Pickney v. Strategic Restaurants Acquisition Co L L C et al

Filing 44

MEMORANDUM RULING re 36 MOTION for Relief from Judgment filed by Scenter Pickney. Signed by Judge Terry A Doughty on 4/25/2018. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
SCENTER PICKNEY

CIVIL ACTION NO. 16-0211

VERSUS

JUDGE TERRY A. DOUGHTY

STRATEGIC RESTAURANTS
ACQUISITION COMPANY LLC, ET AL.

MAG. JUDGE PATRICK J. HANNA

RULING
Pending before the Court is Plaintiff’s Motion for Relief from Judgment. [Doc. No. 36].
The motion is fully briefed, and the Court is prepared to rule.
Plaintiff filed this suit on February 15, 2016, asserting claims for discrimination,
harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. '
2000e, et seq.; 42 U.S.C. ' 1981; the Civil Service Reform Act, 5 U.S.C. ' 7703(b)(2); and the
Age Discrimination in Employment Act, 29 U.S.C. ' 621, et seq.
In response, on June 6, 2016, Defendants filed a Motion to Compel Arbitration, to Stay
Proceedings, and for an Award of Reasonable Attorney=s Fees on grounds that Plaintiff was
required to submit her claim to arbitration in accordance with an arbitration agreement. [Doc. No.
11].

On January 24, 2017, oral arguments were held before Magistrate Judge Patrick Hanna.

