Free Motion for Leave to File - District Court of Connecticut - Connecticut

Case 3:01-cv-02158-WWE

Document 132

Filed 10/20/2005

Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ------------------------------------------------------------DONALD WAINRIGHT, JANET WAINRIGHT, DOCKET NO. 301-CV-2158 (WWE) AND DEBORAH A. RUSSO-WILLIAMS, PLAINTIFFS, -AGAINSTMOTION FOR PERMISSION TO FILE OUT OF TIME MOTION TO ENLARGE TIME

OSM COMMUNICATIONS, INC., ISRAEL H. POLANSKY, ROBERT E. POLANSKY, AND ANNE POLANSKY, DEFENDANTS, --------------------------------------------------------------

OCTOBER 20, 2005

PLAINTIFFS' MOTION FOR PERMISSION TO FILE OUT OF TIME A MOTION FOR ENLARGEMENT OF TIME TO OBJECT TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Pursuant to Fed. R. Civ. P. 6(b)(2) and 56(e), the Plaintiffs in this matter hereby respectfully submit their motion for permission to file out of time and enlargement of time with which to object to the two (2) Defendants' Motion for Summary Judgment. The Plaintiffs request an Enlargement of Time to Object, not to exceed 45 days, in order to allow the Plaintiffs to respond to two (2) Motions for Summary Judgment filed by the respective counsel for the defendants Robert Polansky/OSM Communications Inc. and Israel Polansky and Anne Polansky, until October 26, 2005, on the following grounds: 1) Plaintiffs' counsel inadvertently failed to properly file a Motion on September 29,

1

Case 3:01-cv-02158-WWE

Document 132

Filed 10/20/2005

Page 2 of 6

2005 despite the attempted filing with a disk on that same day by Attorney Michael Culkin, who works with Attorney Robert E. Arnold's office. 2) Counsel herein was operating under the impression that the Motion was duly filed and had until October 26, 2005 with which to respond to the two (2) motions for Summary Judgment. 3) On October 19, 2005 counsel herein became aware of the error in filing, and therefore due to law office failure and inadvertent mistake counsel herein files this Motion for Permission to File out of time as well as the Motion for Extension of Time simultaneously. This Court should therefore grant Plaintiffs' counsel's Motion for Permission to file out of Time and Motion for an enlargement of time, and order the responsive pleadings be due by October 26, 2005. THE PLAINTIFFS HAVE ACTED IN GOOD FAITH In support of the instant motion, the Plaintiffs have acted in good faith in attempting to complete their responses to oppose the motions and affidavits filed by the Defendants in support of their motion for summary judgment. This Court should therefore permit responsive pleadings as allowed under Fed. R. Civ. P. 56(e) and 6(b)(2) and grant the Plaintiffs' Motion for Enlargement of Time to Object. Dated: New Haven, Connecticut October 20, 2005

Plaintiffs, By:
____________________________________

Robert E. Arnold III Law Offices of Robert E. Arnold LLC 205 Church Street New Haven, Connecticut 06066 Tel. (203) 777-3000 Fax (203) 498-6022

2

Case 3:01-cv-02158-WWE

Document 132

Filed 10/20/2005

Page 3 of 6

[email protected] Fed Bar #ct18903

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ------------------------------------------------------------DONALD WAINRIGHT, JANET WAINRIGHT, DOCKET NO. 301-CV-2158 (WWE) AND DEBORAH A. RUSSO-WILLIAMS, PLAINTIFFS, -AGAINSTOSM COMMUNICATIONS, INC., ISRAEL H. POLANSKY, ROBERT E. POLANSKY, AND ANNE POLANSKY, DEFENDANTS, -------------------------------------------------------------MOTION TO ENLARGE TIME

