Opinion
No. 2:07-CV-7-F.
June 5, 2008
ORDER
This matter is before the court on Plaintiff Lenton C. Brown's "Motion in Response to Court Order" [DE-59].
I. PROCEDURAL HISTORY
This action was initiated on March 15, 2007, and listed "The Estate of Esther Lee Brown" ("the Estate") as the plaintiff, but the Complaint itself was signed by Lenton C. Brown ("Lenton"). On March 20, 2007, the Clerk of Court for the Eastern District of North Carolina wrote Lenton, and informed him that he was not allowed to represent the Estate pursuant to 28 U.S.C. § 1654. The Clerk of Court advised Lenton that if Esther Lee Brown was deceased, then he would need an attorney to represent the Estate. In response to the Clerk's letter, Lenton filed a Motion to Add Plaintiff [DE-15], and specifically requested "to be added as a Plaintiff in [this] case . . . along with The Estate of Esther Lee Brown." Mot. to Add Plaintiff [DE-15].
In an Order filed on April 20, 2007 [DE-27], the court noted that the Fourth Circuit has explained that the personal representative of an estate cannot represent the estate pro se if there are other beneficiaries or creditors involved. The court noted that it was apparent from the attachment to the Complaint that Lenton was appointed as the Administrator of the Estate of Esther Lee Brown. See Compl. [DE-1]. Consequently, the court directed Lenton to file a notice informing the court as to (1) whether he was a beneficiary of the Estate; (2) whether there are other beneficiaries of the Estate, and if so, the identities of the beneficiaries, and (3) whether there were creditors of the Estate. The court also allowed Lenton's motion to add plaintiff in part, and allowed Lenton to assert a claim under 42 U.S.C. § 1983 against the Bertie County Sheriff's Department and Defendants Shelton Askew, Greg Atkins, and Wallace Perry. The court, however, did not direct Lenton to file an Amended Complaint or direct Lenton to serve Defendants with an Amended Complaint. There is no indication in the record that any of the Defendants have been served with a complaint that names Lenton as a plaintiff.
Lenton filed a timely response to the court's April 20, 2007 Order, and indicated that he is a beneficiary of the Estate, as are his brother and sister. Consequently, in a May 2, 2007 Order [DE-46], the court directed Lenton to obtain counsel to represent the Estate of Esther Lee Brown, and to cause the counsel for the Estate to file a Notice of Appearance on or before May 30, 2007. The court explicitly warned Lenton that if a Notice of Appearance of an attorney was not filed by May 30, 2007, the court would enter an order directing him to show cause why the claims of the estate should not be dismissed for failure to appear through an authorized representative.
In an order filed on June 5, 2007 [DE-48], the court observed that the time period for Lenton to obtain counsel to represent the Estate of Esther Lee Brown, and to cause such counsel to file a Notice of Appearance on behalf of the Estate, had passed. Accordingly, the court directed Lenton to show cause, if any there be, within fifteen (15) days of the filing date of the order, why the claims of the Estate of Esther Lee Brown should not be dismissed for failure to appear through an authorized representative. The court explicitly warned that Lenton's failure to respond will result in the dismissal of the claims of the Estate of Esther Lee Brown.
On June 14, 2007, Lenton filed a response to the show cause order indicating that on May 23, 2007, he entered into a contract for legal services with attorney Perry W. Martin. In an order filed on June 18, 2007 [DE-52], the court directed Lenton to cause counsel for the Estate of Esther Lee Brown to file a Notice of Appearance on behalf of the Estate on or before June 29, 2007. The court warned that if aNotice of Appearance of an attorney was not filed by June 29, 2007, the claims of the Estate of Esther Lee Brown would be dismissed. On June 19, 2007, Lenton filed another document, and stated "The statement I filed with the Court dated June 14, 2007, was intended to show the Court some of the reasons why I feel the claims of the Estate of Esther Lee Brown should not be dismissed." Notice [DE-53] at p. 1. Lenton also stated that he "would like to show the Court the following" and in a series of ten numbered paragraphs, he provided the court with various information he thought was relevant to the case. In particular, Lenton informed the court:
1. On May 23, 2007, Lenton Brown did enter into a contract for legal services with Perry W. Martin, Attorney at Law for legal representation in this matter. Some of the information has been blacked out for reasons of attorney/client priviledge[sic].
