Herman D. Shead v. Vang et al

Filing 106

ORDER on Defendant's 105 Rule 60(b) Motion, signed by District Judge Anthony W. Ishii on 6/29/2015. (It is HEREBY ORDERED that: (1) Plaintiff's motion under Rule 60(b)(1) is DENIED; (2) Plaintiff shall submit ADDITIONAL BRIEFING on the matters described above within 21 days; and (3) failure by Plaintiff to timely respond to this order will result in the denial of Plaintiff's rule 60(b)(6) motion without further notice.)(Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HERMAN D. SHEAD,

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CASE NO. 1:09-cv-00006-AWI-SKO

Plaintiff

ORDER ON DEFENDANT’S RULE 60(b)
MOTION

v.
C/O VANG et al.,

(Doc. No. 105)
Defendant

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The instant motion arises from a 42 U.S.C. § 1983 case in which prisoner Herman D.

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Shead (“Plaintiff”), proceeding pro se, alleges that Defendant Vang (“Defendant”) employed

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excessive force while subduing him. On October 1, 2013, this Court granted Defendant’s motion

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to dismiss pursuant to Rule 41(b). See Court’s Docket Doc. No. 98. On May 8, 2015, Plaintiff

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filed this Rule 60(b) motion, alleging that his counsel both abandoned him and misled him to

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believe that Plaintiff was still being represented. See Doc. 105 p. 3. Pursuant to Rules 60(b)(1)

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and 60(b)(6), Plaintiff requests that this Court vacate its October 1, 2013 dismissal order and allow

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him to prosecute his case.

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FACTUAL BACKGROUND

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On August 14, 2012, the Court signed an order approving substitution of attorney for

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Plaintiff, who had been proceeding pro se and in forma pauperis. See Doc. 73. On August 20,

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2012, Ralph M. Rios and Adam M. Leach (“Counsel”), Plaintiff’s counsel, filed an opposition to a

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motion to dismiss by Defendant and a response to an order to show cause stemming from issues

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that pre-dated their representation of Plaintiff. See Doc. 76 & 77. On October 5, 2012, Rios filed

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a joint scheduling report. See Doc. 82.

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On January 17, 2013, the Court issued a scheduling order, which set discovery and motions

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deadlines, scheduled a settlement conference for August 13, and required the parties to submit

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confidential settlement conference statements no later than five business days before the

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conference. See Doc. 84 & 85.

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On May 2, 2013, Plaintiff received a letter from Counsel in response to an inquiry into the

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status of his case. The letter assured Plaintiff that the case was being litigated in accordance with

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the Court’s scheduling order, but that the June 21 deadline for discovery was approaching.

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Counsel stated that it would need to depose Defendant, first responders, and the person most

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knowledgeable at Pleasant Valley State Prison, where the incident occurred. See Doc. 105 p. 37.

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Counsel also requested an advance of $3,000 for the “associated depositions and transcript fees.”

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Id. Counsel referenced several prior requests for reimbursement, and advised Plaintiff that they

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might be “compelled to withdraw” for inability to prosecute pursuant to the retainer agreement.

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Id. at 38. Plaintiff replied that he was “under the impression that all litigation costs and expenses

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were covered in the original contract under the Contingent Fee Retainer Agreement,” and argued

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that the agreement stipulated that Counsel would “cover such costs and upon securing a

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claim…would deduct such expenses from the result of a court action.” Id. at 40.

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Following this interaction, Plaintiff failed to comply with the deadlines set out in the

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scheduling order. He did not submit the required confidential settlement conference statement,

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and the Court vacated the August 13 settlement conference as a result. See Doc. 92. The Court

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further ordered that counsel show cause to avoid sanctions within six days. Id.

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Plaintiff failed to respond to the show cause order, and on August 29, 2013, Defendant

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brought a motion to dismiss. See Doc. 94. Defendant noted that Plaintiff had “(1) failed to submit

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a written itemization of damages and demand with factual and legal support in preparation for a

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settlement conference scheduled for August 13, 2013; (2) submit a confidential settlement

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conference statement and file with the Court a notice for having done so; and (3) show cause

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pursuant to an Order to Show Cause as to why sanctions should not be imposed for the failure to

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do (1) and (2).” Id. at 1. Defendant also noted that Plaintiff had failed to disclose expert witnesses

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pursuant to the January 17, 2013 scheduling order. Id. at 1-2. Plaintiff had until September 16 to
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file a notice of opposition or non-opposition to the motion pursuant to Local Rule 230(c), but

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failed to do so. The Court vacated the scheduled hearing, granted Defendant’s motion, and closed

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the case. See Doc. 96, 98.

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In a January 22, 2015 letter to the Clerk, Plaintiff stated that he had “not heard from Rios

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and Associate for months.” The letter stated that Plaintiff had been attempting to establish contact

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with Counsel, but that he had never received a response. Id. at 41. Plaintiff inquired about the

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status of his case. Id. The Deputy Clerk responded on the same day that Plaintiff’s case had been

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closed since October, 2013. Id. at 43. Plaintiff filed the current motion on May 8, 2015.
PLAINTIFF’S MOTION

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Plaintiff’s Argument

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Plaintiff argues that “somewhere between August 22, 2012 and October 1, 2013, [his]

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attorney[s] Rios and Associates quit or abandon [sic] plaintiff without notice.” See Doc. 105. p. 2.

