Legal Memorandum: Failure to File within Time Period

Issue: Whether Failure to File Within the Required Time Period Was Inadvertent and Excusable in Delaware.

Area of Law: Litigation & Procedure
Keywords: Inadvertent and excusable; Timely filing of papers; Excusable neglect
Jurisdiction: Delaware, Federal
Cited Cases: None
Cited Statutes: Fed. R. Civ. P. 60(b)(1)
Date: 11/01/2005

Rule 60(b) provides that the Court may reconsider an order entered due to failure to meet a deadline when that failure was due to “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). The Third Circuit Court of Appeals has explained that this factor encompasses not only the control of the moving party over the timely filing of papers, but the many factors discussed above. George Harms Constr. Co.  v. Chao, 371 F.3d 156, 163-64 (3d Cir. 2004).

The U.S. District Court for the District of Delaware explains “excusable neglect” as follows:       

Excusable neglect is an equitable and elastic concept whereby the court takes into account all the relevant circumstances surrounding the delay.  Pertinent factors include:   (1) the danger of prejudice to the nonmovant, (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, (4) whether the movant acted in good faith, (5) whether the inadvertence was the result of professional incompetence such as ignorance of the rules of procedure, (6) whether an asserted inadvertence reflects an easily manufactured excuse incapable of verification by the court and (7) a complete lack of diligence.


Since the determination of excusable neglect is, at root, an equitable one, the court is free to weigh the aforementioned factors as it sees fit.


Schering Corp. v. Amgen, Inc., 198 […]

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