Opinion
NO. 1:03-CV-00018-DFH-WTL
June 1, 2004
ENTRY ON RULE 60(b) MOTION
Plaintiff Randy O'Brien has alleged that he is a former prison guard who became a prison inmate. On January 14, 2001, he was attacked by other inmates and suffered, among other injuries, the loss of his left eye. Represented by attorney Bruce Davidson, plaintiff O'Brien filed this action against the Indiana Department of Correction, its Commissioner, and the Superintendent of the prison where he was injured. O'Brien's complaint alleged that the defendants violated his rights under the Eighth Amendment to the United States Constitution by acting with deliberate indifference to his safety.
The court screened the complaint pursuant to 28 U.S.C. § 1915A and noted several apparent defects in the claims. The court ordered plaintiff to file an amended complaint, and later extended the time to do so five times. When no amended complaint was filed, the court entered a final judgment dismissing the case on August 5, 2003. The court record does not indicate that defendants were ever served with the complaint and a summons. Notice of the dismissal was sent only to attorney Davidson.
On March 25, 2004, a new attorney filed an appearance for O'Brien and moved for relief from the judgment under Rule 60(b) of the Federal Rules of Civil Procedure. The motion states that attorney Davidson simply abandoned his practice sometime in the late spring or summer of 2003. Davidson has apparently disappeared without leaving word about where he is or how he might be contacted. The court is also aware of this situation from problems presented in other cases involving attorney Davidson. On January 23, 2004, months after entry of judgment in this case, and pursuant to a petition of the Indiana Supreme Court Disciplinary Commission, the Marion Circuit Court appointed another attorney to act as a reviewing master to contact Davidson's clients and to take basic steps to enable them to protect their interests.
Such abandonment of clients is of course a grave breach of professional obligations. E.g., In re Roberts, 727 N.E.2d 705, 710 (Ind. 2000) (suspending attorney without automatic reinstatement) ("Serial neglect by attorneys of their clients' affairs indicates grave professional shortcomings activating this Court's obligation to protect the public from unfit practitioners."); In re Wilcox, 467 N.E.2d 1182, 1184 (Ind. 1984) (suspending attorney) ("The Respondent in this case simply moved out of the state and abandoned those whom he was hired and paid to represent, without even informing them of his leaving the state.").
Rule 60(b)(1) allows the court to provide relief from a judgment on the basis of "mistake, inadvertence, surprise, or excusable neglect," and Rule 60(b)(6) allows the court to do so for "any other reason justifying relief from the operation of the judgment." O'Brien filed his motion less than one year after judgment was entered, so he can seek relief under Rule 60(b)(1) as well as Rule 60(b)(6).
The general rule is that "inexcusable attorney negligence does not constitute proper grounds for relief under Rule 60(b)(1)." Helm v. Resolution Trust Corp., 84 F.3d 874, 878 (7th Cir. 1996), citing United States v. 7108 West Grand Ave., 15 F.3d 632, 634 (7th Cir. 1994), and Partee v. Metropolitan Sch. Dist., 954 F.2d 454, 458 (7th Cir. 1992). "Litigants whose lawyers fall asleep at critical moments may seek relief from the somnolent agents; inexcusable inattention to the case . . . does not justify putting the adversary to the continued expense and uncertainty of litigation." United States v. Golden Elevator, Inc., 27 F.3d 301, 303 (7th Cir. 1994). Despite the general rule, the court retains discretion under Rule 60(b)(1) to provide relief for attorney negligence that is otherwise excusable. Robb v. Norfolk Western Ry. Co., 122 F.3d 354, 361 (7th Cir. 1997) (reversing denial of relief where district court had concluded, based on earlier Seventh Circuit cases, that it lacked discretion to grant such relief).
This case does not present the type of excusable negligence by an attorney that would provide a basis for relief from final judgment under Rule 60(b)(1) pursuant to Robb. Attorney Davidson's conduct has not been explained on this record. He abandoned not only O'Brien but many other clients. On this record, such conduct is at the very least inexcusable. Cf. Robb, 122 F.3d at 362 (holding that district court had discretion to consider attorney's overall record of compliance with court rules and deadlines in deciding Rule 60(b)(1) motion).
