Employers & Cement Masons #90 Health & Welfare Fund et al v. Fournie Contracting Company, Inc.
ORDER granting 42 Motion vacating judgment re 38 Clerk's Judgment, 35 Order on Motion for Summary Judgment, 37 Order on Motion for Attorney Fees by Fournie Contracting Company, Inc. The Court VACATES the Judgment 38 , the Order granting attorney fees and costs 37 and the Order granting summary judgment 35 . See Order for details. Signed by Judge David R. Herndon on 1/11/2018. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EMPLOYERS & CEMENT MASONS #90
HEALTH & WELFARE FUND, by and through
its Board of Trustees,
EMPLOYERS AND CEMENT MASONS #90
PENSION FUND, by and through is Board
FOURNIE CONTRACTING COMPANY,
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction and Background
Pending before the Court is defendant’s December 29, 2017 motion for relief
from Order filed May 4, 2017, Order filed June 20, 2017 and Clerk’s Judgment
filed June 21, 2017 pursuant to Rule 60(b)(1) and (6) (Doc. 42). Specifically,
defendant maintains that these orders should be vacated that because the email
address of defendant’s attorney, B. Jay Dowling, was incorrectly inputted into the
CM/ECF system, and as a result neither B. Jay Dowling nor Fournie Contracting
Company received notice of the filings. On January 2, 2018, the Court entered an
Order noting that the Clerk’s office admitted to making the mistake regarding the
Page 1 of 6
wrong email address and directed plaintiffs to file a response to the motion on or
before January 9, 2018 (Doc. 43).
Plaintiffs did file a response opposing the
motion (Doc. 44). Based on the following, the Court GRANTS the motion.
On August 21, 2015, plaintiffs filed suit against defendant to collect
delinquent contributions and liquidated damages based on the Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1002 et seq.
(“ERISA”) (Doc. 1). According to the complaint, plaintiffs are employee benefit
funds which are administered pursuant to the terms and provisions of certain trust
agreements and maintained in accordance with the provisions of the Labor
Management Relations Act of 1947 and ERISA. Plaintiffs provide retirement and
health & welfare benefits to the employees of participating employers who pay
fringe benefit contributions to plaintiffs on behalf of their employees pursuant to a
Collective Bargaining Agreement.
Defendant is an employer engaged in an
industry within the meaning of the provisions of ERISA and employs individuals
who are members of and represented by the Cement Masons Local #90. Fournie
Contracting Company is bound by the terms of a Collective Bargaining Agreement
with Local # 90 and is obligated to pay fringe benefit contributions to plaintiffs on
behalf of its employees. On February 19, 2016, Fournie Contracting Company filed
its answer to the complaint (Doc. 6).
On July 27, 2016, attorney B. Jay Dowling filed a motion to substitute
attorney (Doc. 21). In that motion, Mr. Dowling moved to substitute his former
law firm, the Law Office of Sterling and Dowling, P.C., for himself and the law firm
Page 2 of 6
of Clayborne Sabo and Wagner, LLP. The motion to substitute contained a new
email address for Mr. Dowling of firstname.lastname@example.org. That same day, the
Court granted the motion to substitute (Doc. 22).
The email address inputted into
Thereafter, Magistrate Judge Wilkerson held two status conferences on August 2,
2016 (Doc. 24) and on November 11, 2016 (Doc. 28) in which Mr. Dowling
participated. Subsequently, on March 10, 2017, plaintiffs filed a motion to extend
the dispositive motion deadline and indicated that plaintiff’s counsel conferred with
defendant’s counsel and that defendant did not object (Doc. 32). That same day,
the Court granted the motion and extended the dispositive motion deadline to
March 22, 2017 (Doc. 34).
On March 22, 2017, plaintiffs filed a motion for summary judgment (Doc.
34). On May 4, 2017, the Court granted plaintiffs motion for summary judgment
and allowed plaintiffs up to and including May 24, 2017 to file a motion for
attorneys’ fees (Doc. 35). Defendant did not respond to the motion for summary
judgment. Plaintiffs filed its motions for attorney fees and costs (Doc. 36) and on
June 20, 2017, the Court granted the motion for attorney fees (Doc. 37). Again,
defendant did not respond to the motion for attorney fees and costs. The next day,
the Clerk of the Court entered judgment (Doc. 38).
