Opinion
Case No. 2:00-CV-1417
February 28, 2003
OPINION AND ORDER
This matter is before the Court on Plaintiff's Motion under Fed.R.Civ.P. 60(b)(6) to set aside the Judgment in this case on account of alleged "gross negligence of her counsel." (Doc. #22). For the reasons that follow, the motion is granted.
I.
On January 4, 2002, this Court entered an Order Dismissing the instant action for Plaintiff's failure to respond to the Court's November 29, 2001 Order to Show Cause as to why the Defendant's September 28, 2001 Motion for the Sanction of Dismissal should not be granted. After Judgment was entered, Plaintiff retained new counsel. Plaintiff's present counsel seeks to set aside the Judgment on account of the gross negligence of Plaintiff's original counsel. Defendant opposes the motion. Before considering the merits of the motion under Rule 60(b), the Court will outline the following undisputed facts.
The instant action was filed on Plaintiff's behalf by attorney Charles Smith, on December 19, 2000. Plaintiff alleges claims of racial discrimination and retaliation under federal and state law. According to Plaintiff, attorney Smith was a "long time friend" of hers. ( Affidavit of Cynthia Sullivan at ¶ 1). After this action was filed, from January 2001 to July 2001, Plaintiff made numerous attempts to contact Smith but her phone calls were never returned. ( Id. at ¶ 2). Plaintiff had an unexpected in-person encounter with Smith sometime prior to July 4, 2001 and Smith stated at that time that he would call Plaintiff to conduct discovery. ( Id. at ¶ 3). Smith failed to contact Plaintiff. ( Id.).
A Preliminary Pretrial Conference was held before Magistrate Judge Abel on July 5, 2001. Plaintiff's counsel failed to appear. ( See Preliminary Pretrial Order, Doc. #10). Plaintiff became aware of Smith's failure to appear and called his office. ( Id. at ¶ 4). Smith did not return Plaintiff's call. ( Id.). On July 19, 2001, Plaintiff filed a notice with the Court stating that Smith failed to properly represent her. (Doc. #13). The Magistrate Judge construed the notice as a request for appointment of counsel. On July 23, 2001, Smith filed a notice with the Court explaining his failure to appear for the Preliminary Pretrial Conference. According to Smith, he was involved in a criminal jury trial in state court and was unaware of the conference in this Court. (Doc. 414). Smith "assure[d] the Court that this will not occur again." ( Id.). Plaintiff's request for appointment of counsel was denied on October 4, 2001. ( Order, Doc. #17).
Plaintiff filed an ethics complaint against Smith in July 2001 with the Columbus Bar Association. ( Sullivan Affidavit at ¶ 6). Smith's license to practice law in the State of Ohio was suspended by the Supreme Court of Ohio in May 2002. The Columbus Bar Association referred Plaintiff to her present counsel.
On September 28, 2001, Defendant filed a Verified Motion for Sanction of Dismissal under Fed.R.Civ.P. 37, for the Plaintiff's failure to participate in discovery. On November 29, 2001, the undersigned issued an Order for Plaintiff to Show Cause as to why this action should not be dismissed (Doc. #19). The Plaintiff failed to respond to the Order and this action was dismissed on January 4, 2002.
II.
Plaintiff's Motion to Set Aside the Judgment is made pursuant to Fed.R.Civ.P. 60(b), which provides, in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. . . .
Plaintiff asserts that there are exceptional circumstances in this case justifying relief under Rule 60(b)(6). In particular, Plaintiff claims that, through her numerous attempts to contact Smith. she made a diligent effort to protect her interest in this litigation. Plaintiff asserts that she should not be faulted for the negligence of her counsel. Plaintiff relies on the case of Fuller v. Quire, 916 F.2d 358 (6th Cir. 1990), in support of her position.
In Fuller, the plaintiff's case was dismissed for his attorney's failure to appear at a court "docket call" to discuss the posture of the case. After retaining different counsel and nearly two years after the dismissal entry, plaintiff sought relief under Rule 60(b). The district court granted the motion and an appeal followed. The Sixth Circuit held that Rule 60(b) is only to be used "in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule." Id. at 360. The Sixth Circuit concluded that the rule was properly applied by the district court. The Court observed that plaintiff did not know of his counsel's failure to appear for some time and plaintiff displayed reasonable diligence in attempting to inquire as to the case status. Id. at 361.
Defendant in the case at bar contends that relief under Rule 60(b)(6) is not appropriate because Plaintiff was dissatisfied with her counsel from the outset. According to Defendant, Plaintiff was not "an unwitting victim at the mercy of her attorney." ( Memorandum contra at 3). Defendant points out that Plaintiff herself checked the docket at the courthouse and asked for appointed counsel. Defendant contends that pursuant to the United States Supreme Court's decision in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993), Plaintiff must be completely without fault in order to invoke relief under Rule 60(b)(6).
In Pioneer, counsel for a creditor in a Chapter 11 bankruptcy case submitted a proof of claim twenty-three days after the same was due. Counsel filed a motion asking the cow- w accept the late filing on the basis that counsel was unaware of the deadline due to a "major and significant disruption in his professional life caused by his withdrawal from his former law firm." Id. at 384. The motion was made under Bankruptcy Rule 9006(b)(1) which permits late filings for "excusable neglect." Counsel stated that he was unaware of the deadline because he did not have access to the file due to his departure from the firm. Id. The bankruptcy court refused the late filing, holding that the same was not excusable neglect. Id. at 385.
