The District of Delaware has a 5pm ET filing deadline. This was originally instituted as a 6pm deadline, back in 2014, to improve quality of life for practitioners here. As I've said before—it has been extremely successful.
The 5pm deadlines keeps young associates and staff from having to unexpectedly stay until midnight, disrupting family plans (I recall this happening about once a week). It also keeps clients from having to pay attorneys and staff to sit around and wait for filings. And everyone quickly adapted to working towards either a 5 or 6pm deadline rather than a midnight deadline.
That said, whether the deadline is 5pm, 6pm, or midnight, it's not uncommon for parties to miss it by a few minutes. Often these delays relate to the fact that PACER and CM/ECF tend to slow down quite a bit around 5pm, especially before weekends, as everyone tries to file things simultaneously.
Normally this is not cause for panic. Unlike some jurisdictions, judges in D. Del. generally have not taken an interest in enforcing exact, precise compliance with the 5pm deadline. I have seen parties miss the 5pm by a few minutes countless times, with no response from the Court. Most Delaware counsel seem to agree that it's not worth the Court's or the parties' time to seek a remedy from the Court for a deadline that was missed by only a few minutes.
5 Hours May Be a Bit Much
So I thought it was worth pointing out an instance this week where a party pushed it too far. In Dental Monitoring v. Get-Grin Inc., C.A. No. 22-647-WCB (D. Del. Dec. 13, 2023), a party filed a letter brief at 10:14, and an unopposed motion for leave to file the brief late:
On Tuesday, December 5, 2023, the parties advised the court by email that they had a discovery dispute in this case. They suggested a briefing schedule granting the plaintiff one week to file its letter brief, followed by the defendant’s letter brief one week later. The court directed the parties to file their letter briefs on a shorter briefing schedule, giving the plaintiff until 5 p.m. Eastern Time on Friday, December 8, 2023, to file its three-page letter brief, followed by the defendant’s responsive three-page letter brief at 5 p.m. Eastern Time on Tuesday, December 12, 2023, and an optional reply brief for the plaintiff, to be filed by 5 p.m. Eastern Time on Wednesday, December 13, 2023.
The plaintiff filed its opening letter brief on time. The defendant did not. Instead, at 9:04 p.m. Eastern Time, after the deadline had passed, the defendant filed a motion to extend the time for filing its brief until 11:59 p.m. on December 12, 2023. The plaintiff did not oppose the motion, provided it was given a one-day extension for filing its one-page reply letter. At 10:14 p.m., more than five hours after the deadline, the defendant filed its responsive letter brief.
Id. at 1. Judge Bryson (sitting by designation) criticized the motion for an extension because it failed to include any explanation for the requested 7-hour extension. He required the party to file a supplement to its brief to describe why it needed the extension:
Besides being filed well after the deadline for filing the responsive letter brief had passed, the motion for an extension of time did not include any explanation for the belated filing. While a brief delay in filing can be assumed to be attributable to technical problems and does not require an explanation (although one would be welcome), the delay of more than five hours in this case is more than can be assumed to be due to technical difficulties. The defendant is therefore directed to file a supplement to its motion for an extension explaining why it failed to meet the deadline for filing its responsive letter brief. The supplement to its motion is due for filing by 5 p.m., Eastern Time, today.
I can't tell what time of day the order issued. But, regardless, you know the Court isn't happy when it requires a same-day turnaround on a response.
The motion to extend time had proposed giving the opposing party an extra day on its reply deadline. The Court cut that back, as well:
The late filing deprived the plaintiff of more than five hours that the plaintiff may have intended to use to prepare its reply. In fairness, the plaintiff should be given additional time for its reply. However, the appropriate amount of additional time is not a full day, as proposed in the motion, but an extension commensurate with the reduction in the plaintiff’s time for reply caused by the late filing of the responsive brief. Accordingly, the plaintiff will be granted six additional working hours to file its reply brief, which will therefore be due for filing on Thursday, December 14, 2023, at 3 p.m., Eastern Time.
Id. at 2.
If you're curious, the party filed its supplement, and said that the late filing was due to counsel's issues communicating with their overseas client:
Grin’s outside counsel worked on the opposition letter over the weekend and provided a draft to its client late Monday evening, which was Tuesday morning in Israel. Due to the time difference between the U.S. and Israel, Grin’s CTO’s input was received by Grin’s counsel in the U.S. on December 12, 2023, the morning of the day that Grin’s opposition was due. Grin’s outside counsel required clarification from Grin’s CTO regarding his comments, which subsequently led to additional communications with Grin employees both in the U.S. and in Israel. This led to an unexpected delay in finalizing and filing the opposition.
Id., D.I. 88 at 1. That explanation seemed to satisfy the Court, which issued an oral order putting the revised deadlines in place.
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