Castillo v. Nurnberg et al

Filing 28

OPINION AND ORDER granting 26 Motion for relief of judgment and order ; vacates order of dismissal and the judgment ( 21 22 ); orders Attorney Christopher C Myers to file a status report due 5/8/2014. Signed by Judge Rudy Lozano on 4/21/2014. (cc: Indiana Disciplinary Commission, Miguel R Castillo) (kds)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MIGUEL R. CASTILLO,
Plaintiff,
vs.
SGT. NURNBERG and
A. PATINO,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 3:12-CV-525

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Second Rule 60
Motion for Relief of Judgment and Order, filed by Plaintiff, Miguel
R. Castillo, on December 27, 2013.

(DE #26.)

For the reasons set

forth below, the Court: (1) GRANTS Plaintiff’s Second Rule 60
Motion for Relief of Judgment and Order (DE #26); VACATES the order
of dismissal and the judgment (DE’s #21 & #22); ORDERS Attorney
Christopher C. Myers to file a status report by May 8, 2014; and
DIRECTS the clerk to send a copy of this order to the Indiana
Disciplinary Commission and Miguel R. Castillo.

BACKGROUND
Plaintiff, Miguel R. Castillo (“Castillo”), filed a pro se
complaint on September 17, 2012.

On June 14, 2013, this Court

screened Castillo’s complaint pursuant to 28 U.S.C. section 1915A
and granted him leave to proceed against Sgt. Nurnberg and A.
Patino (collectively, “Defendants”) for specific alleged Eighth
Amendment violations.1

The United States Marshals Service was

directed to effect service of process on Sgt. Nurnberg and A.
Patino.

On August 1, 2013, Magistrate Judge Christopher A.

Nuechterlein issued an order directing Defendants and Castillo to
separately

file

brief

status

reports

by

September

5,

2013.

Defendants submitted their status report by the deadline; Castillo
did not.

On September 17, 2013, Magistrate Judge Nuechterlein

issued an order to show cause, on or before October 31, 2013, why
Castillo

had

failed

to

submit

his

status

report.

Judge

Nuechterlein cautioned Castillo that if he did not respond to the
order to show cause, his case could be dismissed without further
notice for failure to respond to an order of the Court and for
failure to prosecute.
way.

Again, Castillo failed to respond in any

On November 14, 2013, this Court issued an order dismissing

the case pursuant to Federal Rule of Civil Procedure 41(b) because
Castillo had abandoned the case.

In its order, the Court noted

that Castillo had not had any contact with the Court since October

1
Castillo was granted leave to proceed against Sgt. Nurnberg in an
individual capacity, for monetary and punitive damages, for restraining him in
an Emergency Restraint Chair, for hindering his breathing, for choking him,
and for leaving him in the Emergency Restraint Chair for hours, and he was
granted leave to proceed against A. Patino in an individual capacity, for
monetary and punitive damages, for tasering him while he was restrained in an
Emergency Restraint Chair and for leaving him in the Emergency Restraint Chair
for hours. All other claims were dismissed.

2

22, 2012, and had missed two Court ordered deadlines. Judgment was
entered in this case on November 16, 2013.
On December 4, 2013, Christopher C. Myers (“Attorney Myers”)
entered an appearance on behalf of Castillo.

On that same day,

Attorney Myers filed a Rule 60 Motion for Relief of Judgment and
Order.

(DE #24.)

The Court denied the motion with leave to refile

because it was devoid of any details, evidence, or argument that
would have allowed the Court to properly analyze the motion under
Rule 60(b).

(See DE #25.)

On December 27, 2013, Castillo (via

Attorney Myers) refiled the Rule 60 Motion, this time including
additional evidence and argument in support of his position.
#26.)

(DE

For example, Castillo has provided the Affidavit of Shelly

Landrum, the paralegal assigned to assist Attorney Myers with this
case.

(Aff. of Landrum, ¶¶ 1 & 3.)

In her affidavit, Ms. Landrum

describes how she received the signed Fee Agreement back from
Castillo and opened the case file on or about July 10, 2013, but
was “very engrossed” in a case with a similarly named plaintiff2
during that same period
two cases.

and “confused some of the details” of the

(Id. at ¶¶ 4 & 5.)

Ms. Landrum describes how she

inadvertently filed an email, which vacated all hearings and
deadlines from the other case, into Castillo’s file on August 6,
2013.

(Id. at ¶ 6; see also DE #26-2.)

2

She describes how she

See Castillo v. Kovacevich, 1:13-cv-047 TLS-RBC (N.D. Ind. filed
December 14, 2012).

3

“must have inadvertently removed all of the tasking and deadlines”
associated with Castillo’s case shortly after a Stipulation for
Dismissal With Prejudice was filed in the other case on August 16,
2013.

(Id. at ¶¶ 7 & 8; see also DE’s #26-3 & #26-4.)

