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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Erica G. v Taylor Taxi, Inc. (9/25/2015) sp-7053

Erica G. v Taylor Taxi, Inc. (9/25/2015) sp-7053

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                     

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



ERICA G.,                                             )  

                                                      )        Supreme Court No. S-15634  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-13-08668 CI  

         v.                                           )  

                                                      )        O P I N I O N  

TAYLOR TAXI, INC., THE                                )  

TAYLOR REVOCABLE TRUST,                               )        No. 7053 - September 25, 2015  

and L & J CABS, INC.,                                 )  

                                                      )  

                           Appellees.                 )  

                                                      )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                                                               

                  Judicial District, Anchorage, Frank A. Pfiffner, Judge.  



                  Appearances:            Kevin     G.    Brady,      Brady      Law      Office,  

                  Anchorage,  for  Appellant.    James  T.  Brennan,  Hedland,  

                  Brennan and Heideman, Anchorage, for Appellees.  



                  Before:  Stowers, Chief Justice, Fabe, Winfree, Maassen, and  

                                                                                  

                  Bolger, Justices.  



                  FABE, Justice.  



I.       INTRODUCTION  



                  In a negligence suit, the defendants moved for summary judgment.  The  

                                                                                                                



plaintiff did not oppose the motion or otherwise respond by the required response date.  

                                                                  



On the same day that the superior court granted the defendant's unopposed motion for  



summary judgment, the plaintiff filed an untimely motion for an extension of time to file  

                                                                                   


----------------------- Page 2-----------------------

her opposition.  The superior court denied the plaintiff's late-filed motion to extend the  

                                                    



time to oppose summary judgment, as well as a subsequent motion for reconsideration  

                                                                                       



or relief from judgment.  We affirm the superior court because although the plaintiff's  



attorneys have provided a long and   shifting catalog of circumstances to justify their  



failure to timely seek an extension, all lack a nexus to the late filing.  The plaintiff's  



                                                                                                           

attorneys have thus never demonstrated that their failure to timely request an extension  



of time was caused by excusable neglect.  



II.       FACTS AND PROCEEDINGS  



                                                                       

                   In September 2013 Erica G. filed a complaint for damages against Taylor  



                                                          

Taxi, Inc., The Taylor Revocable Trust, and L & J Cabs, Inc. (collectively, Taylor Taxi).  



                                                                                                                

The complaint alleged that "a licensed taxi driver operating under a permit issued to  



                                                                                            

Taylor Taxi" had sexually assaulted Erica in "a desolate area of Ship Creek Road."  The  



complaint's sole cause of action alleged that Taylor Taxi was negligent "by failing to  



                                                                

conduct an adequate background check  of [the driver], failing to properly train [the  



driver] and failing to properly supervise [the driver]."  



                   Taylor Taxi's answer denied the negligence allegation and asserted four  



affirmative  defenses:    failure  to  state  a  claim,  failure  to  bring  an  action  against  an  



indispensable   party,   Taylor   Taxi's   entitlement   to   rely   on   the   Municipality   of  



Anchorage's licensure process and background check of the driver, and the independent  



                                                                                                              

contractor status of the driver.  Taylor Taxi also filed a third-party complaint against the  



driver.  



                                                                                                                

                   On February 7, 2014, Taylor Taxi moved for summary judgment.  It argued  



that the driver was an independent contractor who leased a vehicle and permit from  



Taylor Taxi but who was not under the supervision of any of the defendants.  Taylor  



Taxi pointed to language in the lease agreement with the driver that provided that he was  



                          

"an independent contractor free from [Taylor Taxi's] interference or control."  Taylor  



                                                            -2-                                                      7053
  


----------------------- Page 3-----------------------

Taxi also argued that it was not responsible for conducting a background check on the       



driver or training him because he was licensed by the Municipality of Anchorage, and  



the Municipality's licensing process included a background check.  Taylor Taxi argued  



        

that   the   same   defense   applied   to   the   claim   of   negligent   training   because   the  



Municipality's  requirement  that  chauffeurs  complete  a  driving  safety  course  made  



                                                                            

training "a municipal function, not a function or duty of the lessor of a taxicab vehicle  



and permit."  



