JARVIS et al., v. PARKER et al.,

Filing 46

MEMORANDUM AND OPINION. Signed by Judge Colleen Kollar-Kotelly on January 31, 2014. (lcckk1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DEREK N. JARVIS, et al.,
Plaintiffs,
v.

Civil Action No. 13-350 (CKK)

DARRYL S. PARKER and
C. HOPE BROWN,
Defendants.

MEMORANDUM OPINION
(January 31, 2014)
Presently before the Court is Plaintiffs’ [31] Motion for Relief from Judgment Pursuant
to Federal Rule of Civil Procedure 60(b). Upon consideration of the pleadings 1, the relevant
legal authorities, and the record as a whole, the Court DENIES Plaintiffs’ Motion. Accordingly,
this action remains DISMISSED WITHOUT PREJUDICE in its entirety.
I. BACKGROUND
Plaintiffs filed their [1] Complaint in this action on March 18, 2013. On April 16, 2013,
Defendant Parker filed a [12] Motion to Dismiss. On April 17, 2013, Defendant Brown filed a
[15] Motion to Dismiss, or in the Alternative, for Summary Judgment. As explained in greater
detail in the Court’s [23] May 13, 2013 Memorandum Order, under the Federal and Local Rules,
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Pls.’ Mot. for Relief from Judgment Pursuant to Fed. R. Civ. P. 60(b), ECF No. [31]
(“Pls.’ Mot.”); Pls.’ Mem. of P. & A. in Supp. of Pls.’ Rule 60(b) Mot. for Relief from Judgment,
ECF No. [31-1] (“Pls.’ Mem.”); Def. Browns’ Opp’n to Pls.’ Mot. for Relief from Judgment,
ECF No. [34] (‘Brown Opp’n”); Def. Parker’s Opp’n to Pls.’ Mot. for Relief from Judgment
Pursuant to Fed. R. Civ. P. 60(b), ECF No. [35]; Pls.’ Corrected & Amended Reply to Def.
Darryl S. Parker’s Opp’n to Pls.’ Rule 60(b) Mot. for Relief from Judgment, ECF No. [43]; Pls.’
Corrected & Amended Reply to Def. C. Hope Brown, Esq.’s Opp’n to Pls.’ Rule 60 Motion for
Relief from Judgment, ECF No. [44]. In an exercise of its discretion, the Court finds that
holding oral argument would not be of assistance in rendering a decision. See LCvR 7(f).

Plaintiffs’ opposition to Defendant Parker’s motion was due on Friday, May 3, 2013, and
Plaintiffs’ opposition to Defendant Brown’s motion was due on Monday, May 6, 2013. See Fed.
R. Civ. P. 6(d); LCvR 7(b). Plaintiffs served neither opposition by the required deadline. Nor
did Plaintiffs file a motion seeking an extension of time to respond to either motion, as was
required by this Court’s standing order. See Order Establishing Procedures for Cases Assigned
to Judge Colleen Kollar-Kotelly (Mar. 19, 2013), ECF No. [2], at ¶ 7.
Accordingly, on May 8, 2013, the Court issued an [20] Order which (1) granted
Defendant Brown’s motion to dismiss as conceded, due to Plaintiffs’ failure to timely file an
opposition memorandum, and (2) dismissed without prejudice Plaintiffs’ Complaint against
Defendant Brown. On May 13, 2013, the Court issued a separate [23] Order which, inter alia,
struck Plaintiffs’ late-filed opposition memorandum to Defendant Parker’s motion to dismiss.
The Court further granted Plaintiffs until May 15, 2013 to file a motion requesting
reconsideration of the Court’s Order dismissing without prejudice their case against Defendant
Brown, and requesting post-deadline extensions for the filing of Plaintiffs’ opposition briefs. See
Order (May 13, 2013), ECF No. [23].
On May 15, 2013, Plaintiffs timely filed a [24] Motion for Reconsideration Seeking
Extensions of Time for the Filing of Plaintiff Beneficiaries’ Post-Deadline Opposition Briefs,
which both Defendants opposed. On May 31, 2013, however, Plaintiffs filed a [28] Motion to
Withdraw their Motion for Reconsideration, which requested, inter alia, that the Court permit
Plaintiffs to withdraw their motion for reconsideration. On June 3, 2013, the Court subsequently
issued an [29] Order granting Plaintiffs’ motion to withdraw and, in light of this motion,
dismissed Plaintiffs’ case without prejudice in its entirety.

