United States District Court,

D. New Jersey.

UNITED VAN LINES, LLC and McCollister’s Transportation Services, Inc., Plaintiffs,

v.

LOHR PRINTING, INC., Defendant.

 

Civ. No. 11–4761.

March 29, 2012.

 

George W. Wright, George W. Wright & Associates, LLC, Hackensack, NJ, for Plaintiffs.

 

Allen J. Barkin, Schwartz, Barkin & Mitchell, Esqs., Union, NJ, for Defendant.

 

OPINION

THOMPSON, District Judge.

This matter has come before the Court on Plaintiffs United Van Lines, LLC (“United Van Lines”) and McCollister’s Transportation Services, Inc.’s (“McCollister’s Transportation”) Motion to Dismiss Defendant’s State Law Affirmative Defenses and Counterclaims [docket # 13]. Defendant Lohr Printing, Inc. (“Lohr Printing”) opposes the motion [17]. The Court has decided the Motion upon the submissions of the parties and without oral argument pursuant to Fed.R.Civ.P. 78(b). For the following reasons set forth below, Plaintiffs’ Motion will be granted in part and denied in part.

 

I. BACKGROUND

This matter arises out of damage to certain equipment that occurred in transit. Defendant Lohr Printing is in the business of making text book covers. (Answer ¶ 48). In the course of its business it acquired a Canon Image Press 6000 VP–4, bearing Serial Number CWM00081 (the “Printer”) from Canon Business Solutions (CBS). (Id. ¶ 49). At the time Lohr Printing leased the Printer in April 2009, it had a value of approximately $261,000.00. (Id.).

 

In February 2011, Richard C. Lohr, Jr., president of Lohr Printing, advised CBS account representative Rodney R. Held, who had sold Lohr Printing the Printer and other specialized printers, of his intention to relocate the Printer to the facility of one of its customers, BR Printers, Inc., in Hightstown, New Jersey while it was still under lease. (Id. ¶ 51). In the course of that conversation, Mr. Held offered to assist in arranging this move and advised that CBS had often used McCollister’s Transportation for its shipping needs given their experience in handling similar pieces of equipment. (Id. ¶¶ 51–52).

 

On February 16, 2011, Mr. Held contacted Sonaie Loney, a customer service coordinator for McCollister’s Transportation and requested a quote to move the Printer from Lohr Printing’s facilities in Florence, Kentucky to Hightstown, New Jersey. (Id. ¶ 53). He advised her of the specific type of machine and its approximate value. (Id.). He also discussed having Canon technicians crate the machine for transport. (Id.). Ms. Loney purportedly told him that crating was not necessary and that, instead, the machine should be broken down into its major component parts and that they would be able to safely ship it in that way. (Id.). Later on February 16, 2011, Ms. Loney e-mailed Mr. Held a quote from McCollister’s Transportation to ship the Printer to New Jersey for $795.72, with a small variable for the fuel charge. (Id. ¶ 54). No discussion was raised with respect to liability limits for the shipment. (Id.).

 

After a period of negotiations by the parties, Ms. Loney revised her quote to Mr. Held offering a lower price of $669.00, which was based on a 65% discount and the caveat that the price could change based on fuel charges. (Id. ¶ 55). Mr. Held discussed this offer with Mr. Lohr, who indicated that this price was acceptable. (Id.).

 

On or about March 16, 2011, Mr. Held notified Ms. Loney that the quoted price was acceptable to Lohr Printing. Ms. Loney then contacted Mr. Lohr who provided credit card information to pay for the shipping. (Id. ¶ 56). During this period of negotiations, Lohr contends that Ms. Loney never mentioned anything to indicate that McCollister’s Transportation intended to limit its liability for safe delivery to anything less than full value of the Printer and never discussed alternative rates with different liability limits. (Id.). Lohr Printing additionally contends that Ms. Loney did not disclose that this quote was given as agent for another carrier or, for that matter, make any mention of Plaintiff United Van Lines. (Id.)

