Sanders v. Bemis Packaging, LLC
MEMORANDUM OPINION & ORDER: Sanders' Motion 29 to Alter or Amendment Judgment is DENIED. This action is once again CLOSED and STRICKEN from the Courts active docket. Signed by Judge Gregory F. Van Tatenhove on 8/8/2017.(CBD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LARRY VERNON SANDERS,
BEMIS COMPANY, INC.,
Case No. 3:16-cv-00014-GFVT
*** *** *** ***
Larry Sanders has asked the Court to reconsider its opinion granting summary judgment
in favor of his employer, Bemis Company, Inc., on his disability discrimination claim. Sanders
maintains he filed an incorrect version of his response to Bemis’s summary judgment motion and
that the mistake was excusable neglect pursuant to Federal Rule of Civil Procedure 60(b).
Sanders also asks the Court to amend its opinion and judgment under Rule 59 to avoid a manifest
error of law. For the reasons that follow, the Court DENIES Mr. Sanders’ requests.
Two and a half years ago, Plaintiff Larry Sanders filed suit against his employer Bemis
Company, Inc., for employment discrimination. [See R. 1-2.] After both parties completed
discovery, Bemis filed a motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56 on all of Sanders’ claims. [R. 15.] Mr. Sanders sought, and was given, one
extension of time to file a brief in response to Bemis’s motion. [See R. 16; R. 17; R. 18.] After
Sanders sought a second extension, United States Magistrate Judge Edward B. Atkins held a
telephone conference with the parties. [R. 20.] During that October 11, 2016, phone conference,
Mr. Sanders advised that a computer malfunction had interfered with his preparation of the
response brief. [See R. 23.] But despite his initial setback, Sanders indicated his response could
be filed by that afternoon. And Magistrate Judge Atkins ordered Sanders to do just that. [Id.]
The Magistrate’s order notwithstanding, Sanders did not file a response by midnight,
October 11. Instead, a ten page response brief along with nine attachments and a proposed order
appeared in the record the next day, October 12. [See R. 24.] In the filed response, Sanders
conceded to the dismissal of every count in his complaint besides the Kentucky Civil Rights Act
(“KCRA”) disability discrimination claim. [Id. at 1.] Sanders then discussed the facts of the
case, the standard of review for summary judgment motions, and the first prong of a valid claim
under the KCRA—namely, that Sanders suffers from a “disability” as defined in the KCRA. [Id.
at 8-9.] Sanders did not make an argument with regard to the second and third prongs of a valid
KCRA claim: that he requested a reasonable accommodation and that Bemis failed to grant the
request. Instead, Sanders referred to those prongs by heading only and then offered a one
sentence conclusion at the end of the brief. [Id. at 9-10.]
Two days later, Bemis replied to Sanders’ response and pointed out Sanders’ total failure
to address relevant prongs of the KCRA test. [R. 25.] In fact, Bemis devoted an entire section of
its reply, entitled “Sanders has waived any argument that he requested a reasonable
accommodation and that he was denied such an accommodation” to that purpose. [Id. at 5.] And
Bemis pointed out the deficiencies in Sanders’ response a number of times, in clear language:
[B]y failing to make arguments that he had [ ] requested and was denied a
reasonable accommodation, Sanders has waived those arguments. Thus, even if
the Court determined that Sanders showed he was disabled, Bemis is still entitled
to summary judgment because Sanders has waived his arguments that he
requested a reasonable accommodation and that Bemis failed to provide him with
[Id. at 8.]
Subsequently, no significant activity occurred in the case for one hundred eight days. 1
Then, on January 30, 2017, the Court issued a Memorandum Opinion and Order granting
Bemis’s motion for summary judgment. [R. 27.] The Court also entered judgment in favor of
Bemis, cancelled the Final Pretrial Conference and Jury Trial dates, and closed the action. [R.
