Miley v. Hard Rock Hotel & Casino Punta Cana

537 F.Supp.3d 1

Andrea G. Ross MILEY, Plaintiff

v.HARD ROCK HOTEL AND CASINO PUNTA CANA, et al., Defendants

Civil Action No. 19-3381 (CKK)

United States District Court, District of Columbia.

Filed May 3, 2021

Andrea G. Ross Miley, Washington, DC, Pro Se.

Hard Rock Hotel and Casino Punta Cana, Pro Se.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge Plaintiff Andrea G. Ross Miley, who appears pro se , brings this action against Hard Rock Hotel and Casino Punta Cana ("Hard Rock Punta Cana") and Hard Rock Café International (USA), Inc. ("Hard Rock International"), alleging she suffered personal injuries while on vacation at Hard Rock Punta Cana.¹ Over the course of a year, Plaintiff was granted five extensions of time to perfect service of process on both entities. Plaintiff now claims that both defendants have been served with process. Hard Rock International moved to dismiss Plaintiff's Complaint (contesting service of process, among other issues), but Plaintiff failed to file an opposition to Hard Rock International's motion to dismiss by the deadline ordered by the Court. Accordingly, after notice to Plaintiff, the Court treated the motion as conceded and dismissed Hard Rock International from this action without prejudice.

Currently before the Court is Plaintiff's [18] Motion Requesting an Enlargement of Time to Respond to Hard Rock International's Motion to Dismiss.² For the reasons set forth below, the Court shall DENY Plaintiff's motion.

I. BACKGROUND

Plaintiff filed her Complaint on November 8, 2019. See Compl., ECF No. 1. She alleges that while on vacation at the Hard Rock Hotel and Casino in Punta Cana, Dominican Republic, she suffered head, back, neck, and shoulder injuries from being "struck" when "an overhead prop fell from above." Compl. at 1, ¶¶ 1, 2. Plaintiff sued Hard Rock Punta Cana and Hard Rock International for "compensatory damages in the amount of $100,000 for her injuries," though she does not indicate in her Complaint her theory of either defendant's legal liability for her injuries. Id. at 2, ¶ 1.

Plaintiff five times requested additional time to effect service of process on Defendants. See ECF Nos. 4, 6, 8, 11, 13. The Court granted each motion. See ECF Nos. 5, 7, 9, 12, 14. In her most recent extension motion, filed on November 7, 2020, Plaintiff claimed that she had served Hard Rock International. See ECF No. 13. On November 13, 2020, Defendant Hard Rock International filed a [15] Motion to Dismiss Plaintiff's Complaint for lack of personal jurisdiction, improper venue, insufficient service of process, and failure to state a claim upon which relief may be granted. See Defendant Hard Rock Café International (USA), Inc.’s Motion to Dismiss, ECF No. 15 ("Def.’s Mot. to Dismiss"). On the same date, the Court issued a [16] Order pursuant to Fox v. Strickland , 837 F.2d 507 (D.C. Cir. 1988) (" Fox Order"), informing Plaintiff that she must respond to Hard Rock International's Motion to Dismiss by no later than December 22, 2020 and directing that if she "does not file a response, the Court will treat the motion as conceded and dismiss [Hard Rock International]."

Plaintiff did not file a response to Hard Rock International's Motion to Dismiss by December 22, 2020, nor did she file a motion for an extension of time. Treating Hard Rock International's Motion to Dismiss as conceded pursuant to its Fox Order and Local Civil Rule 7(b), the Court granted Hard Rock International's motion to dismiss on January 7, 2021 and dismissed without prejudice Hard Rock International from this action. See Order, ECF No. 17.

Then, on January 8, 2021, Plaintiff filed the present Motion Requesting an Enlargement of Time to Respond to [Hard Rock International's] Motion to Dismiss and for Entry of Default Judgment as to [Hard Rock Punta Cana] ("Pl.’s Mot."). In her motion, Plaintiff states that she "misread" the Court's Fox Order and "mis-calendared" the date for her to respond. Plaintiff requests that the Court "enlarge" her time to file a response to Hard Rock International's Motion to Dismiss. See Pl.’s Mot. at 1, ¶ 1. Plaintiff includes in her Motion arguments in response to Hard Rock International's Motion to Dismiss. See id. at pp. 2–4.

II. DISCUSSION

A. Plaintiff Failed to Respond to Hard Rock International's Motion to Dismiss Within the Time Period Ordered by the Court.

Although a pro se plaintiff is "provided with some latitude in maneuvering through the trial process," she is nonetheless "obligated to prosecute her lawsuit in accordance with Federal Rules of Civil Procedure and the local rules of this court." Akers v. Liberty Mut. Grp. , 274 F.R.D. 346, 349 (D.D.C. 2011) (citing Moore v. Agency for Int'l Dev. , 994 F.2d 874, 876 (D.C. Cir. 1993) ; Clariett v. Rice , 2005 WL 3211694, at *4 (D.D.C. Oct. 18, 2005) ). Local Civil Rule 7(b) provides that the Court "may direct" the time within which an "opposing party shall serve and file a memorandum of points and authorities in opposition to [a] motion. If such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded." LCvR 7(b).