                    Under Alaska Rule of Civil Procedure 77(c)(2)(ii), Erica's opposition to  



                                                                                         

Taylor Taxi's motion for summary judgment was due "15 days from the date of service."  



                                                                         

Erica's attorneys were served on February 10, and with three days allotted for mailing,  



       

the parties agree that Erica's opposition was due February 28.  This date came and went  



without any action by Erica or her attorneys.  



                                                                

                     On March 4 Superior Court Judge Frank A. Pfiffner granted Taylor Taxi's  



                                                                                                               

motion for summary judgment.  The superior court's order was based on "the pleadings,  



affidavits and exhibits filed . . . and no opposition having been filed."  



                                                                                                       

                     The same day, Kevin Brady, one of Erica's attorneys, filed a motion for an  



                                                            

extension of time to file an opposition to Taylor Taxi's motion for summary judgment.  



The motion was supported by an affidavit from Kevin Brady that stated that Erica was  



                                                       

then "8 months pregnant and ha[d] two unrelated pending [criminal] matters," and that  



                                                                                                                           1  

                                                                                                                               The  

"[o]n February 27, 2014, [Kevin Brady] was called up for a  [criminal] trial." 



          1          Later affidavits from both Kevin Brady and Taylor Taxi's attorney clarified  



that although this criminal case had a status conference on February 27 the trial did not  

begin until March 4.  



                                                                -3-                                                          7053
  


----------------------- Page 4-----------------------

affidavit also incorrectly claimed that the response had been due on March 3, rather than  

                                                         

February 28.2  



                                                                                                                      

                    On March 10 Taylor Taxi opposed Erica's motion for an extension of time,  



                                                              

arguing that she had not demonstrated the required "excusable neglect" that would allow  



                                                                                                  

for an extension of time after the expiration of time for a response under Alaska Rule of  



Civil Procedure 6(b)(2).  This opposition was supported by an affidavit of Taylor Taxi's  



                                                                     

attorney that described "unusual difficulties in contacting opposing counsel in this case,"  



including for purposes of scheduling a trial date and to exchange initial disclosures.  



                    On March 25 the superior court denied Erica's motion for an extension of  



                                                                                                  

time.  The superior court noted that the motion was untimely, as it followed the entry of  



                                                                                                  

the grant of summary judgment, and that "no excusable neglect has been shown for filing  



                                      

the motion for extension [of] time after the expiration of time for filing an opposition to  



                                                                           

the motion for summary judgment."  The superior court thus entered final judgment for  



Taylor Taxi, dismissing Erica's complaint with prejudice and awarding Taylor Taxi costs  



and attorney fees.  



                                                                                                

                    On April 1 Erica filed a motion for reconsideration. The motion argued that  



                                          

the     superior       court      had      "overlooked          material        facts     under       Alaska       R.     Civ.  



                                                                         

Proc. 77(k)[(1)](ii)" and thus lacked "a complete understanding of the facts surrounding  



this office's tardy motion for an extension of time."  



                    The  motion  was  supported  by  affidavits  from  Erica's  attorneys,  Kevin  



                                         3  

                                            KeriAnn Brady's affidavit described Erica's difficulties  

Brady and KeriAnn Brady. 



          2         Even if March 3 had been the deadline for opposing Taylor Taxi's motion  



for summary judgment, Erica's attorneys failed to file a motion seeking an extension by  

                                                              

that date.  



          3         Although KeriAnn Brady stated in her affidavit that she was not handling  



                                                                                                            (continued...)  



                                                              -4-                                                        7053
  


----------------------- Page 5-----------------------

with post-traumatic stress disorder following the alleged assault as well as Erica's grief  

                                                                                                          



after her 11-year-old son died in a car accident in September 2013.  KeriAnn Brady's  



affidavit  also  described  the  difficulty  her  office  had  experienced  in  attempts  to  



                                                                                              

communicate with Erica, including periods during which Erica "literally vanished" and  



                                                                                                           

could not be reached, the latest of which had only ended on March 3 or 4, 2014, after the  



opposition to the defendant's motion for summary judgment was due.  