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The Court also used the [30] Memorandum Opinion accompanying this Order as an
opportunity to make an important clarification for the record. In Plaintiffs’ motion to withdraw
their motion for reconsideration, Plaintiffs vaguely indicated that they untimely filed their
opposition motions “due to Plaintiffs’ counsel’s serious illness during April 2013.” See ECF No.
[28], at 1.

However, the Court noted that in their motion for reconsideration, Plaintiffs

represented more specifically that Plaintiffs’ counsel was incapacitated from influenza only from
Monday, April 22, 2013 until Tuesday, April 30, 2013. See ECF No. [24], at 2. Plaintiffs also
represented that Plaintiffs’ failed to timely file their opposition briefs because Plaintiffs’ counsel
made an inadvertent error in that he believed Plaintiffs had twenty-one (21) days, see id. at 3,
instead of the fourteen (14) days provided by this Court’s Local Rules plus three (3) additional
days, where service is made through electronic filing, see LCvR 7(b); Fed. R. Civ. P. 6(d).
Plaintiffs’ counsel provided no explanation for his failure to consult this Court’s Local Rules
governing the time for responding to motions at the time Defendants’ motions to dismiss were
filed, which was prior to Plaintiffs’ counsel’s alleged incapacitation – specifically, on April 16,
2013 and April 17, 2013. Nor did Plaintiffs’ counsel provide any explanation for his failure to
consult the Local Rules in the days immediately following his alleged incapacitation. The Court
noted the well-established rule that “inadvertence, ignorance of the rules, or mistakes construing
the rules do not usually constitute ‘excusable’ neglect.” See Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. Partnership, 507 U.S. 380, 392 (1993). See also, e.g., Inst. for Policy Studies v.
C.I.A., 246 F.R.D. 380, 383-86 (D.D.C. 2007). Therefore, although the Court had no occasion to
rule on Plaintiffs’ motion for reconsideration in view of their withdrawal of that motion, the
Court noted, for purposes of the record, that the explanation proffered by Plaintiffs for their

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failure to timely file their opposition memoranda “left much to be desired.” Mem. Op. (June 3,
2013), ECF No. [30] at 3.
Subsequently, on September 21, 2013, Plaintiffs filed the present [31] Motion for Relief
from Judgment Pursuant to Federal Rule of Civil Procedure 60(b). Both Defendants have filed
oppositions and Plaintiffs have filed replies. Accordingly, this motion is ripe for review.
II. LEGAL STANDARD
Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure a district court is
permitted to “relieve a party or its legal representative from a final judgment, order, or
proceeding” on one of six enumerated grounds. Fed. R. Civ. P. 60(b). Here, Plaintiffs’ counsel
relies upon Rule 60(b)(1) and Rule 60(b)(6). Rule 60(b)(1) permits a court to relieve a party
from an order based on “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P.
60(b)(1). Rule 60(b)(6) represents a catch-all provision, permitting a court to relieve a party
from an order for “any other reason that justifies relief” besides Rule 60(b)(1)-(5). Fed. R. Civ.
P. 60(b)(6). The party seeking relief under Rule 60(b) bears the burden of showing that he or she
is entitled to the relief. Norris v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011).
III. DISCUSSION
In support of his Rule 60(b) motion, Plaintiffs’ counsel offers the following explanation
for his late filing. Because of incapacitating illness, he was unable to file an extension request or
prepare the motion in time. Pls.’ Mem. ¶¶ 8-15. Further, both because of his mistake as to the
rules of this Court and the lingering effects of his illness, Plaintiffs’ counsel assumed that he had
twenty-one days to file his response rather than the actual seventeen days provided by the Local
Rules and the Federal Rules of Civil Procedure. Id. ¶¶ 14-15. In its June 3, 2013 Memorandum
Opinion, although not called upon to decide a Rule 60(b) motion, this Court indicated that these

