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Gilchrist v. Commissioner of Social Security

United States District Court, D. South Carolina, Anderson/Greenwood Division

June 28, 2019

Linda Diane Gilchrist, Plaintiff,
Commissioner of Social Security, Defendant.


         Before the court for review is Plaintiff Linda Diane Gilchrist's Motion to Reconsider Order Denying Plaintiff's Motion for Leave to File Out of Time (ECF No. 34). For the reasons set forth below, the court GRANTS Counsel's Motion to Reconsider Order Denying Plaintiff's Motion for Leave to File Out of Time (ECF No. 34), VACATES its Order denying Plaintiff's Motion for Leave to File Out of Time (ECF No. 27), and now GRANTS Plaintiff's Motion for Leave to File Out of Time.


         On July 31, 2018, Plaintiff commenced this action against the Commissioner of Social Security (“Commissioner”), seeking judicial review of the Commissioner's decision denying her claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423(d). (ECF No. 1 at 1.) Plaintiff's Brief was originally due on December 31, 2018. (ECF No. 14 at 1.) However, the court granted Plaintiff's counsel (“Counsel”) three (3) extensions of that deadline on December 26, 2018, January 30, 2019, and March 8, 2019, respectively, making Plaintiff's Brief due on March 15, 2019. (ECF Nos. 15, 18, 21.) In Counsel's third request for an extension, filed on March 7, 2019, she asserted that she had “been dealing with unexpected health- related issues” and asked the court to extend the deadline for filing Plaintiff's Brief to March 15, 2019. (ECF No. 20 at 1.) The next day, March 8, 2019, the Magistrate Judge granted Counsel's request and advised her that “[n]o further extension of th[e] deadline w[ould] be granted barring extraordinary circumstances.” (ECF No. 21.) Counsel did not file Plaintiff's Brief by March 15, 2019.

         On March 27, 2019, the Magistrate Judge entered her Report and Recommendation, recommending dismissal of Plaintiff's Complaint because

[a]t this point, [Counsel] has been granted three [(3)] extensions, and Plaintiff has twice allowed the deadlines to pass without filing her brief. In this [c]ourt's last Order granting an extension, the [c]ourt clearly stated that no further extensions would be granted absent extraordinary circumstances. Still, [Counsel] failed to file her brief by that deadline and then failed to file her brief even after the Clerk sent her an e-mail alerting her that she had again missed the deadline. Because Plaintiff has already ignored [c]ourt Orders and deadlines, sanctions less drastic than dismissal would not be effective.

(ECF No. 24 at 3.)

         On April 11, 2019, Counsel filed Plaintiff's Brief (ECF No. 26), a Motion “mov[ing] th[e] [c]ourt for leave to file Plaintiff's Brief, which was due March 15, 2019[, out of time]” (ECF No. 27 at 1), and objections to the Magistrate Judge's Report and Recommendation (ECF No. 28). In Counsel's Motion for Leave to File Out of Time, she asserted that she “ha[d] been recovering from an illness and related health issues and required additional time to complete her briefing” and “request[ed] additional time up to and including April 11, 2019[, ] . . . to file Plaintiff's [B]rief with the [c]ourt.” (ECF No. 27 at 1.) Counsel consulted with the Commissioner about filing out of time, and the Commissioner indicated she would not file an objection to the Motion. (Id.) On April 19, 2019, the court denied Counsel's Motion for Leave to File Out of Time. (ECF No. 29 at 1.) The court found that although severe illness may constitute excusable neglect under Rule 6 of the Federal Rules of Civil Procedure, because Counsel did not submit any evidence of her illness or its severity, Counsel failed to show excusable neglect justifying an extension of time. (Id. at 2- 3.)

         On May 3, 2019, Counsel filed a Motion for Reconsideration of the court's Order denying her Motion for Leave to File Out of Time under Rule 54 of the Federal Rules of Civil Procedure. (ECF No. 34 at 1.) Plaintiff argues “reconsideration [of the court's Order] is appropriate on account of the new evidence submitted . . . as well as to prevent manifest injustice to Plaintiff.” (Id. at 2.) Counsel agrees that the court “is correct that [she] did not provide any information about her illness nor [did she] provide any evidence to justify an extension of time.” (Id. at 3.) Counsel further agrees that “the court is also correct that, without such information, it [wa]s impossible for the [c]ourt to find that the failure to timely file Plaintiff's memorandum was the result of excusable neglect.” (Id.)

         However, with her Motion for Reconsideration, Plaintiff has submitted an affidavit detailing her illness. (ECF No. 35.) In her affidavit, Counsel explains that in 2009 she was diagnosed with a rare bleeding disorder and has been under the regular care of a hematologist/oncologist since that time. (Id. at 1 ¶ 2.) Counsel states that her bleeding disorder “is considered chronic and refractory to treatment.” (Id. at 1-2 ¶ 3.) During February and March 2019, Counsel avers she suffered a hypertensive crisis and Stage II hypertension and had been experiencing “severe headaches, dizziness, lightheadedness, shortness of breath, and occasional confusion.” (Id. at 2-3 ¶¶ 5-8.) She was seen for tests and other treatment and was instructed to rest and reduce her workload. (Id. at 3 ¶¶ 8-9.) Counsel's “extremely elevated blood pressure combined with her refractory bleeding disorder puts her at a very high risk of stroke, hemorrhage, or [a] potentially fatal aneurism.” (Id. at 3 ¶ 9.) Counsel states that her “symptoms have improved somewhat over the last eight [(8)] weeks[, ] as counsel's blood pressure readings have begun to go down, ” but

[a]s a result of the health issues outlined above, [C]ounsel has worked a reduced schedule for the past two months as instructed by her physicians. The symptoms of her hypertensive crisis and side effects of medication prescribed to treat her condition significantly impaired her ability to practice at a full capacity. Counsel has attempted to address this problem by working with opposing counsel and the court to obtain continuances and extensions where necessary until such time as [C]ounsel's health has improved and she is no longer at such a severe risk for stroke or other traumatic bleeding event. Counsel has hired additional attorneys to assume some of her workload until such time as she can return to full practice. . . . As a result of her health condition and medications, [C]ounsel was unable to timely file Plaintiff's brief in the above-captioned case.

(Id. at 4 ¶¶ 12-13.)

         On May 10, 2019, the Commissioner filed a Response to Plaintiff's Motion to Reconsider. (ECF No. 36.) The Commissioner asserts that “[Counsel] has been given several opportunities to timely file her brief and the [c]ourt did not abuse its discretion in dismissing her case. With respect to [Counsel]'s latest filing under seal, the [Commissioner] is not in a position to respond and defers to the sound discretion of the [c]ourt.” (Id. at 1.)


         Under Rule 54(b) of the Federal Rules of Civil Procedure, the court may revise an order “that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” The United States Court of Appeals for the Fourth Circuit has determined that motions for reconsideration under Rule 54(b) are “not subject to the strict standards applicable to motions for reconsideration of a final judgment. This is because a district court retains the power to reconsider its ...

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