Slama v. City of Madera, et al
Filing
73
FINDINGS and RECOMMENDATIONS re 63 recommending that Plaintiff's motion for reconsideration be GRANTED; the judgments granting Defendants' motions for summary judgment be set aside and the case be re-opened; and Plaintiff be ORDERED to fi le oppositions to Defendants' motions to summary judgment within sixty (60) days of the date of service of this district court's order; matter referred to Judge Ishii; Objections to F&R due within fifteen (15) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 8/21/2011. (Timken, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
ANTHONY DEAN SLAMA,
11
12
13
14
15
16
)
)
)
Plaintiff,
)
)
v.
)
)
CITY OF MADERA, et al.,
)
)
)
Defendants.
)
)
_____________________________________ )
Case No.: 1:08-cv-00810-AWI-SKO
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION
FOR RECONSIDERATION
(Doc. 63)
17
18
I.
INTRODUCTION
19
On April 15, 2011, Plaintiff Anthony Dean Slama (“Plaintiff”) filed a motion for
20
reconsideration pursuant to Fed. R. Civ. P. 60(b) and a proposed order seeking to substitute himself
21
as attorney of record in this action and place himself in propria persona. (Docs. 63, 65.) On July
22
27, 2011, the Court granted Plaintiff’s request concerning the substitution of counsel after having
23
received a statement of non-opposition to the substitution from Plaintiff’s former attorney, Steven
24
A. Geringer. (Docs. 71, 72.) Plaintiff is thus currently representing himself in propria persona. The
25
Court now considers Plaintiff’s motion for reconsideration pursuant to Fed. R. Civ. P. 60(b).
26
For the reasons set forth below, the Court RECOMMENDS that Plaintiff’s motion be
27
GRANTED.
28
1
II.
BACKGROUND
2
On December 17, 2007, Plaintiff, representing himself in propria persona, filed this action
3
in the Madera Superior Court. Defendant City of Madera (“City”) removed the action to federal
4
court on June 9, 2008, and filed a motion to dismiss on June 25, 2008. (Docs. 1, 6.) On August 7,
5
2008, the Court granted the motion to dismiss. (Doc. 11.)
6
On August 28, 2008, Plaintiff, then represented by attorneys Daniel Martin and Brenda C.
7
Hook, filed an amended civil rights complaint against Defendants City, Madera Police Department
8
(“MPD”), Officer Chavez, and Officer Sheklanian1 (collectively, “Defendants”). (Doc. 15.) On
9
September 11, 2008, Defendants MPD and Officers Chavez and Sheklanian filed an answer to
10
Plaintiff’s amended complaint, and Defendant City filed a motion to dismiss. (Docs. 17, 18.)
11
On September 2, 2008, based upon representations by Ms. Hook, the Court ordered that she
12
file a proposed substitution of attorney, a motion to withdraw as attorney, or a statement that she
13
and/or Mr. Martin would proceed as Plaintiff’s counsel. (Doc. 16.) On September 22, 2008, Ms.
14
Hook filed a motion to withdraw as attorney, which was granted by the Court on October 21, 2008.
15
(Docs. 22, 32.)
16
Plaintiff filed a motion requesting appointment of counsel on October 24, 2008, which was
17
denied on November 3, 2008. (Docs. 33, 34.) On December 11, 2008, Plaintiff, represented by new
18
counsel Mr. Geringer, filed an ex parte application for extension of time to file an opposition to
19
Defendant City’s motion to dismiss. (Doc. 40.) On December 17, 2008, the Court denied Plaintiff’s
20
application for an extension of time and granted Defendant City’s motion to dismiss with leave to
21
amend. (Doc. 43.)
22
On January 11, 2009, Plaintiff, represented by Mr. Geringer, filed a second amended
23
complaint alleging Constitutional violations. (Doc. 44.) Plaintiff’s second amended complaint
24
alleged that on December 20, 2005, Plaintiff was walking along a public sidewalk late at night when
25
an MPD police cruiser drove past him, made a U-turn, and returned to Plaintiff’s location. (Doc. 44,
26
¶ 9.) Allegedly, Officers Chavez and Sheklanian jumped out of the car and ran toward Plaintiff; one
27
1
28
Officer Sheklanian was erroneously identified as “Shekianian” in the complaints. See Doc. 56, p. 1, fn. 1;
Doc. 59, p. 1, fn. 1.
2
1
of the officers yelled, “Stop, I am going to search you for weapons.” (Doc. 44, ¶ 10.) Plaintiff
2
contends that he stopped immediately upon hearing the police officer’s command, but that Officer
3
Sheklanian grabbed Plaintiff’s left hand and wrist and twisted them behind his back while Officer
4
Chavez twisted Plaintiff’s right hand and forced Plaintiff to the ground. (Doc. 44, ¶¶ 11-12.)