 

On or about March 29, 2011, a driver in a United Van Lines truck picked up the Printer at Lohr Printing’s facility. (Id. ¶ 58). At the time of the pick-up, Mr. Lohr was purportedly handed United Van Lines’ Uniform Bill of Lading No. 18–2875–1 (“Bill of Lading”) and directed to sign separately a section of the Bill of Lading entitled “Carrier Liability,” which recites in relevant part: “The shipper declares value of property to be $5.00/LB and hereby releases and limits value and liability subject to the contract terms and conditions on the reverse hereof, in addition to all other limitations, rules, regulations, rates and charges in the carrier’s applicable tariffs or rate schedules which are referred herein.” (Compl.Ex. 1).

 

On or about April 4, 2011, the Printer was delivered by United Van Lines to BR Printers, Inc. in Hightstown, New Jersey. (Compl.¶ 12). Defendant contends that it was immediately clear that the Printer had been damaged in transport. (Answer ¶ 60). On April 13, 2011, Lohr Printing filed a “Presentation of Claim for Loss and Damages” form with Plaintiffs. (Id.). Despite attempts to repair the machine, Lohr Printing was advised that the machine could not be repaired and that it was a total loss. (Id. ¶ 61).

 

 

On August 17, 2011, United Van Lines and McCollister’s Transportation filed a Complaint requesting a declaratory judgment that United Van Lines is only liable to Lohr Printing for $13,000.00 under the interstate Bill of Lading, and that McCollister’s Transportation, as the agent to United Van Lines, has no liability under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. In response, Lohr Printing filed its Answer on November 13, 2011, asserting various affirmative defenses as well as counterclaims against both Plaintiffs. In their Motion to Dismiss, Plaintiffs now ask the Court to dismiss certain counterclaims pursuant to Rule 12(b)(6) and to strike certain affirmative defenses under Federal Rule of Civil Procedure 12(f).

 

II. LEGAL STANDARD

 

a. Motion to Dismiss

 

On a motion to dismiss for failure to state a claim, a “defendant bears the burden of showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005). Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), meaning enough factual allegations “ ‘to raise a reasonable expectation that discovery will reveal evidence of’ ” each necessary element, Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993) (requiring a complaint to set forth information from which each element of a claim may be inferred).

 

When considering a Rule 12(b)(6) motion, a district court should conduct a three-part analysis. Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011). “First, the court must ‘take note of the elements a plaintiff must plead to state a claim.’ “ Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009)). Second, the court must accept as true all of a plaintiff’s well-pleaded factual allegations and construe the complaint in the light most favorable to the plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir.2009). But, the court should disregard any conclusory allegations proffered in the complaint. Id. Finally, once the well-pleaded facts have been identified and the conclusory allegations ignored, a court must next determine whether the “facts are sufficient to show that plaintiff has a ‘plausible claim for relief.’ “ Id. at 211 (quoting Ashcroft v. Iqbal, 129 S.Ct. at 1949). This requires more than a mere allegation of an entitlement to relief. Id. “A complaint has to ‘show’ such an entitlement with its facts.” Id. A claim is only plausible if the facts pleaded allow a court reasonably to infer that the defendant is liable for the misconduct alleged. Id. at 210 (quoting Iqbal, 129 S.Ct. at 1948). Facts suggesting the “mere possibility of misconduct” fail to show that the plaintiff is entitled to relief. Id. at 211 (quoting Iqbal, 129 S.Ct. at 194). When considering a Rule 12(b)(6) motion, a court’s role is limited to determining whether a plaintiff is entitled to offer evidence in support of the alleged claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id.

 

Courts use the same standard in ruling on a motion to dismiss a counterclaim under Federal Rule of Civil Procedure 12(b)(6) as they do for a complaint. See, e.g., PPG Indus., Inc. v. Generon IGS, Inc., 760 F.Supp.2d 520, 524 (W.D.Pa.2011); Tyco Fire Products LP v. Victaulic Co., 777 F.Supp.2d 893, 898 (E.D.Pa.2011). In view of this standard, the Court must “accept as true all of the allegations in the [Defendant’s counterclaims] and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir.1989).