28.] In its opinion, the Court determined Sanders had failed to demonstrate proof of a
“disability” as defined in KRS § 344.010(4). [See R. 27 at 6-11.] And the Court also pointed out
Sanders’ failure to adequately develop arguments with regard to the remaining elements of his
KCRA disability discrimination claim. [Id. at 11-13.]
Two days later, Sanders filed the present motion to alter or amend the Court’s opinion
and judgment. [R. 29.] By way of this motion, Sanders’ counsel, Mr. Samuel G. Hayward,
explains that on the day Magistrate Judge Atkins ordered the response brief be filed, he gave his
law clerk permission to act as his agent and to electronically file an approved version of the
response and accompanying exhibits. [Id. at 6.] Unfortunately, the law clerk experienced
computer trouble between the hours of 8:30 p.m. and midnight on October 11, and the law clerk
inadvertently uploaded an incorrect version of the response brief. Mr. Hayward indicates this
mistake was “masked” until the Court issued its order granting summary judgment in favor of
Bemis. [Id. at 7.] Mr. Sanders now asks the Court to (1) vacate the judgment pursuant to a
finding of excusable neglect under Federal Rule of Civil Procedure 60(b), and/or (2) amend the
judgment under Federal Rule of Civil Procedure 59(e) because the decision was manifestly
unjust.2 [See id. at 1-15.]
The only docket entry during this one hundred eight day time period is a notice of appearance filed by
Marilyn Linsey Shrewsbury, a new counselor of record for Mr. Sanders. [See R. 26.]
Sanders also mentions Federal Rule of Civil Procedure 52(b) five times in his motion [see R. 29 at 1, 2,
4]; however, Sanders wholly fails to explain how or why Rule 52, which deals with actions tried on the
facts without a jury, applies to the present situation. Accordingly, the Court evaluates only the
applicability of Rules 60(b) and 59(e) in this opinion.
Sanders’ failure to file an adequate response brief is not grounds for relief under Federal
Rule of Civil Procedure 60(b). Rule 60(b)(1) allows a Court to relieve a party from a final
judgment because of “mistake, inadvertence, surprise, or excusable neglect,” and Mr. Sanders
maintains excusable neglect is relevant here. But under Sixth Circuit precedent, the excusable
neglect threshold is “strict” and “can be met only in extraordinary cases.” Turner v. City of
Taylor, 412 F.3d 629, 650 (6th Cir. 2005) (quoting Marsh v. Richardson, 873 F.2d 129, 130 (6th
Cir. 1989)). A movant must first establish his or her failure was indeed a case of “neglect,”
which exists when the failure occurred “because of a simple, faultless omission to act, or because
of a party’s carelessness.” Id. Then, if the failure was due to neglect, the movant must also
establish that it was “excusable.” Id.
The Supreme Court has outlined five factors for courts to consider when making the
equitable determination of whether excusable neglect exists: “(1) the danger of prejudice to the
other party, (2) the length of delay, (3) its potential impact on judicial proceedings, (4) the reason
for the delay, and (5) whether the movant acted in good faith.” See, e.g., Burnley v. Bosch
Americas Corp., 75 F. App’x 329, 333 (6th Cir. 2003); see also Pioneer Invest. Servs. Co. v.
Brunswick Assocs., 507 U.S. 380, 388 (1993). These five factors are relevant but not controlling
where the court’s initial decision was on the merits rather than due to procedural default.
Burnley, 75 F. App’x at 333. Finally, “[a]n attorney’s inexcusable neglect is normally attributed
to his client.” Allen v. Murph, 194 F.3d 722, 723 (6th Cir. 1999) (citation omitted).
In its prior opinion, the Court reached the merits of one prong of the disability
discrimination test—whether Sanders’ Type 1 diabetes renders him “disabled” under the
KCRA—and granted summary judgment in favor of Bemis primarily on that basis. [See R. 27.]
Accordingly, the five Supreme Court factors are relevant but not controlling. See Burnley, 75 F.