5
Plaintiff was allegedly placed in a “choke hold” and was “tazed” and handcuffed. (Doc. 44, ¶ 12.)
6
Plaintiff asserts that he followed all commands and did not consent to a search, assault, or touching
7
of his body by the officers. (Doc. 44, ¶ 13.) As a result of these events, Plaintiff was arrested for
8
violation of California Penal Code § 148(a)(1) (willfully resisting, delaying, or obstructing a peace
9
officer when the officer was engaged in the performance of his duties). (Doc. 44, ¶ 14.)
10
Plaintiff’s second amended complaint was brought under 42 U.S.C. § 1983 and alleged four
11
causes of action for violations of the Fourth Amendment: the first cause of action alleged that
12
Plaintiff was arrested without probable cause, the second cause of action alleged that Defendants
13
used excessive force, the third cause of action alleged that MPD failed to properly train its officers,
14
and the fourth cause of action alleged that MPD had a custom and policy of permitting officers to
15
use excessive force. (Doc. 44, ¶¶ 15-18.)
16
Defendants filed an answer to the second amended complaint on February 2, 2009.
17
(Doc. 46.) A scheduling conference was held on April 2, 2009, during which Mr. Geringer, on
18
behalf of Plaintiff, and counsel for Defendants were present. (Doc. 50.) A settlement conference
19
was held on November 24, 2009, at which Mr. Geringer and Defendants’ counsel were present; the
20
case did not settle. (Doc. 52.)
21
On March 5, 2010, Defendants filed a motion for summary judgment. (Doc. 53.) Plaintiff,
22
represented by Mr. Geringer, did not file an opposition. On April 16, 2010, the Court granted
23
Defendants’ motion as to the first, third, and fourth causes of action and permitted Defendants to file
24
an additional motion for summary judgment as to the second cause of action so as to address
25
deficiencies in their argument. (Doc. 56, 14:8-22.) The Court’s order stated that the factual
26
background concerning the decision was taken from Defendants’ Undisputed Material Facts
27
(“DUMF”) and noted that Plaintiff “filed no response, objection, or contrary evidence” and “filed
28
no opposition or response of any kind.” (Doc. 56, 1:21-22, fn. 2.)
3
1
On April 26, 2010, Defendants filed a motion for summary judgment as to Plaintiff’s second
2
cause of action. (Doc. 57.) Plaintiff, represented by Mr. Geringer, failed to file an opposition. On
3
May 20, 2011, the Court granted Defendants’ motion for summary judgment, noting again that the
4
factual background was based on the DUMFs and that Plaintiff did not file an opposition or response
5
“of any kind.” (Doc. 59, 1:26, 2:fn 2.) Judgment was entered in favor of Defendants, and the case
6
was closed. (Docs. 59, 60.)
7
On April 15, 2011, Plaintiff, on his own behalf, filed the instant motion for reconsideration
8
and a proposed order for substitution of attorney so as to substitute himself as attorney of record and
9
place himself in propria persona. (Docs. 63, 65.) As noted above, the Court granted the substitution
10
of counsel on July 27, 2011. (Doc. 72.). The Court now considers the motion for reconsideration.
11
III.
DISCUSSION
12
Plaintiff seeks to set aside the Court’s two summary judgment orders pursuant to Federal
13
Rule of Civil Procedure 60(b)(1)-(6) on grounds that he was not aware that the motions had been
14
filed and, as such, failed to oppose the motions due to his lack of knowledge. Plaintiff asserts that,
15
as a result of his failing to file an opposition, the motions were granted and judgment was entered
16
in favor of Defendants.
17
A.
18
Legal Standard
Fed. R. Civ. P. 60(b) provides:
19
20
Grounds for Relief from a Final Judgment, Order, or Proceeding. 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:
21
(1) mistake, inadvertence, surprise, or excusable neglect;
22
23
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
24
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
25
(4) the judgment is void;
26
27
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
28
4
1
(6) any other reason that justifies relief.
2
A motion filed under Rule 60(b) “must be made within a reasonable time–and for reasons
3
(1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the
4
proceeding.” Fed. R. Civ. P. 60(c)(1).
5
B.
Analysis
6
1.
7
The Court entered its ruling granting Defendants’ motion for summary judgment as to the
8
first, third, and fourth causes of action on April 16, 2010, and entered its ruling granting the motion
9
for summary judgment as to the second cause of action on May 20, 2010. (Docs. 56, 59.) Judgment
10
was entered on behalf of Defendants on May 20, 2010, and the case was closed. (Docs. 59, 60.)
