MEMORANDUM OPINION AND ORDER
ANDREW L. BRASHER, District Judge.
This matter comes before the Court on Rex Huggins' ("Defendant") motion to set aside the Court's order. See Doc. 51. Defendant was previously ordered to render relief to the Robert N. Brewer Family Foundation ("Plaintiff") because he did not respond to an order to show cause. See Doc. 50. Now, Defendant moves to strike the Court's prior order claiming excusable neglect. Upon consideration, the motion is due to be DENIED.
BACKGROUND
On September 5, 2019, Plaintiff filed a motion requesting relief from the Court, including an order directing Defendant to reimburse the trust assets for disbursements made to pay his lawyer. Plaintiff argued that Defendant did not provide required written notice before it used those assets to defend himself. On the following day, September 6, this Court ordered that Defendant show cause by September 26 why Plaintiff's motion should not be granted. The 26th came and went. The Court allowed Defendant more than double the time originally offered and finally, on October 18, the Court entered an order directing Defendant to disburse funds. Then, on October 21, Defendant responded by filing a motion to set aside the Court's October 18 order, arguing that his lawyer thought a response had been filed.
STANDARD
The Court will apply Rule 60(b)(1) of the Federal Rules of Civil Procedure, which states that an order of the court may be set aside for "mistake, inadvertence, surprise, or excusable neglect." Defendant has here claimed excusable neglect. In order to set aside an order on the basis of excusable neglect, courts in the Eleventh Circuit come to an equitable determination, taking into account the totality of the circumstances surrounding the omission. See Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir. 2007).1 The circumstances considered are "the danger of prejudice to the opposing 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." Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 1498, 123 L. Ed. 2d 74 (1993)).
DISCUSSION
Defendant's motion to set aside the order of this Court provides no reason for failing to respond to the Court's show cause order. The only sentence in the motion that offers anything approaching a reason is the final sentence: "the undersigned believed it had been filed and was surprised by this Court's order indicating that it had not." The necessary inquiry is whether "believ[ing] it had been filed" constitutes excusable neglect.
Usually, the Eleventh Circuit provides parties with a great deal of flexibility about late filings and has a broad view of what it considers an acceptable "reason for the delay." An excuse as simple as a "breakdown in communication" between attorneys handling the case can excuse missing filing deadlines and justify setting aside orders. See Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (holding that neglect was excusable where a secretary forgot to tell an attorney about the deadline for filing a demand for a trial de novo after an arbitration award).
But this charitable attitude vanishes with some rapidity when a court has issued an order requiring that a response be filed and prescribing a result for a failure to do so. See Allen v. Dockery, 295 F. App'x 335, 339 (11th Cir. 2008) (holding that the same "breakdown in communication" excuse would not be viable in a situation where "the deadline...missed was imposed by a court order that explicitly warned...that a failure to comply would result in the dismissal of his case"). In general, there is little sympathy where the deficiency has been explicitly brought to the attention of the party in question. See Norment v. Newton Cty. Sheriff's Dep't, 352 F. App'x 316, 318 (11th Cir. 2009) (relief was not available for a party that, as a result of a clerical error, failed to file a statement of facts, because this lack of filing had been brought to their attention).
In light of this case law, the totality of the circumstances weighs against Defendant here. There was not a great deal of prejudice to Plaintiff from Defendant's non-response to the Court's order. Nor did the delay adversely impact judicial proceedings. But a one-month delay between the filing deadline and the actual filing is nonetheless substantial, especially when Defendant responded only because the Court ruled. And the Court's show-cause order expressly warned that the motion would be granted if it were not opposed during the relevant time period.
Most importantly, Defendant has given no reason whatsoever for not responding to the Court's show-cause order, not even a brief statement about a miscommunication or accident. The Court is left to speculate about the reason for Defendant's cavalier approach to legal requirements. The Court notes that Defendant's failure to respond to the Court's show-cause order is similar to his failure to provide the relevant notice under Florida law for using trust assets to pay his attorneys fees. Perhaps, therefore, the root of the problem is that Defendant simply does not take seriously his duties as a trustee. If so, Defendant needs to change his attitude.
Finally, the Court has reviewed Defendant's belated response to the Court's order to show cause and finds its arguments on-the-merits unpersuasive. Plaintiff is correct that Defendant should have given the beneficiaries of the trust notice before he began using trust assets to defend himself in this lawsuit. See Fla. Stat. § 736.0802(10).
CONCLUSION
Accordingly, the Court ORDERS as follows:
1. Defendant's motion to set aside judgement is DENIED.
2. Defendant SHALL REIMBURSE the Christine C. Brewer Trust for all attorneys' fees and costs of this litigation paid from the outset of the litigation through July 30, 2019. See Doc. 50. This reimbursement will be made by January 13, 2020 and confirmation of the reimbursement will be provided to Plaintiff on or before that same date.
3. Defendant SHALL PAY to Plaintiff the amount of $4,722.50 for attorney's fees associated with filing the motion to which Defendant did not respond. See Doc. 54. This payment will also be made by January 13, 2020.
4. Because Plaintiff has now received written notice of Defendant's intent to pay costs and attorney's fees from the trust, Fla. Stat. § 736.0802(10), Defendant has complied with that aspect of Florida law and may pay fees and costs from the trust assets from July 30, 2019 going forward.
DONE and ORDERED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
