Cordova v. Notre Dame Du Lac University of
Filing
17
OPINION AND ORDER denying 15 Motion for Reconsideration. Signed by Judge Rudy Lozano on 10/8/2014. (kds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
AMBER MARIE LETTS CORDOVA,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
UNIVERSITY OF NOTRE DAME DU LAC,
Defendant.
NO. 3:12-CV-153
OPINION AND ORDER
This
matter
is
before
the
Court
on
the
Motion,
filed
Plaintiff, Amber Marie Letts Cordova, on April 1, 2014 (DE #15.)
by
For
the reasons set forth below, the motion is DENIED.
BACKGROUND
Plaintiff, Amber Marie Letts Cordova (“Cordova”), originally
filed
a
complaint
on
January
25,
2011,
against
Defendant,
the
University of Notre Dame du lac (“Notre Dame”), in the United States
District Court for the Eastern District of Wisconsin; that case was
transferred to the United States District Court for the Northern
District of Indiana on May 17, 2011.
(See Cordova v. University of
Notre Dame du lac and Charles Edward Barber, cause number 3:11-CV-210,
DE #36.)
On June 23, 2011, the Honorable Robert L. Miller, Jr.
dismissed the complaint pursuant to Federal Rule of Civil Procedure
8 because the complaint was “made unintelligible by scattering and
concealing in a morass of irrelevancies the few allegations that
matter.”
(Cordova v. University of Notre Dame du lac and Charles
Edward Barber, cause number 3:11-CV-210, DE #40.)
Cordova,
through
her
attorney
Michael
On July 13, 2011,
Dalrymple
(“Attorney
Dalrymple”), filed an amended complaint alleging that Notre Dame and
Dr. Charles Barber violated her rights under Titles I and III of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., Section
504 of the Rehabilitation Act, 29 U.S.C. § 794, the Health Insurance
Portability and Accountability Act of 1996, 42 U.S.C. § 1320d-5, the
due process and equal protection clauses of the United States and
Indiana
Constitutions,
and
Indiana
tort
law
discriminatory practices based on her disabilities.
by
engaging
in
(See Cordova v.
University of Notre Dame du lac and Charles Edward Barber, cause
number 3:11-CV-210, DE #41.)
On December 13, 2011, Judge Miller
issued an opinion and order for that case which, as related to Notre
Dame, provided that several of Cordova's claims were dismissed with
prejudice and several were dismissed without prejudice. (See Cordova
v. University of Notre Dame du lac and Charles Edward Barber, cause
number 3:11-CV-210, DE #51.)
On March 30, 2012, more than three months later, Cordova, though
Attorney Dalrymple, filed a new lawsuit in this Court against Notre
Dame based on the same basic underlying facts as her previous lawsuit.
(DE #1.)
In lieu of an answer, Notre Dame filed a motion to dismiss
-2-
on June 1, 2012, arguing that Cordova’s claims were time-barred.
#6.)
(DE
On June 15, 2012, Cordova, through Attorney Dalrymple, filed an
unopposed motion for an enlargement of time to respond to Notre Dame’s
motion to dismiss. (DE #8.) The motion requested a ten day extension
and stated that:
Counsel for Plaintiff continues to research
specific issues relating to defenses raised in
Defendant’s Motion to Dismiss and requires
additional time to provide a complete and useful
response. In addition, personal issues required
the immediate and undivided attention of
Plaintiff’s counsel during this week. While all
attorneys must tend to such matters, they have a
greater impact on solo practitioners. This is
Plaintiff’s Counsel’s first request for an
extension in this matter.
(Id.) Magistrate Judge Christopher A. Nuechterlein granted the motion
for enlargement of time. (DE #9.) On June 25, 2012, Cordova, through
Attorney Dalrymple, filed a detailed response in opposition to Notre
Dame’s motion to dismiss, arguing that Cordova’s complaint was timely
filed pursuant to the applicable statute of limitations.
& #11.)
Notre Dame filed its reply on July 3, 2012.
(DE’s #10
(DE #12.)
On
March 29, 2013, this Court entered a twenty-one page opinion and order
granting
Notre
Dame’s
motion
to
dismiss;
Cordova’s
claims
were
dismissed with prejudice, and the clerk of court entered judgment on
April 3, 2013.
(DE’s #13 & #14.)
On April 1, 2014, Cordova filed the instant pro se motion, asking
the Court to reconsider and correct “error, mistake, abuse, incorrect
actions, inactions” and to “[v]acate [j]judgment, or provide other
-3-
corrective action to allow [her] leave to retain counsel, and/or amend
the complaint.”
(DE #15, p. 1.)
Cordova apparently takes issue with
the June 15, 2012, order which granted the request for an extension
of time to respond to Notre Dame’s motion to dismiss.
In
her
pro
se
motion,
Cordova
repeatedly
states
(Id. at 2-7.)
that
Attorney
Dalrymple “told” this Court that he had “disabling issues” and was
“unable to practice law.”
(Id. at 2, 7.)