Timing of Motion
11
Plaintiff filed the instant motion for reconsideration on April 15, 2011, one day shy of one
12
year from the date that the Court entered its first ruling as to Defendants’ summary judgment
13
motions (and exactly one year from the date the order was signed). (Doc. 56.) Plaintiff has brought
14
this motion within “no more than a year” as required for consideration under Rule 60(b)(1)-(3), and
15
thus within a “reasonable time” as required under Rule 60(c)(1).
16
The Court notes that Plaintiff’s motion was filed essentially nine months after Plaintiff
17
learned via letter on July 19, 2010, from Mr. Geringer, his now former counsel, that the case was
18
closed. (Doc. 63, 2:24-3:4, Exh. C.) Further, Plaintiff’s motion was filed almost nine months after
19
Plaintiff’s wife learned from the Clerk of the Court that Defendants had been granted summary
20
judgment. (Doc. 63, 74:8-15.)
21
Although Plaintiff does not fully explain the delay from the time that he learned of the
22
closing of this action and the filing of this motion, the Court notes that Plaintiff is currently
23
incarcerated at Corcoran State Prison. (Doc. 64.) Plaintiff filed habeas corpus petitions in both
24
federal and state courts, which appear to have been denied on January 2, and March 23, 2011,
25
respectively. (See Doc. 63, pp. 44-46, 51-53.) As of September 2010, it appears that Plaintiff was
26
preparing documents for those petitions. (See, e.g., Doc. 63, pp. 57-61.) Thus, considering that
27
Plaintiff is presently representing himself in propria persona, is currently incarcerated, appears to
28
have been handling several legal actions, and filed this motion within one year as required under
5
1
Rule 60(c)(1) for consideration of Rule 60(b)(1)-(3) motions, the Court finds that Plaintiff’s motion
2
is timely.
3
2.
4
Plaintiff contends that due to “surprise” he is entitled to relief under Rule 60(b)(1), which
5
provides that “the court may relieve a party or its legal representative from a final judgment, order,
6
or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect.” Plaintiff argues that he
7
was not informed of Defendants’ motions for summary judgment, which was “very odd” because
8
he had been informed of everything else “moving under the sun in reference to this case.” (Doc. 63,
9
2:14-15.) Plaintiff asserts that only the Court, Defendants, and Plaintiff’s counsel knew of the
10
motions and that Plaintiff did not learn of the motions or that his case had been closed until mid-July
11
2010, more than two months after the second motion for summary judgment had been granted.
12
(Doc. 63, 2:18-20, 73:16-20, 74:8-10.) As a result of Plaintiff’s lack of knowledge of the motions,
13
Plaintiff asserts that he had no opportunity to file oppositions against Defendants’ motions and that
14
the Court was only able to consider a one-sided version of the case. (Doc. 63, 6:16-18.) Plaintiff
15
further contends that he had no reason to suspect that judgment was about to be entered against him
16
since he received a request from his attorney for the release of medical records related to this case
17
on April 15, 2010, the “exact date” that the Court granted Defendants’ motion for summary
18
judgment as to the first, third, and fourth causes of action. (Doc. 63, 7:16, Exh. E.)
Rule 60(b)(1)
19
Plaintiff’s argument that his motion for reconsideration should be granted because he was
20
not aware of the motions for summary judgment lacks merit. Plaintiff was represented by an
21
attorney at the time the motions were filed. Federal Rule of Civil Procedure 5(b)(1) concerns the
22
serving and filing of pleadings and other papers when a party is represented by counsel and provides
23
that “[i]f a party is represented by an attorney, service under this rule must be made on the attorney
24
unless the court orders service on the party.” (emphasis added). Rule 5(b)(1) thus requires that
25
Plaintiff’s counsel, Mr. Geringer, be served with the motion. Further, there was no Court order
26
directing Defendants to serve Plaintiff with their motions, nor did there appear to be any need
27
requiring Plaintiff to be served directly as Mr. Geringer had appeared on Plaintiff’s behalf at the two
28
6
1
events preceding the filing of the motions: the scheduling conference held on April 2, 2009, and the
2
settlement conference held on November 24, 2009. (Docs. 50, 52.)
3
Mr. Geringer was properly served with the motions for summary judgment. California
4
Business & Professions Code § 6068(m) provides that it is an attorney’s duty “to keep clients
5
reasonably informed of significant developments in matters.” As such, Mr. Geringer was tasked with
6
the responsibility of informing his client of the pending motions for summary judgment.
