opposition to ex-neg v9c

Commonwealth of Kentucky

Court of AppealsNO. 2009-CA-000058-MR

GLENN D. AUGENSTEIN APPELLANT

v.

APPEAL FROM HENRY CIRCUIT COURT

ACTION NO. 07-CI-00368

DEUTSCHE BANK NATIONAL TRUST COMPANY APPELLEE

APPELLANT'S OPPOSITION TO APPELLEE'S MOTION

FOR LEAVE TO FILE BRIEF OUT OF TIME

Comes now Appellant, Glenn D. Augenstein, pro se, and objects to the Motion to

File Brief Out of Time of Appellee Deutsche Bank National Trust Company, as Trustee

for the Soundview Home Loan Trust 2005-OPT4. The Appellee's Motion For Leave To

File Brief Out of Time should be DENIED.

The motion consists of a single paragraph which wholly fails to identify a factual

predicate or even a scintilla of evidence in support of such motion.

PROCEDURAL HISTORY

History of Prior Enlargements To the Benefit of Appellee

The Appellant filed his Appellant’s Brief perfecting the appeal on August 10, 2009.

Therefore, the Appellee’s Brief was originally due on October 9, 2009.1

By motion filed October 8, 2009, Appellee sought a sixty (60) day enlargement of

time to file its brief. By Order of October 20, 2009, the Court extended the deadline

giving the Appellee sixty six (66) days, setting the new deadline as December 14, 2009.

1 Although CR 76.12(2)(a) allows for sixty (60) days, the docket entry seemed to erroneously indicate that the brief

was due October 14, 2009, appearing to allow Appellee an extra day, for a total of 61.

APPELLANT'S OPPOSITION TO APPELLEE'S MOTION TO FILE BRIEF OUT OF TIME

No. 2009-CA-000058-MR Augenstein v Deutsche Bank National Trust Company

Thereafter, upon the Appellant’s filing of his CR 60.02 motion with the Henry

Circuit Court, the Appellate Court ordered the appeal held in abeyance during the

pendency of that matter, implicitly granting Appellee additional time to research, prepare,

and write its brief. A total of five months and three days elapsed between the date of the

December 14, 2009, deadline and the date the case was returned to the active docket.

On April 23, 2010, the Henry Circuit Court entered an order denying Appellant's

CR 60.02 motion. The Appellee was immediately aware of the Circuit Court’s order of

April 23, 2010, and certainly could have resumed preparations of its brief immediately

upon receipt of this Order. The entry of this order rather clearly signaled that the appeal

would be quickly returned to the active docket. The deadline to file the Appellee’s Brief

had been December 14, 2009, then long passed. Absent an enlargement, the brief would

have been immediately due upon reinstatement to the active docket.

Despite the fact that the brief was already more than four months overdue, the

Appellee took no action to apply for any additional extension by motion under CR

6.02(a). To the great fortune of the Appellee, when the Appellate Court ordered this

appeal returned to the active docket on May 17, 2010, the Court also generously made a

sua sponte grant of an additional thirty (30) day enlargement for Appellee to file its brief.

The new deadline for the Appellee's brief was June 16, 2010.2 But by then, the Appellee

had already had twenty-four (24) days post circuit court order to resume work on the

brief to have it ready upon reinstatement to the active docket. The enlargement gave the

Appellee an additional thirty days for a total of fifty-four (54) days after the entry of the

Circuit Court order. Still this was not enough. The Appellee had to take NINE (9) more

2 Fox v. House, 912 S.W.2d 450, 450-1; 1995 Ky. App. LEXIS 109 (Ky. App. 1995).



days, to which it was not authorized.3 On June 25, 2010, Appellee filed its Motion For

Leave To File Brief Out Of Time. Appellee's motion seeks yet another additional (fourth)

enlargement to provide for the acceptance of a brief which was overdue by nine (9) days.

The appellate court found that the trial court had, “in accordance with Pioneer's

command, properly considered these last two instances of neglect [the one day tardiness

in filing and the subsequent period in seeking post-deadline enlargement by motion] not

in isolation, but by "taking account of all relevant circumstances surrounding the party's

omission." Pioneer, 507 U.S. at 395.”4 The court's prior generosity in granting prior

enlargements and the movant's history of missed deadlines were such relevant

circumstances. Nafziger v. McDermott International, 467 F.3d 514, 522-4; 2006 U.S.

App. LEXIS 25982; 66 Fed. R. Serv. 3d (Callaghan) 592 (6th Cir. 2006), cert. denied.

The Appellee Has Had Ample Time To Complete And File Its Brief

Through the June 16, 2010, due date of the brief, the Appellee had a total of ten (10)

months and six (6) days (310 days) to prepare its brief.

The Appellant returned the record to the Henry Circuit Court on June 25, 2009,

precisely a year to the day before the Appellee's motion, and the record had been

continuously available to the Appellee from that time, giving the Appellee a full year of

unfettered access to the record in support of its efforts to prepare its brief.5

The allowed period for the brief under CR 76.12(2)(a) was sixty (60) days. When

the court has allowed an enlargement of time, it usually allows only sixty (60) days for a

3 Absent the Court’s unilateral third enlargement of time for the Appellee to file its brief, the brief would have been

already overdue on May 18, 2010, and the Appellee’s excusable neglect motion would have been an explanation of its

prior inadvertence in seeking enlargement upon reinstatement to the active docket.

4 Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395; 113 S. Ct. 1489,

1498; 123 L. Ed. 2d 74, 89; 1993 U.S. LEXIS 2402 (U.S. 1993).

