Smith v. Unum Life Insurance Company of America et al

Filing 13

MEMORANDUM AND ORDER signed by Judge Morrison C. England, Jr on 11/22/11 DENYING 9 Motion for Relief. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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POLLY A. SMITH,

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Plaintiff,

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No. 2:06-cv-02881-MCE-GGH

v.

MEMORANDUM AND ORDER

UNUM LIFE INSURANCE COMPANY OF
AMERICA; CHEVRON TEXACO
CORPORATION EMPLOYEE WELFARE
BENEFIT PLAN,

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Defendants.
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----oo0oo----

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Plaintiff, Polly A. Smith, brought suit against Defendants

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UNUM Life Insurance Company of America and Chevron Texaco

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(collectively referred to as “Defendants”) alleging unlawful

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denial of disability benefits.

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failure to comply with Fed. R. Civ. P. 4(m) and Local

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Rule 4-210(b), and for failure to file a Joint Status Report and

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a Response to an Order to Show Cause.

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This Court dismissed the case for

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Presently before the Court is Plaintiff’s motion to re-open

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the case pursuant to Fed. R. Civ. P. 60.1

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forth below, Plaintiff’s motion, made some three and-a-half years

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after the matter was originally dismissed, is DENIED.2

For the reasons set

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BACKGROUND

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The facts of the case are undisputed.3

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Plaintiff worked for

Chevron Texaco Corporation in California for nineteen years as a
fire security specialist.

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In 1987 while fighting a fire, Plaintiff was injured.

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result of the injury, Plaintiff became disabled and was

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reassigned to a job as a communication specialist where she

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As a

remained until March 2003.

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In or around March 2003, Plaintiff’s physician determined

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that Plaintiff was permanently and totally disabled.

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Texaco provided Plaintiff with short-term disability coverage

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through UNUM Insurance Company of America (UNUM).

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Chevron

After the short-term plan expired, Plaintiff applied for

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long-term disability.

In or around December 2004, UNUM sent

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Plaintiff a letter denying Plaintiff’s request.

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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.

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Because oral argument will not be of material assistance,
the Court orders this matter submitted on the briefs. E.D. Cal.
Local Rule 230(h).
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Unless otherwise stated, the alleged facts are taken from
Plaintiff’s Complaint.
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Shortly thereafter, Plaintiff retained attorney Sara Ray to

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file a complaint.

After sending Ray a retainer and signed

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authorization, Plaintiff did not hear from Ray for several

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months.

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stated she was preparing the complaint.

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again contacted Ray for an update.

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the complaint. Plaintiff later found out that, in fact, Ray had

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not filed the complaint at that time.

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that Ray did not file the complaint until December 2006.

Plaintiff called for an update, at which point Ray
A month later, Plaintiff

Ray told Plaintiff she filed

Court records indicate
It is

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unclear from the record, however, when Ray falsely told the

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Plaintiff she had filed the complaint.

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Plaintiff then started a pattern of calling Ray once a

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month.

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track and that they were waiting to hear back from the court.

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Ray, however, did not attempt to solicit information or

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additional facts from the Plaintiff.

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Ray generally assured Plaintiff that the case was on

In or around March 2007, having grown tired of the lack of

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information, Plaintiff asked Ray to explain the details of the

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case and how much she was suing for.

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were still waiting to hear back from the court, and that they

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would talk “dollars and cents” at a later time.

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continued her pattern of calling once a month.

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Ray explained that they

Plaintiff

In or around July 2008, Plaintiff moved to Tennessee to be

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closer to family because of health concerns.

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had stopped returning Plaintiff’s phone calls.

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to contact Ray’s law partner, Mr. Altman.

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told Plaintiff he could not speak about the case.

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By that time, Ray
Plaintiff decided

Mr. Altman, however,

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Plaintiff asked a friend of hers to contact Ray.

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called Ray from her work number and Ray answered the phone.

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explained that the case was on track and that she would call

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Plaintiff in a few days.

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her everything was fine.

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Her friend
Ray

Ray then called Plaintiff and assured

At that point, Plaintiff states that she “was not very

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confident.”

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with the court regarding her case.

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So she asked Ray to send her the documents filed
Ray agreed.

Several months passed, and Plaintiff had not received the

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documents she requested.

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her to seek another attorney.

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because she did not want to start all over, and living in another

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state she felt it would make it “extremely difficult” to start

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over. Plaintiff decided not to fire Ray.

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Plaintiff’s friends and family advised
Plaintiff refused, however,

A year or more later, Plaintiff still had not received the

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documents she requested.

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Ray for a follow-up, but Ray did not respond.

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Plaintiff sent Ray an email reminding Ray that she had not sent

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the documents as promised.

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In or about July 2009, Plaintiff called
In September 2009,

In November 2009, Ray finally responded by sending Plaintiff

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copies of the filed documents.