7
Defendants’ counsel was not authorized under Rule 5(b)(1) to contact Plaintiff directly so as to
8
inform him of the pending motions, and in fact to do so “might be an improper communication with
9
a represented party, and could well be a breach of professional ethics.” See Bueford v. Resolution
10
Trust Corp., 991 F.2d 481, 487 (8th Cir. 1993). Further, there was no reason for the Court to have
11
ordered service on Plaintiff, as there was no reason to presume that Mr. Geringer was not actively
12
representing his client based on his appearances at the scheduling and settlement conferences. There
13
is thus no basis for Plaintiff’s argument that he was “surprised” by lack service of the motions as he
14
was properly served through his attorney and “[c]lients are ‘considered to have notice of all facts
15
known to their lawyer-agent.’” Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir.2002)
16
(citation omitted) (“Tani”).
17
Rule 60(b)(1) also allows the Court to consider setting aside a judgment based on mistake,
18
inadvertence, or excusable neglect. While it may be conceivable that Mr. Geringer’s failure to file
19
any oppositions to Defendants’ motions to summary judgment may be due to mistake, inadvertence,
20
or neglect, Plaintiff fails to provide any evidence to support such a contention. There is no
21
declaration from Mr. Geringer as to his mistake or inadvertence, and no reason for the Court to
22
presume that Mr. Geringer’s neglect in failing to file two oppositions was excusable.
23
Excusable neglect “encompasses both simple, faultless omissions to act and, more
24
commonly, omissions caused by carelessness.” Pioneer Inv. Servs. Co. v. Brunswick Assocs.,
25
507 U.S. 380, 388 (1993). Here, Plaintiff fails to show that the lack of opposition to Defendants’
26
motions was based on either a faultless omission or carelessness on Mr. Geringer’s part. The only
27
document submitted by Plaintiff from his counsel was a letter that states that the motions for
28
summary judgment were decided by the Court “as a matter of law” as there was “no triable issue of
7
1
fact”; the letter is silent as to Mr. Geringer’s failure to oppose the motions. (Doc. 63, Exh. C.) There
2
is no explanation provided as to why Plaintiff did not file an opposition, other than that Plaintiff was
3
unaware that the motions had been filed.
4
Rule 60(b)(1) provides no relief for ignorance, carelessness, or inexcusable neglect. Latshaw
5
v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1100-01 (9th Cir.2006) (declining to grant relief
6
from judgment based upon alleged attorney-based mistakes of law and noting that “this includes not
7
only an innocent, albeit careless or negligent, attorney mistake, but also intentional attorney
8
misconduct”). As such, there is no showing of mistake, inadvertence, or excusable neglect
9
permitting relief under Rule 60(b)(1).
10
3.
11
While Plaintiff purports to bring his motion for reconsideration pursuant to all subsections
12
of Rule 60(b), Plaintiff makes no argument that would allow relief under subsections (2) through (5)
13
of Rule 60(b). Plaintiff does not contend that there was newly discovered evidence that could not
14
have been previously discovered in time to move for a new trial (see Rule 60(b)(2)); that there was
15
fraud, misrepresentation, or misconduct by Defendants (see Rule 60(b)(3)); that the final judgment
16
is void (see Rule 60(b)(4)); or that the judgment has been satisfied, released, or discharged (see Rule
17
60(b)(5)). As such, Plaintiff does not state a claim for relief pursuant to Rule 60(b)(2)-(5).
Rule 60(b)(2)-(5)
18
4.
19
Rule 60(b)(6) is a catch-all provision that allows a court grant relief from a final judgment,
20
order, or proceeding for “any other reason that justifies relief.” Rule 60(b)(6) is to be “‘used
21
sparingly as an equitable remedy to prevent manifest injustice’ and ‘is to be utilized only where
22
extraordinary circumstances prevented a party from taking timely action to prevent or correct an
23
erroneous judgment.’” Latshaw, 452 F.3d at 1103 (citations omitted). A party who moves for such
24
relief “must demonstrate both injury and circumstances beyond his control that prevented him from
25
proceeding with . . . the action in a proper fashion.” Tani, 282 F.3d at 1168 (citation omitted).
Rule 60(b)(6)
26
Although Plaintiff does not specifically argue for relief pursuant to Rule 60(b)(6),
27
unpublished Ninth Circuit cases indicate that district courts should determine whether circumstances
28
warrant consideration under Rule 60(b)(6). See, e.g., Moore v. United States, 262 Fed. App’x 828,
8
1
829-30 (9th Cir. 2008) (reversing the trial court’s grant of summary judgment motion based on
2
plaintiffs’ counsel’s “virtual abandon[ment]” and finding that the trial court erred by denying relief
3
under Rule 60(b)(6) despite the fact that “plaintiffs never argued in the district court they were
4
entitled to relief under subsection (b)(6)”) (Bea, J., dissenting); Spates-Moore v. Henderson,
5
305 Fed. App’x 449 (9th Cir. 2008) (remanding to the district court for failing to consider whether
6
an attorney’s “effective[] abandon[ment of] his client” in failing to file timely oppositions to motions
7
to dismiss “constituted gross negligence and extraordinary circumstances sufficient to justify relief
8
under 60(b)(6)”). As such, the Court considers whether there is “any other reason that justifies
9
relief” pursuant to Rule 60(b)(6).