5 Appellee deemed this case to be so simple that it found it wholly unnecessary to even check out the record.



first enlargement and thirty (30) days for a second enlargement, for a total enlargement of

no more than ninety (90) days, and a total time to prepare an Appellee's brief of one

hundred fifty (150) days. The interval afforded this Appellee is now already twice that

amount of time, well in excess of the most generous of the allowances granted by the

Court of Appeals, and more than five (5) times the period set forth in CR 76.12(2)(a).

Courts elsewhere have denied a third extension to file a response to a summary

judgment motion when the earlier extensions had increased the time to nearly three times

over the period allowed and the party still did not meet the deadline (“Despite receiving

all of this extra time--nearly three times the period allowed under the court's local rules--

Spears did not meet the deadline.”). Spear v. City of Indianapolis, 74 F.3d 153, 157;

1996 U.S. App. LEXIS 692; 33 Fed. R. Serv. 3d (Callaghan) 1338 (7th Cir. 1996).

The Appellee Has Already Benefited From Three Enlargements

As expressly shown above, the Appellee has already received a sixty six (66) day

enlargement by the Court’s Order of October 20, 2009, as well as an additional thirty (30)

day enlargement by the Court’s generous sua sponte Order of May 17, 2010. In addition,

the Appellee also implicitly received an additional enlargement of five months and three

days during the pendency of the CR 60.02 motion in the Circuit Court.

While the Appellate Court generously grants a first enlargement based upon a

minimal showing of cause and very often grants a second smaller enlargement upon a

further showing, it is far less common for the Court to grant a third enlargement and the

requisite showing required in support of such an application ought to be more rigorous.

Denial of a further enlargement, finding no excusable neglect, was appropriate

where the movant had already benefited from four prior enlargements. Ellis v. Univ. of



Kansas Med. Ctr., 163 F.3d 1186, 1193; 1998 U.S. App. LEXIS 31654 (10th Cir. 1998).

The Burden Of Proof Is On Appellee To Establish Excusable Neglect

“The burden of demonstrating excusability lies with the party seeking the extension

. . .” Thompson v. E.I. DuPont, 76 F.3d 530, 534; 1996 U.S. App. LEXIS 2521; 34 Fed.

R. Serv. 3d (Callaghan) 275 (4th Cir. 1996).

Appellee's Motion Shows No Factual Predicate Supporting Excusable Neglect

CR 7.02(1) states “An application to the court for an order shall be by motion which

... shall be made in writing, shall state with particularity the grounds therefor, and

shall set forth the relief or order sought ... [emphasis added]”.

Appellee's motion is devoid of any factual allegations which would support a

finding of excusable neglect. Nowhere within the motion is there a syllable of factual

explanation as to the reason for the delay.

“A request for an extension under Rule 6(b)(2) should be made upon formal

application for an order in compliance with Rule 7(b)(1) relating to motions. Because

Rule 7(b)(1) requires that the application state with particularity the grounds therefor, the

movant must allege the facts constituting excusable neglect and the mere assertion of

excusable neglect unsupported by facts has been held to be insufficient.” 4B A. Miller &

C. Wright, Federal Practice and Procedure, 3rd ed. (2002) §1165. United States v. Ragin,

No. 94-1970, 1997 U.S. App. LEXIS 11827 (4th Cir. 1997).6

“The plaintiff has given me absolutely no factual predicate upon which to base a

finding of excusable neglect within the meaning of Rule 6(b), yet that would appear to be

the sole basis upon which I would exercise discretion ...” Pastula v. Lane, 2006 U.S.

6 See also Institute for Policy Studies v. CIA, 246 F.R.D. 380, 383; 2007 U.S. Dist. LEXIS 92206 (D.D.C. 2007).



Dist. LEXIS 6948 at*6 (D.C. Me. 2006).

Appellee's Motion Lacks Evidentiary Support

Appellee has not submitted any affidavits or other admissible evidence in support of

its motion. Neither the Appellee's motion nor its Memorandum in support of the motion

was verified. This leaves the motion devoid of any evidentiary support. There isn't a

scintilla of evidence supporting the allegation that there exists cause for enlargement or

that failure to timely file was a result of excusable neglect.

CR 6.02 states, in pertinent part, “When by statute or by these Rules or by a notice

given thereunder or by order of court an act is required or allowed to be done at or within

a specified time, the court for cause shown may, at any time in its discretion ... (b) upon

motion made after the expiration of the specified period permit the act to be done where

the failure to act was the result of excusable neglect ... [emphasis added].”

In holding that late filed affidavits were properly excluded absent a rule 6(b) motion

and a showing of cause and excusable neglect the US Supreme Court held in Lujan:

“Thus, in order to receive the affidavits here, the District Court would have had to regard

the very filing of the late document as the 'motion made' to file it; it would have had to

interpret 'cause shown' to mean merely 'cause,' since respondent made no "showing" of

cause at all; and finally, it would have had to find as a substantive matter that there was

indeed 'cause' for the late filing, and that the failure to file on time 'was the result of

excusable neglect'.” Lujan v National Wildlife Fed, 497 U.S. 871, 896-7; 110 S. Ct.

3177, 3192-3; 111 L. Ed. 2D 695, 722; 1990 U.S. LEXIS 3458; 58 (U.S. 1990).7

7 Courts in other jurisdictions have expressly found evidence necessary in support of an excusable neglect motion to

enlarge: “Mere allegation of good cause is insufficient to permit a late filing; the party requesting the extension of time

is required to offer evidence to prove good cause. Bond v. Lewis, 496 S.W.2d 181, 184 (Tex. App.--Waco 1973, no

writ) (concerning a late-filed controverting affidavit to a plea of privilege).” Neely v. Coleman Enters., Ltd., No.

