IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREW AND ANDREA BERARDI, :

:

Plaintiffs, : CIVIL ACTION NO. 05-2295

:

:

v. :

:

ALLSTATE INSURANCE COMPANY, :

:

Defendant. :

MEMORANDUM

BUCKWALTER, S. J. November 9, 2005

Presently before the Court are Plaintiffs’ Motion for Extension of Time to Reply

to Counterclaim to Complaint (Docket No. 10) and Defendant’s response thereto (Docket No.

11). As explained below, Plaintiffs’ Motion is denied.

I. BACKGROUND

On April 26, 2005, Andrew Berardi and Andrea Berardi (collectively “Plaintiffs”)

filed a civil action in the Court of Common Pleas of Montgomery County, Pennsylvania. On

May 16, 2005, Allstate Insurance Company (“Defendant”) filed a Notice of Removal of the Civil

Action from Montgomery County Common Pleas Court to the United States District Court for

the Eastern District of Pennsylvania. (Docket No. 1; Def.’s Br. Ex. A.) The next day, May 17,

2005, Defendant sent Plaintiffs a copy of its correspondence to the Montgomery County

Courthouse, including notice of the Praecipe to File Petition for Removal along with a copy of

the Praecipe filed with the Common Pleas Court of Montgomery County. (Def.’s Br. Ex. A.) 

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On May 19, 2005, Plaintiffs sent correspondence, which enclosed a demand for a

jury trial, to the Clerk of Courts of the United States District Court for the Eastern District of

Pennsylvania. (Defs.’ Br. Ex. B.) One day later, May 20, 2005, Plaintiffs sent a letter to the

Court, advising the Court on the value of their claim and requesting arbitration. (Defs.’ Br. Ex.

C.) On that same day, May 20, 2005, Defendant filed an Answer with Affirmative Defenses and

Counterclaim for Civil Insurance Fraud against Plaintiffs. (Docket No. 3.) 

On June 15, 2005, Defendant filed its Certification of Filing of Removal with

State Court with the Court. (Docket No. 7; Def.’s Br. Ex. D.) Plaintiffs received notice of the

filing. (Def.’s Br. Ex. E.) Defendant filed a Motion to Compel with the Court on August 18,

2005. (Docket 8.) After failing to receive a response from Plaintiffs to Defendant’s Motion to

Compel, the Court entered an Order on September 13, 2005 granting Defendant’s Motion to

Compel. (Docket No. 9.) 

To date, Plaintiffs have failed to file a response to Defendant’s Counterclaim. 

Plaintiffs acknowledge that they failed to meet the deadline set forth by Rule 12(a) of Federal

Rules of Civil Procedure. In filing this Motion, Plaintiffs ask the Court to extend the deadline for

the following reasons. First, Plaintiffs claim they believed that Defendant had not filed a

certified copy of its Notice of Removal with the state court pursuant to 28 U.S.C. § 1446(d). 

(Pl.’s Br. 1.) According to Plaintiffs, Defendant’s correspondence led them to believe that the

Notice of Removal was to be filed at a later date. Id. Based on their assumption that the Notice

of Removal had not been filed with the state court, Plaintiffs believed jurisdiction still rested

with the state court and thus did not file a response to Defendant’s Counterclaim. Id. at 1, 4. 

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1. With respect to the consequences of Plaintiffs’ failure to respond to Defendant’s Counterclaim, “[f]ailure to deny

an averment in a pleading to which a responsive pleading is required, other than those as to the amount of damages,

is deemed an admission.” 2 James Wm. Moore et al., Moore’s Federal Practice § 8.08[1] (3d ed. 2005) (citing Fed.

R. Civ. P. 8(d)). 

2. In Pioneer, the Supreme Court analyzed excusable neglect in the context of Rule 9006(b)(1) of the Federal Rules

of Bankruptcy Procedure, which governs the enlargement of time for filing proofs of claim in bankruptcy cases. In

re Orthopedic Bone Screw Prods. Liab. Litig., 246 F.3d 315, 322 (3d Cir. 2001) (citing Pioneer, 507 U.S. at 391). 

The Supreme Court noted that Rule 6(b) of the Federal Rules of Civil Procedure was the genesis of the bankruptcy

rule. Id. (citing Pioneer, 507 U.S. at 391). 

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Second, Plaintiffs claim that they never received notice from the United States District Court that

the removal had been approved. (Pls.’ Mot. for Extension of Time 2.) 

II. LEGAL FRAMEWORK

Plaintiffs ask the Court to use its power under Rule 6(b) of the Federal Rules of

Civil Procedure to extend their time to file a response to Defendant’s Counterclaim. Pursuant to

Rule 12(a)(2) of the Federal Rules of Civil Procedure, Plaintiffs had twenty days from its receipt

of Defendant’s Counterclaim to serve its reply.1 Fed. R. Civ. P. 12(a)(2). Under Rule 6(b), in an

instance in which a period has expired, the Court may enlarge the time “where the failure to act

was the result of excusable neglect . . . .” Fed. R. Civ. P. 6(b)(2).

Determining what sort of neglect is “excusable neglect” involves equity and

requires courts to take account of relevant circumstances surrounding the omission. Pioneer Inv.

Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993).2 These relevant

circumstances include the following: “1) the danger of prejudice to the nonmovant; 2) the length

of the delay and its potential effect 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

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3. In Orthopedic Bone Screw Products, 246 F.3d at 322-23, the Third Circuit discussed the Supreme Court’s

application of the excusable neglect standard in Pioneer before applying the standard to Rule 23 of Federal Rules of

Civil Procedure. 