 

b. Motion to Strike

Under Federal Rule of Civil Procedure 12(f), a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f). “It is well-established that ‘[b]ecause of the drastic nature of the remedy … motions to strike are usually viewed with disfavor and will generally be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues.’ ”   Garlanger v. Verbeke, 223 F.Supp.2d 596, 609 (D.N.J.2002).

 

An affirmative defense is insufficient if “it is not recognized as a defense to the cause of action.” Tonka Corp. v. Rose Art Indus., Inc., 836 F.Supp. 200, 217 (D.N.J.1993) (quoting Total Containment, Inc. v. Environ Prods., Inc., No. 91–7911, 1992 WL 208981, at(E.D.Pa. Aug.19, 1992)). Thus, on the basis of the pleadings alone, “an affirmative defense can be stricken only if the defense asserted could not possibly prevent recovery under any pleaded or inferable set of facts.” Id. at 218 (quoting Linker v. Custom–Built Mach., Inc., 594 F.Supp. 894, 898 (E.D.Pa.1984)). The district court’s decision whether to grant a motion to strike under Rule 12(f) is discretionary. See, e.g., FTC v. Hope Now Modifications, LLC, No. 09–1204, 2011 U.S. Dist. LEXIS 24657, at(D.N.J. Mar. 10, 2011).

 

III. DISCUSSION

There are three categories of counterclaims and defenses contained in the Answer, each of which raises separate and distinct legal issues. First, Lohr Printing asserts counterclaims against United Van Lines for negligence and breach of the covenant of good faith and fair dealing. Second, Lohr Printing asserts counterclaims against McCollister’s Transportation arising out of its purported breach of contract. Lastly, Lohr Printing asserts affirmative defenses of waiver, equitable estoppel, mutual mistake and/or unilateral mistake, promissory estoppel, unclean hands, unconscionable agreement, and contract of adhesion. The Court will address these in turn.

 

Lohr Printing has conceded that its affirmative defenses designated as (b) accord and satisfaction, (e) modification and abandonment, (g) set off and recoupment, and (h) statute of frauds should be dismissed. (Def.’s Opp’n Br. at 8).

 

a. Counterclaims asserted against United Van Lines

Plaintiff contends that the counterclaims asserted against United Van Lines should be dismissed because the Carmack Amendment preempts all state- and common-law claims arising from an interstate carrier’s duties under its bill of lading. The Supreme Court of the United States has held that the Carmack Amendment normally preempts state law claims against a carrier’s loss of a shipped good. See Adams Express Co. v. Croninger, 226 U.S. 491, 505–06, 33 S.Ct. 148, 57 L.Ed. 314 (1913) (noting that Congress enacted the Carmack Amendment to “take possession of the subject [of interstate carriers’ liability for lost property] and to supersede all state regulation”).

 

In accordance with the Supreme Court ruling in Adams Express, courts within the Third Circuit have consistently found that the Carmack Amendment preempts causes of action based on state law. See, e.g., Berryman v. Wheaton Van Lines, Inc., No. 06–5679, 2007 WL 1296762, at *2–4 (D.N.J. May 02, 2007); Orlick v. J.D. Carton & Son, Inc., 144 F.Supp.2d 337, 344 (D.N.J.2001); Usinor Steel Corp. v. Norfolk S. Corp., 308 F.Supp.2d 510, 518 (D.N.J.2004); Harrah v. Minn. Mining & Mfg. Co., 809 F.Supp. 313, 317 (D.N.J.1992) (“[C]ommon law actions against interstate carriers are preempted by the Interstate Commerce Act.”); Strike v. Atlas Van Lines, Inc., 102 F.Supp.2d 599, 600 (M.D.Pa.2000) (holding that the Carmack Amendment preempted state law causes of action “whether contract based or tort based claims”); Tirgan v. Roadway Package Sys., Inc., No. 94–2768, 1995 WL 21098 at(D.N.J.1995) (“Courts have uniformly held that the Carmack Amendment preempts state law claims such as negligence, … arising out of damage to goods shipped pursuant to a bill of lading.”).