10-00-350-CV, 62 S.W.3d 802; 2001 Tex. App. LEXIS 7592 (Tex. App. -- Waco 2001).



The Kentucky Rules expressly contemplate that some motions require evidentiary

support. This is particularly true where motions are determined by submission. Where

the determination of a motion is to be based upon evidence furnished by affidavit, the

Rules contemplate and set forth that evidentiary support is to be attached to the motion:

“CR 6.04(2): When a motion is supported by affidavit, the

affidavit shall be served with the motion... [emphasis added].”

CR 76.34(1) expressly adopts the requirement of CR 6.04(2) that affidavits in

support be served with the motion. Motion practice before the Court contemplates only

the filing of a motion and response by an opposing party. CR 76.34(1) and (2). No

further Reply by the moving party or supplementation or elaboration is permitted.

The Appellee’s unverified arguments appearing within the Appellee's Memorandum

are not evidence. The Appellant expressly OBJECTS to the acceptance of the Appellee’s

unsworn arguments appearing within the Appellee's Memorandum as evidence in support

of its belated application for an enlargement. The failure to furnish proof of cause shown

by admissible evidence furnished by affidavit accompanying the motion precludes any

finding of valid cause shown or excusable neglect by the Appellee.

The Importance of Deadlines

Failure to file required briefs within court ordered deadlines is discourteous and

disruptive of the Court of Appeals' heavy caseload and calendar.

“We live in a world of deadlines. If we're late for the start of a game or a movie, or

late for the departure of a plane or a train, things go forward without us. The practice of

law is no exception. A good judge sets deadlines, and the judge has a right to assume that



deadlines will be honored. The flow of cases through a busy district court is aided, not

hindered, by adherence to deadlines. ... If the court allows litigants to continually ignore

deadlines and seek never ending extensions without consequence, soon the court's

scheduling orders would become meaningless." Spear, 74 F.3d at 157-8.

“We operate in an environment, however, in which substantial rights may be, and

often are, forfeited if they are not asserted within time limits established by law. ... the

legal system would groan under the weight of a regimen of uncertainty in which time

limitations were not rigorously enforced -- where every missed deadline was the occasion

for the embarkation on extensive trial and appellate litigation to determine the equities of

enforcing the bar.” Silivanch v Celebrity Cruises, Inc., 333 F.3d 355, 367-8; 2003 U.S.

App. LEXIS 12841; 56 Fed. R. Serv. 3d (Callaghan) 599 (2nd Cir.).

Hardin v. Meade County

Within its Memorandum, the Appellee cites Hardin v. Meade County (see 2006-

CA-002124, 2006-CA-002165, 2006-CA-002166) in support of its motion. The Hardin

case is an unpublished decision of the Court of Appeals and cannot be used as authority

by the Appellee. CR 76.28(4)(c). More importantly, the Kentucky Supreme Court

granted discretionary review of the Hardin case on April 15, 2009, and that appeal has

not yet been decided (see 2008-SC-000348 and 2008-SC-000354). The case cannot be

published until the Supreme Court’s discretionary review is completed. CR 76.28(4)(a).

The case cited affords no authority in support of Appellee’s motion.

The Pioneer Factors

While the Hardin case affords the Appellee no authority in support of its motion,

the Appellant agrees with the Appellee that the Court should look to rules decisions of the



Federal and state courts in identifying the appropriate law. Taylor v. Morris, 62 S.W.3d

377 (Ky. 2001). And the Appellant also agrees that the Pioneer case gives the correct

framework for assessing the Appellee’s motion.

“There is, of course, a range of possible explanations for a party's failure to comply

with a court-ordered filing deadline. At one end of the spectrum, a party may be

prevented from complying by forces beyond its control, such as by an act of God or

unforeseeable human intervention. At the other, a party simply may choose to flout a

deadline. In between lie cases where a party may choose to miss a deadline although for

a very good reason, such as to render first aid to an accident victim discovered on the way

to the courthouse, as well as cases where a party misses a deadline through inadvertence,

miscalculation, or negligence.” Pioneer, 507 U.S. at 387-8.

The Appellee seeks to blatantly deceive the Court by misstating the express

holding in Pioneer. The Appellee tells us that the four Pioneer factors are: “(1) whether

there was any prejudice, (2) the length of the delay and its potential impact on judicial

proceedings, (3) the reasons for the delay, and (4) whether the moving party acted in

good faith”. What Pioneer actually says is: “the danger of prejudice to the debtor [other

[party], the length of the delay and its potential impact on judicial proceedings, the

reason for the delay, including whether it was within the reasonable control of the

movant, and whether the movant acted in good faith [emphasis added]”. Pioneer, 507

U.S. at 395; 113 S. Ct. at 1498; 123 L. Ed. 2d at 89-90.

Since the unsworn reason for the delay appearing within the Appellee’s

Memorandum was solely within the control of the movant, the Appellee conveniently and

deviously omits this critical aspect of the Pioneer test!



The Pioneer Factors Are Not Exhaustive

The Third Circuit and the Ninth Circuit have each expressly mentioned these other

factors in determining excusable neglect:

• whether the inadvertence reflected professional incompetence such as

ignorance of rules of procedure

• whether an asserted inadvertence reflects an easily manufactured excuse

incapable of verification by the court

• counsel's failure to provide for a readily foreseeable consequence

• a complete lack of diligence

Dominic v. Hess Oil V.I. Corp, 841 F.2d 513, 517; (3rd Cir. 1988); Kyle v. Campbell Soup

Co., 28 F.3d 928, 931; 27 Fed. R. Serv. 3d (Callaghan) 1175 (9th Cir. 1994).