Upon receipt, however, Plaintiff

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became concerned because the documents did not accurately portray

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the facts of the case.

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expressing her concern, but Ray did not respond.

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started calling on a regular basis, leaving voice mails asking

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Ray to call her.

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Plaintiff then sent several emails to Ray

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Plaintiff then

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Ray did not respond until June 2010, explaining she was on

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jury duty.

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following week.

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Ray told Plaintiff she would contact her the
Ray, however, did not call.

In August 2010, Plaintiff contacted attorney Clara Reno, an

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attorney assisting Plaintiff with bankruptcy proceedings, and

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asked her what she should do regarding Ray.

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sending a certified letter asking for a status of the case and

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copies of all documents filed with the court.

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but the letter came back undelivered.

Reno suggested

Plaintiff did so,

Thereafter, Plaintiff

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again tried to contact Ray through phone calls and emails, but

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with no success.

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In February 2011, Plaintiff tried calling again, but this

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time Ray’s phone had been disconnected.

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Reno what she should do.

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State Bar.

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disbarred as of October 2010.

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Plaintiff asked attorney

Reno advised her to call the California

Upon doing so, Plaintiff learned that Ray had been

Plaintiff then called this Court to determine the status of

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her case.

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September 27, 2007, after Ray had failed to appear pursuant to an

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Order to Show Cause issued after she failed to either timely

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effectuate service on Defendants or file the required Joint

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Status Report.

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She learned that her case had been dismissed on

Plaintiff then brought this motion to re-open her case.

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ANALYSIS

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Of relevance to the issue in this case is Fed. R. Civ. P.

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§ 60(b), which allows the court to relieve a party or its legal

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representative from a final judgment, order, or proceeding for,

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among other enumerated reasons “(6) any [] reason that justifies

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relief.”

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encompass errors or actions beyond the petitioner’s control.”

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Community Dental Services v. Tani, 282 F.3d 1164, n. 8 and n. 11

Rule 60(b)(6) is the “catch-all” clause “intended to

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(9th Cir. 2001).

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“within a reasonable time.”

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Any motion under Rule 60(b)(6) must be brought
See Fed. R. Civ. P. § 60(c).

Courts use Rule 60(b)(6) “sparingly as an equitable remedy

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to prevent manifest injustice.”

United States v. Alpine Land &

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Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993).

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relief under Rule 60(b)(6), a party must demonstrate

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“extraordinary circumstances which prevented or rendered him

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unable to prosecute [his case].”

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Tani, 282 F.3d 1164, 1168 (citing Martella v. Marine Cooks &

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Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971) (per curiam));

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see also Lal v. California, 610 F.3d 518, 524 (9th Cir. 2010)

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(reciting rule above).

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constitutes such extraordinary circumstances, and is properly

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brought under Rule 60(b)(6).

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negligence resulting in dismissal with prejudice for failure to

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prosecute constitutes an “extraordinary circumstance” under

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Rule 60(b)(6) warranting relief from judgment).

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To receive

Community Dental Services v.

An attorney’s gross negligence

See id. at 524 (an attorney’s gross

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In Lal v. California, Shelly Lal brought suit against the

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California Highway Patrol for the shooting death of her husband.

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Lal, 610 F.3d at 520.

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under Fed. R. Civ. P. 41(b) for failure to prosecute when her

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attorney failed to meet deadlines and attend meetings.

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521.

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When Lal later learned of her attorney’s behavior and the

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dismissal of her suit, she hired another attorney and filed a

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motion for relief pursuant to Rule 60(b)(6).

The district court dismissed her case

Id. at

The plaintiff was unaware that her case had been dismissed.

Id. at 522-23.

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district court denied her motion.

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reversed.

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attorney Chesterfield Spahr constituted gross negligence.

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525.

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On appeal, the Ninth Circuit

It reasoned that the behavior of Lal’s
Id. at

The court noted that Sphar
failed to make initial Rule 26 disclosures after being
ordered to do so; failed to meet, confer, and
participate in the joint case management conference
after being ordered to do so; and failed to attend
hearings... Spahr continued to tell Lal that her case
was moving forward even after it had been dismissed...
Spahr repeatedly assured Lal that he would give her
copies of all of the documents he falsely claimed to
have filed in her case.

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Id. at 521.

The

Id. at 525-26.

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The plaintiff in Lal, although duped and kept in the dark by

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her attorney’s behavior for a period of time, did not sit idle

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when her attorney’s deceit became obvious.

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responding to the plaintiff’s phone calls and failed to show up

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to a conference call scheduled with the plaintiff, the plaintiff

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decided to seek the opinion of another attorney.

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When Spahr stopped

Id. at 522.

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She learned then that her case had been dismissed ten months

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earlier.

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attorney and promptly brought suit to re-open her case.

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522-23.

