Drewery v. Gautreaux et al
RULING AND ORDER denying 56 Motion to Vacate Judgment. Signed by Judge John W. deGravelles on 9/10/2020. (EDC)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHAWN DREWERY obo SHAQUALIA
SID J. GAUTREAUX, III, IN HIS
OFFICIAL CAPACITY AS SHERIFF OF
EAST BATON ROUGE PARISH, ET AL.
RULING AND ORDER
This matter comes before the Court on the Motion to Vacate Judgment (Doc. 56) filed by
Plaintiff Shawn Drewery, on behalf of Shaqualia Felder (“Plaintiff”). Defendants, Sid J.
Gautreaux, III, Sheriff of East Baton Rouge Parish, and Deputy Leroy Griffin, in his individual
capacity as a Deputy Sheriff for East Baton Rouge Parish (collectively, “Defendants”), oppose
the motion. (Doc. 50.) The Court has carefully considered the law, the facts in the record, and the
arguments and submissions of the parties and is prepared to rule. For the following reasons,
Plaintiff’s motion is denied.
Relevant Factual and Procedural Background
Plaintiff filed a Petition for Damages in the 19th Judicial Court of the Parish of East
Baton Rouge against Defendants regarding an incident which occurred on February 7, 2018.
(Doc. 1-3 at 2–6.) Defendants removed the matter to the Middle District of Louisiana. (Doc. 1.)
Defendants subsequently filed a Motion to Dismiss (Doc. 4) pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. 4-1 at 1.) The Court granted the motion in part and denied it in part.
(Doc. 31.) All of Plaintiff’s § 1983 claims were dismissed except for his claims against Deputy
Griffin in his individual capacity for compensatory and punitive damages for false arrest and
excessive force. (Id. at 29.) Plaintiff’s state law claims survived as well. (Id. at 27.)
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On March 3, 2020, Defendants filed a Motion for Summary Judgment (Doc. 44) (“MSJ”)
to dismiss Plaintiff’s remaining claims. Notice of the MSJ was electronically filed with the Clerk
of Court using the CM/ECF system stating: “Opposition to the motion shall be filed within 21
days from the filing of the motion. . . .” (Doc. 45.) Under the Federal Rules of Civil Procedure
and the Local Rules of Court, Plaintiff was required to file an opposition no later than March 23,
2020. (Doc. 46 at 1.)
Plaintiff failed to timely oppose the MSJ. In a Ruling dated May 4, 2020, the Court
granted the Defendants’ MSJ and dismissed Plaintiff’s claims with prejudice. (Doc. 46 at 2.) The
Ruling explained that Plaintiff must respond within 14 days, that the response should explain his
Plaintiff’s failure to comply with the Court’s deadline, and that the response must be
accompanied by an opposition memorandum to the MSJ. (Doc. 46 at 2.) Thus, Plaintiff’s
deadline was May 18, 2020. (See id.)
As of May 22, 2020, Plaintiff failed to respond to the Ruling within the Court’s deadline.
(See Doc. 47 at 1.) On May 22, 2020, the Court entered judgment in favor of Defendants and
against Plaintiff and dismissed all claims by Plaintiff against Defendants with prejudice. (Doc.
47 at 1.)
On June 9, 2020, Plaintiff filed a Motion for Leave to File Plaintiff’s Motion to Vacate
Judgment and Memorandum in Opposition of Defendants’ Motion for Summary Judgment (Doc.
49) (“Motion for Leave”). In the memorandum in support of this motion, Plaintiff contends that
“because of malfunction or failure of the electronic filing system, PACER, the plaintiff failed to
get any notice of the MSJ (Doc. 44), Notice of Briefing Schedule on the MSJ (Doc. 45), the
Ruling granting the MSJ (Doc. 46), or the Judgment (Doc. 47).” (Doc. 49-1 at 1.)
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Plaintiff offers evidence that on April 13, 2020 Plaintiff’s counsel emailed PACER that
he did “not get notices of court decisions or notes on [his] email anymore” and he did “not get
Orders nor any notification from the court.” (Ex. B, Doc. 49-6 at 2.) The email response by
PACER is also included which explains “[t]he courts email ECF notifications, not PACER” and
provides instruction on updating email addresses for troubleshooting. (Ex. C, Doc. 49-6 at 3.)