App’x at 333. Upon review, the Court finds the factors, as well as relevant case law from other
districts, weigh strongly against granting Sanders’ Rule 60(b) motion.
First, Bemis will be prejudiced if the case is reopened and the summary judgment motion
is relitigated. In Burnley v. Bosch Americas Corp., a party failed to file a response brief to
opposing counsel’s summary judgment motion, and the district court granted summary judgment
in favor of the movant. The losing party then filed a motion for an extension of time to respond,
two days after the court issued its opinion and entered judgment. See 75 F. App’x at 333. The
Sixth Circuit determined the party who moved for summary judgment would be substantially
prejudiced if the case was reopened, because that party had “already expended substantial
resources conducting discovery, and filing its motion for summary judgment.” Id. Further,
because the district court had already dismissed the case on the merits, “it would be unfair to
require [the winner] to expend additional resources litigating this claim, particularly because [the
losing party] had ample time to conduct discovery, and failed to present evidence substantiating
her claim . . . .” Id. In the same way the Burnley non-movant was found to be substantially
prejudiced, Bemis suffer prejudice here if Sanders’ request is granted. The case was already
litigated at length, and Bemis should not be forced to relitigate the matter simply where Sanders
failed to litigate it properly.
Next, the length of the delay weighs against granting the Rule 60(b) motion. Sanders
moved for reconsideration quickly after the Court’s opinion and judgment issued—only two days
later. Nevertheless, the relevant period of time is not that two day period but, instead, the
lengthier period of time between the date Sanders filed the incorrect response and the date he
actually moved to remedy the error. This amounts to one hundred ten days. [Compare R. 24
(filed October 12, 2016) with R. 29 (filed February 1, 2017).] Furthermore, even if it was
reasonable for Sanders to fail to discover the incorrect filing on his own, Bemis notified Sanders
of the incorrect response in its reply brief. After that happened, Sanders still waited one hundred
eight days to draw the Court’s attention to the error. [Compare R. 25 (filed October 14, 2016)
with R. 29 (filed February 1, 2017).] Either way you look at it, the delay in this case is
significant and weighs against Rule 60(b) relief.
The reason for the delay also undermines Sanders’ position. Sanders describes the
incorrect response brief as a “horrible scrivener’s error” and he maintains the error was
“masked” until the Court issued its opinion and judgment. [R. 29 at 3, 7.] The error was not
“masked.” Counsel simply failed to monitor the docket. Sanders could have easily discovered
the error if he had simply double-checked the adequacy of the filing a single time—a practice the
Court hopes would be routine among attorneys during this electronic-filing age. But more
importantly, perhaps, Sanders could have easily discovered the error if he had thoroughly read
Bemis’s reply brief, wherein Bemis clearly alludes to the significant lack of argumentation in the
response and contends Sanders “waived” various issues. The Sixth Circuit has made clear that
“parties have an affirmative duty to monitor the dockets to keep apprised of the entry of orders
that they may wish to appeal” and has emphasized that “parties continue to have a duty to
monitor the court’s docket” regardless of whether they are properly receiving email notifications
of filings. Yeschick v. Mineta, 675 F.3d 622, 629-30 (6th Cir. 2012). Counsel’s failure to
monitor the docket in this case is no different than the case of inexcusable neglect described in
Yeschick and the other court of appeals opinions described therein. See id. (compiling cases).
The impact of the delay on the judicial proceedings in this case is great, as the Court has
already invested time and effort into resolving the summary judgment motion. The Court has
cancelled the Final Pretrial Conference and Jury Trial dates and turned its attention to other
proceedings, and, although the Court would gladly return the matter to the active docket should
justice so require, Sanders’ neglect has undoubtedly had a significant impact on the procedural
status of this proceeding.
Finally, while the Court has no evidence that Sanders has acted in bad faith, see Pioneer
Invest. Servs. Co., 507 U.S. at 388, the other four factors weigh so strongly against granting the
Rule 60(b) motion that any good faith is of little consequence. After considering all five
excusable neglect factors, the Court concludes Sanders’ failure to file an appropriate response
brief was inexcusable neglect underserving of Rule 60(b) relief.