Nevertheless, there may be exceptional situations such as this, where an attorney does not merely make an isolated error but abandons his entire practice, in which the interests of justice require the courts to step in. Under Rule 60(b)(6), a court may grant relief where "exceptional circumstances" are shown, and where the moving party has acted with diligence. Williams v. Hatcher, 890 F.2d 993, 995 (7th Cir. 1989). Other courts have held that Rule 60(b)(6) authorizes relief in exceptional cases where attorneys have abandoned their clients. See, e.g., Boughner v. Secretary of H.E.W., 572 F.2d 976, 978 (3d Cir. 1978) (reversing denial of relief under Rule 60(b)(6) for gross neglect and abandonment by attorney who failed to respond to motions for summary judgment in 52 cases, even upon prompting from court staff); Reno v. International Harvester Co., 115 F.R.D. 6, 8-9 (S.D. Ohio 1986) (granting relief under Rule 60(b)(6) where attorney abandoned case and client). As the District of Columbia Circuit wrote in a similar case: "clause (6) is broad enough to permit relief when as in this case personal problems of counsel cause him grossly to neglect a diligent client's case and mislead the client. Clause (6) Vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.'" L. P. Steuart, Inc. v. Matthews, 329 F.2d 234, 235-36 (D.C. Cir. 1964) (affirming grant of relief under Rule 60(b)(6)), quoting Klapprott v. United States, 335 U.S. 601, 614-615 (1949), and citing In re Estate of Cremidas, 14 F.R.D. 15 (D. Alaska 1953).
In addition, the premise of the general rule restricting attorney negligence cases from Rule 60(b)(1) relief is that the client's remedy for a lawyer's negligence is a malpractice suit against the attorney. E.g., Link v. Wabash Railroad Co., 370 U.S. 626, 634 n. 10 (1962); Schwarz v. United States, 384 F.2d 833, 835 (2d Cir. 1967). That is ordinarily true. In this case, however, where the attorney has disappeared to parts unknown, relegating his abandoned client to only that purely hypothetical remedy could serve only to breed disrespect for courts and for the legal profession. Moreover, even if Davidson could be located or if a malpractice insurance policy were available, O'Brien would have to join a long line of abandoned clients seeking to recover from limited assets and/or insurance coverage.
The Seventh Circuit has noted that courts allowing relief under Rule 60(b)(6) for gross negligence of an attorney "uniformly require a diligent, conscientious client." Inryco, Inc. v. Metropolitan Engineering Co., 708 F.2d 1225, 1234 (7th Cir. 1983); accord, Williams, 890 F.2d at 995. In this case, O'Brien has shown that he was diligent and conscientious. He and his mother hired Davidson and tried to stay in touch with him. However, plaintiff is incarcerated and has only limited abilities to protect his interests. His mother lives in another state. Her efforts are what eventually led to the discovery that attorney Davidson had abandoned O'Brien and his other clients. After that discovery, O'Brien and his mother moved promptly to find another attorney willing to take on this case even in its rather daunting current posture.
In United States v. 7108 West Grand Avenue, 15 F.3d 632, 634-35 (7th Cir. 1994), the Seventh Circuit stated that attorney errors could never support relief under Rule 60(b). Later decisions of the Seventh Circuit have made clear, however, that such a statement is overly broad. E.g., Robb v. Norfolk Western Ry. Co., 122 F.3d at 361 (reversing denial of relief where district court had relied on 7108 West Grand Avenue and similar cases to find that it lacked discretion to grant relief).
One additional factor serves to distinguish this case from the usual run of cases dismissed because of the actions of attorneys. One of the principal factors courts weigh under Rule 60(b) is the interest in finality of judgments. E.g., Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 830 (7th Cir. 1985) (if parties "know that the judgment will establish their rights once and for all, they will bring to bear the information and energies necessary to produce an informed decision"). That factor is entitled to little weight in this case. This action was dismissed before defendants were even served with the complaint. They invested no effort in defending the case or obtaining the judgment. There is no apparent basis for any reliance by defendants upon a judgment in a case in which they were never served. There is no reason to think that defendants would be prejudiced by granting relief from the judgment so that the case can be addressed on its merits. For all of these reasons, the court finds that this is an exceptional case that warrants relief under Rule 60(b)(6).
The more basic question is whether there is any point in granting relief: Can O'Brien cure the defects in the original complaint? O'Brien's new lawyer has suggested some cures. For example, a claim for injunctive relief against a state official named in his or her official capacity could avoid the limitations of the Eleventh Amendment and Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), though injunctive relief is ordinarily granted to prevent ongoing or imminent harm. Second, whether O'Brien, consistent with Rule 11, could allege that either Commissioner Ridley-Turner or Superintendent Hanks were personally responsible for the alleged constitutional violation is another question. O'Brien also suggests that discovery might help him identify other potential defendants, though it seems likely that the two-year statute of limitations would bar claims against additional defendants based on events in January 2001. Finally, because of the Eleventh Amendment and Will, the holding of Monell v. Department of Social Services, 436 U.S. 658 (1978), is not available to establish a state agency's liability for damages.
Despite these questions, however, the court finds that the integrity of the legal profession and its system of attorney oversight requires that plaintiff O'Brien be granted relief from judgment pursuant to Rule 60(b). Attorney Davidson's abandonment of his clients without notice to them or to the courts amounts to an exceptional situation calling for such relief. Accordingly, the final judgment entered on August 5, 2003 is hereby VACATED. Plaintiff O'Brien shall file an amended complaint no later than June 30, 2004 addressing the issues previously identified by the court.
So ordered.