Crable v. Premier Baths, Inc. et al

Filing 74

ORDER denying 73 Motion to Set Aside. Signed by Judge Roy B. Dalton, Jr. on 10/11/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CHARLES CRABLE,
Plaintiff,
v.

Case No. 6:16-cv-544-Orl-37TBS

PREMIER BATHS, INC. and
BILL KELLY,
Defendants.
ORDER
This cause is before the Court on Plaintiff’s, Charles Crable, Amended Motion to
Set Aside Order of Dismissal, Dated August 29, 2016 [Doc. 70] (Doc. 73), filed September
14, 2016.
Plaintiff commenced this action in the U.S. District Court for the Northern District
of New York. (See Doc. 1.) On March 31, 2016, the case was transferred to this Court.
(Docs. 32, 33.) Subsequently, the Court directed Plaintiff to show cause why the case
should not be dismissed for failure to prosecute. (Doc. 56.) In response, Plaintiff averred
that he had only recently retained counsel and needed additional time to allow his counsel
to bring the case current. (Doc. 60; see also Doc. 63.)
On May 24, 2016, the Court granted Plaintiff’s motion for entry of default against
Defendants. (Doc. 64.) Following entry of default, Plaintiff failed to move for entry of
default judgment. (See Doc. 68.) Consequently, the Court again directed Plaintiff to show
cause why the case should not be dismissed for failure to prosecute. (Id.) Plaintiff
responded that his counsel was preparing a motion for summary judgment and that it
would be filed on or before Monday, August 15, 2016. (Doc. 69.) After Plaintiff failed to

file a motion by that date, the Court dismissed the case without prejudice on August 29,
2016. (Doc. 70 (“Dismissal”).) In the instant Motion, Plaintiff requests that the Court set
aside the Dismissal pursuant to Federal Rule of Civil Procedure 60(b)(1) and (b)(6).1 (Doc.
73, pp. 2–3.)
Rule 60(b) provides that a court may relieve a party from a final judgment for, inter
alia, “mistake, inadvertence, surprise, or excusable neglect” or “any other reason
justifying relief.” See Fed. R. Civ. P. 60(b)(1),(6). “[T]he decision to grant such relief is
committed to the sound discretion of the district judge . . . .” Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993). “The Court’s
reconsideration of a previous order is an extraordinary remedy, to be employed
sparingly.” Mannings v. Sch. Bd. of Hillsborough Cty., 149 F.R.D. 235, 235
(M.D. Fla. 1993).
In the context of Rule 60(b)(1), “‘excusable neglect’ is understood to encompass
situations in which the failure to comply with a filing deadline is attributable to negligence.”
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394 (1993). “The
determination of what constitutes excusable neglect is generally an equitable one, taking
into account the totality of the circumstances surrounding the party’s omission.” Sloss
Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir. 2007). Relevant considerations
include: “the danger of prejudice to the [opposing party], the length of the delay and its
potential impact on judicial proceedings, the reason for the delay, including whether it was
Plaintiff’s request for relief under Rule 60(b)(6) is inappropriate in light of Plaintiff’s
reliance on excusable neglect as the basis for his Motion. See Solaroll Shade & Shutter
Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1133 (11th Cir. 1986) (explaining that Rule
60(b)(1) and (b)(6) are mutually exclusive such that “a court cannot grant relief under
(b)(6) for any reason which the court could consider under (b)(1).”).
1

2

within the reasonable control of the movant, and whether the movant acted in good faith.”
See 507 U.S. at 395. The moving party bears the burden of establishing entitlement to
Rule 60(b)(1) relief. Florida Physician’s Ins. Co. v. Ehlers, 8 F.3d 780, 783
(11th Cir. 1993).
Plaintiff represents that the Dismissal should be set aside because: (1) his
counsel’s failure to file the summary judgment motion by a self-imposed deadline was
“excusable neglect”; and (2) the untimeliness for such an “innocent oversight” was not
deliberate or intended to delay the instant action. (Id. at p. 2.) Indeed, under some
circumstances the failure to meet a filing deadline because of an attorney’s mistake of
fact can constitute excusable neglect. See United States v. Davenport, 668 F.3d 1316,
1324 (11th Cir. 2012). However, here, Plaintiff’s demonstrated lack of diligence over the
course of this litigation renders any neglect in this case inexcusable. As such, the Court
finds that Plaintiff’s Motion is due to denied.
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s, Charles
Crable, Amended Motion to Set Aside Order of Dismissal, Dated August 29, 2016
[Doc. 70] (Doc. 73) is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on October 11, 2016.

3

Copies:
Counsel of Record
Pro se

4