Following this response from PACER, counsel for Plaintiff “believed that the problem was
solved until this present moment when he found the Court’s Order and Judgment in his Spam
mail which was never the case before.” (Doc. 49-3 at 3.)
“[T]he first time counsel learnt about the proceeding was May 21, 2020 when he saw the
Order in his spam folder.” (Adebamiji Aff. ¶ 9, Doc. 49-5 at 2.) Counsel for Plaintiff claims
“[t]hat such lack of service and proper notice did not allow him to file a response on behalf of
Plaintiff.” (Adebamiji Aff. ¶ 6, Doc. 49-5 at 1.) He further states that the electronic filing system
“was defective as Counsel failed to get service and notice until after the Order was signed by the
Judge.” (Adebamiji Aff. ¶ 7, Doc. 49-5 at 1.) Finally, Plaintiff’s counsel states that “he has always
used the Court’s electronic filing system through PACER” and “he . . . complained to both the
District Court and PACER about the problems.” (Adembamiji Aff. ¶¶ 3, 8, Doc. 49-5 at 1.)
Plaintiff also offers as evidence the email notice of the order granting the MSJ received on May
4, 2020 marked as “spam” (Ex. A, Doc. 49-6 at 1) in her counsel’s email account.
Defendants opposed the Motion for Leave on June 23, 2020. (Doc. 52.) The Court
granted the Motion for Leave on June 26, 2020 (Doc. 54), and the instant Motion to Vacate
Judgment was entered on the docket on June 26, 2020 (Doc. 56). Defendants opposed the Motion
to Vacate Judgment. (Doc. 50.)
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A. Parties’ Arguments
Plaintiff moves to vacate the Court’s judgment dismissing all claims against Defendants
(Doc. 56.) Plaintiff, through her counsel, claims her failure to respond to the MSJ (Doc. 44) and
the Ruling (Doc. 46) was a result of failure to receive electronic copies from the court. (Doc. 561 at 1.) Plaintiff relies on Federal Rules of Civil Procedure 55 and 60 as justifications for relief
under these circumstances. (See Doc. 56-1 at 3.)
Plaintiff relies on Fed. R. Civ. P. 55(c) as the applicable standard to justify vacating the
judgment which states “[t]he court may set aside an entry of default for good cause, and it may
set aside a default judgment under Rule 60(b) as well as cases regarding setting aside a default
judgment. (Doc. 56-1 at 3–4.) Courts apply a less rigorous “good cause” standard in setting aside
default judgments under Rule 55 than the more difficult standard set forth in Rule 60(b). (Doc.
56-1 at 3.) Plaintiff notes that courts “should consider whether the default was willful, whether
setting it aside would prejudice the adversary, and whether a meritorious defense is presented.”
(Doc. 56-1 at 5 (citing Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981).) Plaintiff asserts that
the Court’s email being diverted into Counsel’s spam folder meets the “good cause” standard
under Federal Rule of Civil Procedure 55. (Doc. 56-1 at 5.)
In addition to Rule 55, Plaintiff also argues that the Court should grant the Motion to
Vacate based on Rule 60(b)(4) because “the judgment is void.” (Doc. 56-1 at 4.) In support,
Plaintiff cites CJC Holdings, Inc. v. Wright & Lato, Inc., 979 F.2d 60 (5th Cir. 1992), a case in
which the court refused to set aside default judgment after defendants received notice of and
failed to answer the complaint. (Doc. 56-1 at 4.) Plaintiff asserts that he did not receive service
due to the failure of the electronic mailing system when Plaintiff was “entitled to service . . . as
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stated in Rule 5.” (Doc. 56-1 at 4; Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027 (5th Cir. 1982)
(“[O]rdinarily all that due process requires in a civil case is proper notice and service of process
and a court of competent jurisdiction; procedural irregularities during the course of a civil case,
even serious ones, will not subject the judgment to collateral attack.”).)
Finally, Plaintiff asserts that Fed. R. Civ. P. 60(b)(6) “allows the District Court to set
aside even default judgment for any other reason that justifies relief as stated herein.” (Doc. 56-1
at 4.) “A Defendant’s default does not in itself warrant the Court in entering a default judgment.