10
a.
11
12
An Attorney’s Gross Negligence Justifies Relief Under Rule 60(b)(6)
Generally, “clients must be held accountable for the acts and omissions of their attorneys.”
Pioneer, 507 U.S. at 396. As the United States Supreme Court has stated:
13
14
15
16
17
18
There is certainly no merit to the contention that dismissal of petitioner's claim
because of his counsel's unexcused conduct imposes an unjust penalty on the client.
Petitioner voluntarily chose this attorney as his representative in the action, and he
cannot now avoid the consequences of the acts or omissions of this freely selected
agent. Any other notion would be wholly inconsistent with our system of
representative litigation, in which each party is deemed bound by the acts of his
lawyer-agent and is considered to have ‘notice of all facts, notice of which can be
charged upon the attorney.’
Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962).
19
As such, “[b]ecause the client is presumed to have voluntarily chosen the lawyer as his
20
representative and agent, he ordinarily cannot later avoid accountability for negligent acts or
21
omissions of his counsel.” Tani, 282 F.3d at 1168 (citing Link, 370 U.S. at 633-34; Pioneer,
22
507 U.S. at 396-97.) However,“[t]he circuits that have distinguished negligence from gross
23
negligence in the present context have granted relief to the client where the . . . judgment was a result
24
of his counsel's displaying ‘neglect so gross that it is inexcusable.’” Tani, 282 F.3d at 1168 (citations
25
omitted). As such, the Ninth Circuit “join[ed] the Third, Sixth and Federal Circuits in holding that
26
where the client has demonstrated gross negligence on the part of his counsel, a default judgment
27
may be set aside pursuant to Rule 60(b)(6).” Id. at 1169.
28
9
1
In Tani, the Ninth Circuit set aside a default judgment after finding that a defense attorney
2
committed gross negligence by failing to participate in preliminary settlement discussions despite
3
a court order to do so, failing to file papers, failing to oppose a motion to strike the answer, and
4
failing to attend hearings, while “explicitly represent[ing]” to his client that “the case was proceeding
5
properly.” Id. at 1171. As the court noted:
6
7
8
9
Such failures and actions cannot be characterized as simple attorney error or “mere
‘neglect.’” Rather, conduct on the part of a client’s alleged representative that results
in the client's receiving practically no representation at all clearly constitutes gross
negligence, and vitiating the agency relationship that underlies our general policy of
attributing to the client the acts of his attorney.
Id. (citations omitted).
10
Initially, it appeared that the ruling in Tani was limited in application to relief from default
11
judgments. In Latshaw, the Ninth Circuit declined to extend the holding of Tani to the context of
12
a Federal Rule of Civil Procedure 68 judgment, stating, “[o]ur decision in Tani was explicitly
13
premised upon the default judgment context of the case.” Latshaw, 452 F.3d at 1103. The court
14
distinguished a Rule 68 judgment from a default judgment and found that “[d]efault judgments are
15
disfavored and appropriate only in unique circumstances. Rule 68 offers and acceptances, however,
16
are actively supported by courts. Indeed, the very purpose of Rule 68 is to encourage termination
17
of litigation.” Id. As a result of this difference, the Ninth Circuit “decline[d] to extend the holding
18
of Tani to the context of Rule 68 judgments and therefore conclude[d] that [the attorney’s] alleged
19
gross negligence does not provide grounds to vacate the judgment under Rule 60(b)(6).” Id. at
20
1103-04.
21
However, in Lal v. California, 610 F.3d 518, 524-27 (9th Cir. 2010), the Ninth Circuit
22
extended the holding in Tani and granted relief under Rule 60(b)(6) from a Federal Rule of Civil
23
Procedure 41(b) dismissal for failure to prosecute. In Lal, the court found that the attorney’s conduct
24
“constituted gross negligence” by failing obey court orders to contact the client regarding preliminary
25
settlement discussions, failing to participate in the case management conference, failing to meet and
26
confer, failing to attend hearings, and lying to the client. Id. at 525.