 

Lohr Printing has failed to identify any case law that would suggest that its negligence and breach-of-the-covenant-of-good-faith-and-fair-dealing claims may proceed against United Van Lines. Indeed, “Defendant concedes that its rights with regard to United are framed by the Carmack Amenment and the Federal regulatory scheme.” (Def.’s Opp’n Br. at 7). Consequently, it is clear that the counterclaims set forth by Defendant vis-à-vis Plaintiff United Van Lines are preempted by the Carmack Amendment and therefore will be dismissed.

 

b. Counterclaims asserted against McCollister’s Transportation

Plaintiffs additionally contend that Lohr Printing cannot bring its counterclaims against McCollister’s Transportation as a disclosed agent of United Van Lines. Under the Carmark Amendment:

 

Each motor carrier providing transportation of household goods shall be responsible for all acts or omissions of any of its agents which relate to the performance of household goods transportation services (including accessorial or terminal services) and which are within the actual or apparent authority of the agent from the carrier or which are ratified by the carrier.

 

49 U.S.C. § 13907(a). Plaintiff cites a long list of cases for the proposition that the existence of an agency relationship between McCollister’s Transportation and United Van Lines is enough to insulate McCollister’s Transportation from Lohr Printing’s breach of contract claims. (See Pls.’ Br. at 9–11 (citing, inter alia, Berryman, 2007 WL 1296762, at *4; Marks v. Suddath Relocation Sys., Inc., 319 F.Supp. 746, 752 (S.D.Tex.2004); Oliver v. Atlas Van Lines, Inc., 504 F.Supp.2d 1213, 1217 (N.D.Ala.2007); Rehrn v. Balt. Storage Co., 300 F.Supp.2d 408, 417 (W.D.Va.2004); Nichols v. Mayflower Transit, LLC, 368 F.Supp.2d 1104, 1109 (D.Nev.2003); Parramore v. Tru–Pak Moving Sys., Inc., 286 F.Supp.2d 643, 649 (N.D.N.C.2003); Mallory v. Allied Van Lines, Inc., No. 02–7800, 2004 WL 870697 (E.D.Pa. Apr.7, 2004))).

 

None of the cases cited by Plaintiffs, however, squarely address the present situation, in which there appears to be a question as to whether the McCollister’s Transportation may be properly considered the disclosed agent of United Van Lines. Defendant has alleged that McCollister’s Transportation appeared on correspondence and documents related to the move and that it had a contract with McCollister’s Transportation separate and apart from the bill of lading.

 

Arguably, in the absence of a disclosed relationship, McCollister’s Transportation should be treated as a broker because it did not act as a motor carrier in this transaction and ultimately only facilitated the delivery in question. Most courts have held that brokers are not subject to Carmack liability. See, e.g., Chubb Grp. of Ins. Cos. v. H.A. Transp. Sys., Inc., 243 F.Supp.2d 1064 (C.D.Cal.2002); Prof’l Commc’n, Inc. v. Contract Freighters, Inc., 171 F.Supp.2d. 546, 551 (D.Md.2001); Indep. Mach., Inc. v. Kuehne & Nagel, Inc., 867 F.Supp. 752, 761 (N.D.Ill.1994); Commercial Union Indus. Co. v. Forward Air, Inc., 50 F.Supp.2d 255, 258 (S.D.N.Y.1999); Adelman v. Hub City L.A. Terminal, 856 F.Supp. 1544, 1547–48 (N.D.Ala.1994). Consequently, state law generally governs brokers’ liability for any loss or damage of cargo in transit. See id.