There must be a sufficient basis in the pleadings for the judgment entered.” (Doc. 56-1 at 4
(quoting Wooten v. McDonald Transit Assocs., Inc. 775 F.3d 689 (5th Cir. 2015).) Based on the
“equitable principals encompassed within Rule 60(b)”, Plaintiff concludes that the Court should
grant relief and vacate the judgment. (Doc. 56-1 at 5.)
Defendants reject the contention that the Court should grant Plaintiff’s Motion to Vacate
based on either Rule 55 or Rule 60(b). (Doc. 50.) Defendants argue that the Plaintiff
“continuously and mistakenly cited Fed. R. Civ. P. 55 as the guiding standard for vacating the
Court’s judgment.” (Doc. 50 at 2.) Defendants sought relief on the grounds of summary
judgment pursuant to Fed. R. Civ. P. 56, not default judgment pursuant to Fed. R. Civ. P. 55.
(Doc. 50 at 2.) Defendants state the numerous cases cited by Plaintiff regarding default judgment
relief are distinguishable to this case, so the good cause standard for default judgment is
inapplicable. (Doc. 50 at 6.) Rather, the proper standard is excusable neglect under Rule 60(b).
(Id.) Assuming arguendo the Court finds the good cause standard appropriate in this case,
Defendants maintain that Plaintiff failed to prove good cause. (Doc. 50 at 2 (“The three factors
are ‘(1) whether the default was willful, (2) whether setting it aside would prejudice the
adversary, and (3) whether a meritorious defense is presented.’”).)
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Defendants reject the notion that Plaintiff is entitled to relief based on Rule 60(b)(4).
(Doc. 50 at 4.) Defendants argue that the correct standard for relief from the Ruling granting the
MSJ is Fed. R. Civ. P 60(b)(1). (Doc. 50 at 4.) Defendants assert that the electronic mailing
system notice being diverted to the spam folder does not constitute lack of service under Local
Civil Rule 5(f). (“As provided by Fed. R. Civ. P. 5(b)(2)(E), if a recipient is a registered filer in
the Court’s Electronic CM/ECF Filing System, service is complete when the document is
electronically filed or uploaded to the Court’s system.”) Defendants do not dispute that due
process is necessary, but rather argue that Plaintiff did properly receive service and notice “even
if the e-mail notification went to his spam folder.” (Doc. 56 at 5.) Although Counsel for Plaintiff
states that he took corrective measures on April 13, 2020 to receive notifications from the Court,
“[h]e did not indicate that he took any affirmative measures to determine if he missed any notices
from the case at hand prior to April 13th, including reviewing his spam folder notices of
electronic filing or receiving the docket on Pacer.” (Doc. 50 at 5.) Thus, Plaintiff did not prove a
violation of due process sufficient to justify relief under Rule 60(b)(4). (Doc. 50 at 6.)
Defendants also reject Plaintiff’s argument that he is entitled to relief under Rule 60(b)(6)
because “a court may vacate a judgment for any other reason that justifies relief, but a court
exercise[s] this power sparingly, granting relief only in extraordinary circumstances.” (Doc. 50 at
6 (internal quotations omitted).) Since Plaintiff failed to prove both excusable neglect or good
cause, “Plaintiff’s counsel is not entitled to relief under Fed. R. Civ. P. 60(b), or even Fed. R.
Civ. P. 55.” (Doc. 50 at 6.) Thus, Defendants conclude, the Court should deny Plaintiff’s Motion
to Vacate Judgment. (Doc. 50 at 6.)
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B. Relevant Standard
A court may provide relief from a final judgment on the following grounds: “(1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which could not
have been discovered earlier with reasonable diligence; (3) fraud, misrepresentation, or other
misconduct of an opposing party; (4) a void judgment; (5) a judgment that has been satisfied,
release, discharged, reversed, or vacated; or (6) any other reason justifying relief . . . .” Fed. R.
Civ. P. 60(b).
Rule 60(b)(1) permits a district court to “relieve a party from . . . a final judgment”
because of “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). “The
Supreme Court has explained that the determination of what sorts of neglect will be considered
excusable is ‘an equitable one, taking account of all relevant circumstances surrounding the
party’s omission.’” Trevino v. City of Fort Worth, 944 F.3d 567, 571 (5th Cir. 2019) (quoting
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489,
1498, 123 L. Ed. 2d 74 (1993)). Courts should consider “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, 507 U.S. at 395. “A party has a ‘duty of diligence to
inquire about the status of the case.’” Trevino, 944 F.3d at 571 (quoting Edward H. Bohlin Co. v.
