Thompson v. Circle K Midwest et al
Filing
41
MEMORANDUM OPINION & ORDER: It is ordered that Pla's 39 Motion for Relief Pursuant to FRCP 60.02 is DENIED. Signed by Judge Joseph M. Hood on 8/15/2011. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
KATHERINE THOMPSON,
)
)
Plaintiff,
)
)
v.
)
)
)
CIRCLE K MIDWEST, LLC, et al., )
)
Defendants.
)
**
This
matter
is
**
before
Civil Action No. 5:09-341-JMH
MEMORANDUM OPINION & ORDER
**
**
the
Court
**
on
Plaintiff
Katherine
Thompson’s “Motion for Relief Pursuant to FRCP 60.02" [Record No.
39] in which she asks the Court for relief from its Order of March
18, 2011, dismissing her case.
their objections [DE 40].
Defendants have responded, stating
The Court being adequately advised, her
motion will be denied.
Plaintiff’s action was commenced on September 24, 2009, in
Jessamine Circuit Court and removed to this Court by Defendants on
October 19, 2009.
by
Attorneys
At the time of the removal, she was represented
David
G.
Bryant
and
Kenneth
L.
Sales.
After
Defendants filed an Answer, the Court ordered the parties to
conduct a conference under Fed. R. Civ. P. 26(f).
The parties
filed a report of that meeting on January 8, 2010, and the Court
entered a scheduling order on January 11, 2010.
Plaintiff filed
her Initial Disclosures in the record on February 15, 2010.
-1-
On
February 16, 2010, Magistrate Judge Wier scheduled a telephonic
conference for May 26, 2010.
A little over a month after that
order was entered, on March 26, 2010, her counsel sought to
withdraw by motion.
That order was granted on March 30, 2010, and
Plaintiff was provided 60 days in which to secure other counsel.
On April 23, 2010, Attorney Robert Riley entered a Notice of
Appearance on behalf of Katherine Thompson using the Court’s
electronic filing system known as CM-ECF.1
On May 26, 2010, he
participated in the telephonic conference conducted by Magistrate
Judge Wier during which the initial pretrial conference was set for
February 22, 2011, at 1:00 p.m. in Lexington, Kentucky, and the
scheduling order was amended in an order entered by the Magistrate
Judge on May 26, 2010. Time passed, and Defendants submitted their
pretrial
compliance
approached.
to
the
Court
as
the
pretrial
conference
Plaintiff submitted nothing and did not appear at the
pretrial conference.
Following the February 22, 2011, hearing, Magistrate Judge
Wier entered a minute order which advised that Plaintiff’s counsel
was not present at the hearing and an order recommending that the
undersigned enter an order requiring Plaintiff to show cause why
her case should not be dismissed for her failure to participate in
the proceedings.
The undersigned did, in fact, enter an order
1
Of interest, although of little actual bearing on the
issue before this Court, his email address is listed on that
pleading as rwrpsc@aol.com.
-2-
requiring the Plaintiff to show cause in writing no later than
March 4, 2011, as to why this action should not be dismissed for
want of prosecution.
filed no response.
March 4, 2011, came and went, and Plaintiff
Finally, on March 18, 2011, the Court entered
an order dismissing Plaintiffs claims against Defendant without
prejudice for failure to prosecute.
Plaintiff now asks the Court to vacate its March 18, 2011,
Order, and reinstate her action on the Court’s active docket.
She
argues that such relief is due under “FRCP 60.02," which the Court
understands to be a request for relief under Fed. R. Civ. P. 60(a)
and 60 (b)(1), because either a clerical mistake or other mistake
occurred on the part of the Court or this situation is one in which
“mistake, inadvertence, surprise, or excusable neglect” would
necessitate relief.
She explains that, “[t]hrough no mistake on
the part of counsel, no notice was ever received of the any [sic]
activity in this case subsequent to October 10, 2010[,] and he was
given no opportunity to attend this hearing.”
In support of her
argument, she submits the affidavit of Attorney Riley in which he
explains that “the address to which the electronic transmission was
sent was no longer an active e-mail address for affiant and the
Court would have received an error message when an attempt to
transmit notice of the newly scheduled hearing to affiant’s old email address was made.”
First and foremost, the Court rejects Plaintiff’s argument
-3-
that her case was dismissed because of an error on the part of the
Court or the Clerk’s office and that relief is due under Fed. R.
Civ. P. 60(a).
The Order entered by the Court, dismissing her
claims without prejudice for failure to prosecute her case and
premised
on
counsel’s
failure
to
participate
in
a
scheduled
pretrial hearing, accurately reflected the intention of the Court
and the facts before it.
See In re Anna Marie Walter, 282 F.3d
434, 441 (6th Cir. 2002) (holding that court properly acts under
Fed. R. Civ. P. 60(a) when it is necessary to correct mistakes or
oversights that cause the judgment to fail to reflect what the
court intended).
Further to the extent that Plaintiff argues that relief is due
under Fed. R. Civ. P. 60(a) because of a mistake on the part of the
Clerk’s office with respect to maintaining Riley’s correct email
address for service in this case, her argument is without merit.
More to the point, it was Riley’s obligation to maintain a current
email address at which he could receive service for the parties
that he represents in matters before this Court.
Plaintiff would
have to concede, on the facts before this Court, that her attorney
failed to maintain such an address.
Since September 1, 2006, this Court has required that “all
cases, proceedings, motions, memoranda of law and other pleadings
or
documents
filed
with
the
court
must
be
Electronic Case Filing System (ECF System).”
-4-
filed
using
the
See Joint General
Order 05-03 of the United States District Court for the Eastern and
Western
Districts
of
Kentucky,
filed
August
8,
2005.
