Summary
finding no excusable neglect where attorney repeatedly lied to client about case and failed to oppose motions
Summary of this case from Silver v. DalessandroOpinion
01 Civ. 9288 (CBM)
October 29, 2003
Felix Alvarado, New York, NY, for Plaintiff
Andrew S. Fisher, Judith Held, Fisher Fisher, New York, NY, for Defendant Manhattan Worker Career Center
Adrienne B. Koch, Esanu Katsky Korins Siger, New York, NY, for Defendant Career Blazers Learning Center, Inc
MEMORANDUM OPINION
INTRODUCTION
The history of this case is set out completely in previous opinions issued by this court and does not need to be recounted in full. To summarize, on September 9, 2002, defendants moved pursuant to Fed.R.Civ.P. Rule 37 to dismiss plaintiff's case or to direct the parties that as a condition to proceeding with the case, plaintiff must pay defendants' costs and attorneys' fees associated with an extended discovery dispute. At a hearing on October 8, 2002, the defendants asserted their Rule 37 arguments and presented detailed and documented allegations of misconduct on the part of plaintiff and/or his attorney, Michael R. Dressier. Based on this evidence, the court precluded the plaintiff from relying on certain evidence and granted defendants' request for leave to move for summary judgment.
On November 13, 2002, the day on which plaintiff's reply to defendants' summary judgment motion was due, Mr. Bressler wrote to the court to request an extension. The court denied this eleventh-hour request, observing: "In light of the court's knowledge of the irresponsible dilatory tactics employed by plaintiff's counsel in this case, the court sees no reason to allow for an extension." See Order, November 13, 2002. On December 9, 2002, the court issued a Memorandum Opinion and Order granting defendants' motion for summary judgment and granting defendants' motion for costs and fees associated with the discovery dispute. See Alvarado v. Manhattan Worker Career Center, et. al., 2002 WL 31760208 (S.D.N.Y Dec. 9, 2002).
Thereafter, defendants Manhattan Worker Career Center ("WCC") and Career Blazers Learning Center ("CLBC") submitted affidavits accompanied by time and billing details, setting forth fees and costs which they believed plaintiff should pay in connection with the discovery dispute. Characteristic of his behavior throughout the course of this case, plaintiff's attorney failed to respond to defendants' submissions. On January 27, 2003, the court issued an opinion addressing the reasonableness of defendants' requested fee and costs awards. See Alvarado, 2003 WL 194203 (S.D.N.Y. Jan. 28, 2003). After examining its affidavit and time and billing diaries, the court awarded WCC fees and costs of $7,360.00 against plaintiff Felix Alvarado and his attorney Michael R. Bressler. The court made explicit reference to Mr. Bressler's responsibility for the misconduct, noting: "In light of Mr. Bressler's individual participation in the misconduct addressed in the December 9[, 2002] Opinion, this sanction shall be imposed jointly and severally on plaintiff and Mr. Bressler." Id. at *3 (citing New Pacific Overseas Group (U.S.A.) Inc. v. Excal Int'l Development Corp., 2000 WL 377513 at *10 (S.D.N.Y. April 12, 2000); Mackler Productions, Inc. v. Cohen, 146 F.3d 126 (2d Cir. 1998). In an opinion dated April 1, 2003, the court awarded attorneys fees and costs (in a significantly higher amount, due to the attorney's high billing rate) to CBLC against plaintiff Felix Alvarado and his attorney, Michael R. Bressler. See Alvarado, 2003 WL 1741183 at *4 (S.D.N.Y. April 1, 2003). Again, the court noted: "In light of Mr. Bressler's individual participation in the misconduct addressed in the December 9, 2002 Opinion, this sanction shall be imposed jointly and severally on plaintiff and Mr. Bressler." Id. (citing same).
Plaintiff, who has fired his attorney and is now pro se, moves for relief from judgment under Fed.R.Civ.P. 60(b). Plaintiff claims, inter alia, that Bressler did not inform him of developments in the case; that Bressler did not inform him of the judgment; that Bressler lied and told him that the case was still open and moving toward settlement. For the reasons set forth below, plaintiff's motion is DENIED.