The matter was appealed to the district court, which remanded the case for application of five-part test applied by the Ninth Circuit. The bankruptcy court again denied the request for late filing. The district court affirmed the ruling but the Court of Appeals for the Sixth Circuit subsequently reversed the decision. The Sixth Circuit held that the bankruptcy court misapplied factor five of the Dix analysis, holding that because the client inquired of counsel as to whether any filing deadlines were impending and was told that none existed, the client was inappropriately penalized for the error of counsel. Id. at 386. The Sixth Circuit concluded that there was excusable neglect justifying relief under Bankruptcy Rule 9006(b)(1). The Supreme Court then considered the issue to resolve a conflict among the circuit courts of appeal.
The test requires consideration of the following: (1) whether granting the delay would prejudice the debtor; (2) the length of delay and its impact on efficient court administration; (3) whether the delay was beyond the reasonable control of the person with the duty to perform; (4) whether the creditor acted in good faith; and (5) whether clients should be penalized for their counsel's mistake or neglect. In re Dix, 95 B.R. 134, 139 (9th Cir. Bankruptcy Appellate Panel 1988).
The Supreme Court noted that "excusable neglect" is a "somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Id. at 392. The Court analogized the standard to that in Rules 60(b)(1) and (6) which permit a judgment to be set aside for any reason justifying such relief if a motion is made within one year of the judgment. The Court stated that "[t]o justify relief under subsection (6) [of Rule 60(b)], a party must show `extraordinary circumstances' suggesting that the party is faultless in the delay." Id. at 393 (citations omitted). The Court found Rule 9006(b)(1) more expansive and the determination made thereunder equitable in nature with consideration of the Dix factors appropriate to the analysis. The Court disapproved of the Sixth Circuit's focus on the client being penalized for the action of counsel, noting that a client voluntarily chooses his or her counsel and "cannot avoid the consequences of the acts or omissions of this freely selected agent [because] [a]ny other notion would be wholly inconsistent with our system of representative litigation. . . ." Id. at 397, citing Link v. Wabash R. Co., 370 U.S. 626, 633-34 (1962). Nonetheless, the Supreme Court affirmed the Sixth Circuit's decision.
Defendant in the case at bar relies heavily on the fact that Plaintiff selected Smith as her counsel. Defendant acknowledges Smith's negligence in handling this case but argues that Plaintiff should not now be able to avoid the consequences of Smith's omissions. Plaintiff maintains that the Sixth Circuit's decision in Fuller is good precedent and urges the Court to apply it in this case.
The application of Rule 60(b)(6) to a claim of neglect of counsel has been addressed in this district. In United States v. Real Property Known and Numbered as 429 South Main Street, New Lexington, Ohio, 906 F. Supp. 1155 (S.D. Ohio 1995) (Graham, J.), the court observed that "exceptional" or "extraordinary" circumstances must be present to justify relief under the rule. In that case, the basis for the motion was counsel's drafting of an allegedly poor memorandum with no accompanying affidavits in opposition to a motion for summary judgment. The court concluded that although the memorandum was not artfully drafted, it presented plausible arguments. The court ultimately concluded that the circumstance was not "extraordinary" or "exceptional." The court found the situation unlike that in Fuller.
This Court concludes that extraordinary and exceptional circumstances are present in the instant action to justify relief under Rule 60(b)(6). The situation at bar is unlike that in United States v. Real Property. Moreover, the omissions by Plaintiff's counsel in this case go beyond those presented in Fuller v. Quire, supra, which remains good precedent. While this Court is cognizant of the principle that a client should be bound by the omissions of his or her duly selected agent, the actions of attorney Smith were particularly egregious through no fault of Plaintiff. The record is undisputed that Plaintiff made numerous attempts to contact her attorney to no avail. Plaintiff, clearly frustrated with Smith's omissions, even asked this Court for assistance in appointing counsel. Since Smith apologized for his conduct in failing to appear at a pretrial conference, however, Plaintiff's request for assistance in retaining new counsel was denied. Smith also represented to Plaintiff that he would work on the discovery in her case. While Plaintiff could have, as Defendant suggests, fired Smith before this action was dismissed, the record demonstrates that Plaintiff did what she could to diligently pursue her case within her means.
In the Court's view, not every omission of counsel will warrant relief under Rule 60(b)(6). This case, however, presents the extraordinary circumstance of a client, through no fault of her own, suffering the dismissal of an action because of the egregious negligence of her counsel. For this reason, the Court finds that the Judgment entered on January 4, 2002 should be set aside. The Court is not, however, unsympathetic to the position in which this decision places the Defendant. Consequently, if Plaintiff ultimately prevails on her claim in this Court, payment of fees to the Defendant will be warranted.
III.
In light of the foregoing, Plaintiff's Motion to Set Aside the Judgment under Rule 60(b)(6) ( Doc. #22) is GRANTED. The Clerk is DIRECTED to set aside the Judgment entered on January 4, 2002 and return this case to the Court's active docket. The Clerk shall ensure that the docket reflect a Filing Date that comports with the date of this Opinion and Order.