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reasons for relief “left much to be desired.” Mem. Op. (June 3, 2013), ECF No. [30] at 3. Now,
presented with the same reasons (almost verbatim), the Court concludes that they are inadequate
to justify relief under Rule 60(b).
As an initial matter, Plaintiffs’ counsel’s illness is something of a red herring, providing
an incomplete explanation for his failure to timely file Plaintiffs’ oppositions. Plaintiffs’ counsel
states that he began to feel the symptoms of influenza beginning on April 19, 2013. Pls.’ Mem. ¶
7. The Court notes, as it did in its June 3, 2013 Order, that these symptoms developed three days
after Defendant Parker’s motion to dismiss was filed and two days after Defendant Brown’s
motion was filed. Plaintiffs’ counsel states that due to his illness he was incapacitated from
April 22, 2013 to April 30, 2013. Id. ¶ 12. Yet, Plaintiffs’ oppositions to Defendant’s motions
were due on May 3, 2013 and May 6, 2013, respectively. 2 Accordingly, even subtracting the
time when Plaintiffs’ counsel claims he was ill, he still had significant time to consult the Local
Rules and either respond to Defendants’ motions or (more likely) seek an extension of time to
respond based on the good cause provided by his illness. Specifically, Plaintiffs’ counsel had six
days in which to take this action with respect to Defendant Parker’s motion – three days prior to
his illness and three days afterwards. Similarly, Plaintiffs’ counsel had eight days to take this
action with respect to Defendant Brown’s motion – two days prior to his illness and six days
afterwards.
In light of these facts, the remaining reason for Plaintiffs’ counsel’s late filing and failure
to seek an extension request is his mistake as to the rules of this Court, which required that

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Puzzlingly, Plaintiffs’ counsel continues to state that Plaintiffs’ oppositions were due
within fourteen days of the filing of Defendants’ motions to dismiss. Id. ¶ 6. The Court has
repeatedly informed Plaintiffs’ counsel that under the Local Rules and the Federal Rules of Civil
Procedure, Plaintiffs’ oppositions to Defendants’ motions to dismiss were due seventeen days
after the filing of the motion. See, e.g., Mem. Order (May 13, 2013), ECF No. [23] at 3.
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Plaintiffs’ oppositions to Defendants’ motions to dismiss be filed within seventeen days of the
filing of these motions. Plaintiffs’ counsel describes this as “an inadvertent error in that he
believed that Plaintiff Beneficiaries’ had twenty-one (21) days . . . to file Plaintiff Beneficiaries’
two (2) oppositions akin to other federal courts to which counsel is admitted and/or has
practiced.” 3 Id. ¶ 14. This mistake of the rules of this Court, Plaintiffs’ counsel appears to
contend, justifies relief under Rule 60(b)(1) or 60(b)(6). Id. ¶ 29. The Court finds neither
provision applicable here.
1. Rule 60(b)(1)
As noted, Rule 60(b)(1) permits a court to relieve a party from an order based on
“mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). The Supreme
Court has set out four factors for determining when a late filing may constitute “excusable
neglect.” Pioneer, 507 U.S. at 395. These factors are: “(1) the danger of prejudice to the
[opposing party], (2) the length of delay and its potential impact on judicial proceedings, (3) the
reason for the delay, including whether it was within the reasonable control of the movant, and
(4) whether the movant acted in good faith.” In re Vitamins Antitrust Class Actions, 327 F.3d
1207, 1209 (D.C. Cir. 2003) (citing Pioneer, 507 U.S. at 395). The inquiry into whether a
party’s action constitutes excusable neglect “is at bottom an equitable one, taking account of all
relevant circumstances surrounding the party’s omission.” Pioneer, 507 U.S. at 395.
Here, although Plaintiffs do not cite Pioneer, the Court notes that three of the four
Pioneer factors favor the Plaintiff. First, Defendants would not be prejudiced if this Court
allowed Plaintiffs to file their oppositions out of time, as it would enable a ruling on the merits of

