|Puppy in Civil Procedure|
By Andrew Delaney
This is an appeal dealing with whether stuff was filed in time. This is like a civil-procedure thrill ride. Please don’t take my sarcasm the wrong way—civil procedure is very important stuff and I sincerely wish that I had paid a lot more attention and played a lot less Yahoo Pool during civ pro in law school. I probably could’ve saved myself a lot of CLE and self-study time later on.
There are two sets of medical defendants in this medical malpractice and wrongful death case. The SCOV helpfully christens them the Baker defendants and the Hospital defendants. Both sets of defendants filed motions to dismiss on the basis that plaintiffs failed to serve process in a timely manner. The trial court denied the motions and both defendants appeal. The Baker defendants’ pitch is that the trial court’s enlargement of time expired before the Baker defendants were served. The Hospital defendants go with a plaintiffs-failed-to-file-the-signed-waiver-in-time argument. Both camps appeal from the trial court’s conclusion that it could retroactively grant a motion for enlargement of time and extend the time-period for service after the running of the statute of limitations based on excusable neglect.
Let’s find out what happened.
Plaintiffs filed suit alleging that their son died as a result of medical negligence, three days shy of two years after his death. Nobody disputes that this filing was within the statute of limitations. Plaintiffs had sixty days, by rule, to serve the defendants.
The day before the sixty-day period was up, plaintiffs’ counsel filed a motion for an extension of “an additional 60 days” to serve process on the basis of a number of personal tragedies. The trial court wrote “granted” on the motion eleven days later, without giving a new date by which service had to be completed. Within sixty days of the trial court’s issuance of the order, but more than sixty days after the motion to extend time was filed, plaintiffs served the Baker defendants. The returns of service were filed eleven days later. The same day the Baker defendants were served, the Hospital defendants’ counsel signed and returned a waiver of service. The waiver didn’t get filed for over a month.
The Baker defendants filed a motion to dismiss, arguing that the additional sixty days ran from when the plaintiffs filed the motion for an extension, not from when the court issued the order. The Hospital defendants also filed a motion, arguing that by the time the plaintiffs filed the waiver, the time for service was long expired.
Plaintiffs filed an opposition “arguing that the trial court had discretion to enlarge the time for service, particularly as the enlargement did not prejudice either class of defendants.” Plaintiffs filed an additional motion for a retroactive enlargement arguing that even if the court didn’t find service to be timely, it could allow an enlargement for excusable neglect. Plaintiffs’ counsel cited a bunch of life events in support of his excusable-neglect pitch.
The trial court denied the motions to dismiss. It stated that based on the court’s “subjective intent,” it was “clear” that the sixty days ran from the grant of the motion. On the waiver issue, the trial court concluded that the waiver was signed within the sixty extra days allowed, and based on Vermont’s longstanding preference for cases to be resolved on the merits, it wasn’t going to dismiss “based only” on delay in filing the return. The court didn’t consider the excusable-neglect arguments, finding that motion moot.
All defendants moved for reconsideration (or permission for an interlocutory appeal). The trial court was having none of it and denied all the motions. In doing so, the trial court also opined that because plaintiffs’ reasons for delay were compelling—and attributable to plaintiffs’ counsel rather than plaintiffs—it would’ve granted the retroactive-extension-of-service-motion and found excusable neglect anyway. So there. Defendants moved for an appeal at the SCOV and the SCOV granted the motion.
The Baker defendants’ primary argument is that the sixty days runs from the motion, and plaintiffs ran out of time. The Hospital defendants argue that service isn’t complete until the filing of the waiver, and plaintiffs’ filing was too late. Both defendants argue that the trial court screwed up in concluding that there was excusable neglect and that it could retroactively extend the time for service based on the same when the statute of limitations had expired. Side note: Do not read the Google Scholar version of this opinion. I’m not sure what happened, but there are a bunch of citations to statutes that are totally wrong—I got very confused.
The SCOV notes that excusable neglect would resolve both arguments, so it gets right into that.
The waiver was not filed until after all the service deadlines had expired. Accordingly, the trial court needs authority to extend a service deadline retroactively. The SCOV has previously held that a properly granted extension does the trick.
Both sets of defendants argue first that “an after-the-fact extension of time for service . . . cannot revive a claim that has already expired where the statute of limitations has run” and, second, that the plaintiffs’ didn’t establish excusable neglect.
The SCOV begins with the retroactive-extension issue. It notes that it has never explicitly dealt with the issue, but two cases bear on its determination. The first case stands for the idea that if there’s no motion for an extension, the filing date gets lost for statute-of-limitations purposes. It further suggests that if no motion for an extension is made within the time for service, it’s game over. The second case stands for the idea that if a timely motion for an extension of time to serve is made, it’s all good in the ‘hood.
Defendants say that the two cases mean that if a motion for extension of time isn’t made within the service period, a case can’t be revived or re-tolled as it were. In other words, a retroactive motion made to extend service can’t bring a claim back. The statute of limitations has expired and it’s all over.
The SCOV again notes that it has never dealt with this particular issue. The U.S. District court for the District of Vermont has predicted that the tolling rule would apply whether or not the motion to extend time is made within or without the time for service. Other courts are split on the issue.
Here, the SCOV comes down on the retroactive-extension-is-allowed side. Thus, the SCOV holds that the retroactive extension is okay as long as the trial court’s finding of excusable neglect is warranted.
Plaintiffs’ grounds for excusable neglect were based on—during the period for service—counsel’s father’s and brother’s deaths in Florida and resulting trips and legal matters; his son’s marriage; separation from his wife of 34 years; two eye surgeries; a re-election campaign; and necessary and time-sensitive meetings.
The trial court gave five reasons for finding excusable neglect: (1) defendants weren’t prejudiced because they had the complaint and “could begin their defense; (2) the greatest delay was only three days with little impact on judicial proceedings; (3) the reasons for the delay were compelling . . . and all were attributable to plaintiffs’ counsel and not plaintiffs themselves; (4) plaintiffs and counsel were acting in good faith; and (5) failure to find excusable neglect would result in dismissal of the case rather than adjudication on the merits.”
The SCOV looks to federal law for guidance because we stole our rule from the feds. Here, the SCOV notes that we’re looking at “failure to comply with a filing deadline . . . attributable to negligence.” So, what negligence is excusable?
The threshold is high and excusable neglect will only be found in rare cases. The most important factor is the reason for the delay and whether it’s within a party’s control. The decision whether to find excusable neglect is within the trial court’s discretion, and so the SCOV reviews for abuse of discretion.
The SCOV first notes that “juggling the responsibilities of being a legislator and those of conducting a private practice of law as a sole practitioner cannot establish excusable neglect.” So those things come off the table.
The SCOV hasn’t dealt with “excusable neglect based on the pressures of the kind of personal circumstances alleged here.” Usually, we’re talking about internal law office screw-ups or mistakes of law. The SCOV concludes that any one of the personal events here, standing alone, wouldn’t have been enough. But here the trial court seems to have considered all the perfect storm of crappiness as a whole and concluded that it met the standard. The SCOV concludes that the finding of excusable neglect was therefore within the trial court’s discretion, and affirms.
So there you have it. Deadlines are important for sure, but if your lawyer has enough crappy things happen and it’s a close enough call, you might be eligible for a retroactive extension.