Finally, on December 29,
2017, defendant filed the motion to vacate (Doc. 42). On January 2, 2018, the
Court entered an Order noting that the Clerk’s office admitted to making the
mistake regarding the wrong email address for Mr. Dowling and directed plaintiffs
Page 3 of 6
to file a response to the motion on or before January 9, 2018 (Doc. 43). Plaintiffs
filed its opposition (Doc. 44). As the matter is ripe, the Court turns to address the
merits of the motion.
Rule 60(b)(1) of the Federal Rules of Civil Procedure provides, “[o]n motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable
neglect....” Fed. R. Civ. P. 60(b)(1). “[T]here is not a “hard and fast” rule in this
circuit which bars a trial judge from exercising discretion to determine whether
attorney negligence in missing a filing deadline may be deemed “excusable
neglect.” Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 361 (7th Cir. 1997).
Accordingly, “trial judges are vested with discretion when determining whether an
of Rule 60(b)(1).” Id. at 363. ‘Excusable neglect’ can include omissions through
carelessness and mistake.” Robb, 122 F.3d at 357. “The determination of what
sorts of neglect will be considered ‘excusable’ is an equitable one, taking account of
all relevant circumstances.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 381 (1993). These circumstances include “the danger of
prejudice to the [defendant], 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.” Id. at 395.
Page 4 of 6
Defendant moves to vacate the Judgment, Order granting plaintiffs’ motion
for attorney fees and costs and Order granting plaintiffs’ summary judgment
motion because the failure to receive notices of the filing of the pleadings was a
result of an incorrect email address being inputted by the Clerk’s Office into the
CM/ECF system after a notice of change of email address was provided.
Defendant contends that this constitutes good cause basis as relief from the Orders
Plaintiffs oppose the motion arguing that defendant has not
identified any “exceptional circumstances” to justify the “extraordinary remedy” of
vacating the judgment and orders. Specifically, plaintiffs maintain:
Plaintiffs empathize with Defendant’s situation.
Seventh Circuit clearly states that all parties, even pro se parties, have
a duty to monitor the docket, and the docket is available 24/7 through
the PACER system. … Plaintiffs contend there were multiple times
the Defendant should have been on notice that the CM/ECF system
was not alerting defendant of the motions and notices before Plaintiffs
filed its motion for summary judgment. Additionally, Defendant was
aware that Plaintiffs intended to file a motion for summary judgment
given Plaintiffs contacted Defendant concerning whether Defendant
objected to an extension of the deadline. Lastly, the docket is available
to on PACER at any time to check the status of a case in federal court.
(Doc. 44, p. 4).
Here, pursuant to Rule 60(b)(1), the Court finds that based on the
circumstances of this case that relief is warranted as the Clerk’s Office admitted
that it incorrectly inputted Mr. Dowling’s new email address after the Court granted
the motion to substitute attorney.
The Court rejects plaintiffs’ argument that
defendant should have known about the motions based on the interaction between
the attorneys as it is equally true that plaintiffs’ counsel would have known that the
Page 5 of 6
summary judgment motion was being contested by the defendant and that it made
no sense for defense counsel to concede the motion for summary judgment.
Further, even though defense counsel could have found the error regarding the
wrong email address (and perhaps plaintiffs’ counsel too), the Court finds that the
greater culpability appears to be on the Clerk’s office upon whom defense counsel
relied to send him the notices in a timely manner. Moreover, the record reflects
that defense counsel did make an attempt with the Clerk’s Office to make sure that
it had the correct information regarding Mr. Dowling’s new information. Thus,
under the facts of this case, the Court finds relief pursuant to Rule 60(b)(1) is
Accordingly, the Court GRANTS the motion to vacate (Doc. 42). The Court
VACATES the June 21, 2017 Judgment (Doc. 38); the June 20, 2017 Order
granting the plaintiffs’ motion for attorney fees and costs (Doc. 37) and the May 4,
2017 Order granting plaintiffs’ motion for summary judgment (Doc. 35).
Court DIRECTS the parties to contact Magistrate Judge Wilkerson’s chambers to
establish a new scheduling and discovery order and to conduct a settlement
conference, if beneficial.
IT IS SO ORDERED.
United States District Judge
Page 6 of 6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?