7ermontSuperiorCourtFiled07/01/24CaledoniaUnit

## VERMONTSUPERIOR

## COURTCaledonia

### Unit1126

### MainStreetSuiteSt.

### Johnsbury

## VT05819

### 802-748-6600

### www.vermontjudiciary.org

## CIVILDIVISIONCase

### No.24-CV-00803

### Stephanie

### Gallantet

### al

### v.

## TheSugarman

## ofVermont,

# LLCet

### al

# ENTRYREGARDINGMOTIONTitle:Motionfor

### Extension

### ofTimeto

### Answer;

### Motionfor

### Extension

### ofTimeto

### Answer(Motion:3;4)

### Filer:

### JonathanR.Brigati;

### JonathanR.Brigati

### FiledDate:

### June12,2024;

### June12,2024

### Themotionis

## GRANTEDIN

### PART.Theissuebeforethe

### Courtis

### whetherthereisexcusableneglecttoextendthetimeunder

### V.R.C.P.6(b)(1)(B)to

### allow

### Defendantstofileananswer

### whentheir

### motiontoenlargewasfiledaftertheoriginaldeadlinetofilehadpassed.

### Thefactsarerelativelyundisputed.

### Plaintiffsfiledthepresentcase

### withthe

### Courton

### March1,2024.

### Under

### V.R.C.P.3(a),

### Plaintiffshad60daystocompleteserviceon

### Defendants.

### Plaintiffscompletedthisintimelymanner

### byservingboth

### Defendantson

### April3,2024.

### UnderRule12(a)(1),raa

### Defendanthas21daysor60daystofileananswer

### withthe

### Court.

### Theshortertimelineapplies

### ifservicehasbeeneffectuatedbyformalprocess.

### Thelongertimelineapplies

### ifDefendanthastimely

### waivedformalservice.

### Thelatterdidnot

### occurinthiscase.

### Plaintiffsattemptedtoreachouttocounseltoobtainwaiver.

### Counselatthattimehadnotbeenretainedandwasnotauthorized.

### Nowaiverwasgranted,and

### Plaintiffspivotedtoformalservice.

### Duetowhatappeartobenumber

### ofmiscommunicationsin

### Defendants'internalprocess,andintheireffortstocoordinate

### withinsuranceandcounsel,

### Defendantsmissedthe21-daydeadline,

### which

### wouldhavebeen

### April24,2024.

### WhenDefendantsdidnotfileanyresponse,

### Plaintiffsfiled

### motionfordefaultjudgment

### on

### June10,2024.

### Inresponse,

### Defendants'counselEntryRegardingMotionPageof24-CV-00803StephanieGallantetalv.TheSugarmanofVermont,

### LLCetalEntry Regarding Motion Page 2 of 4

24-CV-00803 Stephanie Gallant et al v. The Sugarman of Vermont, LLC et al 

### entered a notice of appearance and filed the immediate motions for a 30-day extension, explaining

their internal difficulties giving rise to the delay and the motion.

In response, Plaintiffs cite to the Court’s extensive case law limiting when an extension can

be granted under the excusable neglect standard and arguing that Defendants’ internal and attorneyclient issues do not trigger or merit such relief. See, e.g., In re Town of Killington , 2003 VT 87A, ¶ 19.

There are normally four factors that apply to a review of an extension for excusable neglect.

(In Pioneer, the Court enunciated factors for evaluating a party's claim of excusable

neglect under a number of federal rules including Fed. R. App. P. 4. These factors

include: “ the danger of prejudice to the [nonmovant], 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. at 395, 113 S. Ct. 1489. While this

standard ostensibly represents a modest liberalization of the “excusable neglect”

concept in the federal rules, several federal circuit courts of appeal have recognized

that the post-Pioneer threshold remains high.

Killington , 2003 VT 87A, at ¶ 16 (emphasis added).

Three of the four factors here favor Defendants. The length of delay has been minimal, less

than 60 days after the answer was originally due. 1 

### The danger of prejudice to Plaintiffs is low. This

is the start of litigation, and allowing Defendants to file an answer would effectively start the case

and allow Plaintiffs to develop their claims through discovery and motion practice. Finally, there is

no evidence of bad faith in Defendant’s filings. The matter appears to have ping-ponged internally

based on the question of whether Defendants would be using prior counsel or retaining more

specialized counsel.