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Plaintiff immediately took steps to find another
Id. at

Under these circumstances, the court held that gross

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negligence existed and that the plaintiff demonstrated

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“extraordinary circumstances beyond her control” that merited

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relief under Rule 60(b)(6).

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Lal, 610 F.3d at 526.

With respect to the issue of gross negligence as it pertains

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to the facts of this case, the Court agrees with Plaintiff that

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attorney Ray’s behavior was egregious and would likely rise to

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the level of gross negligence.

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Plaintiff’s attorney Sara Ray failed to show up to Court when

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ordered to do so, led Plaintiff to believe she had filed her

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claim when she actually had not done so, failed to contact or

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follow-up with Plaintiff about Plaintiff’s case, and deliberately

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misled Plaintiff into believing her claim was pending when in

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fact Plaintiff’s claim had been dismissed.

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find it hard to hold Ray’s acts constituted gross negligence.

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Like the attorney in Lal,

This Court would not

Gross negligence alone, however, is not enough to grant

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relief.

The Plaintiff must also demonstrate that the gross

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negligence constituted an extraordinary circumstance “beyond her

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control.”

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282 F.3d at 1171.

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brought within a reasonable time.

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The Plaintiff here has not made a showing that the circumstances

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were out of her control, or that her motion was brought within a

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reasonable time.

See Lal, 610 F.3d at 526; see also Tani, supra,
Additionally, Rule 60(b)(6) motions must be

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See Fed R. Civ. P. § 60(c).

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Unlike the Plaintiff in Lal who took action immediately upon

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suspicion that her original attorney was not representing her

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properly, the Plaintiff here chose not to take action even when

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her attorney’s egregious behavior was blatantly obvious.

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The Court does not fault the Plaintiff’s inaction early on

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in the lawsuit.

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intentionally deceived the Plaintiff by assuring the Plaintiff

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that her case was on track, lying about when the claim was filed,

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and most egregious of all, failing to tell the client that her

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Indeed, between 2005 and mid-2008, attorney Ray

case had been dismissed in September 2007.
However, by July 2008, attorney Ray’s behavior became

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obvious to the Plaintiff and to those around her.

For instance,

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Plaintiff states that Ray had stopped calling.

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return calls prompted Plaintiff to call Ray’s partner for

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answers.

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one of her friends to call Ray directly for an update on her

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case.

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likely because she did not recognize the phone number.

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after being caught answering the phone did Ray decide to call the

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Plaintiff back.

At this point, Plaintiff admits she “was not

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very confident.”

Plaintiff’s friends and family even advised

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Plaintiff to seek another attorney.

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Plaintiff, at this juncture in the time line of events, was aware

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that she was not receiving proper representation.

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It is the opinion of this Court that the Plaintiff should have

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sought the help of a second attorney at this point, or at the

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very least, proceeded proactively to address Ray’s behavior and

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the lack of representation.

Ray’s failure to

Ray’s partner declined to comment, so Plaintiff asked

Unsurprisingly, Ray answered the call from the friend,

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Only

By all accounts, the

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It was not enough that Plaintiff proceeded by asking Ray to send

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her the filed court documents in her case and wait for a

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response.

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But even if a reasonable person would have proceeded as the

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Plaintiff did in this case, nothing excuses Plaintiff’s inaction

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for an entire year or more while she waited to receive the

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requested documents.

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requested the documents from Ray around July 2008.

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calls and emails, Ray did not provide the documents until

According to the Plaintiff, Plaintiff
Despite phone

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sometime around November 2009.

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documents did not accurately portray the facts of her case.

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Thus, even if it was reasonable for Plaintiff to give Ray another

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chance after Ray regularly failed to respond to Plaintiff’s phone

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calls through July 2008, Ray’s subsequent behavior and inaction

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with respect to the requested documents should have prompted

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Plaintiff to fire Ray and hire another attorney.

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Plaintiff did not fire her attorney or take responsibility for

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her case.

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Ray’s phone was disconnected, to finally take action.

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And even then, the filed

However,

She waited until February 2011, when she discovered

Although the court is sympathetic to the Plaintiff’s

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situation -- having been duped and misled by an attorney whom she

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trusted -- the Court cannot ignore the poor choices the Plaintiff

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made with respect to how she handled her attorney’s obvious

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improper behavior.

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case was not beyond Plaintiff’s control.

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such remedial action, Plaintiff also failed to bring her

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Rule 60(b) motion within a reasonable time pursuant

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Fed R. Civ. P. § 60 subsection (c).

Accordingly, taking responsibility for her

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Having failed to take

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That motion was not brought until March 28, 2011, more than three

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and-a-half years after the Court dismissed Plaintiff’s complaint.

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CONCLUSION

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For the foregoing reasons, Plaintiff’s Motion for relief
(ECF No. 9) under Fed. R. Civ. P. § 60(b) is DENIED.
IT IS SO ORDERED.
Dated: November 22, 2011

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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