3

Although Plaintiffs’ counsel lists other federal courts to which he is admitted, Pls.’
Mem. ¶ 14 n. 1, he does not identify any other court to which he is admitted whose rules set a
twenty-one day deadline for responding to motions.
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Defendants’ motions. Second, the length of the delay – consisting of only a matter of days – was
short and did not significantly impact judicial proceedings. See Cryer v. InterSolutions, Inc., No.
06-cv-2032, 2007 WL 1191928, at *6 (D.D.C. April 20, 2007) (length of delay was “not great”
where motion for extension of time to file for class certification was filed 22 days after deadline).
Third, there is no reason to believe that Plaintiffs’ counsel acted in bad faith.
“Nevertheless, the remaining Pioneer factor – fault – is ‘perhaps the most important
single factor.’” Institute for Policy Studies, 246 F.R.D. at 383 (D.D.C. 2007) (quoting Webster v.
Pacesetter, Inc., 270 F.Supp.2d 9, 14-15 (D.D.C. 2003). See also Wilson v. Prudential Fin., 218
F.R.D. 1, 3 (D.D.C. 2003) (describing fault as the “key factor” in excusable neglect analysis).
Here, Plaintiffs’ counsel states that his failure to file Plaintiffs’ oppositions on time was due to
mistake or ignorance of the rules of this Court. However, as the Supreme Court made clear in
Pioneer, “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect.” Pioneer, 507 U.S. at 392; see also McDowell-Bonner v. District
of Columbia, 668 F.Supp.2d 124 (D.D.C. 2009) (“Although the United States Court of Appeals
for the District of Columbia Circuit has declined to adopt a per se rule, it is nonetheless the case
that ‘inadvertence, ignorance of the rules, or mistakes construing the rules do not usually
constitute excusable neglect.’”) (quoting In re Vitamins, 327 F.3d at 1209-10).
As other courts of this district have noted, “[i]t is easy to see why this is so. If a simple
mistake made by counsel were to excuse an untimely filing, ‘it [would be] hard to fathom the
kind of neglect that we would not deem excusable.’” Institute for Policy Studies, 246 F.R.D. at
383-84 (quoting Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464 (8th Cir. 2000)). See
also Spears v. City of Indianapolis, 74 F.3d 153, 158 (7th Cir. 1996) (“If the court allows
litigants to continually ignore deadlines and seek never ending extensions without consequence,

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soon the court's scheduling orders would become meaningless.”) (internal quotation omitted).
Indeed, “it is only fair to require all parties to the present case to comply with the Federal Rules
of Civil Procedure and Local Rules.” Cobell v. Norton, 213 F.R.D. 42, 42-43 (D.D.C. 2003).
Furthermore, attorneys are “presumed to know and understand the rules of this Court,” Internet
Fin. Servs. v. Law Firm of Lawson-Jackson, 394 F.Supp.2d 1, 6 (D.D.C. 2005), as “[a]dmission
to practice before this Court requires that an attorney affirm in writing that he or she is ‘familiar
with the Rules of the United States District Court for the District of Columbia.’” McDowellBonner, 668 F.Supp.2d at 126 (quoting LCvR 83.8(b)(6)(iii)).
Based on these principles, numerous courts of this district have rejected untimely filings
“where the only triggering Pioneer factor was, as is the case here, a mistake made by counsel.”
Institute for Policy Studies, 246 F.R.D. at 384 (citing cases). See, e.g., McDowell-Bonner, 668
F.Supp.2d at 127 (“the missed deadline of May 11, 2009 cannot be reasonably viewed as
excusable”); Casanova v. Marathon Corp., 499 F.Supp.2d 32, 34 (“mere characterization of
prior counsel’s failure [to timely file answer to counterclaim] as an oversight is insufficient”);
Halmon v. Jones Land Wootton USA, 355 F.Supp.2d 239, 242 (describing as “lame” counsel's
excuse that she “did not place the due date on her calendar”); Webster, 270 F.Supp.2d at 11
(D.D.C. 2003) (“[I]gnorance of the rules [ ] or mistakes construing the rules do not usually
constitute ‘excusable’ neglect.”); Cobell, 213 F.R.D. at 42-43 (“inadvertent miscalculation of the
date by which [plaintiffs] were required to respond to defendants' filings” not excusable neglect);
Ramseur v. Barreto, 216 F.R.D. 180, 182 (D.D.C. 2003) (“inadvertently overlook[ing] a filing
deadline [and later] to be reminded of it only by a show cause order some three weeks later [does
not] constitute [ ] excusable neglect”) (internal quotations omitted).