On February 6, 2017, Magistrate Judge Hanna issued a Report and Recommendations suggesting
that the Defendants’ Motion to Compel Arbitration and Stay Proceedings be granted in part and
denied in part. [Doc. No. 21]. Magistrate Judge Hanna concluded that that the lawsuit should
be stayed and that Plaintiff should be ordered to submit her claims to arbitration, but that
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Defendants were not entitled to attorney’s fees and costs.
In response, on February 16, 2017, Defendants filed an Objection to the Report and
Recommendations contesting the denial of attorney’s fees and costs. [Doc. No. 22]. Plaintiff
did not respond. Consequently, on March 9, 2017, Judge James entered a Memorandum Ruling
and a Judgment adopting in part and declining to adopt in part Magistrate Judge Hanna’s Report
and Recommendations. [Doc. Nos. 23 & 24]. Specifically, the March 9, 2017 Judgment adopted
the recommendation that the lawsuit be stayed and that Plaintiff be ordered to submit her claims
to arbitration, but declined to adopt the recommendation that Defendants not be awarded attorney’s
fees and costs. Again, Plaintiff did not respond. Thus, on March 30, 2017, Defendants’ legal
counsel filed a Motion for Bill of Costs, seeking attorney’s fees in the amount of $13,302.00 and
costs. [Doc. No. 25]. Once again, Plaintiff did not respond.
On May 4, 2017, Judge James entered Judgment against Plaintiff, awarding Defendants
attorney’s fees, but in the reduced amount of $10,095.00. [Doc. No. 27].
Plaintiff filed a pro se letter motion on August 9, 2017, [Doc. No. 29], which the Court
construed as a request for an extension of time in which to secure and retain counsel, inasmuch as
the proceedings had been stayed pending arbitration. On August 21, 2017, the Court ordered that
the stay of proceedings be lifted for the limited purpose of allowing Plaintiff to enroll counsel, and
ordered Plaintiff to either enroll counsel or give notice of her intent to proceed pro se, no later than
September 18, 2017.
Plaintiff’s new counsel filed a motion to enroll on September 18, 2017. [Doc. No. 33].
However, the pending Motion for Relief from Judgment was not filed until March 20, 2018.
[Doc. No. 36].
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Plaintiff requests relief from the March 9, 2017 Judgment pursuant to FED. R. CIV.P.
60(b)(6), and relief from the May 4, 2017 Judgment pursuant to FED. R. CIV. P. 60(b)(1), and
alternatively, Rule 60(b)(6).
Under Rule 60(b), a court may relieve a party from a final judgment, order or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Plaintiff primarily contends that she is entitled to relief due to her prior attorney’s neglect.
She alleges that following the hearing before Magistrate Judge Hanna on January 24, 2017, (which
she personally attended), her attorney failed to inform her as to the filing of the February 16, 2017
Report and Recommendations; the Court’s March 9, 2017 Judgment awarding Defendants
attorney’s fees and costs; and the Court’s May 4, 2017 Judgment setting the amount of attorney’s
fees to which Defendant was entitled at $10,095.00. She further alleges that she made numerous
inquiries as to the status of the case after the January 24, 2017 hearing, but that her attorney either
ignored her or intentionally misrepresented the status of the case. She suggests that her attorney’s
failure to keep her informed and failure to file various responses to motions seeking attorney’s fees
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was due to her attorney’s preoccupation with disciplinary proceedings that had been instituted
against him, which resulted in an order from the Louisiana Supreme Court on April 27, 2017,
suspending him from the practice of law on an interim basis. She alleges that she did not learn
that a Judgment had been entered against her for Defendants’ attorney’s fees until on or about July
31, 2017, when she visited the Federal Court Clerk of Court’s office.
After carefully reviewing the record and considering the arguments of the parties, the Court
GRANTS IN PART and DENIES IN PART Plaintiff’s Motion for Relief from Judgments [Doc.
No. 36]. The Motion is DENIED as to the March 9, 2017 Judgment, but GRANTED as to the
May 4, 2017 Judgment, for the following reasons.
The March 9, 2017 Judgment
Plaintiff seeks relief from the March 9, 2017 Judgment pursuant to Rule 60(b)(6).
Rule 60(b) attempts to strike a balance between two conflicting goals: the finality of
judgments and the command of courts to do justice. See Stipelcovich v. Sand Dollar Marine, Inc.,
805 F.2d 599, 606 (5th Cir. 1986).
The Fifth Circuit has set forth the following eight factors which are to be considered in the
light of the great desirability of preserving the principle of the finality of judgments:
(1) that final judgments should not lightly be disturbed;
(2) that the Rule 60(b) motion is not to be used as a substitute for appeal;
(3) that the rule should be liberally construed in order to achieve substantial justice;
(4) whether the motion was made within a reasonable time;
(5) whether, if the judgment was a default or a dismissal in which there was no
consideration of the merits, the interest in deciding cases on the merits outweighs, in the
particular case, the interest in the finality of judgments, and there is merit in the movant’s
claim or defense;
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(6) whether, if the judgment was rendered after a trial on the merits, the movant had a fair
opportunity to present his claim or defense;
(7) whether there are intervening equities that would make it inequitable to grant relief;
and
(8) any other factors relevant to the justice of the judgment under attack.
Seven Elves, Inc., v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).
The first two factors weigh against the granting of Plaintiff’s Motion. The March 9, 2017
Judgment is a final judgment, and no appeal was taken, although Plaintiff’s prior attorney was not
suspended until April 27, 2017.
As to the fourth factor, Rule 60(c) provides that a “motion under Rule 60(b) must be made
within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of
the judgment or order or the date of the proceeding.” In determining whether a motion has been
filed within a reasonable time, the Fifth Circuit has set forth four factors to be considered: (1) the
interest in finality; (2) the reason for delay; (3) the practical ability of the litigant to learn earlier
of the grounds relied upon; and (4) prejudice to other parties. Travelers Ins. Co. v. Liljeberg
Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994).
More than a year passed between the date the Court entered the March 9, 2017 Judgment
(which awarded Defendants attorney’s fees but did not fix the amount) and the filing of the
Plaintiff’s Motion for Relief on March 20, 2018. More than 6 months passed between the
enrollment of Plaintiff’s current counsel on September 18, 2017, and the filing of the Motion for
Relief on March 20, 2018. Therefore, this fourth factor weighs against granting Plaintiff’s
motion.
The desirability of finality in judgments categorically weighs against granting Rule 60(b)
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motions, particularly when reopening a judgment could unfairly prejudice the opposing party.
See Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir. 1977). The attorney’s fees were awarded
because Plaintiff improperly filed her Complaint before engaging in arbitration. Defendants
would be unfairly prejudiced in having to re-litigate their right to attorney fees already awarded
by the Court. The arbitration agreement clearly awarded reasonable attorney’s fees should a party
disregard the agreement and pursue an action in violation of the arbitration agreement. Thus, even
if Plaintiff’s Motion for Relief was timely, she would still not be entitled to have the March 9,
2017 Judgment set aside.
With regard to the fifth and sixth factors, the March 9, 2017 Judgment was entered by the
Court on Defendants’ Motion that was opposed by Plaintiff’s prior counsel, both by filing an
opposition brief and by presentation of oral argument at the January 24, 2017 hearing before
Magistrate Judge Hanna. The fact that Plaintiff did not file a response to the Defendants’
Objection to Report and Recommendation does not mean the request for attorney’s fees was
granted because the motion was not contested. Rather, the Court rejected Magistrate Judge
Hanna’s Report and Recommendation regarding the awarding of attorney’s fees based on a de
novo review of the record, which included Plaintiff’s opposition brief.
Furthermore, with regard to the fifth factor, Plaintiff has not shown that she has a
meritorious position with respect to the issues decided that warrants further consideration. Plaintiff
does not dispute that she signed the Agreement with the arbitration clause. Her allegation that it
was a “contract of adhesion” was considered by the Court and rejected. There is also no dispute
that Defendants prevailed and that the Agreement provided for an award of attorney’s fees to the
prevailing party. Plaintiff offers no factual evidence or legal argument that the Court’s decision