27
In ordering that the dismissal be set aside, the Ninth Circuit determined the following:
28
10
1
2
3
4
A dismissal for failure to prosecute under Rule 41(b) is much more like a default
judgment than a Rule 68 judgment. We based our decision in Tani on “the
well-established policy considerations we have recognized as underlying default
judgments and Rule 60(b).” The same policy considerations underlie dismissal for
failure to prosecute. We have stated that dismissal under Rule 41(b) “is so harsh a
penalty it should be imposed as a sanction only in extreme circumstances.” This is
almost identical to our stance on default judgments, which are “appropriate only in
extreme circumstances.”
5
6
Id. (citations omitted).
7
As such, the court considered the harsh policy implications of both default judgments and
8
Rule 41(b) dismissals for failure to prosecute, finding that judgments arising under these
9
circumstances could be properly set aside pursuant to Rule 60(b)(6) due to an attorney’s gross
10
negligence.
11
The Ninth Circuit has not explicitly decided in a published decision whether an order
12
granting summary judgment could be set aside based upon an attorney’s gross negligence under
13
Rule 60(b)(6). Two non-published cases, however, indicate that such relief is appropriate.
14
In Spates-Moore, the Ninth Circuit remanded a case in which the district court failed to
15
consider the gross negligence standard and application of Rule 60(b)(6) for relief from an order
16
granting summary judgment based on the opposing party’s counsel’s failure to file an opposition to
17
the motion. Spates-Moore, 305 F. App’x at 450-51. The court determined that the attorney had
18
“effectively abandoned his client,” noting that counsel had done the following:
19
21
twice failed to file timely oppositions to motions to dismiss; did not return phone
calls; did not attend a pre-trial meeting; did not file an opposition to summary
judgment; did not move for relief from summary judgment until more than seventy
days after judgment was entered; and told opposing counsel there was ‘no point’ in
doing so.
22
Id. at 451. The Ninth Circuit concluded that “[i]t is unreasonable to hold the client responsible for
23
[the attorney’s] acts in these circumstances. These failures went far beyond simple attorney error and
24
perhaps constituted gross negligence and extraordinary circumstances sufficient to justify relief
25
under 60(b)(6).” Id.
20
26
In Moore, the Ninth Circuit held that a district court “erred in denying relief under
27
Rule 60(b)(6)” where an attorney “‘virtually abandoned’” his client by “failing to respond to the
28
motion for summary judgment, even after being warned that such an omission would result in the
11
1
summary grant of the motion.” Moore, 262 F. App’x at 829. The court found that “the attorney
2
abandoned his advocacy” and had “crossed the line into the ‘gross negligence’ we described in
3
Tani.” Id. Accordingly, the Ninth Circuit has deemed that Rule 60(b)(6) is proper for granting relief
4
when an attorney’s gross negligence results in a party’s failure to oppose a motion for summary
5
judgment.
6
District courts considering whether to overturn a judgment must therefore consider the
7
attorney’s actions in determining whether the conduct meets the gross negligence standard set forth
8
in Tani. In Madison v. First Mangus Financial Corp., No. CV-08-1562-PHX-GMS, 2009 WL
9
1148453, at *2-*4 (D. Ariz. Apr. 28, 2009), the district court granted the plaintiff’s motion for relief
10
from dismissal of her case for failing to file a second amended complaint. Id. After considering the
11
Ninth Circuit’s holdings in Tani, Spates-Moore, and Moore, the court found that the plaintiff’s
12
counsel had met the gross negligence standard and had “made numerous errors while handing [the]
13
case,” including failing to inform the client of developments in the action, failing to notify the client
14
of deadlines, failing to file a second amended complaint despite assurances that he would do so,
15
avoiding correspondence from the client, and failing to file a motion for relief. Id. at *3-*4.
16
Accordingly, the court found that the plaintiff was entitled to relief pursuant to Rule 60(b)(6). Id.
17
at *4.
18
In Hoffman v. Impact Confections, Inc., No. 06cv00489 BTM(NLS), 2008 WL 5068930, at
19
*2-*4 (S.D. Cal. Nov. 26, 2008), the district court denied relief from summary judgment, holding
20
that the plaintiff was not entitled to relief under Rule 60(b)(6) based upon gross negligence on the
21
part of counsel due to the Ninth Circuit’s decision in Tani as being “‘explicitly premised upon the
22
default judgment context of the case.’” Id. at *4 (citing Latshaw, 452 F.3d at 1103). The court based
23
its decision on the finding that “the Ninth Circuit has declined to expand the holding of Tani beyond
24
the default judgment context.” Id. Hoffman, however, was decided in November 2008, before the
25
Ninth Circuit rendered its ruling in Lal in June 2010, where it was held that Rule 60(b)(6) motions
26
could be extended beyond default judgments to include relief from matters such as Rule 41(b)
27
dismissals for failure to prosecute. Lal, 610 F.3d at 524-25. Further, Hoffman did not consider the
28
Ninth Circuit’s unpublished holdings in Spates-Moore and Moore, which indicate that relief from
12
1
summary judgment pursuant to a Rule 60(b)(6) motion should be determined based upon whether
2
the attorney committed gross negligence and not simply denied outright.