Courts have also identified important factors other than shown in Pioneer:

• the total time available to the movant to meet the deadline8

• the movant’s history of prior enlargement9

• the movant’s history of prior non-compliance10

The Reason For The Delay Is The Most Important Factor

“The Pioneer factors 'do not carry equal weight; the excuse given for the late filing

must have the greatest import. While [the others] might have more relevance in a closer

case, the reason-for-delay factor will always be critical to the inquiry.'” U. S. v. Munoz,

No. 09-5357, 605 F.3d 359; 2010 U.S. App. LEXIS 10061 (6th Cir. 2010).11

“In the typical case, the first two Pioneer factors will favor the moving party:

'Delay always will be minimal in actual if not relative terms, and the prejudice to the non-

8 Spear, 74 F.3d at 157.

9 Ellis, 163 F.3d at 1193; Nafziger, 467 F.3d at 522-4

10 Nafziger, 467 F.3d at 522-411 Citing “Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000); accord United States v. Torres, 372 F.

3d 1159, 1163 (10th Cir. 2004); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 n.7 (2nd Cir. 2003); Hosp. del

Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir. 2001).” See also Morgan v. Gandalf, 165 Fed. Appx. 425; 2006 U.S.

App. LEXIS 2688; (6th Cir. 2006).



movant will often be negligible ...' [Lowry, 211 F.3d at 463]12 ... And rarely in the

decided cases is the absence of good faith at issue. See id. But despite the flexibility of

'excusable neglect' and the existence of the four-factor test in which three of the

factors usually weigh in favor of the party seeking the extension, we and other

circuits have focused on the third factor: 'the reason for the delay, including

whether it was within the reasonable control of the movant.' Pioneer, 507 U.S. At

395. We have noted that the equities will rarely if ever favor a party who 'fails to follow

the clear dictates of a court rule' and held that where 'the rule is entirely clear, we

continue to expect that a party claiming excusable neglect will, in the ordinary

course, lose under the Pioneer test.'” Silivanch, 333 F.3d at 366-7.

The Supreme Court's opinion in Pioneer shows that not all excuses are created

equal. Respondents in Pioneer offered two excuses for failing to timely file: (1)

“Respondents' counsel . . . was experiencing upheaval in his law practice at the time of

the bar date,” 507 U.S. at 398; and (2) the notice of the bar date contained a “dramatic

ambiguity,” id.13 The Court dismissed the first excuse as carrying "little weight," id., but

found the second one compelling. This passage in Pioneer, where the Court performed

precisely the kind of review presented to the Court by this motion, precludes Appellee’s

apparent argument that any excuse, or no excuse, can be sufficient to support excusable

neglect if the other three Pioneer factors are favorable to Appellee. To the contrary,

review of the language in Pioneer tells us the reason for the delay is always critical.

Federal appellate courts in six circuits -- the First, Second, Fourth, Sixth,

12 Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000), cert. denied, 531 U.S. 929, 148 L. Ed. 2d

248, 121 S. Ct. 309 (2000).13 While the deadline in the Pioneer case was found to be ambiguous, no such ambiguity appears in the Court’s sua

sponte grant of the additional thirty day enlargement resetting the deadline at June 16, 2010.



Eighth, and Tenth -- have expressly held that the most important of the Pioneer

factors is the third: The reason for the delay. Hospital del Maestro, 263 F.3d 173 (1st

Cir. 2001). Williams v. KFC National Management, 391 F.3d 411; 60 Fed. R. Serv. 3d

(Callaghan) 454 (2nd Cir. 2004); Colony Apts. v. Abacus Proj. Mgmt., 197 Fed. Appx. 217;

66 Fed. R. Serv. 3d (Callaghan) 1045 (4th Cir. 2006); U. S. v. Munoz, 605 F.3d 359 (6th

Cir. 2010); Lowry, 211 F.3d at 463 (8th Cir. 2000); United States v. Torres, 372 F.3d 1159,

1163; 59 Fed. R. Serv. 3d (Callaghan) 25 (10th Cir. 2004).

“... in Hospital Del Maestro, we affirmed the denial of an excusable neglect claim

where appellant had filed ... one day late. 263 F.3d at 175. ... We held that "we have no

basis for finding [appellant's] neglect 'excusable' when there is no proffered reason that

would justify, or even plausibly explain, its misreading of the rules," the meaning of

which we described as "plain" and "unambiguous." Id. At 175. We concluded: the

favorable juxtaposition of the other Pioneer factors does not, excuse [appellant's]

oversight." Id.” Graphic Comm. Intern. Union, Local 12-N v. Quebecor Printing

Providence, Inc., 270 F.3d 1, 8; 51 Fed. R. Serv. 3d (Callaghan) 127 (1st Cir. 2001).

Whether The Delay Is Within The Control Of The Movant Is Critical

A major factor considered by the court in ascertaining excusable neglect is whether

the delay was a circumstance of the parties own making. Pohl v United Air Lines Inc.,

194 F.Supp.2d 840; 2002 U.S. Dist. LEXIS 6614. (S.D. Ind. 2002). “Fault in the delay

remains a very important factor - perhaps the most important single factor - in

determining whether neglect is excusable.” U. S. v. Torres, 372 F.3d at 1163.14

14 Quoting City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046; 1994 U.S. App. LEXIS 20734; 30 Fed. R.

Serv. 3d (Callaghan) 281 (10th Cir. 1994). See also Bishop v. Corsentino, 371 F.3d 1203, 2004 U.S. App. LEXIS 11360

(10th Cir. 2004).