Finally,

Ms. Landrum states that, on or about November 25, 2013, Attorney
Myers’ office was contacted by Castillo’s brother regarding the
Court’s Rule to Show Cause order, and she subsequently printed off
the full docket report for Attorney Myers.

(Id. at ¶ 9.)

DISCUSSION
“RULE 60(b) relief is an extraordinary remedy and is granted
only in exceptional circumstances.” Karraker v. Rent-A-Center,
Inc., 411 F.3d 831, 837 (2005) (quotation marks and citation
omitted).

Rule 60(b)(1) states that the Court may relieve a party

from a final judgment for “mistake, inadvertence, surprise, or
excusable neglect.”

The Supreme Court has defined excusable

neglect 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 that parties must be

4

“held accountable for the acts and omissions of their chosen
counsel . . . [and] the proper focus is upon whether the neglect of
respondents and their counsel was excusable.” Id. at 397 (emphasis
in original).

The Seventh Circuit has since made it clear that “a

trial court has discretion to consider the equities and then
determine whether a missed filing deadline attributable to an
attorney’s negligence is (or is not) ‘excusable neglect.’” Robb v.
Norfolk & Western Ry. Co., 122 F.3d 354, 359 (7th Cir. 1997)
(emphasis in original).

However, the Seventh Circuit has found

that mere “inattentiveness to the litigation is not excusable.”
Id. at 360 (citing Matter of Plunkett, 82 F.3d 738, 742 (7th Cir.
1996); see also Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir.
2004) (recognizing that there is a difference between “inexcusable
inattentiveness or neglect” and “excusable carelessness” and noting
that “attorney inattentiveness to litigation is not excusable, no
matter what the resulting consequences the attorney’s somnolent
behavior may have on a litigant.”)
Here, after considering all of the evidence provided by
Castillo, the Court finds that, while Attorney Myers’ handling of
this case file was careless, the neglect is excusable.

To date,

Defendants have filed nothing but an answer and a brief status
report in this case, making it unlikely that significant time or
resources have been spent by Defendants in defending this case.
Thus, the danger of prejudice to Defendants is not great.

5

The

delay,

which

was

attributable,

in

part,

to

the

inadvertent

calendering error by Ms. Landrum, was rectified by Attorney Myers
within a week and a half of discovering the error when he entered
his notice of appearance and filed the initial Rule 60 motion.

In

the grand scheme of things, the total delay was not overly lengthy,
and

the

minimal.

potential

impact

on

current

judicial

proceedings

is

The reason for the neglect and delay has been clarified

by the submission of additional evidence. It appears as though Ms.
Landrum made an honest, inadvertent error when she removed all of
the tasking and deadlines associated with Castillo’s case.

While

it is still unclear to the Court why Attorney Myers did not enter
his appearance immediately following the receipt of the signed Fee
Agreement from Castillo3 (thus ensuring that notice of electronic
filings by the Court would be continually received by Attorney
Myers’ office and likely preventing this issue altogether), the
Court is willing to give Castillo the benefit of the doubt in the
interests of justice.

There is no indication that either Castillo

or Attorney Myers acted in bad faith; in fact, it is reasonable to
assume that Castillo failed to act because he believed that his
case was being properly handled by Attorney Myers.4

In sum,

3

According to the submissions, the signed Fee Agreement was received
and the case file was opened on July 10, 2013; the email “vacating all
hearings and deadlines” in the other case was not inadvertently filed in
Castillo’s case until August 6, 2013, which is nearly a full month later.
4

Castillo’s brother regularly communicated with Attorney Myers’ office
on his behalf. (DE #27, p. 3.)

6

although the failure to comply with the Court’s orders due to the
improper handling of Castillo’s case file was negligent on the part
of Attorney Myers, the Court finds that such negligence may be
properly

considered

circumstances.

excusable

neglect

in

these

particular

Therefore, Castillo’s Rule 60 motion is GRANTED.

That said, it is not for this Court to determine whether the
delayed

appearance

of

Christopher

C.

Myers

violates

the

requirements of Indiana Rule of Professional Conduct 1.3 which
states that “[a] lawyer shall act with reasonable diligence and
promptness in representing a client.”
Indiana Disciplinary Commission.

That question is for the

Therefore a copy of this order

will be sent to the Commission as well as Castillo.

CONCLUSION
For the reasons set forth above, the Court: (1)

GRANTS

Plaintiff’s Second Rule 60 Motion for Relief of Judgment and Order
(DE #26); VACATES the order of dismissal and the judgment (DE’s #21
& #22); ORDERS Attorney Christopher C. Myers to file a status
report by May 8, 2014; and DIRECTS the clerk to send a copy of this
order

to

the

Indiana

Disciplinary

Commission

and

Miguel

R.

Castillo.

DATED: April 21, 2014

/s/ RUDY LOZANO, Judge
United States District Court
7