                    Kevin Brady's second affidavit recounted an office move that had "caused  



                                                                                                

some disarray with respect to . . . mail service," as well as part of the procedural history  



                                              

of the case.  His affidavit also asserted that Erica's sexual assault had occurred "at the  



                                                  

defendant L&J Cabs, Inc.'s yard" and referenced a Google Earth picture of the yard from  



                                                            

which "any gates limiting or precluding access" were "[n]otably absent."  The affidavit  



                                                                                                           

explained that whether there were any other security procedures in place was unknown,  



                                                                                                       

as was "the volume of similar incidents of crimes against persons . . . taking place at the  



defendants'  [yard]."    The  affidavit  argued  that  "[t]hese  matters  require  additional  



discovery, and likely preclude any grant of summary judgment."  Kevin Brady's affidavit  



went on to discuss his two-attorney office's caseload, which included "two trials between  



March 4 and March 17, 2014," as well as "90 separate court hearings [during the same  



             

period] spread across a case load in excess of 119 active cases" occurring all over the  



                                                                                                 

state.  It also explained that "it ha[d] been the experience of this office that the courts  



                     

tend to show flexibility with respect to pleading deadlines in the criminal, juvenile, and  



CINA arenas."  Finally, Kevin Brady described learning of the defendants' motion for  



summary judgment on February 18, noted that he did not "recall making a calendar entry  



          3(...continued)  



Erica's case, Erica's complaint was on "Law Office of KeriAnn Brady" pleading paper  

                    

and was signed by KeriAnn Brady.   



                                                             -5-                                                        7053
  


----------------------- Page 6-----------------------

 for the response date" to that motion, and explained that he filed the motion for extension         



of time as soon as he realized he had missed the response date.  



                                           

                         On April 9 Taylor Taxi notified the superior court that although Alaska  



                                                                                                              

Civil Rule  77(k)(3) did not permit a response to a Rule 77(k) motion for reconsideration,  



                                                                    

in its view the fact that Erica sought relief from a final judgment meant that her motion  



                                                                                                                           

was more properly understood as a motion under Alaska Civil Rule 60(b).  The superior  



court  agreed  and  on  April  25  issued  an  order  explaining  that  it  would  treat  Erica's  



                                                                                            

April 1 motion "as a Civil Rule 60(b)(1) motion for relief from judgment," to which  



Taylor Taxi was entitled to respond, with Erica entitled to reply.  



                         Taylor  Taxi's  response  argued  that  Erica  appeared  to  be  identifying  



                                                                                                                                       

"excusable neglect by herself or her attorney, under Rule 60(b)(1)," as the basis for  



                                                                                                                              

relief, and that she had not carried her burden of establishing such excusable neglect  



                         

because "no nexus was established between plaintiff's personal circumstances and her  



                                                                                                                                

counsel's inability to timely file an opposition to summary judgment or seek an extension  



                                                                                                           

of time therefor."  Similarly, Taylor Taxi argued that none of the explanations in Kevin  



Brady's affidavit that related to the office move, his caseload, and the expectation of  



                                                                                                                                 

 flexible deadlines amounted to excusable neglect.  Finally, Taylor Taxi argued that Erica  



could not meet the "precondition of relief from a judgment" that she demonstrate a  



meritorious  claim.    It  pointed  out  that  Erica  had  not  yet  attempted  to  address  its  



                                                                                  

affirmative defenses and that this provided a separate basis to deny relief from the final  



judgment.  Erica did not reply.  



                         On  May  20  the  superior  court  denied  Erica's  motion  for  relief  from  



judgment "for the reasons set forth in defendants' opposition."  Erica appeals.  