2. The Law Firm of Perry Martin has now issued Notice of Appearance in this case to the Court and to the Attorney General of the United States.
Notice [DE-53] at p. 1.
On June 12, 2007, Perry W. Martin filed a Notice Appearance, stating that he "gives Notice to the Court and to the United States Attorney of his limited appearance on behalf of Lenton C. Brown in this matter, and adopts the response filed by Lenton C. Brown dated May 31, 2007." Notice of Appearance [DE-54]. Mr. Martin later filed aNotice of Voluntary Dismissal [DE-55] as to Defendants Wallace Perry and Shelley Askew, "on behalf of Lenton C. Brown in this matter." Mr. Martin's signature line described him as "Attorney for Lenton Brown." Notice of Voluntary Dismissal [DE-55].
That response said, almost in its entirety, "The Motion to Dismiss previously filed by some of the Defendants in the above-entitled case is without merit in fact or in law and said Motion should be denied." Response [DE-49].
In an Order filed on March 10, 2008, the court noted the following:
This court, in several orders, explained that Lenton could not represent the Estate of Esther Lee Brown pro se and directed him to cause counsel for the Estate to file a Notice of Appearance on Behalf of the State. The court explicitly warned Lenton that the failure of an attorney to enter a Notice of Appearance on behalf of the Estate would result in the dismissal of the Estate's claims. Although Perry W. Martin did file a Notice of Appearance in the case, the Notice, and his subsequent filings, makes clear that Mr. Martin is representing Lenton, not the Estate. There is no indication that any licensed attorney is representing the Estate.
March 10, 2008 Order [DE-56] at unnumbered p. 4. Consequently, the court dismissed the Estate's claims.
The court also noted that Lenton failed to ever file an Amended Complaint naming himself as a Plaintiff or alleging any claim against any of the Defendants. The court therefore ordered Lenton to show cause, within seven (7) days of the filing date of the order, why the action should not be dismissed for failure to prosecute. Id. at unnumbered pp. 4-5. The Clerk of Court indicates that this Order was served on both counsel and pro se litigants.
On April 9, 2008, the Clerk of Court notified the court that Lenton had failed to respond to the court's March 10, 2008, Order. Consequently, in an Order filed April 10, 2008, the court dismissed Lenton's claims for failure to prosecute. Again, the Clerk of Court indicates that the April 10, 2008, Order was served on both counsel and pro se litigants.
Thereafter, on April 16, 2008, Lenton filed a "Motion in Response to Court Order" [DE-59] on his own behalf. Therein, Lenton asserts that he had "no knowledge of any order filed on March 10, 2008 giving me seven days to show cause why this action should not be dismissed for failure to prosecute." Mot. [DE-59] at p. 1. He contends that the case should be reopened. Two days later, on April 18, 2008, both Lenton, and his attorney Perry W. Martin, sent separate letters to the Clerk of Court, stating that they did not receive the court's March 10, 2008 Order, but did receive the courts April 10, 2008, Order. See Letter from Perry W. Martin [DE-60], Letter from Lenton Brown [DE-61].
Although Perry W. Martin had previously had identified himself as "Attorney for Lenton Brown" and filed a Notice of Appearance on behalf of Lenton, in his April 18, 2008, letter Perry W. Martin refers to Lenton not as a plaintiff in this case, but only as "representative of the Plaintiff." Letter from Perry W. Martin [DE-60].
II. ANALYSIS
In his "Motion in Response to Court Order" [DE-59], Lenton, now apparently proceeding pro se, contends that the case should be reopened because: (1) Perry Martin was the attorney representing the Estate of Esther Lee Brown and he failed to file anything in response to the court's March 10, 2008, Order; (2) Perry Martin had a conflict of interest in that he has represented some of the named defendants in the past, and (3) the court, according to Lenton, failed to mail him a copy of the March 10, 2008, Order, and therefore his right to proceed pro se has been violated.In asking the court to reopen the case, Lenton is essentially asking the court for relief pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The arguments Lenton sets forth implicate both Rule 60(b)(1) and (6). The Rule provides, in pertinent part:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
. . .