Here, the Court plainly directed Plaintiff to file an opposition to Hard Rock International's Motion to Dismiss by December 22, 2020 and advised Plaintiff of the consequences for failing to file an opposition within that timeframe. See Fox Order. Plaintiff failed to file her opposition within the prescribed time period. Her failure to respond alone would be sufficient to consider Hard Rock International's motion to dismiss conceded and to dismiss that defendant from this lawsuit. See Fox v. Am. Airlines, Inc. , 389 F.3d 1291, 1295 (D.C. Cir. 2004) ("[W]here the district court relies on the absence of a response as a basis for treating the motion as conceded, we honor its enforcement of the rule.") (internal citations and quotation marks omitted).

The Court may only consider Plaintiff's motion—filed after her time to file her opposition—if she "failed to act because of excusable neglect." Fed. R. Civ. P. 6(b)(1)(B). Four factors guide the Court's determination of when a late filing may constitute "excusable neglect": "(1) the danger of prejudice to the [opposing party], (2) the length of 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."

In re Vitamins Antitrust Class Actions , 327 F.3d 1207, 1209 (D.C. Cir. 2003) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship , 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) ). The moving party's fault is "the most important single factor." Webster v. Pacesetter, Inc. , 270 F. Supp. 2d 9, 14–15 (D.D.C. 2003) (internal citations and quotation marks omitted); see also Wilson v. Prudential Fin. , 218 F.R.D. 1, 3 (D.D.C. 2003) (fault is the "key factor" in excusable neglect analysis).

Here, Plaintiff's delay was not long enough to significantly delay proceedings and there is no reason to believe she acted in bad faith. However, Plaintiff explains that her delay in filing her opposition was due to "mis-calendaring" the due date. Pl.’s Mot. at 2, ¶ 1. "Mis-calendaring" or miscalculating the due date for a responsive filing does not constitute "excusable neglect." Inst. for Policy Studies v. U.S. Cent. Intelligence Agency , 246 F.R.D. 380, 383 (D.D.C. 2007) ; see also Halmon v. Jones Lang Wootton USA , 355 F. Supp. 2d 239, 242 (D.D.C. 2005) (rejecting excuse that counsel "did not place the due date on her calendar"); Ramseur v. Barreto , 216 F.R.D. 180, 182 (D.D.C. 2003) ("inadvertently overlook[ing]" a filing deadline does not constitute "excusable neglect"). "[I]nadvertance, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect." Pioneer , 507 U.S. at 392, 113 S.Ct. 1489. Accordingly, the Court finds that Plaintiff's excuse of misreading the due date for her opposition does not amount to excusable neglect.

Because, however, Plaintiff appears to have included in her Motion her arguments in response to Hard Rock International's Motion to Dismiss, see Pl.’s Mot. at 3–5, the Court shall construe her pleading as a motion to reconsider the Court's order dismissing Hard Rock International. Even considering the arguments offered by Plaintiff in response to Hard Rock International's Motion to Dismiss, the Court would still deny Plaintiff's motion for reconsideration and grant Hard Rock International's motion to dismiss.

B. Plaintiff Has Not Established that the Court Has Personal Jurisdiction Over Defendant Hard Rock International.

Defendant Hard Rock International moved to dismiss Plaintiff's Complaint, among other reasons, for lack of personal jurisdiction. A complaint must contain a "short and plain statement of the grounds for the court's jurisdiction." Fed. R. Civ. P. 8(a). Although, again, pro se litigants are held to a less stringent standard of pleading, they must nonetheless comply with the Federal Rules of Civil Procedure. Satterlee v. Comm'r of Internal Revenue , 195 F. Supp. 3d 327, 334 (D.D.C. 2016). Plaintiff's Complaint plainly fails to state any grounds to support the Court's exercise of personal jurisdiction over Hard Rock International. Plaintiff raises for the first time in her motion facts which she contends demonstrate that the Court has personal jurisdiction over Hard Rock International. Because Plaintiff is pro se, the Court considers the facts alleged in both the Complaint and Plaintiff's Motion. See Brown v. Whole Foods , 789 F.3d 146, 152 (D.C. Cir. 2015) (court should consider "the facts alleged in all of [a pro see plaintiff's] pleadings when evaluating a motion to dismiss"); Fillmore v. AT&T Mobility Servs. LLC , 140 F. Supp. 3d 1, 2 (D.D.C. 2015) ("The Court, as it must in a case brought by a pro se plaintiff, considers the facts as alleged in both the Complaint and Plaintiff's Opposition to Defendant's ...