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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Erica G. v Taylor Taxi, Inc. (9/25/2015) sp-7053

Erica G. v Taylor Taxi, Inc. (9/25/2015) sp-7053

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



ERICA G.,                                             )  

                                                      )        Supreme Court No. S-15634  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-13-08668 CI  

         v.                                           )  

                                                      )        O P I N I O N  

TAYLOR TAXI, INC., THE                                )  

TAYLOR REVOCABLE TRUST,                               )        No. 7053 - September 25, 2015  

and L & J CABS, INC.,                                 )  


                           Appellees.                 )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, Frank A. Pfiffner, Judge.  

                  Appearances:            Kevin     G.    Brady,      Brady      Law      Office,  

                  Anchorage,  for  Appellant.    James  T.  Brennan,  Hedland,  

                  Brennan and Heideman, Anchorage, for Appellees.  

                  Before:  Stowers, Chief Justice, Fabe, Winfree, Maassen, and  


                  Bolger, Justices.  

                  FABE, Justice.  


                  In a negligence suit, the defendants moved for summary judgment.  The  


plaintiff did not oppose the motion or otherwise respond by the required response date.  


On the same day that the superior court granted the defendant's unopposed motion for  

summary judgment, the plaintiff filed an untimely motion for an extension of time to file  


----------------------- Page 2-----------------------

her opposition.  The superior court denied the plaintiff's late-filed motion to extend the  


time to oppose summary judgment, as well as a subsequent motion for reconsideration  


or relief from judgment.  We affirm the superior court because although the plaintiff's  

attorneys have provided a long and   shifting catalog of circumstances to justify their  

failure to timely seek an extension, all lack a nexus to the late filing.  The plaintiff's  


attorneys have thus never demonstrated that their failure to timely request an extension  

of time was caused by excusable neglect.  



                   In September 2013 Erica G. filed a complaint for damages against Taylor  


Taxi, Inc., The Taylor Revocable Trust, and L & J Cabs, Inc. (collectively, Taylor Taxi).  


The complaint alleged that "a licensed taxi driver operating under a permit issued to  


Taylor Taxi" had sexually assaulted Erica in "a desolate area of Ship Creek Road."  The  

complaint's sole cause of action alleged that Taylor Taxi was negligent "by failing to  


conduct an adequate background check  of [the driver], failing to properly train [the  

driver] and failing to properly supervise [the driver]."  

                   Taylor Taxi's answer denied the negligence allegation and asserted four  

affirmative  defenses:    failure  to  state  a  claim,  failure  to  bring  an  action  against  an  

indispensable   party,   Taylor   Taxi's   entitlement   to   rely   on   the   Municipality   of  

Anchorage's licensure process and background check of the driver, and the independent  


contractor status of the driver.  Taylor Taxi also filed a third-party complaint against the  



                   On February 7, 2014, Taylor Taxi moved for summary judgment.  It argued  

that the driver was an independent contractor who leased a vehicle and permit from  

Taylor Taxi but who was not under the supervision of any of the defendants.  Taylor  

Taxi pointed to language in the lease agreement with the driver that provided that he was  


"an independent contractor free from [Taylor Taxi's] interference or control."  Taylor  

                                                            -2-                                                      7053

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Taxi also argued that it was not responsible for conducting a background check on the       

driver or training him because he was licensed by the Municipality of Anchorage, and  

the Municipality's licensing process included a background check.  Taylor Taxi argued  


that   the   same   defense   applied   to   the   claim   of   negligent   training   because   the  

Municipality's  requirement  that  chauffeurs  complete  a  driving  safety  course  made  


training "a municipal function, not a function or duty of the lessor of a taxicab vehicle  

and permit."  

                    Under Alaska Rule of Civil Procedure 77(c)(2)(ii), Erica's opposition to  


Taylor Taxi's motion for summary judgment was due "15 days from the date of service."  


Erica's attorneys were served on February 10, and with three days allotted for mailing,  


the parties agree that Erica's opposition was due February 28.  This date came and went  

without any action by Erica or her attorneys.  


                     On March 4 Superior Court Judge Frank A. Pfiffner granted Taylor Taxi's  


motion for summary judgment.  The superior court's order was based on "the pleadings,  

affidavits and exhibits filed . . . and no opposition having been filed."  