                                                                            -6-                                                                      7053
  


----------------------- Page 7-----------------------

III.	     STANDARD OF REVIEW  



                                                                                                          

                    We apply the abuse of discretion standard when reviewing superior courts'  



                                                             4  

rulings on motions for extension of time.   We also "review for abuse of discretion an  



                                                       5  

order denying a Rule 60(b) motion."   "We will find an abuse of discretion when the  

decision on review is manifestly unreasonable."6  



IV.	      DISCUSSION  



          A.	       Late Motions To Enlarge The Time To Oppose Summary Judgment  

                    Must  Demonstrate  That  "The  Failure  To  Act  Was  The  Result  Of  

                                                                                                                 

                    Excusable Neglect."  



                    Alaska Rule of Civil Procedure 6(b) provides that "[w]hen . . .  an act is  

                                        



required . . . to be done at or within a specified time, the court for cause shown may at  

                    



any time in its discretion . . . upon motion made after the expiration of the specified  

                                                                                   



period permit the act to be done where the failure to act was the result of excusable  

                                                                                                    



neglect . . . ."  This rule governs Erica's failure to oppose summary judgment or request  

               



an  extension  of  time  to  file  her  opposition  until  after  that  opposition  was  due.    To  

                          



succeed in her appeal Erica must demonstrate that the failure "was the result of excusable  

                       



          4         See, e.g., ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc.,  



322  P.3d  114,  134  (Alaska  2014)  ("We  affirm  the  superior  court's  order  granting  

Williams's motion to enlarge time to file a motion for attorney's fees.  The superior court  

                                                                                                      

certainly did not abuse its discretion in this case.").  



          5         Young v. Kelly, 334 P.3d 153, 157 (Alaska 2014).  



          6  

                                                    

                    Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc. , __ P.3d __, Op.  

No. 7003, 2015 WL 1958657, at *3 (Alaska May 1, 2015).  



                                                              -7-	                                                       7053
  


----------------------- Page 8-----------------------

            7  

                       

                                                                                                         

neglect"       and  that  the  superior  court's  refusal  to  enlarge  the  time  to  oppose  was  

"manifestly unreasonable."8  



                                                                                                  9  

                    We have never precisely defined excusable neglect,   and the definitions  



                                                                             10 

                                                                                 Perhaps the most consistent with  

provided by other authorities cover a wide spectrum. 



                                                                                                                    11 

                                                                                                                       is the  

our established holding that "[t]he law favors deciding cases on their merits" 



Second Circuit's understanding of excusable neglect as "a somewhat elastic concept"  



that "may encompass delays caused by inadvertence, mistake, or carelessness, at least  



                                                                                                          

when the delay was not long, there is no bad faith, there is no prejudice to the opposing  



                                                                   12  

party, and movant's excuse has some merit."                             We, like other courts, have been clear  



          7         Alaska R. Civ. P. 6(b)(2).  



          8         Ranes & Shine, LLC , 2015 WL 1958657, at *3.  



          9         See  Dickerson  v.  Williams,  956  P.2d  458,  465  &  n.15  (Alaska  1998)  



(noting,  in the Rule 60(b) context, that neither we nor the federal courts have articulated  

an express test of "excusable neglect").  



          10        Compare Excusable Neglect, BLACK 'S LAW DICTIONARY (10th ed. 2014)  



("A failure - which the law will  excuse - to take some proper step at the proper time  

(esp. in neglecting to answer a lawsuit) not because of the party's own carelessness,  

inattention, or willful disregard of the court's process, but because of some unexpected  

                                                                                  

or unavoidable hindrance or accident or because of reliance on the care and vigilance of  

                                                                                                   

the party's counsel or  on  a promise made by the adverse party." (emphasis added)),  

                                        

with  LoSacco  v.  City  of  Middletown ,  71  F.3d  88,  93  (2d  Cir.  1995)  ("Excusable  

        

neglect . . . may encompass delays caused by inadvertence, mistake, or carelessness, at  

                  

least when  the delay was not long, there is no bad faith, there is no prejudice to the  

                  

opposing party, and movant's excuse has some merit." (emphasis added) (citations and  

                                                                       

internal quotation marks omitted)).  



