Legal Memorandum: Filing Delay due to Inadvertence

Issue: In Delaware, Whether a Filing Delay by Plaintiff Was Inadvertent and Excusable.

Area of Law: Litigation & Procedure
Keywords: Inadvertent or excusable neglect; Filing delay
Jurisdiction: Delaware
Cited Cases: None
Cited Statutes: None
Date: 11/01/2005

If  a Plaintiff’s filed a Motion to Compel on the Monday following the Friday close of discovery, that would fall within the parameters of mistake, inadvertence or excusable neglect.

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 F.R.D. 422, 426 (D. Del. 2001) (citations omitted).  


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