Barthelman v. Social Security Administration, Commissioner of et al
MEMORANDUM AND ORDER granting 16 Motion for Relief from Judgment. Court's Memorandum & Order and Judgment (Docs. 14 & 15) shall be set aside. Plaintiff shall file initial brief by 5/10/13. Signed by District Judge Julie A. Robinson on 4/30/2013. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ZACHARY LEE BARTHELMAN,
CAROLYN W. COLVIN,
Social Security Administration,
Case No. 12-cv-1349-JAR
MEMORANDUM AND ORDER
Plaintiff filed this action on September 20, 2012 seeking judicial review of a decision of
the Commissioner of Social Security1 (“Commissioner”) denying disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) under sections 216(i), 223(d) and
1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 416(i), 423(d) and 1382c(a)(3)(A)
(hereinafter the Act).2 The Court dismissed the case in accordance with Rule 41(b) of the
Federal Rules of Civil Procedure for Plaintiff’s failure to prosecute the case or to comply with
the rules of procedure and the Court’s orders.3 Accordingly, the Court entered Judgment in favor
of Defendant.4 The matter is currently before the Court on Plaintiff’s Motion for Relief from
Judgment Pursuant to Rule 60 (Doc. 16). The matter is fully briefed and the Court is prepared to
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2012. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin is substituted for Michael J. Astrue as the
Defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
rule. The Court finds that the motion should be granted.
Rule 60(b) sets forth grounds for relief from a final judgment, order, or proceeding and
provides in relevant part that:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
(1) mistake, inadvertence, surprise, or excusable neglect.5
Under this rule, the movant has the burden of pleading and proving the grounds for relief.6
Whether to grant a Rule 60(b) motion rests within the trial court's discretion.7 It appears from
Plaintiff’s motion that he is claiming excusable neglect in connection with his failure to respond
to the Court’s deadlines and order to show cause.
Plaintiff’s memorandum in support of his motion sets forth in detail the unfortunate
circumstances surrounding his failure to respond to the Court’s orders, including counsel’s and
his staffs’ health issues, a client’s suicide, along with other staffing issues and counsel’s other
pressing work commitments.
For purposes 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.”8
The neglect, however, must be excusable.9 In making this determination:
Fed. R. Civ. P. 60(b)(1).
Tri-State Truck Ins., Ltd. v. First Nat’l Bank of Wamego, Case No. 09–4158–SAC, 2011 WL 4691933, *1
(D. Kan. Oct. 6, 2011) (citing Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990).
Id. (citing Beugler v. Burlington N. & Santa Fe Ry. Co., 490 F.3d 1224, 1229 (10th Cir.2007)).
Bergman v. Sprint/United Mgmt. Co., 171 F.R.D. 308, 310 (D. Kan. 1997) (citing Pioneer Inv. Servs. v.
Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 394 (1993)).
Id. (citing Pioneer, 507 U.S. at 395).
relevant circumstances surrounding the party’s omission or failure
to act in a timely way are to be considered. Those circumstances
include “the danger of prejudice to the [other party], the length of
the delay and its potential impact on the judicial proceedings, the
reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in
It does not appear that there is a danger of prejudice to Defendant if Plaintiff’s motion is
granted.11 It does not appear that this proceeding will be adversely impacted if Plaintiff is
allowed to submit his brief pursuant to an extended deadline. The Court does not find that
counsel for Plaintiff acted in bad faith, rather he was simply negligent. The Court finds that in
applying all four factors, the omissions of counsel constitute excusable neglect and Plaintiff’s
motion to set aside judgment should be granted. But, as the court stated in Bergman:
Although the court, in its discretion, has granted plaintiff’s motion,
this order should not be taken by plaintiff’s counsel as condonation
by the court of his haphazard and negligent conduct. Further
lapses will not be so tolerantly treated by the court.12
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for Relief
from Judgment Pursuant to Rule 60 (Doc. 16) is GRANTED.
IT IS FURTHER ORDERED BY THE COURT that the Court’s Memorandum and
Order (Doc. 14) and Judgment (15) shall be set aside.
IT IS FURTHER ORDERED BY THE COURT that Plaintiff shall file his Initial Brief
by May 10, 2013.
IT IS SO ORDERED.
Defendant has not filed an opposition to Plaintiff’s motion for relief from judgment.
Bergman, 171 F.R.D. at 310.
Dated: April 30, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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?