ANALYSIS
Under Rule 60(b), a court may exercise its discretion to relieve a party from a final judgment for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief from the operation of the judgment.See Fed.R.Civ.P. 60(b); Broadway v. City of New York, 2003 WL 21209635 at *2 (S.D.N.Y. May 21, 2003).
When considering a motion pursuant to Rule 60(b), the court must "strike a balance between serving the ends of justice and preserving the finality of judgments." Baker v. Nemaizer. 793 F.2d 58, 61 (2d Cir. 1986). "A motion for relief from judgment is generally not favored and is properly granted only upon a showing of exceptional circumstances." United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). "Generally courts require that the evidence in support of the motion to vacate a fnal judgement [under Rule 60(b)] be `highly convincing' . . ."Gwynn v. Deleo, WL 125185, at *4 (S.D.N.Y. July 3, 1991)(quoting Kotlicky v. U.S. Fidelity Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987). While a court will read a pro se litigant's papers liberally and interpret them to raise the strongest arguments they suggest, Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), a pro se litigant is not excused from the requirement of producing highly convincing evidence to support a Rule 60(b) motion.Dais v. Lane Bryant, Inc., No. 97 Civ. 2011, 2002 WL 417242, at *2 (S.D.N.Y. Mar. 15, 2002) (internal citations and quotation marks omitted).
Here, subsections (1) and (6) apply to plaintiff's claim that his attorney lied to him about his case and failed to oppose defendants' summary judgment motion or their submissions regarding attorney's fees.See SEC v. McNulty, 137 F.3d 732 (2d Cir. 1998) (failure of defense attorney to respond to the complaint properly reviewed under Rule 60(b)(1) and (b)(6)); Cobos v. Adelphi University, 179 F.R.D. 381 (E.D.N.Y. 1998) (Rule 60(b)(1) and (b)(6) are the relevant provisions for analyzing a party's claim for relief from judgment based on counsel's mismanagement of the case).
A. Plaintiff is not entitled to relief under Rule 60(b)(1)
In order for a court to grant relief from a final judgment under Rule 60(b)(1), the court must first determine whether the order from which relief is sought resulted from "excusable neglect." Fed.R.Civ.P. 60(b)(1); Pioneer Inv. Servs., Inc. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 381, 113 S.Ct. 1489 (1993). In the Second Circuit, gross negligence is not an excusable form of neglect.Cobos v. Adelphi University, 179 F.R.D. at 387. As such, an attorney's mistake or omission based on ignorance of the law, failure to follow rules and deadlines, inability to handle caseload and complete and total disregard for client rights or professional ethics are not bases for relieving a party from a final judgment. See Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997);Dominguez v. United States, 583 F.2d 615, 616 (2d Cir. 1978) (per curiam); Nemaizer, 793 F.2d at 62; United States v. Cirami, 535 F.2d 736, 741 (2d Cir. 1976) ("Cirami I"); Cobos v. Adelphi University, 179 F.R.D. 381 (E.D.N.Y. 1998). The reason behind this seemingly harsh rule is that generally, "the conduct of an attorney is imputed to his client, for allowing a party to evade the consequences of the acts or omissions of his freely selected agent would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent."Aalmuhammed v. Kesten, 2003 WL 118512 (S.D.N.Y. Jan. 14, 2003) (citing cases). See also SEC v. McNulty, 137 F.3d at 739,citing Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962).
Plaintiff's claim essentially boils down to one of gross negligence and malfeasance on the part of his attorney. Because these errors and omissions, while no doubt objectionable, are inexcusable error under the Rule, the court cannot grant him relief from judgment under Rule 60(b)(1). B. Plaintiff is not entitled to relief under Rule 60(b)(6)
Although Rule 60(b)(6) "represents a grand reservoir of equitable power that should be liberally applied," United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977), in order for a court to grant relief from a final judgment under this provision, the movant must show that there are extraordinary circumstances justifying relief, the judgment works an extreme hardship, and the asserted grounds for relief are not recognized in subsections (1)-(5) of the Rule.Nemaizer, 793 F.2d at 63. See also Pioneer, 507 U.S. at 392, 113 S.Ct. 1489; Teamsters, 247 F.3d at 391-92.