                     The same day, Kevin Brady, one of Erica's attorneys, filed a motion for an  


extension of time to file an opposition to Taylor Taxi's motion for summary judgment.  

The motion was supported by an affidavit from Kevin Brady that stated that Erica was  


then "8 months pregnant and ha[d] two unrelated pending [criminal] matters," and that  



"[o]n February 27, 2014, [Kevin Brady] was called up for a  [criminal] trial." 

          1          Later affidavits from both Kevin Brady and Taylor Taxi's attorney clarified  

that although this criminal case had a status conference on February 27 the trial did not  

begin until March 4.  

                                                                -3-                                                          7053

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affidavit also incorrectly claimed that the response had been due on March 3, rather than  


February 28.2  


                    On March 10 Taylor Taxi opposed Erica's motion for an extension of time,  


arguing that she had not demonstrated the required "excusable neglect" that would allow  


for an extension of time after the expiration of time for a response under Alaska Rule of  

Civil Procedure 6(b)(2).  This opposition was supported by an affidavit of Taylor Taxi's  


attorney that described "unusual difficulties in contacting opposing counsel in this case,"  

including for purposes of scheduling a trial date and to exchange initial disclosures.  

                    On March 25 the superior court denied Erica's motion for an extension of  


time.  The superior court noted that the motion was untimely, as it followed the entry of  


the grant of summary judgment, and that "no excusable neglect has been shown for filing  


the motion for extension [of] time after the expiration of time for filing an opposition to  


the motion for summary judgment."  The superior court thus entered final judgment for  

Taylor Taxi, dismissing Erica's complaint with prejudice and awarding Taylor Taxi costs  

and attorney fees.  


                    On April 1 Erica filed a motion for reconsideration. The motion argued that  


the     superior       court      had      "overlooked          material        facts     under       Alaska       R.     Civ.  


Proc. 77(k)[(1)](ii)" and thus lacked "a complete understanding of the facts surrounding  

this office's tardy motion for an extension of time."  

                    The  motion  was  supported  by  affidavits  from  Erica's  attorneys,  Kevin  


                                            KeriAnn Brady's affidavit described Erica's difficulties  

Brady and KeriAnn Brady. 

          2         Even if March 3 had been the deadline for opposing Taylor Taxi's motion  

for summary judgment, Erica's attorneys failed to file a motion seeking an extension by  


that date.  

          3         Although KeriAnn Brady stated in her affidavit that she was not handling  


                                                              -4-                                                        7053

----------------------- Page 5-----------------------

with post-traumatic stress disorder following the alleged assault as well as Erica's grief  


after her 11-year-old son died in a car accident in September 2013.  KeriAnn Brady's  

affidavit  also  described  the  difficulty  her  office  had  experienced  in  attempts  to  


communicate with Erica, including periods during which Erica "literally vanished" and  


could not be reached, the latest of which had only ended on March 3 or 4, 2014, after the  

opposition to the defendant's motion for summary judgment was due.  

                    Kevin Brady's second affidavit recounted an office move that had "caused  


some disarray with respect to . . . mail service," as well as part of the procedural history  


of the case.  His affidavit also asserted that Erica's sexual assault had occurred "at the  


defendant L&J Cabs, Inc.'s yard" and referenced a Google Earth picture of the yard from  


which "any gates limiting or precluding access" were "[n]otably absent."  The affidavit  


explained that whether there were any other security procedures in place was unknown,  


as was "the volume of similar incidents of crimes against persons . . . taking place at the  

defendants'  [yard]."    The  affidavit  argued  that  "[t]hese  matters  require  additional  

discovery, and likely preclude any grant of summary judgment."  Kevin Brady's affidavit  

went on to discuss his two-attorney office's caseload, which included "two trials between  

March 4 and March 17, 2014," as well as "90 separate court hearings [during the same  


period] spread across a case load in excess of 119 active cases" occurring all over the  


state.  It also explained that "it ha[d] been the experience of this office that the courts  


tend to show flexibility with respect to pleading deadlines in the criminal, juvenile, and  

CINA arenas."  Finally, Kevin Brady described learning of the defendants' motion for  

summary judgment on February 18, noted that he did not "recall making a calendar entry  


Erica's case, Erica's complaint was on "Law Office of KeriAnn Brady" pleading paper  


and was signed by KeriAnn Brady.   

