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Fort my Federal Trade Commission v. VYLAH TEC LLC

United States District Court, M.D. Florida, Fort Myers Division

June 13, 2018

FORT MY FEDERAL TRADE COMMISSION and STATE OF FLORIDA, Plaintiffs,
v.
VYLAH TEC LLC, EXPRESS TECH HELP LLC, TECH CREW SUPPORT LLC, ANGELO J. CUPO, ROBERT CUPO and DENNIS CUPO, Defendants.

          ORDER

          MAC R. MCCOY, UNITED STATES MAGISTRATE JUDGE.

         Pending 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 GRANTED.

         I. Background

         Plaintiffs 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).

         Later, 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. (Id.).

         On 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 respond.

         Subsequently, 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. (Doc. 155).

         Almost 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.

         II. Discussion

         In 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).

         A. Defendants' Opposed Motion for Leave to File Opposition to Plaintiffs' Motion to Strike Jury Trial Demand (Doc. 166)

         In 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.

         1.Legal Standards

         Fed. R. Civ. P. 6(b) governs this issue. Specifically, Rule 6(b)(1) provides that:

         When an 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 expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

         In this 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).

         Under 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.

         In 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.

         2.Analysis

         (i) Danger of Prejudice to the Non-Movant

         The first factor is the danger of prejudice to the non-moving party. Delgado, 2017 WL 3131443, at *2.

         Defendants 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).

         In 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” ...


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