3
Recent district court cases that have denied Rule 60(b)(6) relief from summary judgment
4
have done so after finding that the attorneys in question had not committed gross negligence. In
5
Markray v. AT&T-SBC-Pacific Bell Directory, No. CV 07-08001 DDP (CTx), 2010 WL 3220096,
6
at *3 (C.D. Cal. Aug. 13, 2010), the court denied relief from summary judgment, finding that the
7
plaintiff’s “attorney was not grossly negligent.” Id. In Markray, the attorney had filed an opposition
8
to the motion for summary judgment (albeit one that was “substantively weak”), had not deliberately
9
misled her client about the case, and had informed her client of the judgment and the need to file a
10
Rule 60(b) motion; further, the plaintiff had “made no attempt to inquire about her case until nearly
11
a year after the Court granted Defendants’ MSJ.” Id. As such, the court held that the plaintiff’s
12
attorney “did not ‘virtually abandon’ her” client and denied relief under Rule 60(b)(6). Id.
13
Likewise, in Brown v. Cowlitz County, No. C09-5090 RBL, 2010 WL 1608876, at *1-*2
14
(W.D. Wash. Apr. 19, 2010), the district court denied relief from summary judgment under
15
Rule 60(b)(6), finding that “counsel cannot be considered to have abandoned his client.” Id. at *2.
16
Counsel filed pleadings opposing one of the motions for summary judgment, although not the other,
17
and further filed a motion for reconsideration. Id. As such, the plaintiff was “not entitled to relief
18
due to attorney abandonment or gross negligence under Rule 60(b)(6).” Id.
19
b.
Mr. Geringer’s Conduct Rises to Gross Negligence
20
Here, the Court must determine whether Mr. Geringer’s actions (or lack thereof) constituted
21
gross negligence and “virtual abandonment” of Plaintiff so as to justify relief from summary
22
judgment pursuant to Rule 60(b)(6). See Tani, 282 F.3d at 1171-72; Lal, 610 F3d at 525.
23
At the time Defendants filed their motions for summary judgment, Plaintiff was represented
24
by Mr. Geringer, who had appeared on behalf of Plaintiff at both the scheduling conference and the
25
settlement conferences – the two events that took place prior to the filing of the motions. (Docs. 50,
26
52, 53, 57.) The Court’s orders regarding the motions for summary judgment indicate that Plaintiff
27
failed to file any oppositions and that the factual background considered by the Court was based
28
upon the DUMFs, the facts provided by Defendants. (Doc. 56, 1:21-22, fn. 2; Doc. 59, 1:26, 2:fn 2.)
13
1
There was no explanation provided by Mr. Geringer as to why oppositions were not filed
2
opposing Defendants’ motions for summary judgment. Additionally, Mr. Geringer failed to notify
3
Plaintiff of this lack of filing. In the letter dated July 19, 2010, Mr. Geringer informed his client that
4
the Court had “found that there is no triable issue of fact that would permit this matter to go to trial”
5
and had decided against Plaintiff “as a matter of law.” (Doc. 63, Exh. C.) Mr. Geringer also stated
6
that “there is no basis for filing an appeal and further the costs of such an appeal would be
7
prohibitive given the facts as determined by the court.” (Doc. 63, Exh. C.) Mr. Geringer did not
8
inform his client that he had not filed any oppositions on Plaintiff’s behalf, or that the Court had
9
decided that there was no triable issue of fact based only upon consideration of Defendants’ factual
10
statements.
11
Further, there appears to be no reason for Plaintiff to have realized that judgment was about
12
to be entered against him, as it appears that Mr. Geringer failed to notify Plaintiff of significant
13
developments in the case. On April 15, 2010, the day before the Court granted Defendants’ motion
14
for summary judgment as to the first, third, and fourth causes of action, Mr. Geringer sent Plaintiff
15
an authorization form for the release of health records at issue. (Doc. 63, Exh. E, p. 24.) There was
16
no indication in the letter that a summary judgment motion was pending. (Doc. 63, Exh. E, p. 24.)