The distinguishing characteristic as to excuses within the reasonable control of the

movant is culpability. And in assessing culpability, several other factors identified by

courts nationwide come sharply into play. These include:

• Diligence and assumption of risk; duty of care

• Foreseeability of the asserted excuse

• Verifiability of the excuse and susceptibility to controversion

• Whether the excuse involves ordinary or exceptional circumstances

For example, suppose that the excuse was that the person delivering the brief to the

post office was caught in traffic and didn’t make it to the post office on time. Besides the

fact that this excuse involves a reason within the control of the movant, it also is

distinguished by a lack of diligence and assumption of risk in waiting until the last

possible minute to file. Traffic delay is often readily foreseeable, the excuse is essentially

unverifiable, and involves ordinary versus extraordinary circumstances.

Courts Should Take A Hard Line In Deciding Whether Neglect Is Excusable

“Excusable neglect has been held to be a strict standard which is met only in

extraordinary cases.” Nicholson v. City of Warren, 467 F.3d 525; 2006 U.S. App. LEXIS

26430 (6th Cir. 2006). “'Excusable neglect' is not easily demonstrated, nor was it intended

to be.” Thompson, 76 F.3d at 534; Colony, 197 Fed. Appx. 217.

“Even in the wake of Pioneer, when a ... counsel's misunderstanding of clear law

or misreading of an unambiguous judicial decree is the reason for the delay ... we have

continued to uphold findings of "no excusable neglect" where the court cited the absence

of unique or extraordinary circumstances.” Graphic Communications, 270 F.3d at 8.

Inadvertence Of Counsel Is Usually Not Excusable Neglect



“. . . inadvertence, ignorance of the rules, or mistakes construing the rules do not

usually constitute "excusable" neglect . . .” Pioneer Investment Serv. Co. v. Brunswick

Assoc. L. P., 507 U.S. 380, 392; 113 S. Ct. 1489; 123 L. Ed. 2d 74 (U.S. 1993). "Inadver-

tence does not usually constitute excusable neglect under Fed. R. Civ. P. 6(b)(1)(B)."

Howard v. Nationwide Prop. and Cas. Ins., 306 Fed. Appx. 265 (6th Cir. 2009).

If inadvertence of counsel, by itself, were good cause, the exception would swallow

up the rule, for there would be few cases in which counsel would admit to a deliberate

decision not to comply with a court imposed deadline.

“... here, counsel knew there was a thirty-day limitation, but neglected to consult a

calendar to determine when it expired. 43 F.3d at 28;15 see also Lowry, 211 F.3d at 463-4

(holding that the district court abused its discretion by concluding that one-day-late filing

of notice of appeal resulting from counsel's miscalculation of the date on which notice of

appeal was due was "excusable neglect" ...); cf. Pioneer, 507 U.S. at 392 ("inadvertence,

ignorance of the rules, or mistakes construing the rules do not usually constitute

'excusable' neglect") (emphasis added); ... [ 270 F.3d at 8].” Silivanch, 333 F.3d at 369.

Miscalendaring Of The Deadline Is Not Excusable Neglect

A rather fundamental quality control and error detection technique is to (a) check

one's own work and/or (b) have someone else proof or check one's work. When placing a

deadline on a calendar, one type of error is miscalculating the due date and then placing

the item on the calendar as the miscalculated date. Another type of error is correctly

calculating the due date, but placing it on the calendar incorrectly.

Given that both are within the control of the movant, it is unclear why one of these

15 U.S v. Hooper, 43 F.3d 26; 1994 U.S. App. LEXIS 36133; 30 Fed. R. Serv. 3D (Callaghan) 1334 (2nd Cir. 1994).



might be excusable and the other not.16 Both types of errors might be readily detected and

corrected by having another person review the calendar entries for correctness and

accuracy. Where two attorneys are assigned to a case, each has a duty both to comply

with court ordered deadlines, as well as to supervise to compliance with Orders.

In Lowry, the court expressly held that an attorney's error in calculating the deadline

in respect of a thirty day allowed time was not excusable neglect, holding such a

conclusion specious. The court added “'Here the rule is crystal clear, the error egregious,

the excuses so thin as to leave the lapse not only unexcused but inexplicable.' Prizevoits,

76 F.3d at 134. If we were to apply the excusable neglect standard to require that we

deem Lowry’s neglect excusable in this case, it is hard to fathom the kind of neglect that

we would not deem excusable. See id.” Lowry, 211 F.3d at 464.

“Plaintiff’s counsel’s failure to place the deadline for responding on his calendar

was inadvertence. The Supreme Court dealt with inadvertence in Pioneer, which noted

that inadvertence "do[es] not usually constitute" excusable neglect. 507 U.S. at 392.”

Howard, 306 Fed. Appx. at 267 (6th Cir. 2009).

In a case with facts substantially identical to the Appellee's unsworn purported

reason for the delay, the Hawaii Supreme Court found no excusable neglect: “we hold

that the circuit court abused its discretion in finding that defense counsel's

"miscalendaring" constituted excusable neglect ... By finding that defense counsel's

"miscalendaring" was caused by his ignorance of the number of calendar days in May

2000, and, therefore, deemed excusable neglect, the circuit court set the excusable neglect

standard so low as to nearly eliminate the standard altogether ... Inasmuch as defense

16 If placing the due date on the calendar incorrectly is excusable neglect, then every litigant can unilaterally extend

deadlines at will by “accidentally” placing them on the calendar on the “wrong date”.



counsel "calendared the [thirty-]day deadline to file the notice of appeal for [June 30,

2000,]" instead of June 29, 2000, because he did not realize there were thirty-one days

in May, defense counsel's conduct was not excusable [emphasis added].” GE Capital

Haw., Inc. v. Balicanta, No. 23624, 2004 Haw. LEXIS 374 at 2, 3 (Hi. 2004).

