United States District Court, D. Maryland
PRITCHETT CONTROLS, INC.
HARTFORD ACCIDENT AND INDEMNITY COMPANY
Catherine C. Blake United States District Judge.
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.
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.
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
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.
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.
Motion to Extend Time for Filing of Responsive Pleading,
Nunc Pro Tunc
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:”
 the danger of prejudice to the debtor,  the length of
the delay and its potential impact on judicial proceedings,
 the reason for the delay, including whether it was within
the reasonable control of the movant, and  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
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 ...