Jones et al v. a Municipal Corporation et al
Filing
34
OPINION: For the reasons stated, Plaintiffs' Motion to Vacate Judgmentin a Civil Action Pursuant to Federal Rules of Civil Procedure, Rule60(b)(1)and (6) (d/e 30) is GRANTED. The Judgment enteredOctober 24, 2012 is VACATED, and Defendants' Motion forSummary Judgment (d/e 27) is reinstated. Plaintiffs shall file aresponse to the Motion for Summary Judgment on or beforeFebruary 20, 2013. In addition, Plaintiffs' counsel shall be personally responsible for Defendants' attorney 039;s fees and costs reasonably incurred inresponding to the Motion to Vacate. Defense counsel shall submitan itemized billing of those attorney's fees and costs on or beforeFebruary 13, 2013. Entered by Judge Sue E. Myerscough on 2/6/2013. (CT, ilcd)
E-FILED
Wednesday, 06 February, 2013 11:48:47 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JEFFREY T. JONES and
CHARLENE VINCENT,
Plaintiffs,
v.
SHAWN PETIT, Police Officer,
City of Lincoln; KEITH DeVORE,
Police Officer, City of Lincoln; and
KEVIN LYNN, Police Officer, City
of Lincoln,
Defendants.
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No. 10-3131
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Plaintiffs’ Motion to Vacate
Judgment in a Civil Action Pursuant to Federal Rules of Civil
Procedure, Rule 60(b)(1) and (6) (d/e 30). Because the Court finds,
in an exercise of its discretion, that Plaintiffs’ counsel has
demonstrated excusable neglect, the Motion is GRANTED.
However, Plaintiffs’ counsel of record is personally responsible for
payment of Defendants’ attorney’s fees and costs reasonably
incurred in responding to Plaintiffs’ Motion to Vacate.
I. BACKGROUND
This case was filed in June 2010. In October 2010, United
States Magistrate Judge Byron G. Cudmore entered a scheduling
order setting certain deadlines, including a deadline to file
dispositive motions by December 31, 2011. See d/e 13. In January
2012, Judge Cudmore granted a motion to extend deadlines and
extended the dispositive motion deadline to June 1, 2012. See Text
Order of January 18, 2012. In June 2012, Judge Cudmore granted
a motion to extend deadlines and extended the dispositive motion
deadline to August 31, 2012. See Text Order of January 25, 2012.
On August 31, 2012, Defendants filed a Motion for Summary
Judgment. See d/e 27. Plaintiffs’ response was due September 24,
2012. On October 2, 2012, this Court entered a text order
requesting that Defendants provide the Court with a courtesy copy
of the Motion for Summary Judgment as required by the Local
Rules. The Court also noted that the deadline for Plaintiffs to
respond to the Motion for Summary Judgment had passed.
On October 16, 2012, this Court entered a Text Order noting
that Plaintiffs had still not responded to the Motion for Summary
Judgment. Therefore, the Court assumed Plaintiffs had no
Page 2 of 10
objection and granted the Motion for Summary Judgment. On
October 24, 2012, Judgment was entered in favor of Defendants
and against Plaintiffs. See d/e 28.
On December 28, 2012, Plaintiffs filed their Motion to Vacate
Judgment in a Civil Case Pursuant to Federal Rules of Civil
Procedure, Rule 60(b)(1) and (6) (d/e 30). In the Motion to Vacate,
Plaintiffs assert that counsel never received the Motion for
Summary Judgment, the Judgment granting summary judgment in
favor of Defendants, the October 2, 2012 Text Order, or the October
16, 2012 Text Order.
According to the Motion, Plaintiffs’ counsel discovered the
judgment on November 30, 2012, when one of the Plaintiffs met
with counsel to prepare for trial. That Plaintiff told counsel that cocounsel had sent Plaintiff a letter that week advising that summary
judgment had been entered against Plaintiffs. Co-counsel, Douglas
Muck of Lincoln, Illinois, is not registered with the district court to
receive emails in the case but the Certificate of Service on the
Motion for Summary Judgment reflects that service was made on
both counsel and co-counsel.
Page 3 of 10
The Motion to Vacate further provides that Plaintiffs’ counsel
immediately examined the civil docket and verified that the Motion
for Summary Judgment had been granted. Counsel’s secretary
contacted counsel’s server, AT&T, in an attempt to document the
emails received but was advised that the server no longer provided
that service.
Plaintiffs’ counsel has implemented remedial procedures to
insure that emails are received properly. The email system has
been set up so that all emails go directed to counsel’s computer and
not the server. In addition, a new email account has been created
which will prevent email from being lost or hacked.
In support of the Motion, Plaintiffs attach three exhibits.
Exhibit A is a log of counsel’s email accounts for this case, which
shows that no e-filing was received pertaining to the Motion for
Summary Judgment or the October 24, 2012 Text Order. Exhibit B
is the Affidavit of Plaintiffs’ former secretary which states that, to
her knowledge, the e-mails for the Motion for Summary Judgment
and the Text Order of October 24, 2012 were not received. The
former secretary also asserts that the last e-mail received regarding
this case was in July 2012. Finally, Exhibit C is the Affidavit of
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counsel of record in the case indicating that the August 31, 2012
filing of the Motion for Summary Judgment and the October 24,
2012 Text Order granting the motion were not received by him.
On January 14, 2013, Defendants filed a response in
opposition to the Motion to Vacate (d/e 31). Defendants argue that
the alleged failure to receive e-filings does not constitute excusable
neglect. According to Defendants, Plaintiffs’ counsel was aware that
the deadline for filing dispositive motions was August 31, 2012, and
counsel had a duty to monitor the docket in the case. However,
counsel did not even attempt to access the docket sheet until
November 30, 2012. Defendants further note that Plaintiffs’
counsel fails to explain why co-counsel was aware of the motion for
summary judgment and the order granting summary judgment.
