UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF TEXAS 

MARSHALL DIVISION 

WARNER RECORDS, INC., et al., 

 Plaintiffs, 

 v. 

ALTICE USA, INC. et al., 

 Defendants. 

 

Case No. 2:23-cv-00576-JRG-RSP 

 

MOTION FOR LEAVE TO FILE AN ANSWER PURSUANT TO 

FED. R. CIV. P. 6(b)(1)(B) 

Defendants, through their undersigned counsel, respectfully request leave to file an answer 

to Plaintiffs’ Complaint after the time to do so has expired. Defendants request leave to file their 

answer by November 4, 2024, which is four business days from the date of this motion and 24 

calendar days from the current October 11, 2024 deadline. Defendants do not make this request 

lightly. This request is made with good cause, as Defendants’ failure to timely file an answer was 

due to mistake and inadvertence as set forth below. Defendants further submit that the requested 

relief will not prejudice Plaintiffs, as Defendants identified their primary defenses and positions in 

initial disclosures, served on May 3, 2024, and the parties are in the midst of actively conducting 

extensive written and document discovery with more than 19 weeks remaining before the close of 

all fact discovery. Further, the requested relief will not otherwise impact the Court’s schedule. 

Defendants respectfully request that leave be granted pursuant to Federal Rule of Civil Procedure 

6(b)(1)(B). 

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FACTUAL BACKGROUND 

On December 7, 2023, Plaintiffs filed their Complaint. Dkt. 1. On January 29, 2024, Altice 

timely filed a motion to dismiss Plaintiffs’ Complaint. Dkt. 25. On September 12, 2024, the Court 

entered a Report and Recommendation, recommending denial of that motion. Dkt. 75. On 

September 26, 2024, Altice timely filed objections to the Report and Recommendation. Dkt. 84. 

On September 27, 2024, the Court overruled Defendants’ objections, adopted the Report and 

Recommendation, and denied the motion to dismiss (the “Order”). Dkt. 87. Defendants’ deadline 

to file an answer to the Complaint was October 11, 2024. See Fed. R. Civ. P. 12(a)(4)(A). 

On October 29, 2024, Defendants’ counsel discovered that, due to an administrative 

oversight, Defendants’ deadline to file an answer following the issuance of the Order had not been 

calendared in the firm’s docketing system. This was due to the fact that the Order was not properly 

entered as a denial of a motion to dismiss thereby triggering a response date under Federal Rule of 

Civil Procedure 12(a)(4)(A). Defendants’ counsel has since remedied the issue that caused this 

oversight and addressed the failure to otherwise capture this deadline until October 29, 2024. The 

undersigned takes full responsibility for this oversight, which was the result of mistake and 

inadvertence and in no way an intentional act to cause delay or otherwise prejudice Plaintiffs. 

Immediately upon discovering this issue, Defendants’ counsel also contacted Plaintiffs’ 

lead counsel by telephone, explained the basis for the instant motion, and requested Plaintiffs’ 

position on the requested relief. Defendants’ counsel stated that they intended to file this motion 

that same day, so as to not cause further delay, and requested Plaintiffs’ position by close of 

business if possible. Plaintiffs later responded that they do not consent to Defendants’ request at 

this time. 

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ARGUMENT 

Under Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, “the court may, for good 

cause, extend the time [to answer] ... on motion made after the time has expired if the party failed 

to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). “Excusable neglect encompasses 

late filings that were due to mistake, inadvertence or carelessness and not to bad faith.” Mattress 

Giant Corp. v. Motor Advert. & Design Inc., 2008 WL 898772, at *2 (N.D. Tex. Mar. 31, 2008) 

(quotation and alterations omitted). “Excusable neglect is intended and has proven to be quite 

elastic in its application. In essence it is an equitable concept that must take account of all relevant 

circumstances of the party’s failure to act within the required time.” 4B Wright & Miller, § 1165. 

“In deciding whether to grant relief under Rule 6(b)(1)(B), courts also consider the length of delay 

and prejudice to other parties.” Akoloutheo, LLC v. Sys. Soft Techs., Inc., 2021 WL 3287611, at *1 

(E.D. Tex. Aug. 2, 2021) (citation omitted). 

Here, Defendants respectfully submit they have established good cause for the requested 

relief, as the failure to timely file an answer was the result of mistake and inadvertence. As set 

forth above, due to human and software error, the Order was not properly docketed as an order 

denying a motion to dismiss thereby triggering the deadline to file a responsive pleading. See, e.g., 

Akoloutheo, LLC, 2021 WL 3287611, at *1-2 (granting the defendant’s motion for leave to file an 

answer when its one-month delay in filing was due to “non-willful error”); Pritchett v. 

Philadelphia Indem. Ins. Co., 2022 WL 22380784, at *2 (N.D. Tex. Dec. 27, 2022) (granting the 

defendant’s motion for leave to file an answer when its four-month delay was due to inadvertent 

“scheduling error,” finding that there was “no evidence of bad faith”). Defendants’ counsel takes 

full responsibility for this oversight, including not otherwise recognizing the missed deadline 

sooner. Defendants’ counsel has remedied the issue that caused this docketing oversight so that it 

will not occur again. 