Cordova argues that this
Court “erred in not referring [Attorney] Dalrymple to be evaluated for
fitness by the Supreme Court” because the Court “knew” that Attorney
Dalrymple was “incapacitated” and yet chose not to allow for his
“evaluation, discharge, or withdrawal.” (Id. at 2-3.) Cordova states
that “[w]hen a licensed professional admits incapacitation it is an
error for any other licensed member of the profession to allow them
to continue to practice.”
alleged
“performance”
(Id. at 3.)
issues
unrelated federal cases.
of
She then proceeds to detail
Attorney
Dalrymple
on
various
(Id. at 3-4.)
Next, Cordova states that “[i]f the dismissal is based on
technical failures and/or [Attorney] Dalrymple’s inability to organize
information correctly, then the dismissal is an evaluation of the
attorney’s admitted disabling issues, not a just evaluation of the
claims.”
(Id. at 5.)
Cordova proceeds to detail alleged deceptions
and “misrepresentations” Attorney Dalrymple made to her regarding the
response brief and his actions following the dismissal of the case.
(Id. at 5-6.)
Cordova alleges that Attorney Dalrymple was inebriated
-4-
when he discussed the Court’s dismissal decision with her, was
unreachable until after the time within which to file an appeal had
expired, and failed to tell her that he was no longer representing her
until November of 2013. (Id. at 6.) Cordova claims that “[a]ny delay
in coming to this [C]ourt for reconsideration or correction is the
result of [Attorney] Dalrymple having not been evaluated or removed
when he admitted inability to practice.”
Attorney
Dalrymple’s
alleged
failures
(Id.)
and
After describing
shortcomings,
Cordova
nonetheless insists that she is not requesting reconsideration “due
to attorney quality” but rather because “access to Justice must not
be affected by Judicial mistake, error, misconduct, abuse, neglect or
just failure to correct an error that occurred.”
(Id. at 7.)
Finally, Cordova requests that this Court correct its mistake(s)
of not having Attorney Dalrymple’s “incapacity properly evaluated
and/or not allowing for a fair opportunity to respond to the 12(b)(6)
or for other reasons the [C]ourt can articulate more clearly than I
can.” (Id.) Cordova concludes by providing a list of “magical words”
in case they are “required” and asks the Court to:
1.
2.
3.
4.
5.
6.
Provide relief after judgment
Vacate judgment due to mistake
Vacate judgment due to inadvertence
Set aside the judgment
Recognize the decision it made was in error,
incomplete or premature and allow for proper
completion of this case (especially given
the admitted disabling issues of Plaintiff’s
attorney)
Consider the judicial resources already
spent and the small investment required to
see that substantial justice is done
-5-
7.
Take action necessary to do substantial
justice, or at least remove Court error and
allow for possible access to Justice.
(Id. at 7-8.)
Notre Dame filed a response on April 18, 2014, arguing that
Cordova’s motion does not establish grounds for relief under Federal
Rule of Civil Procedure 60(b). (DE #16, pp. 3-4.) Notre Dame further
notes that Cordova has already made three unsuccessful attempts to
bring her claims, and it argues that allowing her yet another attempt
would unduly burden both Notre Dame and this Court.
(Id.)
Cordova
has not filed a reply.
DISCUSSION
Federal Rule of Civil Procedure 60(b) provides relief from final
judgments in certain circumstances.
Bakery Mach. & Fabrication, Inc.
v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009).
Motions made pursuant to Rule 60(b) must specifically indicate the
grounds for reconsideration and “cannot be general pleas for relief.”
Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir.
2001); see also Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir.
2011) (plaintiffs who listed all of the subsections of Rule 60(b) but
did not specify which one applied were found to have failed to make
a cogent argument for relief under any provision which was “reason
enough” for the district court to deny the motion).
Rule 60(b)(1) states that a court may relieve a party from a
-6-
final judgment for “mistake, inadvertence, surprise, or excusable
neglect.” Fed. R. Civ. P. 60(b)(1). Such mistake or inadvertence may
be on the part of the court or the parties.
725 F.3d 651, 658 (7th Cir. 2013).
Mendez v. Republic Bank,
However, “errors of law and fact
generally do not warrant relief under Rule 60(b)(1) and certainly do
not require such relief.”
Banks v. Chicago Bd. of Educ., 750 F.3d
663, 667 (7th Cir. 2014) (citing Gleash v. Yuswak, 308 F.3d 758, 761
(7th Cir. 2002)). This is especially true where a movant seeks to use
Rule 60(b) as a substitute for or to circumvent the time limitations
of a direct appeal.
Id. (citing Mendez, 725 F.3d at 659 (“If parties
or courts could use Rule 60(b) to revive cases in which a party failed
to appeal within the standard deadline, Appellate Rule 4 would lose
much of its force.”)).
When the issue involves excusable neglect, the Supreme Court has
defined the inquiry as:
at bottom an equitable one, taking account of all
relevant circumstances surrounding the party’s
omission.
These 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 within the reasonable control of
the movant, and whether the movant acted in good
faith.
Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership,
507 U.S. 380, 395 (1993). The Court noted, however, that parties must
be “held accountable for the acts and omissions of their chosen
counsel . . . [and] the proper focus is upon whether the neglect of
-7-
respondents and their counsel was excusable.”
in original).
