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It Was Only Four Minutes Late -- Who's Counting? (Note:It Was Three Minutes and the Defendants Are Counting)

When you file a motion for reconsideration, you are already up against gargantuan hurdles.

So you really want to put your best foot forward.

Unless you are late plus your brief is too long:
On October 28, 2013, Plaintiffs filed a timely motion for reconsideration of the Order of Dismissal. (ECF No. 80). The motion exceeded the twenty-page limit and font requirement imposed by our local rules. Plaintiffs had previously sought leave to exceed the twenty-page limit, but this Court had not ruled on the motion prior to the 28-day deadline imposed by Rule 59(e). Because the motion failed to comply with font requirements, I subsequently granted Plaintiffs leave to re-file the motion nunc pro tunc to October 28, 2013, the original filing date. (ECF No. 96). I denied Plaintiffs’ request to exceed the page limits, however. (Id.) Plaintiffs were provided until December 9, 2013 to re-file.

Three minutes after midnight on December 10, 2013, Plaintiffs filed their revised Motion for Reconsideration. (ECF No. 97). The revised Motion for Reconsideration complied with the local rules on font requirements, but exceeded the twenty-page limit by ten lines. Plaintiffs’ counsel subsequently moved the Court to excuse the failure to comply with my prior Order (ECF No. 96), citing a faulty hotel internet connection and the complexity of the issues as the reasons for noncompliance. (ECF No. 100). Defendants moved to strike the Motion for Reconsideration as untimely and  exceeding the allowable page length (ECF No. 102, 108).

Defendants argue that this Court lacks the authority to extend the time for filing a motion for reconsideration pursuant to Rule 59(e), citing to Federal Rule of Civil Procedure 6(b)(2). Defendants, however, concede that the revised motion is, in substance, the same as the original, timely motion filed on October 28, 2013. (ECF No. 113 at 7) (“A review of the second Motion for Reconsideration [DE97] shows that the motion contains many stylistic rather than substantive changes….”).  Moreover, Plaintiffs also moved for reconsideration pursuant to Rule 60(b)(6), which requires that motions be filed “within a reasonable time.” Fed. R. Civ. P. 60(c). Even applying the December 10, 2013 filing date, the Motion for Reconsideration is timely under Rule 60(b). While the Motion for Reconsideration was filed four minutes after the deadline I imposed, Defendants will not be prejudiced by the short delay in service of the revised motion, and this matter should be resolved on the merits. I will, however, disregard the last ten lines of the Motion for Reconsideration for failing to comply with my prior Order denying Plaintiffs’ motion to exceed the twenty-page limit.
Whether it's three or four minutes, Judge C did the right thing here.

(But sheesh, way to muck up your motion!)


  1. Defendant should have settled while motions were pending. The fees on this thing just went way up.


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