OCTOBER 20, 2005

MEMORANDUM OF LAW IN SUPPPORT OF PLAINTIFF'S MOTION FOR ENLARGEMENT OF TIME TO OBJECT TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Pursuant to Fed. R. Civ. P. 6(b)(2) and 56(e), the Plaintiffs in this matter hereby respectfully submit their motion for permission to file out of time and enlargement of time with which to object to the two (2) Defendants' Motion for Summary Judgment. The Plaintiffs request an Enlargement of Time to Object, not to exceed 45 days, in order to allow the Plaintiffs to respond to two (2) Motions for Summary Judgment filed by the respective counsel for the defendants Robert Polansky/OSM Communications Inc. and Israel Polansky and Anne Polansky, until October 26, 2005, LEGAL STANDARD "Under Federal Rule of Civil Procedure Rule 6(b)(2), once a deadline has expired the court may only grant extensions of time where the party's failure to act was due to

3

Case 3:01-cv-02158-WWE

Document 132

Filed 10/20/2005

Page 4 of 6

"excusable neglect." Lujan v. Nat'1 Wildlife Fed'n, 497 U.S. 871, 896 (1990). "Excusable neglect" under Rule 6(b)(2) is equivalent to "good cause." Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987). Some showing of "good faith" on the party seeking the enlargement and some reasonable basis for noncompliance within the time specified, is generally required to act was due to "excusable neglect." Lujan v. Nat'LWildlifeFexi'n. 497 U.S. 871. 896 (1990). "Without attempting a rigid or all-encompassing definition of 'good cause,' it would appear to require at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, and some showing of good faith on the part of the party seeking the enlargement and some reasonable basis for noncompliance within the time specified' is normally required. 10 Wright & Miller, Federal Practice and Procedure: Civil § 1165 at 622 (emphasis added). The district court is clearly not compelled to accept a lesser 'excusable neglect' showing." Putnam v. Morris, 833 F.2d 903. 905 (10lh Cir. 1987). GROUNDS OF MOTION: 4) Plaintiffs' counsel inadvertently failed to properly file a Motion on September 29, 2005 despite the attempted filing with a disk on that same day by Attorney Michael Culkin, who works with Attorney Robert E. Arnold's office. 5) Counsel herein was operating under the impression that the Motion was duly filed and had until October 26, 2005 with which to respond to the two (2) motions for Summary Judgment. 6) On October 19, 2005 counsel herein became aware of the error in filing, and therefore due to law office failure and inadvertent mistake counsel herein files this Motion for Permission to File out of time as well as the Motion for Extension of Time

4

Case 3:01-cv-02158-WWE

Document 132

Filed 10/20/2005

Page 5 of 6

simultaneously. This Court should therefore grant Plaintiffs' counsel's Motion for Permission to file out of Time and Motion for an enlargement of time, and order the responsive pleadings be due by October 26, 2005. THE PLAINTIFFS HAVE ACTED IN GOOD FAITH In support of the instant motion, the Plaintiffs have acted in good faith in attempting to complete their responses to oppose the motions and affidavits filed by the Defendants in support of their motion for summary judgment. This Court should therefore permit responsive pleadings as allowed under Fed. R. Civ. P. 56(e) and 6(b)(2) and grant the Plaintiffs' Motion for Enlargement of Time to Object. Dated: New Haven, Connecticut By:
____________________________________

October 20, 2005

Robert E. Arnold III Law Offices of Robert E. Arnold LLC 205 Church Street New Haven, Connecticut 06066 Tel. (203) 777-3000 Fax (203) 498-6022 [email protected] Fed Bar #ct18903

5

Case 3:01-cv-02158-WWE

Document 132

Filed 10/20/2005

Page 6 of 6

CERTIFICATION This is to Certify that a copy of the foregoing was mailed, postage prepaid, of October 30, 2004, to:
Counsel for Defendants Robert Polansky and OSM Communications, Inc Michael P. Goldsmith
st

38 West 21 Street New York, NY 10010-6977 Counsel for Defendants Israel Polansky and Anne Polansky J. Michael Sulzbach 385 Orange Street New Haven, CT 06511 Karen Haley Esq. 419 Whalley Avenue New Haven, CT

ORIGINALTO:

United States District Court, District Of Connecticut 915 LAFAYETTE BOULEVARD BRIDGEPORT, CONNECTICUT 06604 phone: (203) 579-5861 attn: clerk's office

By:
____________________________________

Robert E. Arnold III

6