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Further, Defendants respectfully submit that granting leave to file an answer by November 

4, 2024 will not cause prejudice to Plaintiffs, which further supports the requested relief. Currently, 

the parties are in the midst of written and document discovery based on claims and defenses, 

including anticipated affirmative defenses, identified in the context of initial disclosures and 

discovery negotiations. There are more than 19 weeks remaining in fact discovery following the 

date that Defendants request to file their answer. Under these circumstances, courts have found 

good cause to grant requests otherwise based on excusable neglect. See, e.g., Parker v. Bill Melton 

Trucking, Inc., 2016 WL 1750643, at *2-3 (N.D. Tex. May 3, 2016) (granting the defendant’s 

motion for leave to file an answer when its approximately five-month delay was due to a failure to 

properly calendar the filing deadline, finding that the plaintiff had sufficient time to remedy any 

prejudice with additional discovery, as the discovery deadline was months away). By contrast, the 

prejudice to Defendants in striking an untimely answer would be immense given that the parties 

have been actively litigating their claims and defenses for nearly a year. See, e.g., Akoloutheo, 

LLC, 2021 WL 3287611, at *1-2 (granting leave upon a showing of good cause and where the 

prejudice to the defendant outweighed any prejudice to the plaintiff). 

Further, leave should be granted because the filing of an answer by November 4, 2024 will 

not impact any other scheduling deadlines for this case. See, e.g., Pritchett, 2022 WL 22380784, 

at *2 (finding good cause where relief would “not impact scheduling deadlines”); Parker v. Bill 

Melton Trucking, Inc., 2016 WL 1750643, at *2-3 (N.D. Tex. May 3, 2016) (similar). Here, as 

noted above, fact discovery does not close until March 19, 2025, and the parties have been actively 

engaged in written and document discovery for several months. Email discovery and depositions 

have not yet commenced, though are expected to in the coming months. In addition, the filing of 

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the answer by November 4, 2024 will not have any impact on expert discovery, dispositive 

motions, or the Court’s trial schedule, all of which are many months away. 

Defendants respectfully submit that there is good cause to grant the requested relief. The 

record demonstrates that Defendants’ failure to timely file an answer was due to mistake and 

inadvertence and in no way intended to delay this case or prejudice Plaintiffs. Given Defendants’ 

active participation in this case and the lack of any prejudice to Plaintiffs or disruption of the 

Court’s schedule, Defendants respectfully request that the relief be granted. 

CONCLUSION 

Based on the foregoing, Defendants respectfully request that the Court grant them leave to 

file an answer to the Complaint by November 4, 2024, pursuant to Federal Rule of Civil Procedure 

6(b)(1)(B). 

Dated: October 29, 2024 Respectfully submitted, 

 

 By: /s/ Michael S. Elkin 

Claire A. Henry 

State Bar No.: 24053063 

MILLER FAIR HENRY PLLC 

1507 Bill Owens Parkway 

Longview, TX 75604 

(903) 757-6400 

claire@millerfairhenry.com

Thomas M. Melsheimer 

State Bar No.: 13922550 

WINSTON & STRAWN LLP 

2121 N. Pearl Street, Suite 900 

Dallas, TX 75201 

(314) 453-6500 

Sean H. Suber* 

WINSTON & STRAWN LLP 

35 W. Wacker Dr. 

Chicago, IL 60601 

(312) 558-5600 

Michael S. Elkin* 

Krishnan Padmanabhan* 

Sean R. Anderson* 

WINSTON & STRAWN LLP 

200 Park Avenue 

New York, NY 10166 

(212) 294-6700 

melkin@winston.com 

Jennifer A. Golinveaux* 

WINSTON & STRAWN LLP 

101 California Street, 35th Floor 

San Francisco, CA 9411 

(415) 591-1506 

Diana Leiden* 

WINSTON & STRAWN LLP 

333 South Grand Avenue, 38th Floor 

Los Angeles, CA 90071 

(213) 615-1700 

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Clement S. Roberts* 

ORRICK HERRINGTON & SUTCLIFFE LLP 

405 Howard Street 

San Francisco, CA 94015 

(415) 773-5700 

Christopher J. Cariello* 

ORRICK HERRINGTON & SUTCLIFFE LLP 

51 West 52nd Street 

New York, NY 10019 

(212) 506-5000 

Mark S. Puzella* 

David Hosp* 

Sheryl Garko* 

Laura Najemy* 

ORRICK HERRINGTON & SUTCLIFFE LLP 

222 Berkely Street, Suite 2000 

Boston, MA 02116 

(617) 880-1801 

Attorneys for Defendants Altice USA, Inc. and CSC Holdings, LLC 

*Pro Hac Vice 

 

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CERTIFICATE OF SERVICE 

 I certify that on October 29, 2024, a true and correct copy of the foregoing was filed with 

the Court via CM/ECF, which will send a notice of electronic filing to the parties of record. 

 /s/ Michael S. Elkin 

 Michael S. Elkin 

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