17
Plaintiff promptly signed and returned the authorization form on April 22, 2010, indicating that he
18
was fully cooperating with his responsibilities concerning the case; Plaintiff was then “never
19
informed of anything” further until his wife contacted Mr. Geringer’s office on or about July 15,
20
2010, and learned that the case was closed. (Doc. 63, Exh. E, pp. 25-26; 74:5-10.) Thus, it appears
21
that Plaintiff believed that his case was proceeding normally until he learned that judgment had
22
actually been entered against him several months prior.
23
It is a close question whether Mr. Geringer’s conduct rises to the level of gross negligence.
24
On the one hand, Mr. Geringer did not disobey court orders or ignore court warnings regarding
25
potential dismissal of the action, and Mr. Geringer attended both the scheduling and settlement
26
conferences (Docs. 50, 52), unlike the attorneys in Tani, Lal, and Spates-Moore. On the other hand,
27
similar to the conduct of the attorneys in Tani, Spates-Moore, Moore, and Madison, Mr. Geringer
28
failed to file oppositions to motions. In fact, Mr. Geringer failed to oppose not only one, but two,
14
1
of Defendants’ motions for summary judgment. Additionally, like the attorneys in Tani, Lal,
2
Spates-Moore, and Madison, it appears that Mr. Geringer misled his client. Based on the lack of
3
information provided by Mr. Geringer in both his April 15, 2010, letter requesting Plaintiff’s
4
authorization for medical release (sent at the time that Defendants’ first motion for summary
5
judgment was pending), and his July 19, 2010, letter informing Plaintiff that the case was closed (but
6
failing to mention that he had not filed oppositions to the summary judgment motions), it appears
7
that Mr. Geringer was less than forthright with his client as to the extent of his representation efforts.
8
Like the attorney in Spates-Moore, Mr. Geringer also made a point of informing Plaintiff that there
9
was “no basis for filing an appeal” and implied that such an action would be useless. (Doc. 63,
10
Exh. C.)
11
On balance, Mr. Geringer’s conduct rises to the level of gross negligence as he “virtually
12
abandoned” Plaintiff. Mr. Geringer failed to file oppositions to either of Defendants’ motions for
13
summary judgment. Mr. Geringer led his client to believe that the action was proceeding normally
14
by requesting medical record release authorization and failing to apprise Plaintiff of the pending
15
motion for summary judgment. Mr. Geringer misled his client as to the reasons why the motions for
16
summary judgment were granted by indicating that the Court “found that there was no triable issue
17
of fact that would permit this matter to go to trial” (Doc. 63, Exh. C.), but failing to explain that the
18
Court based its consideration of the facts entirely on the DUMFs. Mr. Geringer further failed to
19
inform his client that no oppositions were filed to challenge Defendants’ motions, and thus there was
20
no legal challenge to the facts as presented by Defendants; he also informed his client that an appeal
21
would be useless.
22
In ruling on the motions for summary judgment, the Court considered the merits of
23
Defendants’ arguments; however, the Court also expressly stated that Plaintiff failed to file any
24
oppositions and that it determined the facts based on the information presented by Defendants in the
25
DUMFs. (Doc. 56, 1:21-22, fn. 2; Doc. 59, 1:26, 2:fn 2.) Plaintiff’s version of the events in the
26
second amended complaint disputes the version of events presented by Defendants, and Plaintiff also
27
indicates in the instant motion that he possesses evidence that disputes Defendants’ facts (although
28
Plaintiff does not indicate what evidence he purportedly possesses). (Doc. 63, 6:16-24.)
15
1
As such, due to Mr. Geringer’s “virtual abandonment” and gross negligence in handling his
2
client’s action, the court will recommend that Plaintiff’s motion for reconsideration be GRANTED
3
pursuant to Rule 60(b)(6). Plaintiff should thus be afforded a renewed opportunity to oppose
4
Defendants’ motions for summary judgment.
5
IV. CONCLUSION AND RECOMMENDATION
6
7
Based on consideration of the declarations, pleadings, and exhibits to the present motion, the
Court RECOMMENDS that:
8
1.
Plaintiff’s motion for reconsideration be GRANTED;
9
2.
The judgments granting Defendants’ motions for summary judgment be set aside and
10
the case be re-opened; and
11
2.
12
Plaintiff be ORDERED to file oppositions to Defendants’ motions to summary
judgment within sixty (60) days of the date of service of the district court’s order.
13
These findings and recommendations are submitted to the district judge assigned to this
14
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fifteen (15)
15
days of service of this recommendation, any party may file written objections to these findings and
16
recommendations with the Court and serve a copy on all parties. Such a document should be
17
captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge
18
will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C.
19
§ 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may
20
waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
21
22
23
IT IS SO ORDERED.
24
Dated:
ie14hj
August 21, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
25
26
27
28
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?