By
participating in the electronic filing process, which Riley did, he
consented to the electronic service of all documents in the cases
where he served as counsel and was to make available current and
correct electronic mail addresses for service.
See Joint General
Order 11-02 of the Eastern and Western Districts of Kentucky,
Amended
Electronic
Case
Filing
Administrative
Policies
and
Procedures, ¶¶ 3(b), 4(h), filed July 12, 2011; see also Joint
General Order 06-01 of the Eastern and Western Districts of
Kentucky, Amended Electronic Case Filing Administrative Policies
and Procedures, ¶¶ 3(b), 4(h), filed February 8, 2006. All of this
is to say that when Riley registered with this Court as a CM-ECF
user – well before he entered an appearance in this action – and
made available an electronic mail address for service, he consented
and agreed to receive service of pleadings and papers by means of
the CM-ECF system.2
Having done so, he then failed to update his
2
According to the Clerk’s records, Riley was first issued
a log-in and password for the CM-ECF system in the Eastern District
of Kentucky on January 10, 2006. When he provided his registration
information to the Court, he provided rwrpsc@aol.com as his email
address and the log-in and password issued were associated with
that email address.
Of interest, Riley listed his email address as rwrpsc@aol.com
on his Notice of Appearance in this case on April 23, 2010, only to
claim that he did not receive the Order entered by Magistrate Judge
Wier a little over one month later, on May 26, 2010. As the Court
understands it, his old email account – with which he began this
case – was not to be disabled until October 2010, yet he claims he
did not receive the pleading. Even so, he did not advise the Court
-5-
email address with the Clerk of Court when he changed it.
Plaintiff and Riley suggest that the Clerk’s office should
have
known
it
had
changed
because
any
email
received
at
rwrpsc@aol.com should have received an automated response advising
that his address had changed.
In this instance, there is no
indication that anyone, least of all the Court or the Clerk of
Court, received notice that the papers and pleadings in this case
were
not
reaching
Riley
“Automatic Response” message.
notwithstanding
Riley’s
purported
Indeed, because Riley set up such
a message, it appears that the email address rwrpsc@aol.com still
existed, even if Riley did not check the account associated with
it.
Further, the undersigned is not aware of any notice of failed
delivery received by the Clerk’s office, perhaps because the email
account was not disabled.
Even if the Clerk’s office had received
such an automated response, the Court is not persuaded that it
would excuse Riley’s failure to maintain his account by updating
his email address.
Riley had two options: (1) change his email
address by logging into CM-ECF and managing his account information
there or (2) by writing to the Clerk’s office and requesting a
change.
He did neither.
Particularly troubling is that he did not take the appropriate
of his new email address, rwr@rileyandassociateslaw.com, until
April 12, 2011, according to the Clerk’s records, at which time the
Clerk’s office updated his CM-ECF account to reflect that change
and resent his log-in and password to him at the new email address.
-6-
steps to do so even though he participated in a conference during
which the schedule for a pretrial conference was discussed and knew
that, afterward, he never received an order placing that date in
the record.
Rather, it took the dismissal of the claims in this
action to prompt him to take the proper steps to change the address
at which he receives notice from the CM-ECF system, although the
Court wonders how he even learned of that happening as he has
offered no explanation.
The burden was on Riley at all times to
keep his service information up-to-date, and his failure to update
his address in order to receive service electronically, as he had
agreed, cannot be attributed to this Court or the Clerk of this
Court.
In other words, Plaintiff’s attorney is to blame for the fact
that they – both attorney and client – did not receive notice of
filings in the record of this case.
There was no mistake on the
part of the Clerk or the Court, and relief is not available on
these facts under Fed. R. Civ. P. 60(a).
What is left, then, is for the Court to determine whether
relief is due under Fed. R. Civ. P. 60(b)(1).
“[A] Rule 60(b)(1)
motion is intended to provide relief in only two situations: (1)
when a party has made an excusable mistake or an attorney has acted
without authority, or (2) when the judge has made a substantive
mistake of law or fact in the final judgment or order.”
United
States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002) (citing Cacevic
-7-
v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir.2000)).
In the
instant matter, there has been no substantive mistake of law or
fact in the final order by the undersigned, nor, arguably, has
counsel acted without authority. Clearly, Plaintiff authorized her
attorney to receive service for her and to take the steps necessary
to receive service on her behalf.
The question, then, is whether
Riley “made an excusable mistake.”
Frankly, Riley has offered no explanation for his failure to
change his contact information for electronic service with the
Clerk’s office by one of the means provided.
The fact that he set
up an automatic response does not explain why he failed to take the
steps required to change his electronic address for service with
the Clerk’s office – whether by writing to the Clerk’s office and
requesting that change or by logging in to CM-ECF and updating his
account information there.
This is hardly “excusable neglect.”
Further, clients must “be held accountable for the acts and
omissions of their chosen counsel.”
Id. at 456 (citing Allen v.
Murph, 194 F.3d 722, 724 (6th Cir. 1999)).
In other words, having
selected Riley as her counsel, Plaintiff is accountable for his
failure to adequately maintain an address at which he could receive
service on her behalf.
The applicable rules permit and, indeed, require service on
Riley – and by extension, the Plaintiff – by means of CM-ECF.
His
failure to update his email address with this Court will not excuse
-8-
his failure to appear or, eventually, respond when ordered to do so
by the Court. Nor can his mistake in failing to do so be excused.
Accordingly, IT IS ORDERED that Plaintiff Katherine Thompson’s
“Motion for Relief Pursuant to FRCP 60.02" [Record No. 39] is
DENIED.
This the 15th day of August, 2011.
-9-
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?