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This occurred, he claims, after Counsel requested advances to cover discovery costs, knowing of

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his indigent status. Id. Plaintiff further argues that Counsel’s failure to provide him with notice,

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and failure to formally withdraw, misled him into believing that Counsel was representing him in

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court. Id. at 3. Because Plaintiff at that time had no reason to believe that Counsel had

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abandoned him, he argues that he cannot be blamed for failing to act on his own behalf until May

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08, 2015. Id. at 4. Plaintiff argues that relief under Rule 60(b)(1) and (6) is proper, and requests

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that this case should be reopened. Id. at 2.

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Legal Standard

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Rule 60(b) provides that “the court may relieve a party or its legal representative from a

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final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise,

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or excusable neglect…(6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1) & (6).

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To obtain relief under 60(b)(1), Plaintiff must establish that Counsel is guilty of excusable

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neglect. Excusable neglect refers to “simple, faultless omissions to act, and, more commonly,

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omissions caused by carelessness.” Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380,

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388 (1993). Rule 60(b)(1) motions must be made “no more than a year after the entry of judgment

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or order or the date of the proceeding.” Id. at 393; Fed. R. Civ. P. 60(c)(1);
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Rule 60(b)(6) is an equitable remedy that applies when there is a reason not within the

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scope of Rule 60(b)(1)-(5) that justifies granting relief. Community Dental Servs. v. Tani, 282

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F.3d 1164, 1168 (9th Cir. 2002). A party invoking 60(b)(6) must demonstrate “extraordinary

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circumstances which prevented or rendered him unable to prosecute his case.” Id. The Ninth

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Circuit has awarded relief under Rule (60)(b)(6) where an attorney’s intentional, “grossly

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negligent” conduct results in a default judgment against the movant. Id. at 1169. The Court

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defines “gross negligence” as a “greater, less excusable, degree of negligence” than ordinary,

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excusable negligence. Id. at 1170. In the context of abandonment by an attorney, conduct on the

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part of an attorney that practically means that the client receives no representation is a clear

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instance of gross negligence. Id. at 1171. Tani’s rationale applies to cases where gross negligence

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by attorneys results in dismissals pursuant to Rule 41(b). Lal v. California, 610 F.3d 518, 524-527

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(9th Cir. 2010).

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Movants must make Rule 60(b)(6) motions within a reasonable time. Fed. R. Civ. P.

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60(c). This determination “depends on the facts of each case.” United States v. Holtzman, 762

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F.2d 720, 725 (9th Cir. 1985) (citing Washington v. Penwell, 700 F.2d 570, 572-573 (9th Cir.

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1981)). Courts consider “(1) the interest in finality, (2) the reason for the delay in filing, (3) the

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practical ability of the litigant to learn earlier of the grounds relied upon, and (4) prejudice to other

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parties.” Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981).

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Discussion

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1. Rule 60(b)(1)

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Plaintiff’s case was dismissed on October 1, 2013. Rule 60(c)(1) grants a period of “no

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more than one year after the entry of the judgment or order or the date of the proceeding” to file a

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60(b)(1) motion. Rule 60(b)(1) motions made more than one year after an entry of judgment are

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untimely and subject to dismissal. See Norwood v. Vance, 517 Fed. Appx. 557, 558 (9th Cir.

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2013); Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir. 1989). Plaintiff’s motion, filed over

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19 months after the order to dismiss was made and the case was closed, falls well outside of the

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prescribed one-year period to make a 60(b)(1) motion. Plaintiff’s motion is therefore untimely,

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and relief under Rule 60(b)(1) is not appropriate. Id.
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2. Rule 60(b)(6)

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Plaintiff asserts conduct on the part of Counsel which, if true, may rise to the requisite

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level of gross negligence required to obtain relief under Rule 60(b)(6). Cf. Slama v. City of

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Madera, 2011 WL 3667334, *3 (E.D. Cal. Aug. 22, 2011) (holding that an attorney’s

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misrepresentation of the status of the case to his client and failure to oppose two motions for

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summary judgment was sufficient to constitute gross negligence and attorney abandonment).

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However, this Court is concerned with the length of time that elapsed between the October 13,

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2013 dismissal of Plaintiff’s case and the May 8, 2015 filing of this motion. Given Plaintiff’s pro

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se status and the seriousness of Counsel’s alleged conduct, this Court will order Plaintiff to submit

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additional briefing on the following issues that address the 19 month gap between dismissal and

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this Rule 60 motion. Plaintiff should address why the 19 month gap is “reasonable” for purposes

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of Rule 60(c). Plaintiff should provide: (1) relevant communications with Counsel; (2) should

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address whether he had a copy of the January, 2013 scheduling order; (3) should describe and

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provide copies of any inquiries he made to Counsel on the status of his case; and (4) should

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explain why he filed this motion in May, 2015 after his January, 2015 correspondence with the

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Court.

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ORDER

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Accordingly, it is HEREBY ORDERED that:

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(1) Plaintiff’s motion under Rule 60(b)(1) is DENIED;

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(2) Plaintiff shall submit ADDITIONAL BRIEFING on the matters described above within

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21 days; and

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(3) failure by Plaintiff to timely respond to this order will result in the denial of Plaintiff’s

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rule 60(b)(6) motion without further notice.

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IT IS SO ORDERED.
Dated: June 29, 2015
SENIOR DISTRICT JUDGE

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