TIMOTHY D. DeGIUSTI, District Judge.
Before the Court is Defendant's Motion to Strike Plaintiff's Brief in Response and Objection to Defendant's Motion for Costs as Untimely [Doc. No. 55]. Plaintiff has responded in opposition to the Motion to Strike, which is fully briefed.
The Court granted summary judgment to Defendant on November 7, 2014, and Defendant filed its Bill of Costs on November 18, 2014, pursuant to Fed. R. Civ. P. 54(d)(1) and LCvR54.1. Plaintiff did not file an objection within the 14-day period set by LCv54.1 but, instead, filed a response brief within the 21-day deadline applicable to motions under LCv7.1(g). For this reason, Defendant moves to strike Plaintiff's filing as untimely. Defendant argues that LCv54.1 establishes an inflexible deadline and Plaintiff waived any objection to its Bill of Costs by failing to meet the deadline. Plaintiff concedes that his counsel made a filing error and asks the Court to allow his objection to be considered by the Clerk at the hearing set for January 29, 2015.
The Court is authorized by the Federal Rules of Civil Procedure to extend a filing deadline, subject to certain exceptions not applicable here, "on motion made after the time has expired if the party failed to act because of excusable neglect." See Fed. R. Civ. P. 6(b)(1)(B). However, Plaintiff has neither filed a proper motion for relief under Rule 6(b), nor does he contend that his counsel's error constitutes excusable neglect.
The Supreme Court has held that a finding of "excusable neglect" within the meaning of Rule 6(b)(1)(B) should take into account "all relevant circumstances." See Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395 (1993).
The circumstances presented in this case include a short period of delay and no suggestion of bad faith. Defendant has not identified any substantial prejudice caused by Plaintiff's delay; Defendant argues only that its counsel will need to appear at the hearing on costs if a written objection is filed. However, the sole reason for the delay is that Plaintiff's counsel confused the filing deadlines for responses to motions and objections to bills of costs. In Pioneer, the Supreme Court stated that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect." Pioneer, 507 U.S. at 391. Applying Pioneer, the court of appeals held in Torres that a district court abused its discretion in finding a defendant's delay in filing a notice of appeal was the result of excusable neglect under similar circumstances, where the reason for the delay "was simply that defense counsel confused the filing deadlines for civil and criminal appeals." Torres, 372 F.3d at 1163. Following Torres, the court of appeals has held: "Because it is well established that inadvertence, ignorance of the rules, and mistakes construing the rules do not constitute excusable neglect for purposes of Rule 6(b), the district court acted well within its discretion in refusing to consider [a prevailing plaintiff's] untimely motion" for attorney fees and costs. See Quigley v. Rosenthal, 427 F.3d 1232, 1238 (10th Cir. 2005).
In this case, for the reasons that Plaintiff has not properly sought relief under Rule 6(b)(1)(B) and he has failed to establish excusable neglect, the Court finds that Plaintiff's late filing of a written objection to Defendant's Bill of Costs should not be permitted.
IT IS THEREFORE ORDERED that Defendant's Motion to Strike Plaintiff's Brief in Response and Objection to Defendant's Motion for Costs as Untimely [Doc. No. 55] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Brief in Response and Objection to Defendant's Motion for Costs [Doc. No. 54] is STRICKEN and shall be disregarded.
IT IS SO ORDERED.