                                                             -5-                                                        7053

----------------------- Page 6-----------------------

 for the response date" to that motion, and explained that he filed the motion for extension         

of time as soon as he realized he had missed the response date.  


                         On April 9 Taylor Taxi notified the superior court that although Alaska  


Civil Rule  77(k)(3) did not permit a response to a Rule 77(k) motion for reconsideration,  


in its view the fact that Erica sought relief from a final judgment meant that her motion  


was more properly understood as a motion under Alaska Civil Rule 60(b).  The superior  

court  agreed  and  on  April  25  issued  an  order  explaining  that  it  would  treat  Erica's  


April 1 motion "as a Civil Rule 60(b)(1) motion for relief from judgment," to which  

Taylor Taxi was entitled to respond, with Erica entitled to reply.  

                         Taylor  Taxi's  response  argued  that  Erica  appeared  to  be  identifying  


"excusable neglect by herself or her attorney, under Rule 60(b)(1)," as the basis for  


relief, and that she had not carried her burden of establishing such excusable neglect  


because "no nexus was established between plaintiff's personal circumstances and her  


counsel's inability to timely file an opposition to summary judgment or seek an extension  


of time therefor."  Similarly, Taylor Taxi argued that none of the explanations in Kevin  

Brady's affidavit that related to the office move, his caseload, and the expectation of  


 flexible deadlines amounted to excusable neglect.  Finally, Taylor Taxi argued that Erica  

could not meet the "precondition of relief from a judgment" that she demonstrate a  

meritorious  claim.    It  pointed  out  that  Erica  had  not  yet  attempted  to  address  its  


affirmative defenses and that this provided a separate basis to deny relief from the final  

judgment.  Erica did not reply.  

                         On  May  20  the  superior  court  denied  Erica's  motion  for  relief  from  

judgment "for the reasons set forth in defendants' opposition."  Erica appeals.  

                                                                            -6-                                                                      7053

----------------------- Page 7-----------------------



                    We apply the abuse of discretion standard when reviewing superior courts'  


rulings on motions for extension of time.   We also "review for abuse of discretion an  


order denying a Rule 60(b) motion."   "We will find an abuse of discretion when the  

decision on review is manifestly unreasonable."6  


          A.	       Late Motions To Enlarge The Time To Oppose Summary Judgment  

                    Must  Demonstrate  That  "The  Failure  To  Act  Was  The  Result  Of  


                    Excusable Neglect."  

                    Alaska Rule of Civil Procedure 6(b) provides that "[w]hen . . .  an act is  


required . . . to be done at or within a specified time, the court for cause shown may at  


any time in its discretion . . . upon motion made after the expiration of the specified  


period permit the act to be done where the failure to act was the result of excusable  


neglect . . . ."  This rule governs Erica's failure to oppose summary judgment or request  


an  extension  of  time  to  file  her  opposition  until  after  that  opposition  was  due.    To  


succeed in her appeal Erica must demonstrate that the failure "was the result of excusable  


          4         See, e.g., ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc.,  

322  P.3d  114,  134  (Alaska  2014)  ("We  affirm  the  superior  court's  order  granting  

Williams's motion to enlarge time to file a motion for attorney's fees.  The superior court  


certainly did not abuse its discretion in this case.").  

          5         Young v. Kelly, 334 P.3d 153, 157 (Alaska 2014).  



                    Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc. , __ P.3d __, Op.  

No. 7003, 2015 WL 1958657, at *3 (Alaska May 1, 2015).  

                                                              -7-	                                                       7053

----------------------- Page 8-----------------------




neglect"       and  that  the  superior  court's  refusal  to  enlarge  the  time  to  oppose  was  

"manifestly unreasonable."8  


                    We have never precisely defined excusable neglect,   and the definitions  


                                                                                 Perhaps the most consistent with  

provided by other authorities cover a wide spectrum. 