It is the fourth factor that both parties focus upon in the present motion. Defendants state

that the reason for the delay was two-fold. First, Defendants’ insurance defense carrier did not

1 While the request for additional time is outside the deadlines set out in Rule 12(a), it does come before any

judgment has been rendered and in a relatively early stage of this case, which as discussed below does warrant

additional consideration. This fact distinguishes the present case from a line of cases where the request to enlarge

is also effective a motion to re-open under V.R.C.P. 60(b). See, e.g., Kotz v. Kotz , 134 Vt. 36, 37 (1975) (affirming

Rule 60(b) denial of motion to re-open default judgment where defendant did not file answer, did not oppose

default and offered no meritorious defense or reason to re-open); City of Burlington v. Muir , 2014 WL 2134426

(May 1, 2014) (Walsh, J.) (denying motion to set aside a default judgment where Defendants filed neither answer,

nor opposition).Entry Regarding Motion Page 3 of 4

24-CV-00803 Stephanie Gallant et al v. The Sugarman of Vermont, LLC et al 

### immediately respond to them on the issue of coverage and defense. Second, Defendants failed to

follow up on their obligation under Rule 12(a), even after the denial of coverage was returned, and

let their responsibility fall through the cracks. As noted by Plaintiff, Defendant’s response does not

satisfy the traditionally high burden associated with this fourth factor of excusable neglect because it

arises entirely from the failure of either Defendants or their counsels to file an answer or motion on

a timely basis. In re von Turkovich , 2018 VT 57, ¶ 5.

Defendants note that notwithstanding the excusable neglect standard, there is significant

caselaw that disfavors the outcome that Plaintiffs urge in this case. Hermitage Inn Real Estate Holding

Co., LLC v. Extreme Contracting, LLC , 2017 VT 44, ¶ 34 (collecting cases). The Vermont Supreme

Court guides that the rules relating to default should be liberally construed in favor of defendants

because courts favor resolution on the merits. Id. This direction appears to be particularly

appropriate in the present case where Plaintiffs have raised six fact-specific claims that involve

determination of fact based on accruing of incidents, and ultimately making conclusions concerning

the quality of the behavior and its intended or received impacts. See, e.g., In re Grievance of Butler , 166

Vt. 423, 430 (1997) (upholding finding of hostile workplace claims based on an accretion of

incidents and actions that constituted and intended hostility).

While several factors favor under the excusable neglect standard auger toward granting

Defendants an extension, the most important factor does not. But if this fourth factor controls to

the exclusion of all other factors, the result would run contrary to the direction that trial courts

should liberally construe the provisions associated with a default judgment toward defendants to

prevent a default judgment where possible. It would also create a partial default judgment on a

series of claims that by their nature require nuanced factual findings and conclusions to not only

determine whether a violation occurred but to fashion the appropriate remedy.

In light of these issues and standards, which must overlay with each other, and the very

specific circumstances in the present case

— namely the complicated and factual nature of Plaintiffs’

claims, the Court finds sufficient excusable neglect under the totality of the factors for a limited

extension of time. To that end the Court will give Defendants until July 12, 2024, 30 days after their

motion to enlarge was filed, to file their answers or dispositive motions under V.R.C.P. 12(a).Entry Regarding Motion Page 4 of 4

24-CV-00803 Stephanie Gallant et al v. The Sugarman of Vermont, LLC et al 

### ORDER

Based on the foregoing, Defendants’ motion for an enlargement of time is Granted in Part

.

Defendants have until July 12, 2024 to file their answers or dispositive motions in this matter in

accordance with Rule 12(a). The Court finds excusable neglect and grounds for this extension under

V.R.C.P. 6 based on a totality of the factors from Killington when they are liberally construed toward

Defendants as directed by the Vermont Supreme Court under Hermitage . This enlargement,

however, may not be extended by further motion. Until such answers or motions are filed, the

Court will stay Plaintiffs’ motions for default judgment. If a Defendant does not make a responsive

filing under Rule 12(a) by July 12 th 

### , then the Court will take up the respective default judgment

motion without further briefing or hearing.

Electronically signed on 7/1/2024 2:48 AM pursuant to V.R.E.F. 9(d)

__________________________________ Daniel Richardson

Superior Court Judge