Do you remember grade school and missing a homework assignment? Back then we had some pretty creative excuses. They usually didn’t work. Fast forward to 2020 and a Long Beach law firm that tried to tell a federal judge that they should be excused for missing a court deadline because of coronavirus. It didn’t work.
Myra Deleon and Karla Jimenez hired a Long Beach, California law firm to pursue claims that they were denied overtime wages by Denny’s, their employer. The two filed a lawsuit in 2019. The case was filed as a class action meaning they were bringing their case on behalf of all similar situated workers at Dennys that were denied proper compensation.
On March 4th, the court issued a scheduling order setting forth important deadlines. One of those deadlines was June 2nd when the plaintiffs had to submit paperwork as to why the case should be handled as a class action.
June 2nd came and went without anything from Myra and Karla’s lawyers. Denny’s then asked the court to dismiss their class action complaint.
Federal rules (and the rules in most states too) allow an attorney a second chance for missing a deadline if he or she can show “excusable neglect.” The lawyers claimed their failure to file was excusable neglect. Specifically, they said they
“should be excused because: (1) the staff member responsible for calendaring the deadline (along with all other deadlines set forth in the Court’s Scheduling Order), Gilbert Martinez, went on medical leave the week the Scheduling Order was issued, and (2) Mr. Martinez’s error was not realized because most of Mahoney Law Group’s support staff were furloughed due to California’s “shelter in place” order in response to the Covid-19 pandemic.”
What Is Excusable Neglect?
According to the American Bar Association, excusable neglect is a subjective standard requiring the court to look at the merits of each case. The primary factors considered by the court are:
- Whether the delay in filing was within the reasonable control of the party;
- The length of the delay and the delay’s potential impact on judicial proceedings;
- The danger of prejudice (harm) to the other parties; and
- Whether the party acted in good faith.
The most important factors are usually the length of the delay and whether the delay caused prejudice to the other parties. For example, if witnesses traveled long distances for a hearing missed by one of the lawyers there will certainly be an argument that some of the parties suffered prejudice.
On paper, the Mahoney Law Firm’s explanation sounds pretty reasonable. If the governor says you can’t go to work and can’t leave your home it is pretty hard to open office mail and realize there were important deadlines set by the court.
The judge wasn’t impressed. He said, “Mr. Martinez’s leave actually began on March 12, 2020, eight days after the March 4, 2020 scheduling order was issued. And California’s “shelter in place” order purporting to cause Mahoney Law Group to furlough some support staff was not issued until March 19, 2020, more than two weeks after the Scheduling Order was issued.”
We know the judge, John Walter. He is a no-nonsense but fair judge. Was his decision reasonable?
Judge Walter hinted that his decision might have been different had he seen a hint of real work by the lawyers. He noted in his decision that despite telling the lawyers that they should “actively” pursue discovery, the plaintiff’s lawyers had not even sought any discovery until after they were notified that they had missed a deadline.
He also noted that if they couldn’t comply because of the coronavirus pandemic, they should have said something in March, April, or May. They didn’t do anything until being caught missing a deadline.
In the words of Judge Walter, “[E]ven if Plaintiffs had calendared their deadline, there is no reason to believe that they would have been able to prepare and file their motion for class certification because they had yet to propound even the most basic discovery requests prior to the deadline. Accordingly, Plaintiffs’ counsel have demonstrated a complete lack of diligence in representing the putative class, and this “lack of due diligence is a strong indication that [Plaintiffs counsel] will not ‘fairly and adequately protect the interests of the class.’”
If there is a silver lining, the court did not dismiss Myra Deleon and Karla Jimenez’s individual claims. Lawyers understand, however, that representing individual overtime claims isn’t likely to earn them a high fee. That is why so many overtime cases are pursued as class actions.
Right now, the lawyers have a lot of work to do but will only be paid on the basis of two individual claims instead of hundreds or thousands of claims typical in a class action.
Can I Sue if My Lawyer Misses a Deadline?
We have discussed missed deadlines in this blog many times. It is one of the largest reasons why lawyers are sued.
Missing a deadline is malpractice but there has to be damages before you have a claim. Sometimes lawyers can fix the mistake. In this case, they tried to argue “excusable neglect” and failed. Even then, one still must prove that the underlying case had merits. Here that means proving that Dennys failed to properly pay workers. By keeping Myra and Kayla’s individual claims alive, they have no malpractice claim.
The time to file legal malpractice lawsuit is often very short. In many states, clients have just one or two years to take action. Other states give clients six years. The law varies from state to state.
If you discover your lawyer has a missed deadline, don’t wait too long before seeking a qualified legal malpractice lawyer. Some dishonest lawyers will string clients along telling them that they are “fixing” their mistake. By the time they admit being unsuccessful, however, it may be too late to sue.
Your first step when you suspect that your lawyer missed a deadline is to speak with an experienced legal malpractice attorney. Our legal malpractice team and our network of partners throughout the United States are standing by to help you. For more information, please see our missed deadline information page.
Want to know if you have a case? Contact us online, by email [hidden email] or by phone 877-858-8018. All inquiries are protected by the attorney client privilege and kept confidential. There is never a charge for a consultation and our services are often available on a contingent (“success”) fee basis.
*We consider cases where there is a reasonable likelihood that damages exceed $250,000.