As with claims falling under Rule 60(b)(1), gross negligence is not a basis for relief under Rule 60(b)(6). United States v. Cirami, 563 F.2d 26, 30 (2d Cir. 1977) ("Cirami II"); Nemaizer, 793 F.2d at 63 (citing cases). In rare instances, however, a court will grant relief under Rule 60(b) if the movant can make a particularized showing that his or her attorney's conduct stemmed from exceptional circumstances. See Dominguez, 583 F.2d at 617; Cirami II, 563 F.2d at 35; Olszewski v. Bloomberg L.P., 2000 WL 977850 (S.D.N.Y. July 14, 2000). Exceptional circumstances include, for example, an attorney's psychological disorder that rendered him constructively absent throughout the course of the action. Cirami II, 563 F.2d 26. Once the movant shows exceptional circumstances, the movant must provide further evidence demonstrating his or her own diligent efforts to induce the attorney to "fulfill his duty."Dominguez, 583 F.2d at 618.
Applying all of these factors, relief under this provision was appropriate where the movants faced a quarter of a million dollar judgment after their attorney failed to respond to a summary judgment motion, they made a strong showing of having a meritorious claim, their attorney disappeared due to mental illness, and they produced evidence demonstrating they diligently induced their lawyer to fulfill his duty.Cirami II.
Here, by sharp contrast, although plaintiff's application to appear in forma pauperis and the size of the attorney's fees suggests that the judgment works extreme hardship, plaintiff has not presented any evidence that his attorney's shortcomings were the result of exceptional circumstances. Because such a showing is a prerequisite to relief under Rule 60(b)(6), the court cannot relieve plaintiff from its earlier judgments under section (b)(6) absent such a showing.
C. Plaintiff is not entitled to relief from judgment because he cannot show he has a meritorious claim.
"Even where the movants show that their motion to reopen is encompassed by the grounds enumerated in Rule 60(b), they must still show that they possess a meritorious claim before they can prevail." Cobos, 179 F.R.D. at 389, citing Cirami II, 563 F.2d at 29;Babigian v. Association of the Bar of the Cit of New York, 144 F.R.D. 30, 33 (S.D.N.Y 1992) (citing Lepowski v. United States Dep't of Treasury, 804 F.2d 1310, 1314 (D.C. Cir. 1986)).
Plaintiff sued the defendants for race and gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e); 42 U.S.C. § 1981, the New York State Human Rights Laws; and the New York City Human Rights Laws. The court granted summary judgment to defendants on the Title VII claim because a) it is unclear whether the defendant against whom the claim was asserted is subject to Title VU and b) even if it is, the record was bereft of any evidence suggesting plaintiff could make out a prima facie case of discrimination under the statute. The court dismissed plaintiff's New York State and City claims because plaintiff already filed a discrimination charge with the New York State Division of Human Rights (NYSDHR), thereby precluding his claims before the court. Similarly, the court dismissed plaintiff's Section 1981 claim because this court should give NYSDHR's finding of "no probable cause" preclusive effect. Given that the court decided plaintiff's claims are precluded as opposed to merely inadequate as a matter of law, even if the court were to grant relief from this decision and allow plaintiff to reopen his case, plaintiff would fare no better in a second action. Because his claims are not meritorious, the court cannot relieve him from judgment under Rule 60(b).
CONCLUSION
While the plaintiff's portrayal of his lawyer's representation, if true, maybe grounds for plaintiff to report his lawyer to an ethics committee or bring a separate civil action against him, because he cannot show that his lawyer's malfeasance, lies, and errors stemmed from extraordinary circumstances or that his underlying claim is meritorious, this court cannot grant him relief from judgment under Fed.R.Civ.P. 60(b). Plaintiff's motion is DENIED.
SO ORDERED.