Banning Co., 6 F.3d 350, 357 (5th Cir. 1993). “Gross carelessness” is an “insufficient bas[i]s for
60(b)(1) relief.” Id. (quoting Edward H. Bohlin Co., 6 F.3d at 357). “In fact, a court would abuse
its discretion if it were to reopen a case under Rule 60(b)(1) when the reason asserted as
justifying relief is one attributable solely to counsel’s carelessness with or misapprehension of
the law or the applicable rules of court.” Id. (quoting Edward H. Bolin Co., 6 F.3d at 357).
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Other relevant grounds for justifying relief from final judgment are subsections (4) and
(6). A court may provide relief from judgment under Rule 60(b)(4) in only two circumstances:
“1) if the initial court lacked subject matter or personal jurisdiction; and 2) if the district court
acted in a manner inconsistent with due process of law.” Callon Petroleum Co. v. Frontier Ins.
Co., 351 F.3d 204, 208 (5th Cir. 2003) (citing Carter v. Fenner, 136 F.3d 1000, 1006 (5th Cir.
1998)). “To justify relief under subsection (6), a party must show extraordinary circumstances
suggesting that the party is faultless in the delay.” Pioneer, 507 U.S. at 393, 113 S. Ct. at 1497.
In short, the Court will deny the Motion to Vacate Judgment. Neither Rule 55 on default
judgment nor Rule 60(b) of the Federal Rules of Civil Procedure justify granting relief to the
Plaintiff for her counsel’s failure to timely respond to Defendants’ MSJ.
Preliminarily, Plaintiff erroneously relies on Federal Rule of Civil Procedure 55 as the
standard for vacating the Court’s judgment. Rule 55(c) permits the court to “set aside an entry of
default for good cause, and it may set aside a final default judgment under Rule 60(b).” Fed. R.
Civ. P. 55(c). While Plaintiff correctly states the good cause standard of Rule 55(c) as less
rigorous than the excusable neglect standard under Rule 60(b)(1), the good cause standard does
not apply to this case because Court did not grant a motion for default judgment. Rather, the
Court granted the Defendants’ MSJ pursuant to Rule 56. Rule 55 is therefore inapplicable to this
case, and Plaintiff’s reliance on the good cause standard for setting aside default judgments is
erroneous. Rather, the Court must look to the excusable neglect standard pursuant to Rule
The Fifth Circuit has applied Federal Rule of Civil Procedure 60(b)(1) to analogous cases
in which counsel filed for relief from judgment based on court’s electronic notice being
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unknowingly diverted to a spam or other non-inbox folder resulting in counsel’s failure to timely
respond. In Onwechekwe, counsel filed for relief from a dismissal of a case based on excusable
neglect claiming that the court’s email of opposing counsel’s motion to dismiss was sent to spam
and went unseen. Onwechekwe v. Okeke, 404 F. App’x 911 (5th Cir. 2010). The Fifth Circuit
affirmed the district court’s decision to deny relief under FRCP 60(b)(1) on grounds of mistake
when notice did not reach counsel for appellants “because there were issues related to their
counsel computer set up of emails receipt.” Id. at 911-12. Although the lower court doubted
whether counsel was truthful in claiming it never received the email because counsel had no
difficulty receiving other emails from the court, counsel’s potential untruthfulness was not
determinative of the lower court’s decision to deny relief under Rule 60(b)(1). Id. at 912. The
Fifth Circuit held that “it was not an abuse of discretion [for the district court] to conclude that
sending court communications to the spam folder is inexcusable neglect” even when an email
setting deflects notice away from counsel’s inbox. Id.