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Accordingly, the Court finds that Plaintiffs’ counsel’s late filing does not constitute
excusable neglect. To excuse such failure to consult the Local Rules without consequence would
open the door for any basic procedural error to qualify as excusable neglect. Further, the Court
takes judicial notice of the fact that Plaintiffs’ counsel has been admitted to practice before this
Court for approximately eight years, since November 2005, and is consequently presumed to be
familiar with the Local Rules of this Court.

See LCvR 83.8(b)(6)(iii).

In light of these

considerations, as well as precedent in this district, the Court concludes that Plaintiffs’ counsel’s
error in late filing does not provide sufficient grounds for relief under Rule 60(b)(1).
2. Rule 60(b)(6)
Relief under Rule 60(b)(6) would also be inappropriate here. The Supreme Court has
consistently held that Rule 60(b)(6) motions should only be granted in “extraordinary
circumstances.” Ackerman v. United States, 340 U.S. 193, 199 (1950). See also Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005) (“our cases have required a movant seeking relief under Rule
60(b)(6) to show ‘extraordinary circumstances’ justifying the reopening of a final judgment.”).
The D.C. Circuit has “similarly observed that Rule 60(b)(6) ‘should be only sparingly used’ and
may not ‘be employed simply to rescue a litigant from strategic choices that later turn out to be
improvident.’” Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007) (quoting Good Luck
Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)). Further, claims under Rule
60(b)(6) must not be “premised on one of the grounds for relief enumerated in clauses (b)(1)
through (b)(5).” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988). “Rule
60(b)(6) does not provide an opportunity to relitigate a motion brought unsuccessfully under one
of the other provisions of Rule 60(b).” Green v. American Federation of Labor, and Congress of

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Industrial Organizations, 287 F.R.D. 107, 109 (D.D.C. 2012) (quoting Kramer, 481 F.3d at
792).
Here, this is exactly what Plaintiffs’ counsel has sought to do. Failing in the argument
that his late filing constitutes excusable neglect under Rule 60(b)(1), Plaintiffs’ counsel has also
requested relief under Rule 60(b)(6). Despite the fact that Plaintiffs bear the burden for showing
the appropriateness of Rule 60(b) relief here, Plaintiffs’ counsel provides no argument for why
Rule 60(b)(6) is applicable for a standard late filing, much less why this case constitutes the
required “extraordinary circumstances.” Ackerman, 340 U.S. at 199. In the past, courts have
found such “extraordinary circumstances”, for example, “when a party timely presents a
previously undisclosed fact so central to the litigation that it shows the initial judgment to have
been manifestly unjust,” Good Luck Nursing Home, 636 F.2d at 577. Other “examples of the
limited circumstances where relief under Rule 60(b)(6) is appropriate include an adversary’s
failure to comply with a settlement agreement which was incorporated in a court’s order, fraud
by ‘the party’s own counsel, by a codefendant, or by a third-party witness[,]’ or ‘when the losing
party fails to receive notice of the entry of judgment in time to file an appeal.’” Green, 287
F.R.D. at 109 (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2864 (2d
ed. 1995)). This case, by contrast, represents garden-variety attorney error. To premise relief
under Rule 60(b)(6) on such a basis would do violence to the Supreme Court and D.C. Circuit’s
instructions that this provision should be “sparingly used.” Kramer, 481 F.3d at 792. Rather
than unnecessarily stretch the boundaries of Rule 60(b)(6), the Court concludes that Plaintiffs are
not entitled to relief under this provision either.
IV. CONCLUSION

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For the reasons stated herein, Plaintiffs’ [31] Motion for Relief from Judgment Pursuant
to Federal Rule of Civil Procedure 60(b) is DENIED.

Accordingly, this action remains

DISMISSED WITHOUT PREJUDICE in its entirety. However, although the Court denies this
motion, it notes that Plaintiffs may still ultimately find relief on the merits. Because this action
is dismissed without prejudice, Plaintiffs are free to refile this case if they choose to do so. 4 An
appropriate order accompanies this Memorandum Opinion.

_____/s/______________________
COLLEEN KOLLAR-KOTELLY
United States District Judge

4

Because this case was dismissed without prejudice, the Court has not addressed
Defendants’ arguments on the merits that Plaintiffs’ claims are res judicata, as a judge of the
District of Columbia Superior Court has ruled on them and this opinion was affirmed by the
District of Columbia Court of Appeals. See Brown Opp’n at 3-4.
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