“'[i]gnorance of when a time period expires does not qualify as excusable neglect,

nor does a busy schedule, lack of diligence, inadvertence, or other manifestations of

carelessness and laxity.' Eagle Fire. Inc. v. Eagle Integrated Controls, Inc., No.

3:06cv264, 2006 U.S. Dist. LEXIS 41054 (E.D. Va. June 20, 2006).” Key v. Robertson,

626 F. Supp. 2d 566; 2009 U.S. Dist. LEXIS 51092 (E.D. Va. 2009).

“. . . Defendant explains its delay in filing the Opposition as the result of an

"inadvertent[] miscalendaring of the due date." ... As was made clear in Pioneer,

however, "inadvertence, ignorance of the rules, or mistakes construing the rules do not

usually constitute 'excusable' neglect." 507 U.S. at 392. See also Fox v. Am. Airlines 363

U.S. App. D.C. 459, 389 F.3d 1291, 1294 (D.C. Cir. 2004) (parties are "obligated to

monitor the court's docket") ...” Institute for Policy Studies v. CIA, 246 F.R.D. 380, 383;

2007 U.S. Dist. LEXIS 92206 (D.D.C. 2007).

“As justification for its delay, JLW offered what the court cannot help but

characterize as the lame excuse that counsel "did not place the due date on her

calendar." ... cf. Fox v. Am. Airlines, Inc., 363 U.S. App. D.C. 459, 389 F.3d 1291, 1294

(D.C. Cir. 2004) (noting that reference to email malfunction is no better than "the classic

'my dog ate my homework' line" and "plainly unacceptable").” Halmon v. Jones Lang

Wootton, 355 F. Supp. 2d 239, 2005 U.S. Dist. LEXIS 1449 (D.C. D.C. 2005).



Procrastination Is Indicative Of A Lack Of Diligence

“A party takes significant risks when it...[files] on the day of the deadline; that is, at

the proverbial eleventh hour... The filing ... on the final day of the time period does not

[support good cause]... To the contrary, it is evidence of being remiss in one's duties.

Waiting until the proverbial eleventh hour to take action is always risky business, as

evidenced by the negative outcome in this case.” Bruce v. County of Rensallaer, 2003

U.S. Dist. LEXIS 19031 at 5,6 (N.D. NY 2003).

“Although we are sympathetic with the circumstances of Spears' problems--he

alleged a computer breakdown in his office on the due date--it seems to us that the

problem was really that he waited until the last minute to get his materials together ...

When parties wait until the last minute to comply with a deadline, they are playing

with fire.” Spear, 74 F.3d at 157.

Appellee’s inability, or unwillingness, to timely schedule its workload fails to

conform with SCR 3.130(1.3)17 and SCR 3.130(3.2).18

Appellee’s Inexcusable Neglect Delays Determination Of The Appeal By A Month

The motion was served on June 25, 2010, NINE (9) days after the June 16, 2010,

due date for the Appellee’s Brief. The Appellant, a pro se litigant and high school

dropout without any training in the law, is afforded only thirteen (13) days to respond to

learned counsel’s excusable neglect motion.19 The Court must then convene to consider

17 “A lawyer shall act with reasonable diligence and promptness in representing a client.” SC Comment, at (2), states,

in pertinent part: “(2) A lawyer's work load must be controlled so that each matter can be handled competently...” and at

(3), states in pertinent part: “(3) Perhaps no professional shortcoming is more widely resented than procrastination. A

client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme

instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. ”

18 “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” Supreme

Court Comment states, in pertinent part: “Dilatory practices bring the administration of justice into disrepute.

19 This is time that the Appellant ought to have available and which should be otherwise devoted to his craft as a

furniture maker. The Appellee’s tardiness is not only legally prejudicial, but very costly to the Appellant in terms of

time and lost income. Similarly, the Appellant readily recognizes the inconvenience and burden on the court imposed



and determine this motion which will take at least several more days. The Appellee's

failure to attach its brief to its motion precludes the Court from ordering the brief filed as

of the date of its order.

All told, it seems very likely that the Appellee’s tardiness in filing its brief will

delay the ultimate determination of the appeal by at least three weeks even if the motion

was decided instantly following the Appellant’s response and possibly much longer if the

Court is unable to meet and decide on the motion that quickly. The tardiness may

therefore very well operate to delay the determination by a month or more.

In considering the prejudice to the non-movant and the effects of the delay on the

proceeding, the court considers not only the delay in filing, but also the time expended in

the consideration of the motion arising out of the original delay. Luallen v. Guilford

Health Care Center, 2003 U.S. Dist. LEXIS 23241 (M.D. NC 2003).

Prejudice To the Appellant

The Appellant shows by his affidavit that the granting of Appellee’s motion for

enlargement is extremely prejudicial to the Appellant in that judicial sale of the subject

property in advance of the determination of the appeal will render Appellant homeless

and deprive him of his livelihood. Other prejudice is also shown in the affidavit.

It Is The Movant’s Burden To Show Good Faith

"Good cause" normally requires some evidence of "good faith on the part of the

party seeking an enlargement [of time] and some reasonable basis for non-compliance

within the time specified ... (quoting 4A Wright & Miller Federal Practice and Procedure:

Civil § 1165 at 480)20 [emphasis added]" Lambert v. United States, No. 94-30085; 44 F.3d

by the Appellee’s unprofessionalism and inability to adhere to Court mandated schedules. 20 The Wright and Miller quote is from the 2nd edition (1987). A similar quote appears in the 3rd edition (2002) at p.



296, 299; 1995 U.S. App. LEXIS 2911 (5th Cir. 1995).

The movant has made no evidentiary showing of good cause at all. The Appellant

shows below that the Appellee has exhibited bad faith in this case. Extreme good faith

has no exonerating power of its own; bad faith can sink an excusable neglect claim.