 

At this stage, the Court believes it would be inappropriate to dismiss the counterclaims against McCollister’s Transportation. Defendant, by presenting the circumstances that surrounded its negotiations with McCollister’s Transportation, has alleged facts sufficient to constitute a “plausible” claim for a breach of contract. The plausibility standard of Iqbal does not require total certainty. Instead, it is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”   Iqbal, 129 S.Ct. at 1950. Because many of the allegations in the Answer require a context specific inquiry and necessitate the development of the factual record before the Court can decided whether, as a matter of law, McCollister’s Transportation can be held liable separate and apart from United Van Lines, Plaintiffs’ arguments, which are certainly colorable, are best addressed by way of a motion for summary judgment after discovery has concluded.

 

c. Defendant’s Remaining Affirmative Defenses

Plaintiffs contend that Defendant’s equitable affirmative defenses have no relevance to the Complaint, which seeks a declaration pursuant to controlling federal law that United Van Lines’ liability is limited to $5.00/lb. under the Bill of Lading. The Court, however, believes that any facts supporting Defendant’s contentions can and should be fleshed out through discovery. Essentially, United Van Lines and McCollister’s Transportation have asked the Court to rule on the viability of an affirmative defense before allowing Lohr Printing to explore the underlying merits of its claims. The Declaratory Judgment Act is not meant for this purpose. See generally Coffman v. Breeze Corp., 323 U.S. 316, 322–24, 65 S.Ct. 298, 89 L.Ed. 264 (1945); Calderon v. Ashmus, 523 U.S. 740, 747, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998). Accordingly, the Court will deny Plaintiffs’ motions to strike Defendant’s affirmative defenses pending the outcome of discovery. If, after adequate discovery, Plaintiffs believe that there is insufficient evidence to support the affirmative defenses asserted, it may move for summary judgment.

 

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion will be granted in part and denied in part. An appropriate order will follow.

United States District Court,

D. Kansas.

ACE USA and ACE European Group Limited, Plaintiffs,

v.

UNION PACIFIC RAILROAD COMPANY, INC., Defendant.

 

Civil Action No. 09–2194–KHV.

March 26, 2012.

 

Andrew H. McCue, The Meyers Law Firm, LC, Kansas City, MO, David E. Heiss, Peter E. Kanaris, Jacob C. Murov, Jefferson D. Patten, Megan E. Ritenour, Fisher Kanaris PC, Chicago, IL, for Plaintiffs.

 

Craig M. Leff, Gregory F. Maher, Yeretsky & Maher, L.L.C., Overland Park, KS, Raymond J. Hasiak, Jr., Union Pacific Railroad Co ., Omaha, NE, for Defendant.

 

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

This matter comes before the Court on defendant’s Bill Of Costs (Doc. # 177) filed January 26, 2012, Plaintiffs’ Objection To Defendant’s Bill Of Costs (Doc. # 178) filed January 7, 2012 and Defendant Union Pacific Railroad Company’s Motion For Leave To File Out Of Time Memorandum In Support Of Union Pacific’s Bill Of Costs (Doc. # 179) filed February 9, 2012. For the following reasons, the Court overrules defendant’s motion, sustains plaintiffs’ objections and finds that defendant may not recover costs.

 

The facts of this case are well documented in the parties’ briefs and the Court’s two previous orders. See Memorandum And Order (Doc. # 176) filed December 7, 2011 (overruling plaintiffs’ motion to alter or amend judgment); Memorandum And Order (Doc. # 164) filed August 15, 2011 (sustaining defendant’s motion for summary judgment and overruling plaintiffs’ motion for summary judgment). The Court will not repeat them here. In short, two insurance companies, ACE USA and ACE European Group Limited (as subrogees of AGC Soda Corporation) sued Union Pacific Railroad Company, Inc. under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11706, for water damage to soda ash that Union Pacific transported from Wyoming to Texas in June and July of 2007.

 

 

Both plaintiffs and defendant are sophisticated parties and have litigated this case to the hilt. On the parties’ cross motions for summary judgment, their briefs alone covered more than 500 pages. On August 15, 2011, the Court sustained Defendant Union Pacific Railroad Company’s Motion For Summary Judgment (Doc. # 127) filed May 31, 2011 and overruled Plaintiffs’ Motion For Partial Summary Judgment On Defendant’s Defenses (Doc. # 106) filed April 5, 2011. On December 12, 2011, the Court overruled Plaintiffs’ Motion To Alter Or Amend Judgment And Leave To Amend Their Theory Of Recovery (Doc. # 167) filed September 2, 2011.