This conclusion is consistent with the conclusions of other district courts faced with
similar situations. For example, where a newly retained plaintiff’s attorney failed to file a
response to a defendant’s summary judgment motion because prior counsel did not alert him to
the motion, the failure to respond or to seek an extension of time was considered inexcusable
neglect. See Eversole v. Allstate Ins. Co., No. 09-37-EBA, 2010 U.S. Dist. LEXIS 74879, at *45 (E.D. Ky. July 26, 2010) (citing Kendall v. Hoover Co., 751 F.2d 171, 175 (6th Cir. 1984)).
Where a plaintiff failed to respond to a pending motion to dismiss because plaintiff’s counsel
failed to provide defense counsel with his preferred post office box address, the failure to
respond was inexcusable neglect because the reason for the neglect was “not outside the control
of Plaintiff’s counsel.” Fiore v. Southern Poverty Law Center, Inc., No. 3:09-34-DCR, 2010
U.S. Dist. LEXIS 4314, at *3 (E.D. Ky. Jan. 20, 2010). And where a plaintiff failed to include
her recitation of the facts in a response to a summary judgment motion and the opposing party
pointed this failure out in its reply brief, that failure was also deemed inexcusable. McDaniel v.
Am. Gen. Fin. Servs., No. 04-2667-B, 2007 U.S. Dist. LEXIS 52217, at *4-*10 (W.D. Tenn. July
Technology is both a blessing and a curse. The Court’s electronic filing system makes it
easy to upload the appropriate documents, but it is also easy to upload the wrong ones. Thus,
while the Court fully acknowledges how uploading errors occur, this remains precisely why
attorneys must carefully review their work and consistently stay apprised of the docket.
“[G]ross carelessness or inadvertent conduct that results in judgment will not give rise to a
successful claim of excusable neglect if the facts demonstrate a lack of diligence.” Yeschick, 675
F.3d at 631. Sanders’ counsel’s error in this case fails to rise to the level of excusable neglect set
forth in binding and persuasive case law, and that error is unfortunately attributed to Mr. Sanders
himself. See Burnley, 75 F. App’x at 329; Allen, 194 F.3d at 723.
Sanders is also precluded from relief under Federal Rule of Civil Procedure 59. Rule
59(e) allows a litigant to file a motion to alter or amend a judgment of a district court where there
has been a clear error of law, newly discovered evidence, an intervening change in the law, or to
prevent manifest injustice. See, e.g., GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 833
(6th Cir. 1999). Notably, a motion under Rule 59(e) is “not an opportunity to re-argue a case.”
Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998).
Further, a “manifest error is not demonstrated by the disappointment of the losing party. It is the
wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Whether to grant or deny a Rule
59(e) motion is generally a matter within the district court’s sound discretion. See Engler, 146
F.3d at 374.
In the Court’s opinion granting summary judgment, the Court determined Sanders could
not recover under the KCRA because the record does not demonstrate Sanders’ Type 1 diabetes
constitutes a “disability” under the state statutory framework. [See R. 27 at 6-11.] Sanders now
points the Court to Gilday v. Mecosta County, 124 F.3d 760 (6th Cir. 1997), and Demyanovich v.
Cadon Plating & Coatings, LLC, 747 F.3d 419 (6th Cir. 2014), for the proposition that the
ameliorative effects of Sanders’ insulin pump should not be taken into account when deciding
whether his diabetes is disabling. [R. 29 at 12-13.] These cases do not change the Court’s
To begin, the Court’s original decision did not hinge on any ameliorative effects of
Sanders’ insulin use. [See R. 27 at 8-12 (focusing on Sanders’ testimony and various doctor’s
letters about Sanders’ condition, rather than ameliorative effects).] But even if the Court had
considered ameliorative effects, it would have done so properly.