Appellee's Motion Is Filed In Bad Faith

Appellee would have most clearly demonstrated good faith by filing a motion for an

enlargement pursuant to CR 6.02(a) in advance of its June 16, 2010, deadline.

Failure to attach the untimely brief it seeks to have admitted reflects bad faith.

As is expressly shown in the Appellant’s affidavit (which facts may be readily

verified by the Court taking judicial notice of its own Dockets), the Appellee’s two

attorneys in this matter have demonstrated a consistent pattern of late filings, requests for

enlargement, and carelessness. This shows their bad faith.

Failure To Seek An Enlargement Before The Deadline Shows Bad Faith

When the party was unprepared to file as the deadline approached, the party had a

duty to seek an enlargement by motion in advance of the deadline. Failure to request an

enlargement by rule 6(b) precludes a subsequent finding of excusable neglect.

Tenenbaum v. Williams, 907 F. Supp. 606; 1995 U.S. Dist. LEXIS 17429 (E.D. NY 1995)

The time limitation of CR 76.12(2) is fixed and certain and the language of the rule

plain. If for some reason a brief cannot be filed within the time provided, “relief is

available under CR 6.02 which provides for enlargement of the period of time for cause

shown in proper situations. No such request for enlargement of time was made herein.”

537: ”Generally, excusable neglect seems to require a demonstration of good faith on the part of the party seeking an

enlargement of time and some reasonable basis for noncompliance within the time specified in the rules.” Lambert

quotes Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985) as additional authority in

support of this finding.



Motorists Mutual v. Mercer, 462 S.W.2d 188, 189; 1970 Ky. LEXIS 651 (Ky. 1970).

Habitual Tardiness / Non-Compliance With Deadlines Precludes Excusable Neglect

“A party's chronic failure to adhere to deadlines is one factor a court may consider

in determining whether excusable neglect explains a failure to file.” Luallen v. Guilford

Health Care Center, 2003 U.S. Dist. LEXIS 23241 (M.D. NC 2003).

The court found that the movant had demonstrated consistent and inexcusable

disregard for the filing deadlines and other procedural rules, when two prior motions or

responses were also untimely filed, and found this to be a consideration in denying a

motion for post-deadline enlargement alleging excusable neglect. Meyer v. Qualex, Inc.,

426 F. Supp. 2d 344, 345-6; 2006 U.S. Dist. LEXIS 20056 (E.D. NC 2006).

Public Policy Considerations May Require Rejection Of The Motion

A finding of excusable neglect under these circumstances signals that it is always

acceptable in Kentucky to file any pleading, motion or document one day after the

deadline whenever the deadline spans a month containing thirty one days, by the unsworn

allegation that one cannot recall a childhood rhyme (no reference to a calendar being

necessary). This seems to create a court sanctioned incentive favoring stupidity.

When the reason for the delay involved the movant's ignorance of the law and

inattention to detail, to “find this neglect to be "excusable" would only serve to condone

and encourage carelessness and inattention in practice before the federal courts, and

render the filing deadline . . . a nullity”. Graphic Communications, 270 F.3d at 8.

The Appellee's Memorandum Of Law

In support of its one (1) paragraph motion the Appellee furnishes a Memorandum,

of which 1/3 of the pages seem to have as their primary purpose an attempt to malign the



character of this Appellant. None of this malignment is central to the purpose of the

motion itself, which is whether the Appellee can show excusable neglect under CR

6.02(b) in its failure to timely file its brief.21

The only proffered excuse for the Appellee's tardiness appears within one sentence

of the Appellee's unverified Memorandum: “The undersigned counsel, forgetting and

misstating the old rhyme, “30 days hath September...”, simply miscalculated the date by

which Appellee's brief must be filed...”22

Appellant expressly OBJECTS to the admission into evidence and consideration of

the unsworn assertions of the Appellee's Counsel, Valerie VAN VALKENBURG,

appearing in its Memorandum being accepted as evidence in support of its motion.

Even if the court accepts the unsworn statements of VAN VALKENBURG'S

inadvertence and errors in calendaring, there has been no explanation proffered as to why

co-counsel LEACH failed to either correctly calendar the matter or file a timely brief.23

Thus, at best, Appellee has only half explained its failure.

There is no showing of extraordinary complexity. To the contrary, the appeal is

relatively simple compared to many cases coming before the Court. The appeal is of a

summary judgment, not a judgment arising from a trial on the merits. The judgment was

determined by submission, so there is no lengthy transcript of the hearing. The

21 In spite of Appellee's erroneous statement appearing in the first paragraph of its memorandum this appeal is taken

from the June 12, 2008 Court order granting Appellee summary judgment, and subsequent orders through September

of 2008. Docket Item No. 1, dated September 25, 2008, lists Circuit Court Orders of 6/12/08, 7/9/08, 8/12/08 and

9/25/08 as orders involved in this Appeal.

22 This statement by Appellee's counsel, Valerie VAN VALKENBURG, appears on the second unnumbered page of

Appellee's Memorandum within the paragraph beginning “On May 17, 2010, this court issued an order...”

23 While the Appellant is representing himself pro se without the benefit of learned counsel, the Appellee is represented

by two attorneys of record, Valerie VAN VALKENBURG and Lori LEACH, either of whom might have prepared the

brief. And these are further supported by in excess of forty additional licensed attorneys, as well as paralegals and

support staff, to assist with research, editing and production.



evidentiary record before the court in the summary judgment proceeding consists of two

affidavits, one of which was untimely.