          11        Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1029  



                                                                            

(Alaska 2009) (quoting Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1298 (Alaska 1985)).  



          12  

                                                   

                    LoSacco , 71 F.3d at 93 (emphasis added) (citations and internal quotation  

                                                                                                            (continued...)  



                                                              -8-                                                        7053
  


----------------------- Page 9-----------------------

                                                                                                                       

that to seek relief on this basis "a party must show both neglect and a valid excuse for  



                     13  

                         Furthermore, there must be a causal link between the excusable neglect  

that neglect."                                                                          



and the party's failure to timely act; the failure must be "the result of" the excusable  



             14  

neglect.      The  litany  of  explanations  contained  in  the  three  affidavits  from  Erica's  



                                                                                                                  

attorneys all failed to satisfy this latter requirement:  They established no causal link to  



the failure to timely request an extension to oppose Taylor Taxi's motion for summary  



judgment.  



                                                                                                                 

                     As   described   above,  the   three   affidavits   contained   a   collection   of  



                                                   

unsatisfactory explanations.  In her briefing to this court, Erica relies on four of these  



                             

reasons. The first reason, Erica's challenging personal circumstances and unavailability,  



was  discussed  in  all  three  of  the  affidavits.    The  second  reason,  Kevin  Brady's  



                                                                                            

responsibility for a criminal trial, was referenced in both of his affidavits, although they  



                                                                                                                   

contained seemingly inconsistent information about when that trial began. The third and  



                         

fourth reasons, a mail-forwarding disruption following the attorneys' office relocation  



and the attorneys' busy caseload, stem from assertions in Kevin Brady's second affidavit.  



                                                                                                 

That same affidavit also added another two explanations to the list: that it had been  



Kevin Brady's "experience . . . that the courts tend to show flexibility with respect to  



                                                                                                         

pleading deadlines in the criminal, juvenile, and CINA arenas," and that although Kevin  



                                   

Brady had learned of Taylor Taxi's motion for summary judgment on February 18 he  



           12(...continued)  



marks omitted).  



           13        Coppe v. Bleicher,  No. S-13631, 2011 WL 832807, at *5 (Alaska Mar. 9,   



2011) (citing Dickerson , 956 P.2d at 465).  



           14        Alaska R. Civ. P. 6(b)(2) (emphasis added).  



                                                                 -9-                                                          7053
  


----------------------- Page 10-----------------------

"d[id] not recall making a calendar entry for the response date" and had never "seen a  

                                       



calendar entry in [their] system for that due date."  



                                                   

                    These reasons have no nexus to the failure to timely seek an extension of  



                                                       

time to oppose summary judgment.  The affidavits failed even to assert a link between  



Erica's absence, the March 4 criminal trial, the mail disruption, or the attorneys' caseload  



                                                                                                           

and the missed deadline for opposition or a motion seeking more time to respond.  We  



                                                             

note particularly that the failure to assert a causal link between the mail-forwarding issue  



                                                                                       

and the failure to seek an extension may be explained by Taylor Taxi's uncontradicted  



contention that it mailed all pleadings directly to the new office address.  



                                                            

                    The myriad explanations undercut even those that most closely resemble  



                                                              

excusable neglect.  Kevin Brady's final affidavit implies both that the missed deadline  



                                                                                            

was the result of a conscious, but flawed, expectation that "the courts tend to show  



                                                                                   

flexibility with respect to pleading deadlines" and that the missed deadline was instead  



the result of a clerical calendaring error.  Maintaining both positions simultaneously, as  



                                                                                                 

well as the inconsistent assertions in the affidavits that attribute the missed deadline to  



                                                                                

issues such as Erica's absence or problems with mail forwarding, calls into question the  



                                                                                                                      

ability of any of the explanations to meet Rule 6(b)(2)'s requirement that "the failure to  



                                                                                   

act [be] the result of excusable neglect."  The superior court therefore did not abuse its  

discretion when it denied Erica's late-filed motion for an enlargement of time.15  



          B.	       The "Excusable Neglect" Standard Also Applies To Erica's Motion  

                    For Relief From Final Judgment.  



