Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Frank A. Pfiffner, Judge. Superior Court No. 3AN-13-08668 CI.
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.
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 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.
II. FACTS AND PROCEEDINGS
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 driver.
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 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 ...