                                                                                                                       is the  

our established holding that "[t]he law favors deciding cases on their merits" 

Second Circuit's understanding of excusable neglect as "a somewhat elastic concept"  

that "may encompass delays caused by inadvertence, mistake, or carelessness, at least  


when the delay was not long, there is no bad faith, there is no prejudice to the opposing  


party, and movant's excuse has some merit."                             We, like other courts, have been clear  

          7         Alaska R. Civ. P. 6(b)(2).  

          8         Ranes & Shine, LLC , 2015 WL 1958657, at *3.  

          9         See  Dickerson  v.  Williams,  956  P.2d  458,  465  &  n.15  (Alaska  1998)  

(noting,  in the Rule 60(b) context, that neither we nor the federal courts have articulated  

an express test of "excusable neglect").  

          10        Compare Excusable Neglect, BLACK 'S LAW DICTIONARY (10th ed. 2014)  

("A failure - which the law will  excuse - to take some proper step at the proper time  

(esp. in neglecting to answer a lawsuit) not because of the party's own carelessness,  

inattention, or willful disregard of the court's process, but because of some unexpected  


or unavoidable hindrance or accident or because of reliance on the care and vigilance of  


the party's counsel or  on  a promise made by the adverse party." (emphasis added)),  


with  LoSacco  v.  City  of  Middletown ,  71  F.3d  88,  93  (2d  Cir.  1995)  ("Excusable  


neglect . . . may encompass delays caused by inadvertence, mistake, or carelessness, at  


least when  the delay was not long, there is no bad faith, there is no prejudice to the  


opposing party, and movant's excuse has some merit." (emphasis added) (citations and  


internal quotation marks omitted)).  

          11        Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1029  


(Alaska 2009) (quoting Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1298 (Alaska 1985)).  



                    LoSacco , 71 F.3d at 93 (emphasis added) (citations and internal quotation  


                                                              -8-                                                        7053

----------------------- Page 9-----------------------


that to seek relief on this basis "a party must show both neglect and a valid excuse for  


                         Furthermore, there must be a causal link between the excusable neglect  

that neglect."                                                                          

and the party's failure to timely act; the failure must be "the result of" the excusable  


neglect.      The  litany  of  explanations  contained  in  the  three  affidavits  from  Erica's  


attorneys all failed to satisfy this latter requirement:  They established no causal link to  

the failure to timely request an extension to oppose Taylor Taxi's motion for summary  



                     As   described   above,  the   three   affidavits   contained   a   collection   of  


unsatisfactory explanations.  In her briefing to this court, Erica relies on four of these  


reasons. The first reason, Erica's challenging personal circumstances and unavailability,  

was  discussed  in  all  three  of  the  affidavits.    The  second  reason,  Kevin  Brady's  


responsibility for a criminal trial, was referenced in both of his affidavits, although they  


contained seemingly inconsistent information about when that trial began. The third and  


fourth reasons, a mail-forwarding disruption following the attorneys' office relocation  

and the attorneys' busy caseload, stem from assertions in Kevin Brady's second affidavit.  


That same affidavit also added another two explanations to the list: that it had been  

Kevin Brady's "experience . . . that the courts tend to show flexibility with respect to  


pleading deadlines in the criminal, juvenile, and CINA arenas," and that although Kevin  


Brady had learned of Taylor Taxi's motion for summary judgment on February 18 he  


marks omitted).  

           13        Coppe v. Bleicher,  No. S-13631, 2011 WL 832807, at *5 (Alaska Mar. 9,   

2011) (citing Dickerson , 956 P.2d at 465).  

           14        Alaska R. Civ. P. 6(b)(2) (emphasis added).  

                                                                 -9-                                                          7053

----------------------- Page 10-----------------------

"d[id] not recall making a calendar entry for the response date" and had never "seen a  


calendar entry in [their] system for that due date."  


                    These reasons have no nexus to the failure to timely seek an extension of  


time to oppose summary judgment.  The affidavits failed even to assert a link between  

Erica's absence, the March 4 criminal trial, the mail disruption, or the attorneys' caseload  


and the missed deadline for opposition or a motion seeking more time to respond.  We  


note particularly that the failure to assert a causal link between the mail-forwarding issue  


and the failure to seek an extension may be explained by Taylor Taxi's uncontradicted  

contention that it mailed all pleadings directly to the new office address.  