On January 23, 2012, this Court entered a Text Order noting
that the Court contacted Jason Planck, the United States District
Court, Central District Illinois Database Administrator, and Marleen
Cooke, the Data Quality Analyst to ensure that Notice of Electronic
Filings (NEFS) were being delivered to counsel. Planck and Cooke
prepared an Affidavit, which was filed. See d/e 32.
Page 5 of 10
The Affidavit provides, in part, that a search of the database
revealed the Motion for Summary Judgment (d/e 27) and nine
exhibits were e-filed delivered in August 31, 2012. Exhibits 1
through 6 were viewed by the email address associated with
Plaintiffs’ counsel on September 4, 2012. The Motion for Summary
Judgment was viewed on October 2, 2012.
The parties were granted additional time to file supplemental
briefs in light of the information contained in the Affidavits. On
February 4, 2013, Plaintiffs filed a supplemental response stating
that they do not contend that the clerk’s office did not fulfill its
duties but only that the documents were not actually received in
the office.
II. ANALYSIS
Plaintiffs request that the judgment be vacated pursuant to
either Rule 60(b)(1) or Rule 60(b)(6):
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:
(1) mistake, inadvertence, surprise, or
excusable neglect;
***
Page 6 of 10
(6) any other reason that justifies relief.
Fed.R.Civ.P. 60(b). Relief under this Rule is an extraordinary
remedy, granted only in exceptional circumstances. McCormick v.
City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000). Whether to
grant or deny a motion to vacate under Rule 60(b) is within this
Court’s discretion. See Easley v. Kirmsee, 382 F.3d 693, 697
(2004).
As the United States Supreme Court noted in Pioneer
Investment Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.
380, 394 (1993), “excusable neglect” under Rule 60(b) encompasses
“situations in which the failure to comply with a filing deadline is
attributable to negligence.” The determination of what constitutes
excusable neglect is:
at bottom an equitable one, taking account of
all relevant circumstances surrounding the
party’s omission. These include . . . the
danger of prejudice to the debtor, the length of
the delay and its potential impact on judicial
proceedings, the reason for the delay,
including whether it was within the reasonable
control of the movant, and whether the movant
acted in good faith.
Page 7 of 10
Pioneer, 507 U.S. at 395 (involving Bankruptcy Rule 9006(b)(1) but
also discussing Rule 60(b)); see also Robb v. Norfolk & Western Ry.
Co., 122 F.3d 354, 359 (7th Cir. 1997) (noting that after Pioneer,
district courts had discretion to find that attorney negligence
constitutes excusable neglect). Excusable neglect can include
attorney carelessness and mistake. Robb, 122 F.3d at 359 (citing
cases); but see Harrington v. City of Chicago, 433 F.3d 542, 546
(7th Cir. 2006) (distinguishing carelessness, which can constitute
excusable neglect, with attorney inattentiveness, which is not
excusable).
Counsel has a duty to monitor his case by regularly checking
the court’s docket. See Martinez v. City of Chicago, 499 F.3d 721,
728 (7th Cir. 2007). Clearly, counsel should have examined the
docket after August 31, 2012 to confirm whether Defendants filed a
dispositive motion. Moreover, as reflected by the Affidavit of Planck
and Cooke, someone at counsel’s office viewed six of the exhibits to
the Motion for Summary Judgment on September 4, 2012 and
viewed the Motion for Summary Judgment on October 2, 2012.
See, e.g., Gibson v. Perry, 2005 WL 4889216, at *2 (S.D. Ind. 2005)
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(holding that “failure to receive electronic service is no excuse for an
untimely response to a filing”).
Nonetheless, in light of all of the circumstances, and in an
exercise of discretion, the Motion to Vacate is granted. Counsel
obviously had a problem with his computer system and/or staff.
Counsel moved quickly to vacate the judgment and has taken steps
to avoid the problem in the future. The Court also finds that
Plaintiffs’ counsel has acted in good faith. Based on the facts of
this case, counsel’s failure to respond to the Motion for Summary
Judgment is characterized as carelessness and constitutes
excusable neglect for purposes of Rule 60(b)(1).
However, as a consequence for Plaintiffs’ counsel’s actions,
Defendants are awarded their attorney’s fees and costs reasonably
incurred in responding to the Motion to Vacate. See Fed.R.Civ.P.
60(b) (providing the court may relieve a party of a final judgment on
“just terms”); In re UAL Corp., 299 B.R. 509, 523 (Bankr. N.D. Ill.
2003) (awarding attorney’s fees and costs reasonably incurred in
pursuing litigation involved in the Rule 60(b)(1) motion), aff’d, In re
UAL Corp., 411 F.3d 818 (7th Cir. 2005).
Page 9 of 10
III. CONCLUSION
For the reasons stated, Plaintiffs’ Motion to Vacate Judgment
in a Civil Action Pursuant to Federal Rules of Civil Procedure, Rule
60(b)(1)and (6) (d/e 30) is GRANTED. The Judgment entered
October 24, 2012 is VACATED, and Defendants’ Motion for
Summary Judgment (d/e 27) is reinstated. Plaintiffs shall file a
response to the Motion for Summary Judgment on or before
February 20, 2013.
In addition, Plaintiffs’ counsel shall be personally responsible
for Defendants’ attorney’s fees and costs reasonably incurred in
responding to the Motion to Vacate. Defense counsel shall submit
an itemized billing of those attorney’s fees and costs on or before
February 13, 2013.
ENTER: February 6, 2013
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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