultimately, the Court instructed
Defendants' new counsel to confer with Defendants to
confirm whether they were maintaining their jury trial
demand. (Id.). The Court ordered Defendants to file
a notice reflecting whether or not they were maintaining
their jury demand no later than August 31, 2017.
August 31, 2017, Defendants filed a Demand for Jury Trial
(Doc. 102). On September 27, 2017, Plaintiffs filed their
Motion to Strike Defendants' Jury Trial Demand (Doc.
112). By operation of M.D. Fla. R. 3.01(b), Defendants'
deadline to file a response to Plaintiffs' Motion was
October 11, 2017. Defendants did not file a response in
opposition, nor did they seek an extension of time to
Defendants again obtained new counsel. (See Doc.
146). Defendants' current counsel filed an Unopposed
Motion for Admission Pro Hac Vice, and Written Designation
and Consent to Act (Doc. 146) on December 19, 2017. On
January 3, 2018, the Court granted the Unopposed Motion for
Substitution of Counsel (Doc. 153), allowing Defendants'
previous attorney, Joe M. Grant, to withdraw as counsel.
one month later, Defendants' current counsel realized
that Defendants had not filed a response in opposition to
Plaintiffs' Motion to Strike Defendants' Jury Trial
Demand (Doc. 112) and that the Motion had not yet been
addressed by the Court. (Doc. 166 at 1). As a result, on
February 1, 2018, Defendants filed their Opposed Motion for
Leave to File Opposition to Plaintiffs' Motion to Strike
Jury Trial Demand. (See id.). Defendants attached
their proposed response to Plaintiffs' Motion to Strike
(Doc. 166-1) to their Motion. Plaintiffs timely filed their
response in opposition (Doc. 177) to Defendants' Motion
on February 15, 2018.
reviewing the issues raised by the parties' Motions, the
Court first addresses Defendants' Opposed Motion Leave to
File Opposition to Plaintiffs' Motion to Strike Jury
Trial Demand (Doc. 166). After this evaluation, the Court
then addresses the issues raised by Plaintiffs' Motion to
Strike Jury Trial Demand (Doc. 112).
Defendants' Opposed Motion for Leave to File Opposition
to Plaintiffs' Motion to Strike Jury Trial Demand (Doc.
evaluating Defendants' Opposed Motion Leave to File
Opposition to Plaintiffs' Motion to Strike Jury Trial
Demand (Doc. 166), the Court must examine whether to accept
and consider Defendants' proposed response (Doc. 166-1)
to Plaintiffs' Motion to Strike (Doc. 112) even though
Defendants failed to file their response timely.
Civ. P. 6(b) governs this issue. Specifically, Rule 6(b)(1)
act may or must be done within a specified time, the court
may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if
a request is made, before the original time or its extension
(B) on motion made after the time has expired if the party
failed to act because of excusable neglect.
instance, Fed.R.Civ.P. 6(b)(1)(A) is inapplicable because
Defendants did not seek an extension of time “before
the original time or its extension expire[d].” Thus,
the Court examines whether Defendants' untimely response
should be permitted under Fed.R.Civ.P. 6(b)(1)(B).
Rule 6(b)(1)(B), a showing of “excusable neglect”
is required for an extension of a passed deadline.
Auto-Owners Ins. Co. v. Ace Elec. Serv., Inc., 648
F.Supp.2d 1371, 1375 (M.D. Fla. 2009). “Excusable
neglect is ‘at bottom an equitable [principle], taking
account of all relevant circumstances surrounding the
party's omission.'” Inglis v. Wells Fargo
Bank N.A., No. 2:14-cv-677-FTM-29CM, 2017 WL 637485, at
*2 (M.D. Fla. Feb. 16, 2017) (quoting Pioneer Inv. Servs.
Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395
(1993)). “Although inadvertence, ignorance of the
rules, or mistakes construing the rules do not usually
constitute ‘excusable' neglect, it is clear that
‘excusable neglect' under Rule 6(b) is a somewhat
‘elastic concept' and is not limited strictly to
omissions caused by circumstances beyond the control of the
movant.” Pioneer, 507 U.S. at 392.
determining whether excusable neglect exists, the Court
utilizes a four-factor balancing test and evaluates: (1) the
danger of prejudice to the non-moving party; (2) the length
of the delay and its potential impact on judicial
proceedings; (3) the reason for the delay, including whether
it was within the reasonable control of the movant; and (4)
whether the movant acted in good faith. Delgado v.
Magical Cruise Co., Ltd., No. 6:15-cv-2139-ORL-41TBS,
2017 WL 3131443, at *2 (M.D. Fla. July 24, 2017) (citing
Pioneer, 507 U.S. at 395). In reviewing these
factors, the Court accords primary importance to the absence
of prejudice to the non-moving party and to the interest of
efficient judicial administration. See Walter v. Blue
Cross & Blue Shield United of Wisconsin, 181 F.3d
1198, 1201 (11th Cir. 1999). The Court evaluates these
factors in turn below.
Danger of Prejudice to the Non-Movant
first factor is the danger of prejudice to the non-moving
party. Delgado, 2017 WL 3131443, at *2.
argue that “no prejudice will result to any party from
this delay because the case is currently docketed as Jury
Demand, and thus no party has changed its position or
litigation strategy.” (Doc. 166 at 1-2).
response, Plaintiffs argue that they would be prejudiced if
Defendants “are allowed to ignore the rules without a
valid explanation.” (Doc. 177 at 4). Plaintiffs state
that Defendants' Motion “fails to describe any
facts that would serve as a basis for showing there is good
cause to extend the time for their response.”
(Id.). Plaintiffs argue that “[t]he defendants
should be expected to abide by the federal rules if they
expect Plaintiffs to do so” ...