 

On January 26, 2012, defendant filed a bill of costs under 28 U.S .C. § 1920. Bill Of Costs (Doc. # 177). This set off a flurry of additional briefing because, as defendant admits, the bill of costs does not comply with D. Kan. Rule 54. 1, which governs taxation and payment of costs. See Defendant Union Pacific Railroad Company’s Motion For Leave To File Out Of Time Memorandum In Support Of Union Pacific’s Bill Of Costs (Doc. # 179) filed February 9, 2012. Section 1920 provides that upon the filing of a bill of costs, a judge or clerk of any federal court may tax as costs certain fees and compensation of certain experts and interpreters. 28 U.S.C. § 1920. Rule 54 of the Federal Rules of Civil Procedure provides that “costs—other than attorney’s fees—should be allowed to the prevailing party,” and Local Rule 54.1 provides the procedure for the taxation and payment of costs. Local Rule 54.1 provides in part that (1) a “party entitled to recover costs must file a bill of costs on a form provided by the clerk” within 30 days after the expiration of time allowed for appeal of a final judgment or decree or receipt by the clerk of an order terminating the action on appeal; (2) the “party seeking costs must file a memorandum in support of its costs with the bill of costs,” which must include a statement that the party has made a reasonable effort, in a conference with opposing counsel, to resolve disputes regarding costs; and (3) that “[t]he failure of a prevailing party to timely file a bill of costs constitutes a waiver of the taxable costs.” D. Kan. Rule 54.1(a)(1)-(3); see also D. Kan. Rule 7.1 (brief or memorandum must accompany all motions, except in certain circumstances inapplicable here).

 

Defendant filed the bill of costs within the allotted time and on the proper form, but did not file the memorandum with the bill of costs or make reasonable effort to resolve the disputes regarding costs with plaintiffs. Defendant clearly did not comply with Local Rule 54.1, which requires it to “file a memorandum in support of its costs with the bill of costs.” D. Kan. Rule 54.1(a)(2) (emphasis added).

 

On February 7, 2012, plaintiffs filed objections to defendant’s bill of costs. Plaintiffs’ Objection To Defendant’s Bill Of Costs (Doc. # 178). They argue that the Court should reject defendant’s bill of costs entirely because it does not comply with Section 1920 or D. Kan. Rule 54.1. In addition to defendant’s failure to file a memorandum in support of its claim for costs or to confer with plaintiffs’ counsel before filing the bill of costs, plaintiffs note that defendant’s bill of costs does not show that the claimed costs are properly taxable under Section 1920.

 

On February 9, 2012, three days after the deadline to file its bill of costs, defendant filed a motion for leave to file out of time a memorandum in support of its bill of costs based on excusable neglect. Doc. # 179. Defendant argues that its failure to comply with the requirements of Local Rule 54.1 was due to an “oversight … owing to a mistake by its counsel who, during the preparation of the Bill of Costs, inadvertently relied upon a rule book containing the former version of Rule 54. 1, which required no separate Memorandum, rather than the most recent version of Rule 54. 1, which does.” Doc. # 179 ¶ 11. The current version of Rule 54.1 took effect on March 17, 2011.

 

Local Rule 6.1 governs motions for an extension of time to perform an act required or allowed to be done within a specified time. Under this rule, a party must file a motion for extension of time before the specified time expires, and “[a]bsent a showing of excusable neglect, the court will not grant extensions requested after the specified time expires.” D. Kan. Rule 6.1(a). Excusable neglect is a “somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 392 (1993). Inadvertence, ignorance of the rules or mistakes construing the rules, however, do not usually constitute excusable neglect. Id.