In 1997, the Sixth Circuit found an individual’s diabetes was a disability under the ADA,
in light of regulatory language instructing that the disability determination be made “without
regard to mitigating measures such as medicines, or assistive or prosthetic devices.” Gilday, 124
F.3d at 762 (quoting 29 C.F.R. § 1630 App. 1630.2(j)). According to Gilday, “[a] person with a
serious disability who depends on medicine or a medical device to ameliorate the effects of that
disability nonetheless has a limit on a major life activity: without the corrective measure the
person would be unable to perform a major life activity.” Id. at 763. Sanders would have the
Court rely on this language to find him disabled. However, an intervening Supreme Court
decision counsels otherwise.
In 1999, the Supreme Court reached the opposite conclusion of Gilday when evaluating
the relevant provisions of the ADA:
A ‘disability’ exists only where an impairment ‘substantially limits’ a major life
activity, now where it ‘might,’ ‘could,’ or ‘would’ be substantially limiting if
mitigating measures were not taken. A person whose physical or mental
impairment is corrected by medication or other measures does not have an
impairment that presently ‘substantially limits’ a major life activity.
Sutton v. United Air Lines, 527 U.S. 471, 482-83 (1999). Pursuant to Sutton, courts do take into
account ameliorative effects when assessing whether an individual’s impairment substantially
limits one or more life activities. Id. This aspect of Sutton was rejected by Congress in 2008,
when Congress adopted the ADA Amendments Act of 2008 (“ADAAA”). See Greer v.
Cleveland Clinic Health Sys., 503 F. App’x 422, 431 n. 2 (6th Cir. 2012). However, the KCRA
is interpreted consistent with pre-ADAAA, rather than post-ADAAA, jurisprudence. See Breen
v. Infiltrator Sys., 417 F. App’x 483, 486 (6th Cir. 2011) (Sutton, J.); Laferty v. United Parcel
Serv., Inc., 186 F. Supp. 3d 702, 707 n. 3 (W.D. Ky. 2016).3 Accordingly, Sutton remains the
law of the land when it comes to considering a plaintiff’s ameliorative effects under the ADA
rather than the amended ADAAA. And because KCRA analyses are concerned with the law
under the ADA, Sutton still controls in Mr. Sanders’ case.
In the end, Sanders has not drawn the Court’s attention to any clear errors of law,
intervening changes in the law, newly discovered evidence, or manifest injustice in the Court’s
evaluation of Sanders’ diabetes under the KCRA. See Fed. R. Civ. P. 59(e); GenCorp, Inc., 178
The Court has discovered one Kentucky Court of Appeals decision which cites ADAAA provisions.
See Tanner v. Jefferson Cnty. Bd. of Educ., No. 2015-CA-001795-MR, 2017 WL 2332681, at *2 (Ky.
App. May 26, 2017). Nevertheless, to the Court’s knowledge, “no published Kentucky cases address[ ]
how the ADAAA affects, if at all, claims for disability discrimination brought under the KCRA.”
Laferty, 186 F. Supp. 3d at 707 n. 3. The Sixth Circuit and a number of federal district courts continue to
apply pre-ADAAA jurisprudence to their KCRA analyses, and “[u]ntil such time as the Kentucky
Supreme Court or General Assembly speaks on this issue, the Court will take that approach.” Id.
F.3d at 833. As the Court explained, Sanders has not put forth sufficient evidence to
demonstrate his diabetes should be considered a disability for purposes of the KCRA. [R. 27 at
9-11.] Letters from Sanders’ physicians, as well as Sanders’ own deposition testimony, indicate
that he is not substantially limited in any of his major life activities. [Id.] The Court did not err
in its evaluation of the record before it, and Sanders is not entitled to relief from the judgment.
For the foregoing reasons, the Court hereby ORDERS that Plaintiff Sanders’ Motion to
Alter or Amendment Judgment [R. 29] is DENIED. This action is once again CLOSED and
STRICKEN from the Court’s active docket.
This the 8th day of August, 2017.
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