The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiffs Lanny Gehm, William Gehm, and LR Gehm, LLC brought the instant action against Defendants Cornell University and Quality Milk Production Services asserting claims pursuant to 42 U.S.C. sec. 1983. Presently before the Court is Defendants' motion to dismiss the Complaint in its entirety pursuant to Fed. R. Civ. P. 12.
The Complaint alleges that Defendants promote a product known as CoPulsation that is purported to effectively control mastitis in cows. It is claimed that Defendants have failed to properly represent Plaintiffs' product and disparaged it within the relevant industry (including veterinarians) causing Plaintiffs harm. According to Plaintiffs, Defendants' conduct constitutes the intentional infliction of harm and prima facie tort and has caused damages to Plaintiffs.
Presently before the Court is Defendants' motion to dismiss the Complaint.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ---U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (internal quotations and citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 1949-50 (internal quotations and citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Id. at 1950 (internal citations and quotation omitted).
a. Motion for an Extension of Time
On November 9, 2009, Defendants filed and served the instant motion to dismiss. The motion indicated the proper return date of December 14, 2009. In accordance with the Court's local rules, opposition papers were due on or before November 27, 2009.
See N.D.N.Y.L.R. 7.1(b)(1) (opposition papers are due 17 days before the return date). On November 30, 2009 (three days after opposition papers were due), Plaintiffs requested an adjournment of the motion to January 22, 2010.*fn1 The bases for the request are that: (1) the motion is very complex; (2) Plaintiffs have gathered a number of documents in response to the motion, but have not completed gathering all necessary information; and (3) Plaintiffs' attorney has scheduling conflicts.
Requests for extensions of time are governed by Fed. R. Civ. P. 6(b). Pursuant to Rule 6(b), a court may grant a request for an extension of time made after the time has expired only upon a showing of excusable neglect. To determine whether neglect is excusable, "a district court should take into account: ' [t]he danger of prejudice to the [opposing party],  the length of the delay and its potential impact on judicial proceedings,  the reason for the delay, including whether it was in the reasonable control of the movant, and  whether the movant acted in good faith.'" Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 228 (2d Cir. 2004) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
For the following reasons, the Court finds that Plaintiffs have failed to demonstrate excusable neglect. First, the time when opposition papers were due is clearly set forth by application of Local Rule 7. Second, Plaintiffs knew, or reasonably should have known, of any complexity of the motion when it was filed and served upon them. There is no good reason why Plaintiff waited until after opposition papers were due to assert this as a basis for needing an extension of time. This may have been a valid reason before expiration of the date for filing opposition papers, but not after. Third, because the motion is made pursuant to Rule 12, as a general rule, documentary evidence outside of the pleadings may not be considered by the Court. Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000). Rather, a motion under Rule 12 merely tests the sufficiency of the Complaint based on the allegations therein. Williams v. Perlman, 2009 WL 1652193, at *4 (N.D.N.Y. 2009). Accordingly, the gathering of documents to submit to the Court should not be necessary and not a basis for filing late opposition papers. Fourth, counsel's involvement in other matters is an insufficient ground, particularly when counsel should have been aware of his calendar and other matters he is handling before the date opposition papers were due. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 398 (1993) ("[W]e give little weight to the fact that counsel was experiencing upheaval in his law practice at the time. . . ."); Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250-51 (2d Cir. 1997). Fifth, in a second application for an extension of time, Plaintiffs state that they spent time preparing a responsive affidavit, but were unable to timely complete a memorandum of law. Pursuant to N.D.N.Y.L.R. 7.1(a)(2) and Rule 12, however, no affidavit is required (and arguably not permitted) in connection with a Rule 12(b)(6) motion. Sixth, there is insufficient allegation in Plaintiffs' application suggesting that the failure to timely file papers was the result of neglect; that is, inadvertence, carelessness, or mistake. To the contrary, any delay appears to be the result of an affirmative decision based on the alleged complexity of the motion and the lack of sufficient documentary support. Canfield, 127 F.3d at 250. Nothing about the delay was beyond Plaintiffs' control.
In short, the Court finds that the first and second factors (prejudice to Defendants and length of the delay) weigh in favor of granting an extension, but the third factor does not. The Court has no basis upon which to determine the fourth factor (good faith) and, therefore, finds that it is neutral. The Court further finds that, for the reasons set forth above, the failure to satisfy the third factor outweighs the first and second factors and Plaintiffs have, therefore, failed to demonstrate excusable ...