 

The determination of whether neglect is excusable is at bottom an equitable one that requires taking account of all relevant circumstances surrounding the party’s omission, including (1) the danger of prejudice to the nonmoving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant and (4) whether movant acted in good faith. Id. at 395; Bishop v. Corsentino, 371 F.3d 1203, 1206–07 (10th Cir.2004). Of these factors, fault in the delay is “a very important factor—perhaps the most important single factor—in determining whether neglect is excusable.”   Biodiversity Conservation Alliance v. Bureau of Land Mgmt., 438 Fed. Appx. 669, 673 (10th Cir.2011); United States v. Torres, 372 F.3d 1159, 1163 (10th Cir.2004); City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir.1994). Courts also consider whether the moving party’s underlying claim is meritorious, whether the mistake was a single unintentional incident (as opposed to a pattern of deliberate dilatoriness and delay) and whether the attorney attempted to correct his action promptly after discovering the mistake. Jennings v. Rivers, 394 F.3d 850, 856–57 (10th Cir .2005) (citing Hancock v. City of Okla. City, 857 F.2d 1394, 1396 (10th Cir.1988); Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444–45 (10th Cir.1983)). Moreover, the court recognizes that a “mistake … could occur in any [attorney’s] office, no matter how well run.” Id.

 

Defendant argues that its reliance on an outdated version of the local rules constitutes excusable neglect. The Court disagrees. Allowing defendant to file the memorandum in support of its bill of costs out of time would only slightly prejudice plaintiffs by forcing them to respond to the memorandum after already filing objections to defendant’s incomplete bill of costs. And the length of delay would be slight because defendant filed its memorandum only three days after the deadline. These factors, defendant’s counsel’s attempt to promptly correct the mistake and the absence of any evidence that defendant acted in bad faith weigh in favor of allowing defendant to file its memorandum out of time.

 

Although the late filing would have no impact on judicial proceedings because the case is closed, the untimely filing undermines important concerns for finality of litigation embodied by the time requirements for the filing of bills of costs. See Dodson Int’l Parts, Inc. v. Altendorf, No. 00–4134–SAC, 2005 WL 1799247, at(D. Kan. June 29, 2005) (citing Woods Constr. Co. v. Atlas Chem. Indus., Inc., 337 F.2d 888, 891 (10th Cir.1964)). Moreover, the reason for the delay weighs heavily against defendant. Defendant’s only reason for failing to timely file a memorandum in support of its bill of costs as required by Rule 54.1(a)(2) is counsel’s mistake in relying on an outdated version of the Court’s local rules. Applying the Pioneer factors, the Court has found that “some occasions justify a finding of excusable neglect even when [the] delay is caused by ignorance of the rules.” White v. O’Dell Indus., Inc., No. 99–2315–JWL, 2000 WL 127267, at(D.Kan. Jan. 14, 2000) (citing Pioneer Inv. Servs., 507 U.S. at 392). The Tenth Circuit, however, has emphasized that even after Pioneer, “fault in the delay remains a very important factor—perhaps the most important single factor—in determining whether neglect is excusable.” Biodiversity Conservation Alliance, 438 Fed. Appx. at 673; Torres, 372 F.3d at 1163; Williams Natural Gas Co., 31 F.3d at 1046.

 

It is well established that inadvertence, ignorance of the rules, and mistakes construing the rules do not constitute excusable neglect. See Quigley v. Rosenthal, 427 F.3d 1232, 1238 (10th Cir.2005). The Court has refused to find excusable neglect when the mistake was caused by a failure to read the rules or a lawyer’s error in interpreting the rules. Patel v. Reddy, No. 10–2403–JTM, 2010 WL 4115398, at(D.Kan. Oct. 19, 2010) (citing City of Shawnee, Kan. v. Argonaut Ins. Co., No. 06–2389–GLR, 2008 WL 2699906, at(D.Kan. July 2, 2008) (misinterpretation of rules); Thomas v. Bd. of Educ., Unified Sch. Dist. # 501, 177 F.R .D. 488, 490–91 (D.Kan.1997) (failure to read rules)). In Berecek & Young Advisors, Inc. v. Lloyds of London Syndicate 2003, a similar case in which the Court found that defense counsel’s reliance on an outdated version of the local rules did not constitute excusable neglect, the Court noted as follows:

 

It is counsel’s responsibility to keep current on the Court’s local rules. The most current local rules are provided, free of charge, on the Court’s website…. This is the quintessential example of an attorney who is simply ignorant of the rules applicable to him, a circumstance that does not constitute excusable neglect. Counsel’s reliance on an outdated … publication, rather than the Court’s published local rules, does not change the excusable neglect analysis.