                    The myriad explanations undercut even those that most closely resemble  


excusable neglect.  Kevin Brady's final affidavit implies both that the missed deadline  


was the result of a conscious, but flawed, expectation that "the courts tend to show  


flexibility with respect to pleading deadlines" and that the missed deadline was instead  

the result of a clerical calendaring error.  Maintaining both positions simultaneously, as  


well as the inconsistent assertions in the affidavits that attribute the missed deadline to  


issues such as Erica's absence or problems with mail forwarding, calls into question the  


ability of any of the explanations to meet Rule 6(b)(2)'s requirement that "the failure to  


act [be] the result of excusable neglect."  The superior court therefore did not abuse its  

discretion when it denied Erica's late-filed motion for an enlargement of time.15  

          B.	       The "Excusable Neglect" Standard Also Applies To Erica's Motion  

                    For Relief From Final Judgment.  

                    Alaska  Rule  of  Civil  Procedure  60(b)(1)  provides  that  "the  court  may  

relieve  a  party  .  .  .  from  a  final  judgment,  order,  or  proceeding  for[,  among  other  


          15        This is not to say that any of these reasons, if presented in a manner that  

explained how the circumstances had caused the failure to act, could not form the basis  


for excusable neglect in another case.  

                                                              -10-	                                                       7053

----------------------- Page 11-----------------------

reasons,]  mistake,  inadvertence,  surprise  or  excusable  neglect."    This  rule  governs  



Erica's April 1 motion.                To succeed in her appeal Erica must demonstrate the existence  

of "mistake, inadvertence, surprise or excusable neglect"17 and demonstrate that the  


superior  court's  refusal  to  relieve  her  from  the  final  judgment  was  "manifestly  




                    For the same reasons that the superior court was within its discretion to  

conclude that the explanations provided in Erica's attorneys' affidavits either had not  


caused the failure to timely request an enlargement of time to oppose summary judgment  


or were not valid excuses, it was also within its discretion to conclude that they had not  

demonstrated that the same allegations of excusable neglect provided a basis for relief  

from final judgment.  


                    Erica argues on appeal that "[t]he superior court appears to have based its  


May 28, 2014 order [denying reconsideration or relief from judgment] strictly upon  


deadlines  in  procedural  rules,"  rather  than  "look[ing]  at  the  case  in  its  entirety"  to  

determine whether the "outcome is just."  But the superior court's order denied Erica's  


motion  "for  the  reasons  set  forth  in  defendants'  opposition,"  which  included  both  

substantive  and  procedural  arguments.    And  although  the  superior  court's  rulings  

resulted in summary judgment being entered against Erica on her negligence claim, she  

          16        Although Erica styled this motion as a motion for reconsideration under     

Civil Rule 77(k)(1)(ii), the superior court recharacterized it as a motion for relief from                          

judgment under Civil Rule 60(b)(1) because it was filed after final judgment had been  

entered against Erica.  Erica does not appeal this recharacterization.  

          17        Alaska R. Civ. P. 60(b)(1).  



                    Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc. , __ P.3d __, Op.  


No.  7003, 2015 WL 1958657, at *3 (Alaska May 1, 2015); see also Young v. Kelly, 334  


P.3d 153, 157 (Alaska 2014) ("We review for abuse of discretion an order denying a  

Rule 60(b) motion.").  

                                                               -11-                                                        7053

----------------------- Page 12-----------------------

has not carried her burden19 of demonstrating that here "the failure to provide relief  


would  result  in  an  injustice."              Indeed,  she  has  never  attempted  to  address  the  

substantive legal grounds on which Taylor Taxi sought summary judgment in the first  

place.  On the facts of this case we cannot conclude that the superior court abused its  



                  The superior court's judgment is AFFIRMED.  

         19       See Sandoval v. Sandoval, 915 P.2d 1222, 1224 (Alaska 1996) ("A party                 

moving for relief from judgment has the burden of proving his entitlement to relief."   

(citing M.D. Markland v. City of Fairbanks , 513 P.2d 658, 660 (Alaska 1973))).  



                  Farrell ex rel. Farrell v. Dome Labs., a Div. of Miles Labs., Inc. , 650 P.2d  

380, 384 (Alaska 1982).  

                                                       -12-                                                   7053

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