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good faith.” In re Orthopedic Bone Screw Prods. Liab. Litig., 246 F.3d 315, 322-23 (3d Cir.

2001) (citing Pioneer, 507 U.S. at 395)).3

In Orthopedic Bone Screw Products, 246 F.3d at 323, the Court discussed the

impact of Pioneer on a previous Third Circuit case, Dominic v. Hess Oil V.I. Corp., 841 F.2d 513

(3d Cir. 1988). In Dominic, the Third Circuit, in discussing the excusable neglect standard with

respect to Rule 4 of the Federal Rules of Civil Procedure, found that district courts should

examine the following six circumstances in analyzing excusable neglect:

1) whether the inadvertence reflected professional incompetence such

as ignorance of rules of procedure, 2) whether an asserted

inadvertence reflects an easily manufactured excuse incapable of

verification by the court, 3) counsel's failure to provide for a readily

foreseeable consequence, 4) a complete lack of diligence or 5)

whether the inadvertence resulted despite counsel's substantial good

faith efforts towards compliance . . . . Moreover, we also consider

whether the enlargement of time will prejudice the opposing party. 

Orthopedic Bone Screw Prods., 246 F.3d at 323 (quoting Dominic, 841 F.2d at 517). In

Orthopedic Bone Screw Products, the Third Circuit commented that the six factors announced in

Dominic were a more specific application of the factors later articulated by the Supreme Court in

Pioneer. Id. According to the Third Circuit, the Supreme Court did not “restate” the Dominic

factors in Pioneer but instead the factors were “subsumed in the more general consideration of

reason for delay.” Id. (internal quotations omitted) (citation omitted). In the instant case, the

Court will analyze the excusable neglect standard utilizing the circumstances articulated by the

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4. Defendant’s correspondence of May 17, 2005 is Exhibit A of Defendant’s response. (Docket 11.)

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Supreme Court in Pioneer.

III. DISCUSSION

Examining the circumstances articulated in Pioneer with respect to the instant

case, the Court will first address whether Plaintiffs move in good faith. For the following four

reasons, the Court believes Plaintiffs move in bad faith. First, Plaintiffs’ claim that they thought

the certified Notice of Removal was to be filed with the state court at a later date is unbelievable. 

The Court finds no reason to give credence to Plaintiffs’ reading of Defendant’s correspondence

of May 17, 2005.4 Nowhere in Defendant’s correspondence is there room for ambiguity; a

certified copy of the Notice of Removal was filed with the state court. (Def.’s Br. Ex. A.) 

Second, on June 15, 2005, the Court notified Plaintiffs that Defendant had filed its Certification

of Filing of Removal with State Court. (Def.’s Br. Ex. E.) Even if Plaintiffs’ claim of confusion

as to Defendant’s May 17, 2005 correspondence were true, the Court’s notice of July 15, 2005

would have alerted Plaintiffs that jurisdiction rested with the Court, requiring Plaintiffs to file an

answer to Defendant’s Counterclaim. Third, as discussed above, Plaintiffs claim that they did

not file a response to Defendant’s Counterclaim because they did not receive notice that the

Court had approved Defendant’s removal. This claim too is unbelievable. Contrary to the belief

of Plaintiffs, no federal order is required to complete removal. 16 James Wm. Moore et al.,

Moore’s Federal Practice § 107.31[1] (3d ed. 2005). Plaintiffs offer no support and no

explanation for their interpretation of the statute. Fourth, Plaintiffs’ actions contradict their

claims. On May 19, 2005, Plaintiff wrote the Clerk of Courts with a jury demand, and it was

placed on the Court’s docket for this case. Plaintiffs wrote to the Court on May 20, 2005

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requesting arbitration. These actions contradict Plaintiffs’ claims that they thought the Court did

not have jurisdiction. In contacting the Court as they did, Plaintiffs showed that they understood

this Court had jurisdiction.

With respect to two other circumstances mentioned in Pioneer, the prejudice

caused to Defendant and the harm caused by the delay in the proceedings, the Court recognizes

that the proceedings have been delayed and that Defendant has incurred costs in filing and

answering motions because of Plaintiffs’ lack of good faith. Regarding the remaining

circumstance, which concerns the reason for the delay, the Court believes Plaintiffs’ lack of good

faith is the sole reason for the delay. 

IV. CONCLUSION

The first two factors must be weighed in favor of Plaintiffs. There has been delay

but aside from incurring costs, which will be remedied hereafter, no prejudice has been called to

the Court’s attention by Defendant that would affect the outcome of this case.

Factors three and four weigh heavily against Plaintiffs. Plaintiffs’ bad faith has

been the cause of the delay and resulted in Defendant’s incurring expenses in this motion and its

motion to compel.

An order follows.

Case 2:05-cv-02295-RB Document 13 Filed 11/10/05 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREW AND ANDREA BERARDI, :

:

Plaintiffs, : CIVIL ACTION NO. 05-2295

:

:

v. :

:

ALLSTATE INSURANCE COMPANY, :

:

Defendant. :

:

ORDER

AND NOW, this 9th day of November, 2005, upon consideration of Plaintiffs’

Motion for Extension of Time to Reply to Counterclaim to Complaint (Docket No. 10) and

Defendant’s response thereto (Docket No. 11), it is hereby ORDERED that Plaintiffs’ Motion is

GRANTED, and Plaintiffs will be given until November 21, 2005 to answer the Complaint. 

The legal fees incurred by Defendant in responding to Plaintiffs’ motion for

extension are imposed on Plaintiffs in an amount to be determined by agreement of the parties or

in lieu thereof, by application to the Court.

BY THE COURT:

_____________________________________

 RONALD L. BUCKWALTER, S.J.

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