Judge Moreno Spanks Lawyer For Missing Deadlines

Order Denying Extension

Hey, what's the big deal, it was just a deadline to file a notice of appeal?

Let's see, first you lose the case.

Then you get hit with an order granting defendant $550k in attorney's fees plus another $80k in costs.

Then you blow the deadline to file the appeal.

Then you explain to Judge Moreno that you were really really busy, also on vacation, and your secretary miscalendared the appeal deadline anyways:

Attorney Matthew S. Gibbs set up his ECF account with the United States District Court for the Southern District of Florida with a copy of all filings to be forwarded to his paralegal, Susan Cavallone, for calendaring purposes.1 (See Declaration of Matthew S. Gibbs) Mr. Gibbs was out of the office between November 19 and 30, 2009 for two out of town court proceedings and a family vacation in Florida. (See Declaration of Matthew S. Gibbs) Due to an error by Ms. Cavallone, the deadline for filing the Notice of Appeal was miscalendared. (See Declaration of Susan Cavallone)

Mr. Gibbs realized the Notice had not been filed the afternoon of December 23 and immediately contacted opposing counsel regarding the missed deadline. Based on the Final Judgment issued on November 19, 2009, ECF Administrative Rule 3K(2), and FRAP 26(b)(2), the Notice of Appeal was due to be filed on or about December 21, 2009.

At this point Matthew is probably employing a few of the expletives recently laid out by Judge Marcus.

What do you think -- will Judge Moreno find this to be "excusable neglect"?

Don't let the door hit you....

Plaintiff's explanation that he was out of town for court proceedings and on a family vacation (Pl. Mot. 3) is not "excusable neglect."

Lastly, Plaintiff's cumulative effect of missing deadlines exhibits an absence of good faith. Plaintiff's practice of routinely missing deadlines throughout the litigation betrays Plaintiff's consistent disregard for these proceedings. Indeed, Plaintiff's habitual pattern and practice of missing deadlines throughout the three year long litigation is evidence of a lack of good faith.

I've never understood why lawyers wait until the final permissible day to take an action they know they will take a month or more earlier, yet it is almost always routinely done with no real consideration of whether waiting makes any sense or not.

Well, Matthew, at least now you have another order to appeal.

(Best to double check the calculation just to be safe.)