“Excusable Neglect” Is No Excuse for Filing an Untimely Response to a Rule 56 Motion

Trial Rule 56 provides that a response to a motion for summary judgment is to be filed within 30 days after service of the motion. Attorneys who miss this deadline try to find ways around it; the attorney in Delage Laden Fin. Servs., Inc. v. Community Mental Health Center, Inc., ___ N.E.2d ___ (Ind. Ct. App. 2012), Cause No. 15A05-1107-CC-366, is no exception.  In order to save his client’s case, counsel argued that Trial Rule 6(B)(2) gives him an opportunity to correct any mistake caused by excusable neglect. But while the trial court agreed, the Court of Appeals did not.

In this case, the plaintiff filed a complaint for breach of contract. On March 15, 2011, the plaintiff moved for summary judgment. On April 15, 2011, that motion was set for a hearing on May 27, 2011. On May 27th, the defendant moved to continue the hearing date (which was granted) and moved for an enlargement of time to respond to the motion for summary judgment, citing Rule 6(B)(2), which allows a trial court to permit an act to be done upon motion made after the expiration of the time period for doing so if the failure to act was the result of excusable neglect. What was that excusable neglect? “CMHC’s counsel stated that he had an inexperienced scheduling secretary who did not properly calendar the due date for the Response, and that he did not notice the failure to file a response until he reviewed his calendar for the week of May 27, 2011, and discovered the summary judgment hearing.” That motion was eventually granted and the trial court denied the plaintiff’s motion for summary judgment.

On appeal, the Court noted that both Rules 6 and 56 described procedures for obtaining an enlargement of time to respond to a motion. However, the Court found that Rule 56 was the more specific rule applicable to this situation.

Because Trial Rule 56 has its own enlargement of time provision, which applies only to Trial Rule 56 and is therefore the more specific of the two rules, it does not need to be exempted from Trial Rule 6(B)(2) because it is not subject to Trial Rule 6(B)(2) in the first instance. Thus, the fact that CMHC filed a motion for enlargement of time pursuant to Trial Rule 6(B)(2) and the non-movant in HomeEq did not is not a pertinent distinction because Trial Rule 6(B)(2) does not apply to summary judgment materials.

Because CMHC failed to file a response or request an extension within the prescribed time, the trial court had no discretion to alter the time limits in Trial Rule 56. CMHC’s belated response should have been stricken and the trial court abused its discretion when it granted CMHC relief from its earlier judgment and allowed CMHC’s response to be filed and considered on summary judgment.

Unsurprisingly, the Court found that once the defendant’s response was stricken, there was not a genuine issue of material fact and, therefore, that the plaintiff was entitled to summary judgment.

In case it hasn’t been emphasized enough, a court can’t cut you slack if you fail to respond to a motion for summary judgment within 30 days.


    A party’s failure to respond to a motion for summary judgment within the time required by Rule 56 cannot be forgiven by reliance on excusable neglect.
Brad A. Catlin
Price Waicukauski & Riley, LLC
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