Legal Memorandum: Attorney's Excusable Neglect

Issue: Does an attorney missing a filing deadline constitute excusable neglect under Fed. R. Civ. Pro. 60(b) in Texas?

Rule 60(b) itself does not define “excusable neglect.”  Courts have largely relied upon the Supreme Court’s analysis in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993), to guide their determinations of whether actions taken by counsel constitute excusable neglect.  Pioneer was a bankruptcy case, but its application has not been so limited and it has regularly been relied upon in Rule 60(b) determinations.  Robb v. Norfolk & Western Ry., 122 F.3d 354 (7th Cir. 1997); Jones, Rosen, Wegner & Jones, Practice Guide: Federal Civil Trials and Evidence (The Rutter Group 2013) ¶ 20:375.  The Court in Pioneer also directly refers to 60(b) and infers that it would be interpreted in the same way.  507 U.S. at 393.

The Supreme Court in Pioneer emphasized the equitable nature of the excusable neglect standard and the importance of taking into account all relevant circumstances; moreover, it expressly stated that it could “encompass situations in which the failure to comply with a filing deadline is attributable to negligence.” 507 U.S. at 394.  Factors to be considered in reviewing the totality of the circumstances include, but aren’t limited to:  the danger of prejudice to the opposing party, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, and whether the movant acted in good faith.  Id. at 395.  In analyzing the reason for delay, the court will look to whether it was under the control of the party alleging […]