Id. at 397 (emphasis
The Seventh Circuit has made it clear that:
[t]he clients are principals, the attorney is an
agent, and under the law of agency the principal
is bound by his chosen agent’s deeds. The rule
is that all of the attorney’s misconduct (except
in the cases where the act is outside the scope
of employment or in cases of excusable neglect)
becomes the problem of the client. A lawyer who
inexcusably neglects his client’s obligations
does not present exceptional circumstances. . .
. Deception of a client becomes the liability of
the client’s attorney and not the client’s
opponent. Since clients must be held accountable
for their attorney’s actions, it does not matter
where the actions fall between mere negligence
and gross misconduct.
Malpractice, gross or
otherwise, may be a good reason to recover from
the lawyer but does not justify prolonging
litigation against the original adversary.
Bakery Mach., 570 F.3d at 848-49 (internal citations and quotation
marks omitted).
“extraordinary
circumstances.”
Overall, relief under Rule 60(b) in general is an
remedy
Id.
and
(citing
is
granted
Reinsurance
only
Co.
in
of
exceptional
Am.,
Inc.
v.
Administratia Asigurarilor de Stat, 902 F.2d 1275, 1277 (7th Cir.
1990); see also Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837
(2005).
When a movant is seeking relief under the “catch all” provision
found in Rule 60(b)(6), which includes “any other reason” that is
justifiable, the application is “even more highly circumscribed.”
Provident Sav. Bank v. Popovich, 71 F.3d 696, 700 (7th Cir. 1995)
(citation omitted) (citation omitted).
“[C]arelessness or a lack of
due care on the part of a litigant or [his] attorney does not provide
-8-
a basis for relief under Rule 60(b)(6).”
Id. (citation omitted).
Neither does an alleged legal misstep of the court.
See Banks, 750
F.3d at 668 (“The narrow operation of this provision reinforces our
interest in barring the use of Rule 60(b)(6) as a substitute for
direct appeal.”)
Here it is not clear what provision of Rule 60(b) Cordova is
brining her motion.
Her list of “magical words” near the end of her
filing does not serve to remedy that failing, and the Court would be
warranted in denying relief on that ground alone; however, in the
interests of justice, the Court will assume that she is attempting to
rely on either Rule 60(b)(1) or Rule 60(b)(6) for relief.
To the
extent that she takes issue with Attorney Dalrymple’s performance
(although she insists that she is “not requesting reconsideration due
to attorney quality”), she has not articulated any specific instances
of excusable neglect that would justify relief under Rule 60(b)(1).
Nor has Cordova described any other actions that would justify relief
under Rule 60's catch all provision.
She alleges that Attorney
Dalrymple deceived her and made misrepresentations to her regarding
the response to Notre Dame’s
motion to dismiss.
She also alleges
that he was inebriated when discussing the Court’s dismissal order
with her and was unreachable until after the time within which to
appeal expired. However, neither deception, neglect, negligence, nor
even gross misconduct by an attorney qualifies as the type of
“exceptional circumstances” necessary to quality for Rule 60(b)
-9-
relief.
See Bakery Mach., 570 F.3d at 848-49.
To the extent that Cordova takes issue with this Court’s ruling
on the unopposed motion for enlargement of time to respond to Notre
Dame’s motion to dismiss filed by Attorney Dalrymple, she has likewise
failed to identify adequate grounds for relief.
If Cordova is
suggesting that this Court’s ruling that granted the motion for
enlargement of time (or even on the motion to dismiss itself) was done
in legal error, her contention is not only without merit but it also
lacks proper legal grounds under Rule 60(b).
Although Cordova
repeatedly insists that Attorney Dalrymple “told” and “admitted to”
this Court that he was “incapacitated,” had “disabling issues,” and
was “unable to practice law,” the record is clear that he did no such
thing.
The motion for enlargement of time was a routine request for
an extension -- Attorney Dalrymple indicated that he needed additional
time to continue to research specific issues related to defenses
raised in the motion to dismiss because personal issues had required
his attention during the week, and he requested an additional ten days
to complete the task.
At the end of those ten days, he filed a
detailed response brief which made relevant legal arguments and cited
applicable case law.
There was no suggestion of incapacitation or an
inability to practice law that would have required this Court to deny
to motion for enlargement of time and refer him to the Supreme Court
for an “evaluation for fitness” as Cordova suggests. There was simply
no error, mistake, or inadvertence by the Court regarding the motion
-10-
that
would
provide
grounds
for
relief
under
Rule
60(b)(1).
Furthermore, Cordova has presented no evidence to convince the Court
that there are or were any exceptional circumstances present that
would necessitate relief from judgment under Rule 60(b)(6). Finally,
as Notre Dame points out, Cordova has had several chances to bring her
complaint, but she has been unsuccessful.
Requiring Notre Dame to
continue to defend against Cordova’s claims would be unduly burdensome
and unnecessary.
CONCLUSION
Therefore, for the reasons set forth above, Cordova’s motion (DE
#15) is DENIED.
DATED: October 8, 2014
/s/RUDY LOZANO, Judge
United States District Court
-11-
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