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Pritchett Controls, Inc. v. Hartford Accident and Indemnity Co.

United States District Court, D. Maryland

November 21, 2017

PRITCHETT CONTROLS, INC.
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY

          MEMORANDUM

          Catherine C. Blake United States District Judge.

         Pritchett Controls, Inc. (“Pritchett”) has sued Hartford Accident and Indemnity Company (“Hartford”) for payment under the Maryland Little Miller Act, Md. Code, State Fin. & Proc. §§ 17-101, et seq. Now pending before the court are Hartford's motions to extend time in which to file a responsive pleading, nunc pro tunc, and to dismiss pursuant to the doctrine of forum non conveniens. The motions have been fully briefed, and no oral argument is necessary. See Local Rule 105.6. For the reasons explained below, the motion for extension of time will be granted, and the motion to dismiss will be denied.

         BACKGROUND

         In August 2015, Pritchett was hired by general contractor James W. Ancel, Inc. (“JWA”) as a subcontractor on a construction project located in Baltimore, Maryland for the Maryland Transit Authority. Compl. ¶ 6-8. To comply with the Maryland Little Miller Act, JWA procured a payment bond from Hartford for the project. Id. at ¶ 7. While performing its work on the project, Pritchett submitted twelve applications for payment totaling $744, 799.00. Id. at 10-11. Pritchett completed its work on March 16, 2017. Id. at 14. Pritchett has not received any payment for its work on the project. Id. at 17. On May 11, 2017, Prtichett submitted a Notice of Claim and Demand against the Payment Bond to Hartford. Id. at 19; see also Ex. 5, ECF No. 1-6. As neither JWA nor Hartford paid Pritchett, Pritchett filed this suit against Hartford on July 25, 2017 for payment under the payment bond of its twelve applications for payment and accrued interest. Compl. ¶21, 29-30.

         The subcontract between JWA and Pritchett contained a forum selection clause stating,

“[A]ny actions or lawsuits arising hereunder to the extent permitted by law shall be brought in the District or County where Contractor's principal office is located without regard to principles of conflicts of laws or forum non-convenience [sic].”

Ex. B. ¶ 37, ECF No. 1-2. JWA's principal office is located in Towson, Maryland. Id. at 1; Ex. A at 1, ECF No. 1-1. Towson is within Baltimore County and within the District of Maryland.

         On September 19, 2017, Hartford filed a motion to dismiss pursuant to the doctrine of forum non conveniens. ECF No. 9. Pritchett filed its response on October 3. ECF No. 11. Hartford filed a motion for extension of time to file a responsive pleading, nunc pro turc, on October 12 and its reply regarding the motion to dismiss on October 17. ECF Nos. 12, 15. On October 25, Pritchett filed a response in opposition to the motion for extension of time. ECF No. 16. On November 8, Hartford filed both its answer to Pritchett's complaint and its reply regarding the motion for extension of time. ECF Nos. 17, 18.

         ANALYSIS

         A. Motion to Extend Time for Filing of Responsive Pleading, Nunc Pro Tunc

         A motion for extension of time is evaluated under Fed.R.Civ.P. 6(b)(1), which permits the court to grant an extension when a “party failed to act because of excusable neglect.” Fed R. Civ.P. 6(b)(1)(B); see also In re MI Windows and Doors Inc., 860 F.3d 218, 226 (4th Cir. 2017). The Supreme Court has identified four factors to determine “excusable neglect:”

[1] the danger of prejudice to the debtor, [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 the movant acted in good faith.

Id. (quoting Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993). Further, “[N]o factor is dispositive, and while inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect, it is clear that excusable neglect is a somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant.” Id. (citing Pioneer Investment, 507 U.S. at 392) (internal quotation marks omitted). In determining what type of mistake qualifies as excusable neglect, courts have distinguished between instances where the error was intentional and instances where the error was inadvertent. Compare Martinez v. U.S., 578 Fed.Appx. 192, 194 (4th Cir. 2014) (affirming a finding of no excusable neglect when plaintiff's attorney was “clearly aware” of an error that led to failure to timely serve process) with Fernandes v. Crane, 538 Fed.Appx. 274, 276 (4th Cir. 2013) (remanding for further consideration a finding of no excusable neglect where there was no indication plaintiff's lawyer was aware of or willfully blind to errors that led to missing a filing deadline).[1]

         In its response to the motion to dismiss, Pritchett argued that Hartford's motion was untimely, as the deadline for filing responsive pleadings was September 21, 2017. Resp. Mot. Dismiss ¶ 12. Hartford filed its motion for extension of time, in which it explained it had made an error calculating the date responsive pleadings were due, and had filed its motion to dismiss seven days late, on what it believed was the deadline. See Mot. Extend Time File Responsive Pleading, ECF No. 12. Pritchett argued that Hartford failed to demonstrate excusable neglect because its mistake was avoidable, and that it has been unfairly prejudiced by the untimely motion. See Resp. Opp. Mot. Extend Time at 5-8, ECF No. 16. Pritchett requested that the court strike the motion and order Hartford to file an answer. Id. at 9. In its reply, Hartford notes that it has now filed its ...


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