Under Fed. R. Civ. P. 6(b), a trial court has broad discretion to accept late-filed affidavits where the failure to act was the result of excusable neglect. Absent an affirmative showing of excusable neglect, a trial court does not abuse its discretion in refusing an untimely proffer.
Appellant employees filed an action against appellee employers for alleged asbestos-related illnesses. Appellants participated in diagnostic screenings. After two years of discovery, appellees filed a motion for partial summary judgment accompanied by x-ray examination reports and affidavits of a pulmonary specialist who stated that most of appellants showed no signs of pulmonary disease. Appellants submitted affidavits of their specialists, which referenced x-rays and examination reports, but those items were never submitted. Appellants submitted additional affidavits at the end of the hearing. The district court refused to consider them, characterizing the affidavits as uninvited and untimely and granted appellees' motion for summary judgment. The appellate court affirmed.
Could affidavits submitted by appellants at the end of a hearing be admitted by the court where the movant had the affidavits prior to filing the motion and had not shown excusable neglect?
The record reflected that the late-filed affidavits were prepared long before the summary judgment motion was filed. Appellant employees were not only capable of producing the affidavits in a timely fashion, but had them available at the time the motion was filed. Further, appellants made no showing of excusable neglect in filing untimely affidavits. Therefore, the district court did not abuse its discretion in refusing the untimely proffer.