“I Forgot”

If “I forgot” is an excuse which the court finds both valid and forgivable, this raises

the specter of a wide variety of such excuses. It becomes unclear where the court should

draw the line within this genre. Consider the following “I forgot” excuses:

• “I forgot to open my mail.”

• “I forgot to look at the order.”

• “I forgot that the order said ‘thirty days’”.

• “I forgot the grade school rhyme showing that May has thirty-one days.”

• “I forgot to look at the calendar.”

• “I forgot to put the deadline on the calendar.”

• “I forgot that yesterday was Wednesday (I thought it was still the weekend).”

• “I forgot that I had a paralegal who could have properly calendared this matter.”

• “I forgot Rules 76.12(2) and 6.02(a)

• “I forgot I was an attorney (I awoke on Wednesday thinking I was an artichoke).”

• “I forgot that I owed my client a duty of diligence under SC Rule 3.130(1.3).

• “I forgot that punctuality was important.”

• “I forgot that it was disrespectful and discourteous to the Court to ignore Rules

and court imposed deadlines.”

• “I forgot to take my memory enhancement medication (Aricept, Ritalin, etc.)”.

• “I forgot that I was forgetful.”

• “I forgot that I procrastinate and am habitually tardy.”

The Court should choose to draw the line within this genre with some trepidation.



There are at least four characteristics of the “I forgot” genre which make these excuses

treacherous. First, all are readily within the control of the movant, which seems to yield

them ineligible, or at least less worthy. Second, all are essentially unverifiable and

possibly factually irrefutable (how can the non-movant possibly argue with the movant’s

assertion that “I forgot that I was forgetful”?). Third, these excuses invite a lack of

candor in express violation of SCR 3.130(3.3). 24 Fourth, these excuses all make a

mockery of any court imposed deadlines and, if accepted, condone and reward

carelessness, inattention, incompetence, mediocrity.

As explained above, one thing that characterizes all of the “I forgot” excuses is that

these are all matters reasonably within the control of the movant. This is what sets these

apart from other excuses which might actually constitute excusable neglect:

• “Counsel of record had a massive stroke and died the day the brief was due.”

• “The AIDS infected paralegal was hit by a bus on the way to the post office and

the blood soaked brief was incinerated as hazardous medical waste.”

• “An Ohio River flood washed away counsels 8th floor Cincinnati law offices

causing the accidental and unexpected loss of the brief.”

• “Counsel’s law office was struck by lightning and burned to the ground.”

Contrast the above excuses with somewhat similar excuses showing facts which

might be found to be within the reasonable control of the movant and inexcusable:

• “Counsel was hospitalized due to a drug overdose the day the brief was due.”

• “The paralegal responsible for mailing the brief left early to go to the casino.”

• “Counsel took all copies of the brief on a recreational sailing outing on the day

the brief was due (intending to sail to Frankfort) and the sailboat sank.”

• “Counsel burned down his law office destroying the brief and all other records to

artificially create an excuse for tardiness.”

24 “SCR 3.130(3.3) Candor Toward the Tribunal. (a) A lawyer shall not knowingly: (1) make a false statement of fact

or law to a tribunal...”



Within the genre of “I forgot” excuses, the “I forgot my childhood rhymes” is

particularly lame and hardly exonerating because in 2010 within the setting of a modern

law office it could only be an excuse in conjunction with one or more additional excuses.

If one were to forget how many days were in May, one would need only look at a

calendar. In decades past, the calendar might be out of reach. But in 2010 most mobile

phones feature a calendar. Similarly, calendar functions are embedded in Outlook and

other software used almost universally in modern law offices. Each would readily show

how many days occur in May, obviating the need for reference to a childhood mnemonic.

So this excuse is effective only in conjunction with “I forgot to look at the calendar.”25

When there are two attorneys assigned, as in the case at bar, each has a duty to

ascertain filing dates. Each is assisted by a back office legal support staff to further assist

licensed attorneys in administrative details. Any assertion of “I forgot” necessarily needs

to embrace allegations and proof of mass amnesia within the Lerner law offices.

Conclusion

The Appellee’s motion is devoid of any specific facts supporting excusable neglect

and barren of any evidentiary support. The purported reason for the delay, asserted only

in unsworn argument within the Appellee’ Memorandum was a matter well within the

movant’s control and which can be best described as carelessness and inadvertence of

counsel. The reason presented – an error in calendaring the brief – has been expressly

found to be inexcusable as a matter of law by numerous courts throughout the country.

25 MS Excel and other spreadsheet software allows for addition of integers to dates giving the result in date format (e.g.

17 May 2010 + 30 = 16 Jun 2010). Similarly, legal case management software includes calendaring functions

supporting the calculation of due dates (see for example the ABA's case management software comparison available at

http://www.abanet.org/tech/ltrc/charts/pmtbchart.pdf). So the excuse of forgetting one’s grade school lessonsneeds to be supplemented with “I forgot to verify my calculation using the case management software.”



Both of the Appellee’s lawyers, Lori LEACH and Valerie VAN VALKENBURG,

failed by abdicating their basic duty: to determine the applicable filing deadline based on

a clear-as-day appellate court order served on each of them.

The requested enlargement is extremely prejudicial to the nonmovant, will delay

the ultimate adjudication of the appeal and reflects bad faith on the part of the movant.

“If there was 'excusable' neglect here, we have difficulty imagining a case of inexcusable

neglect.” Prizevoits v. Ind. Bell Tel. Co., 76 F.3d 132, 134 (7th Cir. 1996).

For the foregoing reasons Appellee's Motion For Leave To File Brief Out of Time

should be DENIED.

Respectfully submitted,

July 6, 2010

Glenn Augenstein, pro se

932 Wooded Hills Road

Pendleton, Kentucky 40055



opposition to ex-neg v9c

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