 

No. 09–2516, 2011 WL 1060955, at(D.Kan. March 21, 2011).

 

Defendant relies on Cohen–Esrey Real Estate Services, Inc. v. Twin City Fire Ins. Co., No. 08–2527–KHV, 2011 WL 3608671 (D.Kan. Aug. 12, 2011). In that case, the Court found that defendant’s failure to comply with the new rules governing bills of costs constituted excusable neglect. Id. at *6–7 & n. 13. In that case, however, the amendment to Local Rule 54.1 had taken effect only five days before the defendant filed its bill of costs and Lexis Nexis (the online research service which defense counsel used) did not reflect the rule change. Id. at *7. At the time defendant filed its bill of costs in this case, the amendment to Rule 54.1 had been in effect for nearly 11 months, which is more than enough time for counsel to take notice of the rule and comply with the new requirements.

 

Because “counsel’s misinterpretation of a readily accessible, unambiguous rule cannot be grounds for relief unless the word ‘excusable’ is to be read out of the rule,” the Court finds that defense counsel’s failure to comply with the requirements of Local Rule 54.1 does not constitute excusable neglect.   Torres, 372 F.3d at 1162 (examining “excusable neglect” standard in Fed. R.App. P. 4); Allen v. Magic Media, Inc., No. 09–4139–SAC, 2011 WL 903959, at(D.Kan. March 15, 2011); Berecek & Young Advisors, 2011 WL 1060955, at *3. The Court therefore overrules Defendant Union Pacific Railroad Company’s Motion For Leave To File Out Of Time Memorandum In Support Of Union Pacific’s Bill Of Costs (Doc. # 179).

 

Defendant did not comply with Local Rule 54.1 in filing its bill of costs and the Court overrules its motion for an extension of time to do so. For this reason, and substantially the reasons stated in Plaintiffs’ Objection To Defendant’s Bill Of Costs (Doc. # 178), defendant is not entitled to recover costs under 28 U.S.C. § 1920. See Strope v. Gibbens, No. Civ.A. 01–3358–KHV, 2004 WL 2519238, at(D.Kan. Nov. 8, 2004) (overruling plaintiff’s motion for costs for not following local rule); Betts v. Atwood Equity Coop. Exch., Inc., No. 88–4292–R, 1990 WL 252144, at(D.Kan. Dec. 24, 1990) (denying plaintiff’s motion for costs, damages, fees, expenses and interest, which the court construed as a bill of costs, for not complying with local rule); Kovach v. State Farm Gen. Ins. Co., Civ. A. No. 88–2099–S, 1989 WL 94574, at(D.Kan. July 28, 1989) (denying plaintiff’s request for costs in motion for attorney’s fees because it did not comply with local rule); see also Bill Of Costs Handbook, http://www.ksd.circ10.dcn/bill-of-costs-handbook, at 4 (Jan.2011) (any requested costs that do not have supporting information, which includes the memorandum, will be disallowed).

 

IT IS THEREFORE ORDERED that Defendant Union Pacific Railroad Company’s Motion For Leave To File Out Of Time Memorandum In Support Of Union Pacific’s Bill Of Costs (Doc. # 179) filed February 9, 2012, be and hereby is OVERRULED.

 

IT IS FURTHER ORDERED that Plaintiffs’ Objection To Defendant’s Bill Of Costs (Doc. # 178) filed January 7, 2012, be and hereby is SUSTAINED. Defendant has not complied with Local Rule 54.1 regarding the taxation and payment of costs and therefore is not entitled to recover costs.