(6) or any other reason that justifies relief.
FED. R. CIV. P. 60(b)(1) (6). The Fourth Circuit has explained that "[t]he consideration of Rule 60(b) motions proceeds in two stages." Nat'l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993). First, the moving party must show that he has met each of three threshold conditions: (1) his motion is timely, (2) he has a meritorious defense to the action, and (3) the opposing party would not be unfairly prejudiced by having the judgment sent aside. Id. Only if the moving party makes such a showing, does the court proceed to consider if the party has satisfied one of the grounds for relief in Rule 60(b). Park Corp. v. Lexington Ins. Co., 812 F.2d 894 (4th Cir. 1987).
In this case, the court concludes that Lenton has satisfied the threshold conditions for relief under Rule 60(b). Specifically, the court finds that Lenton's motion, filed six days after the order dismissing his claims, is timely. The court also finds that Lenton may have meritorious reason as to why his individual claims should not be dismissed. Moreover, the court cannot say that the Defendants will be unduly prejudiced by allowing Lenton to show cause why his claims should not be dismissed.
The court also concludes that Lenton has met the requirements of Rule 60(b)(1), in that he contends that Mr. Martin did not file a response to the court's March 10, 2008 Order. At the outset, the court reiterates that Mr. Martin entered Notice of Appearance on behalf of Lenton, and was listed as attorney of record for Lenton. See Notice of Appearance [DE-54] ("Counsel requests that other information relating to this matter mailed by the Court be served upon him.). The docket in this case indicates that the Clerk of Court served copies of the March 10, 2008 Order [DE-56] to all counsel representing parties, and pro se parties, via email to those filing electronically, and via regular mail to all others. See Docket Notes at [DE-56]. The address on record for Lenton was that of his attorney of record, Perry W. Martin. The address on file with the court corresponds to the address featured in the letterhead of Perry W. Martin's April 18, 2008 letter. The Fourth Circuit Court of Appeals has observed that "`[a] letter properly addressed, stamped and mailed is presumed to have been duly delivered to the addressee.'" FDIC v. Schaffer, 731 F.2d 1134, 1137 n. 6 (4th Cir. 1984) (quoting MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE § 343 (1972)). Thus, this court must presume that the Clerk's mailing of the March 10, 2008 Order was duly delivered to Perry W. Martin. The only evidence to the contrary is an unsworn letter from Perry W. Martin, and this court does not perceive this to be sufficient evidence to rebut the presumption that the Order was in fact delivered. Cf. In re Weiss, 111 F.3d 1159, 1172-73 (4th Cir. 1997) (affirming district court's decision to dismiss bankruptcy appeal where appellant did not file a brief within the requisite time period after the clerk of court mailed a notice letter, and specifically concluding that appellant had failed to rebut the presumption that the correctly mailed notice was received).
Having found that the court's March 10, 2008 Order was delivered to Perry Martin, the court concludes that Mr. Martin's failure to file a response thereto justifies relief under Rule 60(b)(1). The Fourth Circuit has counseled that "`when the party is blameless, his attorney's negligence qualifies as a `mistake' or `excusable neglect' under Rule 60(b)(1).'" Heyman v. M.L. Marketing Co., 116 F.3d 91, 94 (4th Cir. 1991) (quoting Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp. 843 F.2d 808, 811 (4th Cir. 1988)). Consequently, Lenton's Motion [DE-59], which this court construes as a motion for relief from judgment under Rule 60(b), is ALLOWED.
The court may only consider reopening the case as to Lenton's claims. As this court already has noted, Lenton may not represent the Estate pro se. Thus, to the extent that Lenton is attempting to reopen the case as to the Estate's claim, the motion is DENIED.
III. CONCLUSION
For the foregoing reasons, Lenton's Motion [DE-59], which this court construes as a motion for relief from judgment under Rule 60(b), is ALLOWED, and the court's April 10, 2008 Order [DE-57] and Judgment [DE-58] are VACATED. Lenton Brown is ORDERED to show cause, within seven (7) days of the filing date of the order, why his claims should not be dismissed for failure to prosecute. To the extent that Lenton Brown is attempting to reopen this case as to the Estate's claims, the motion [DE-59] is DENIED.SO ORDERED.