IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CORNELIUS SMITH, et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 14-0107-WS-B

 )

WERNER ENTERPRISES, INC., )

 )

Defendant. )

ORDER 

This matter is before the Court on the plaintiffs’ motion for leave to 

supplement. (Doc. 154). The defendant has filed a brief in opposition, (Doc. 

156), the plaintiffs have filed a reply, (Doc. 158), and the matter is ripe for 

resolution.

On September 3, 2015, the Court approved the parties’ settlement of this 

FLSA action. (Docs. 145-46). On the same date, the Court ordered the plaintiffs 

to file any motion for attorney’s fees and related nontaxable expenses on or before 

October 1, 2015, “failing which no such fees or expenses will be awarded.” (Doc. 

147). The Court also instructed that any such motion “shall be accompanied by ... 

any ... evidence the plaintiffs deem necessary in support of their motion.” (Id.).

The plaintiffs timely filed a motion for attorney’s fees, costs and expenses, 

seeking an award of approximately $190,000. (Doc. 152). On October 6, 2015, 

the plaintiffs filed the instant motion, seeking permission to add exhibits in 

support of a further award of $7,177.50, representing post-settlement fees (through 

October 1) of one attorney. (Doc. 154-1 at 4). The explanation given is that, as of 

October 1, counsel had not prepared time sheets for this time and had mistakenly 

assumed he could submit the records as late as in conjunction with the plaintiffs’ 

reply brief on October 23. (Doc. 154 at 2).

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The defendant correctly asserts this is a poor explanation, given the Court’s 

explicit directive to file “any ... evidence” supporting the motion no later than 

October 1.1 The plaintiffs’ response that surely they could file, after October 1, 

supplemental material covering the period after October 1, (Doc. 158 at 2-3), 

misses the point; all the evidence made the subject of the instant motion relates to 

time expended on or before October 1. (Doc. 154-1). 

Although unnoted by the parties, the plaintiffs’ motion is governed by Rule 

6(b). When, as here, a motion for extension of time is not filed until after the 

deadline has expired, the movant must show that it “failed to act because of 

excusable neglect.” Fed. R. Civ. P. 6(b)(2).2 Whether “excusable neglect” exists 

under Rule 6(b) is to be evaluated under the standard set forth in Pioneer 

Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 

380 (1993).3 Under Pioneer, the factors governing the excusable neglect analysis 

include “the danger of prejudice to the [other party], 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. Of these considerations, “the absence of 

prejudice to the nonmoving party and to the interest of efficient judicial 

administration are of primary importance ....” In re: Worldwide Web Systems, 

Inc., 328 F.3d 1291, 1297 (11th Cir. 2003) (internal quotes omitted). 

The plaintiffs deny that the defendant would be prejudiced by their late 

filing. (Doc. 154 at 3). The defendant, which focuses exclusively on the 

perceived weakness of the plaintiffs’ excuse for being tardy, ignores prejudice 

 1 The plaintiffs’ suggestion that “any” does not in this context mean “all,” (Doc. 

158 at 2), will not bear scrutiny.

2 Rule 6 applies to deadlines imposed by court order. Fed. R. Civ. P. 6(a); Valley 

Drug Co. v. Geneva Pharmaceuticals, Inc., 262 Fed. Appx. 215, 216 (11th Cir. 2008). 

3 See, e.g., Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 n.2 (11th Cir. 

1998); Glover v. City of Pensacola, 372 Fed. Appx. 952, 955 (11th Cir. 2010). 

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altogether. Moreover, the delay is only five days (three business days), a period so 

brief as to practically negate both prejudice and adverse impact on the judicial 

proceedings. With these “primary” factors firmly in the plaintiffs’ favor, and with 

no hint or allegation of bad faith by the plaintiffs, their carelessness in not timely 

filing their proof as to some 4% of their demand can scarcely tip the balance in 

favor of the defendant.

For the reasons set forth above, the plaintiffs’ motion for leave to 

supplement is granted. The plaintiffs are ordered to file and serve their 

supplemental materials, (Docs. 154-1, -2), on or before October 20, 2015. The 

defendant is ordered to file and serve any response to the supplemental materials 

on or before October 21, 2015.

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 The plaintiffs are ordered to incorporate any 

reply into the reply brief previously authorized and due on or before October 23, 

2015. (Doc. 153).

DONE and ORDERED this 19th day of October, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

 4 The defendant, having been in possession of this material since October 6, 

cannot reasonably require additional time to respond to it.

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