Cheryl L Markray v. AT&T-SBC Pacific Bell Director et al

Filing 61

ORDER by Judge Dean D. Pregerson: Plaintiff's motion for relief from judgment 47 is DENIED. (ir)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHERYL L. MARKRAY, an individual, Plaintiff, v. AT&T-SBC-PACIFIC BELL DIRECTORY, also known as AT&T ADVERTISING and PUBLISHING, a corporation doing business in California, in its capacities as Plan Administrator and employer; SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., a corporation doing business in California, in its capacity as Plan Administrator; PACIFIC TELESIS GROUP COMPREHENSIVE DISABILITY BENEFITS PLAN for employees of AT&T -SBCPACIFIC BELL DIRECTORY, Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-08001 DDP (CTx) ORDER DENYING PLAINTIFF's RULE 60(B) MOTION TO BE RELIEVED FROM FINAL JUDGMENT [Motion filed on May 26, 2010] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

O
CLOSED

This matter comes before the Court on Plaintiff Cheryl Markray ("Plaintiff")'s Rule 60(b) motion for relief from this Court's order granting summary judgment in favor of Defendants AT&T-SBC-

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Pacific Bell Directory, Sedgwick Claims Management Services, Inc., and Pacific Telesis Group Comprehensive Disability Benefits Plan for employees of AT&T-SBC-Pacific Bell Directory (collectively "Defendants"). After reviewing the parties' submissions, the Court

DENIES Plaintiff's Rule 60(b) motion. I. BACKGROUND In 2004, Plaintiff, an employee of Defendant Pacific Bell Directory, was absent from work due to a chronic lung condition and depression. She applied for short-term disability ("STD") benefits

under the Employment Retirement Income Security Act of 1974 ("ERISA"). After being partially denied benefits, Plaintiff On appeal, the

appealed the ERISA Plan administrator's decision.

Plan's Claims Review Committee ("CRC") approved benefits from March 12 through June 4, 2004, but denied benefits for all periods thereafter. Plaintiff filed suit against Defendants in this Court in December 2007. Defendants filed a motion for summary judgment (Dkt. No. 30.) Defendants' MSJ contended

("MSJ") in April 2009.

that the CRC's benefits determination could be overturned only if Plaintiff showed an "abuse of discretion," i.e., that the CRC's decision was without any "reasonable basis" in the record to support it.1 (Defs.' Mem. P. & A. Supp. Mot. Summ. J., 1-2.) Defendants argued that the CRC did not abuse its discretion because the majority of the healthcare professionals had concluded that Plaintiff was not disabled.
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The CRC considered the opinions

The Plan provides "that if the CRC denies a claim appeal, the Plan shall have no liability to the employee, `unless a court of competent jurisdiction shall determine that the [CRC] has abused its discretion in deciding to deny the claim.'" (Id. at 4.) 2

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of two independent physician specialists, both of whom concluded that Plaintiff was able to perform her normal job duties. (Id. at

2, 5-10.) The CRC also considered the opinion of Plaintiff's own treating physician who concluded Plaintiff was not disabled after June 4, 2004. (Id.) While Plaintiff's social worker believed that

Plaintiff was disabled, she seemed to base her belief on Plaintiff's self-reported claims which were not supported by any physician's conclusions. (Id. at 7, 16.)

Plaintiff's counsel filed an opposition to Defendants' MSJ in May 2009 requesting a continuance pursuant to Rule 56(f).2 Court denied Plaintiff's request. The

Because the Court concluded

there was no genuine issue of material fact, Defendants' MSJ was granted in May 2009. In May 2010, Plaintiff filed a request to

substitute herself in as pro per and a Rule 60(b) motion to be relieved from the May 2009 judgment. Plaintiff stated in her

moving papers of May 2010 that she did not know that her attorney would file nothing further if his request for a continuance in May 2009 was denied. Rule 60(B), 4.) (Pl. Mot. to Be Relieved from J. Pursuant to FRCP She also stated her attorney told her sometime

Plaintiff contends that her attorney did not oppose the MSJ in May 2009. Specifically, Plaintiff contends her attorney's declaration was not an opposition. However, her attorney's declaration stated "I specifically request relief, pursuant to Federal Rules of Civil Procedure, Rule 56(f)." (Decl. of Franklin Ferguson ¶ 4.) While Plaintiff's Rule 56(f) opposition to Defendants' MSJ may have been substantively lacking, it was an opposition nonetheless. Moreover, even if Plaintiff had not opposed Defendants' MSJ, "`a motion for summary judgment cannot be granted simply because there is no opposition.'" Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993) (quoting Hibernia Nat'l Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985)). 3