The Fifth Circuit also spoke to this issue in Trevino v. City of Fort Worth, 944 F.3d 567
(5th Cir. 2019). In Trevino, Plaintiffs alleged excusable neglect under FRCP 60(b)(1) when
counsel failed to register with CM/ECF and “defective antivirus software diverted court emails
to a spam folder.” Id. at 571. Plaintiffs claimed it was a mistake in part because the case was no
longer on their list of active cases. Id. The court cited Onwuchekwe starting “we held that the
district court did not abuse its discretion in concluding that sending court communications to the
spam folder does not constitute excusable neglect under Rule 60(b).” Id. at 572 (internal
quotations omitted). The court concluded that “[e]mails mistakenly going to a spam folder do not
merit Rule 60(b) relief” even when emails were diverted due to alleged antivirus software instead
of faulty email settings as in Onwuchekwe. Id. Thus, the Fifth Circuit has ruled that emails
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mistakenly diverted to a spam folder are insufficient to justify the relief requested by the
Plaintiff. Many circuits have ruled similarly. See Jay M. Zitter, Relief From Judgment due to
Attorney Neglect or Error Concerning Judicial Electronic Filing (E-filing) Procedures, 27
A.L.R. 7, § 28. The facts of Onwuchekwe and Trevino are nearly identical to those of the case at
hand, so the Court will similarly deny Plaintiff’s Motion to Vacate Judgment.
Few courts have ruled that notice diverted to a spam folder qualifies as excusable neglect
sufficient to support relief pursuant to Rule 60(b)(1). See Zitter, supra, at § 27. Courts have only
granted relief in similar circumstances when counsel was completely unaware of computer
problems, the delay caused by counsel’s mistake was very slight, the case was in early stages of
the proceeding, and there was no indication of bad faith by counsel. See id. For example, in
Fernandes v. Craine, 538 F. App’x 274 (4th Cir. 2013), Plaintiff was entitled to move for
attorney’s fees within 14 days of judgment, but counsel did not learn until a day past the deadline
because notice of the judgment was diverted into the “junk mail” folder of the email. There was
nothing to suggest that counsel was aware of any computer problems or willful blindness,
especially since the verdict was favorable to the plaintiff. Id. at 276. Absent evidence to the
contrary, counsel’s failure to file timely for attorney’s fees was excusable neglect. Id. at 274.
Counsel for Plaintiff in the case at issue realized the CM/ECF notification issue on April
13, 2020, and, despite his contentions, failed to present any evidence that he attempted to resolve
the issue apart from sending one email to PACER. (See Ex. B, Doc. 49-6 at 2; see also
Adebamiji’s Aff., Doc. 49-5 at 1.) Further, April 13 was six weeks after the MSJ was filed.
Plaintiff, who admits to having “always used the Court’s electronic filing through PACER”
(Adebamiji’’s Aff. ¶ 3, Doc. 49-5 at 1), could have taken affirmative efforts to check the status of
the case online since he was aware he was not receiving court notice and since he was fully
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aware of his technical difficulty in regards to receiving emails from the Court. The mistake
affects the case in late stages of its proceeding, and the length of the delay and burden placed on
Defendants caused by Counsel for Plaintiff’s neglect and failure to inquire about the status of the
case are not insignificant. Counsel had a “duty of diligence to inquire about the status of the
case.” Trevino, 944 F.3d at 571. The lack of corrective measures to ensure the email notification
issue was resolved or to check the status of the pending case directly online suggest this duty was
not met. In sum, the failure to realize the court’s notifications were diverted into Counsel’s spam
folder and subsequent failure to respond to Defendant’s MSJ or the Court’s Ruling does not
constitute excusable neglect under Rule 60(b)(1).
Additionally, the Court does not have sufficient evidence to grant relief based on Rules
60(b)(4) or 60(b)(6). For the Court to grant relief to the plaintiff under Rule 60(b)(4), Plaintiff
would need to put on evidence that due process was violated. However, Local Civil Rule 5(f)
indicates that service was completed the moment the documents were filed or uploaded onto
CM/ECF. Therefore, there was no violation of due process. Finally, the Court cannot grant the
Motion to Vacate under Rule 60(b)(6) because “extraordinary circumstances” are not present to
justify granting relief to the plaintiff. Since Plaintiff failed to prove both excusable neglect or
good cause, “Plaintiff’s counsel is not entitled to relief under Fed. R. Civ. P. Rule 60(b), or even
Fed. R. Civ. P. 55.” (Doc. 50 at 6.)
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IT IS ORDERED that the Motion to Vacate Judgment (Doc. 56) filed by Plaintiff Shawn
Drewery, on behalf of Shaqualia Felder, is DENIED.
Signed in Baton Rouge, Louisiana, on September 10, 2020.
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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