                    Alaska  Rule  of  Civil  Procedure  60(b)(1)  provides  that  "the  court  may  



relieve  a  party  .  .  .  from  a  final  judgment,  order,  or  proceeding  for[,  among  other  

                                                                                                       



          15        This is not to say that any of these reasons, if presented in a manner that  



explained how the circumstances had caused the failure to act, could not form the basis  

                                                                                                        

for excusable neglect in another case.  



                                                              -10-	                                                       7053
  


----------------------- Page 11-----------------------

reasons,]  mistake,  inadvertence,  surprise  or  excusable  neglect."    This  rule  governs  



                                   16 

                                                                                              

Erica's April 1 motion.                To succeed in her appeal Erica must demonstrate the existence  

of "mistake, inadvertence, surprise or excusable neglect"17 and demonstrate that the  



               

superior  court's  refusal  to  relieve  her  from  the  final  judgment  was  "manifestly  



                       18  

unreasonable."             



                                                                                          

                    For the same reasons that the superior court was within its discretion to  



conclude that the explanations provided in Erica's attorneys' affidavits either had not  



                                                                                        

caused the failure to timely request an enlargement of time to oppose summary judgment  



                                            

or were not valid excuses, it was also within its discretion to conclude that they had not  



demonstrated that the same allegations of excusable neglect provided a basis for relief  



from final judgment.  



                                                                                                                       

                    Erica argues on appeal that "[t]he superior court appears to have based its  



                        

May 28, 2014 order [denying reconsideration or relief from judgment] strictly upon  



                                                             

deadlines  in  procedural  rules,"  rather  than  "look[ing]  at  the  case  in  its  entirety"  to  



determine whether the "outcome is just."  But the superior court's order denied Erica's  



             

motion  "for  the  reasons  set  forth  in  defendants'  opposition,"  which  included  both  



substantive  and  procedural  arguments.    And  although  the  superior  court's  rulings  



resulted in summary judgment being entered against Erica on her negligence claim, she  



          16        Although Erica styled this motion as a motion for reconsideration under     



Civil Rule 77(k)(1)(ii), the superior court recharacterized it as a motion for relief from                          

judgment under Civil Rule 60(b)(1) because it was filed after final judgment had been  

entered against Erica.  Erica does not appeal this recharacterization.  



          17        Alaska R. Civ. P. 60(b)(1).  



          18  

                                                                             

                    Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc. , __ P.3d __, Op.  

                                                                                                       

No.  7003, 2015 WL 1958657, at *3 (Alaska May 1, 2015); see also Young v. Kelly, 334  

                                                                                                            

P.3d 153, 157 (Alaska 2014) ("We review for abuse of discretion an order denying a  

Rule 60(b) motion.").  



                                                               -11-                                                        7053
  


----------------------- Page 12-----------------------

has not carried her burden19 of demonstrating that here "the failure to provide relief  



                                          20  

would  result  in  an  injustice."              Indeed,  she  has  never  attempted  to  address  the  



substantive legal grounds on which Taylor Taxi sought summary judgment in the first  



place.  On the facts of this case we cannot conclude that the superior court abused its  



discretion.  



V.       CONCLUSION  



                  The superior court's judgment is AFFIRMED.  



         19       See Sandoval v. Sandoval, 915 P.2d 1222, 1224 (Alaska 1996) ("A party                 



moving for relief from judgment has the burden of proving his entitlement to relief."   

(citing M.D. Markland v. City of Fairbanks , 513 P.2d 658, 660 (Alaska 1973))).  



         20  

                                                                                  

                  Farrell ex rel. Farrell v. Dome Labs., a Div. of Miles Labs., Inc. , 650 P.2d  

380, 384 (Alaska 1982).  



                                                       -12-                                                   7053
  

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