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before April 2010 that a Rule 60(b) motion would be necessary, but that he neglected to file the motion on her behalf. (Id.) II. DISCUSSION Plaintiff has not demonstrated any viable ground for relief under Rule 60(b). Attorney negligence is "more appropriately

addressed through malpractice claims" than under Rule 60(b)(1). Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1101 (9th Cir. 2006). Rule 60(b)(6) "is used sparingly" and "only where

extraordinary circumstances prevented a party from taking timely action." A. Id. at 1103. Rule 60(b)(1)

Plaintiff contends she is entitled to relief under Rule 60(b)(1). Rule 60(b)(1) provides that, "[o]n motion ... the court

may relieve a party or its legal representative from a final judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1). In

determining whether an attorney's negligence constitutes "excusable neglect," courts apply the four factor test set forth in Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993) and Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997): (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Mendez v. Knowles, 556 F.3d 757, 765 (9th Cir. 2009).

In addition, when the circumstances of the case so warrant, courts should consider, and give proper weight to, any prejudice to the movant if she were denied relief. Lemoge v. United States, 587 F.3d 1188, 1195, 1198 (9th Cir. 2009). 4

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The Court is persuaded that the balance of the Pioneer-Briones factors weighs against granting Plaintiff's Rule 60(b)(1) motion. Defendants assert they will be prejudiced if the Courts reopens the case because of "fading memories of the witnesses and the increased inaccessibility or unavailability of documents due to the lapse of time." (Defs. Opp'n at 7.) Further, Defendants may no longer have

access to the necessary evidence from the healthcare professionals who evaluated Plaintiff in 2004. Moreover, Plaintiff has failed to explain why she did not file a Rule 60(b) motion until more than a year after the filing deadline for an opposition to the MSJ. Although Plaintiff has

stated she did not immediately know Defendants' MSJ had been granted, she has not explained why she did not discuss the status of her case with her attorney until months after the judgment was entered. (Pl. Mot. at 4.) Furthermore, Plaintiff has stated that

her attorney told her sometime before April 2010 that the Court had granted Defendants' MSJ and that a Rule 60(b) motion would be necessary. Plaintiff does not explain why, after learning of her

attorney's negligence, she did not immediately attempt to file a Rule 60(b) motion pro se. While Plaintiff may have been acting in good faith, "keeping this suit alive merely because the plaintiff should not be penalized for the omission of [her] own attorney would be visiting the sins of plaintiff's lawyer upon the [Defendants]." Wabash R. Co., 370 U.S. 626, 634 (1962). Link v.

Moreover, any prejudice

to Plaintiff is outweighed by the prejudice to Defendants and by Plaintiff's lack of explanation for her lengthy delay in bringing

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her Rule 60(b)(1) motion. motion must be denied.

Accordingly, Plaintiff's Rule 60(b)(1)

B.

Rule 60(b)(6)

Plaintiff also contends that she is entitled to relief under Rule 60(b)(6). The Ninth Circuit has held a judgment dismissing a case for failure to prosecute under Rule 41(b) or a default judgment may be set aside under Rule 60(b)(6) if a party demonstrates "extraordinary circumstances which prevented or rendered him unable to prosecute [his case]." Lal v. California, No. 08-15645, slip op. 9303, 9315 (9th Cir. June 25, 2010); Tani, 282 F.3d at 1168-69. An attorney's gross negligence qualifies as an extraordinary circumstance, but an attorney's ordinary negligence does not. Tani, 282 F.3d at 1170.

In both Lal and Tani, the Ninth Circuit deemed attorneys grossly negligent because they virtually abandoned their clients by failing to proceed with their clients' defense despite court orders directing them to do so. See Lal, No. 08-15645, slip op. at 9315; Tani, 282 F.3d at 1170. The attorney in Tani deliberately misled his client ­ informing him that the case was proceeding when in fact the Court had entered a default judgment against him. 282 F.3d at 1171. Tani,

Similarly, the attorney in Lal continued to

respond to his client's inquiries by saying that her case was proceeding well after the case had been dismissed. 08-15645, slip op. at 9315. Here, Plaintiff's attorney was not grossly negligent. Unlike Lal, No.

in Lal, where the plaintiff attempted to contact her attorney several times, Plaintiff made no attempt to inquire about her case 6

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until nearly a year after the Court granted Defendants' MSJ. Moreover, although Plaintiff did not know that her attorney's opposition to Defendants' MSJ was substantively weak, her attorney did not deliberately mislead her about the status of her case. Plaintiff's attorney told her about the judgment and that she would need to file a Rule 60(b) motion in a conversation prior to April 2010. Thus, Plaintiff's attorney did not "virtually abandon" her,

and her request for relief under Rule 60(b)(6) must therefore be DENIED. III. CONCLUSION For the reasons set forth above, Plaintiff's motion for relief from judgment is DENIED.

IT IS SO ORDERED.

Dated:August 13, 2010

DEAN D. PREGERSON United States District Judge

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