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with respect to the March 9, 2017 Judgment was erroneous.
With regard to the eighth factor, “any other factors relevant to the justice of the judgments
under attack,” Plaintiff contends that she is unemployed and caring for a sick spouse, and that she
will not be financially able to proceed with arbitration if the Judgments are allowed to stand.
However, none of these contentions are relevant to this Motion or to the underlying merits of the
Court’s March 9, 2017 Judgment. In addition, a consideration of the equities shows that Plaintiff
was aware of the positions taken on her behalf by her counsel in filing a Complaint in federal court
despite the binding arbitration clause. Her attendance at the January 24, 2017 hearing confirms
that she was fully aware of the positions taken on her behalf. It is not inequitable for Plaintiff to
bear the consequences of these actions, with which she was in full agreement, and which directly
resulted in the Judgment awarding attorney’s fees.
The cases cited by Plaintiff do not support her position. The Fifth Circuit in Edward H.
Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 356-357 (5th Cir. 1993), specifically stated that
Rule 60(b) relief will only be afforded in “unique circumstances,” and, “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.” Plaintiff’s complaints that her attorney failed to file a
response to Defendants’ Objection to Magistrate Hanna’a Report and Recommendation falls
within that category.
The result in Seven Elves, Inc. v. Eskenazi, supra, is distinguishable on its facts. In that
case, the movant’s counsel told his clients that no action would be required from them, but
unbeknownst to the clients, withdrew from the case. This resulted in the entry of a default
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judgment of $250,000 against the clients.

In the instant case, Plaintiff’s counsel was not

suspended before the March 9, 2017 Judgment was entered, and, more importantly, the Judgment
was not entered against Plaintiff on a default basis. In addition, the defaulted parties in Seven
Elves, unlike Plaintiff, presented substantial evidence to the court in support of their Rule 60(b)
motion demonstrating the existence of sufficiently meritorious defenses that might have resulted
in a different outcome if that evidence had been submitted. Finally, the defaulted parties in Seven
Elves filed their motion within one year of entry of the judgment and twelve days after discovery
of the existence of the judgment, whereas Plaintiff here waited 7.5 months after learning of the
existence of the Judgments on or about July 31, 2017, to file her motion for relief on March 20,
2018, which was also more than one year after the first Judgment.
The cases of Associated Marine Equipment LLC v. Jones, 301 Fed. App’x. 346 (5th Cir.
2008) and Hall v. Sears Roebuck Co., 2008 WL 4758669 (W.D. La. 2008), cited by Plaintiff in
her motion, are likewise factually distinguishable from the present case. The Judgments in both
were entered on a default basis or were of a default nature, where the defaulted parties had no
opportunity to present their cases on the merits, unlike Plaintiff in the instant case.
Plaintiff also cites Vaughn v. Mobile Oil Exploration & Producing Southeast, Inc., 1990
WL 93859 (E.D. La. 1990), although in that case the federal district court denied the motion for
relief from judgment under Rule 60(b)(6), which was based on the alleged gross negligence of
counsel. The district court stressed that a party remains under a duty to take legal steps to protect
his own interests, and that part of that duty includes an obligation to keep informed of the state of
matters before the court. In denying the motion for relief, the district court stated, “It has long been
held, particularly in civil litigation, that the mistakes of counsel, who is the legal agent of the client
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are chargeable to the client [citation omitted], no matter how unfair this on occasion may seem.
Were this Court to make an exception to finality of judgment each time a hardship was visited
upon the unfortunate client of a negligent or inadvertent attorney, even though the result be
disproportionate to the deficiency, courts would be unable to ever adequately redraw that line
again, and meaningful finality of judgment would disappear.” Vaughn, supra.
Plaintiff argues in the alternative that Defendants will have an opportunity for an award of
attorney’s fees at the close of the arbitration proceedings if they are successful on the merits.
However, this potential claim for attorney’s fees incurred in defending the merits is distinct from
the attorney’s fees already awarded by the Court’s Judgments for fees incurred in compelling
Plaintiff to arbitrate her claims.
For these reasons, Plaintiff’s Motion for Relief [Doc. No. 36] as to the March 9, 2017
Judgment is DENIED.
The May 4, 2017 Judgment
Plaintiff requests relief from the May 4, 2017 Judgment, (which set the amount of attorney
fees to which Defendants were entitled at $10,095.00), pursuant to Rule 60(b)(1), and alternatively,
pursuant to Rule 60(b)(6).
Many of the factors set forth above which gravitate in favor of denying Plaintiff’s Motion
for Relief as to the March 9, 2017 Judgment also gravitate in favor of denying Plaintiff’s Motion
for Relief as to the May 4, 2017 Judgment.
A distinguishing consideration is the fact that the May 4, 2017 Judgment was clearly in the
nature of a default judgment, unlike the March 9, 2017 Judgment.

Another distinguishing

consideration is the arrest of her prior attorney for forgery on or about April 24, 2017, and his
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suspension from the practice of law on April 27, 2017, which occurred after the rendition of the
March 9, 2017 Judgment but prior to the rendition of the May 4, 2017 Judgment, which operated
to deprive Plaintiff of her right to appeal.
Defendants contend that Plaintiff was not deprived of her right to appeal because her
previous counsel was not suspended from practice before this Court until June 22, 2017, relying
on the May 16, 2017 Order of the Fifth Circuit suspending him from the practice of law, effective
35 days from the date of the Order. However, Plaintiff points out that her previous attorney was
not in Good Standing in Louisiana as of April 27, 2017, and pursuant to Local Rule 83.2.2, he was
ineligible to practice before this Court as of the same date.
Plaintiff was therefore not afforded ample opportunity to an appeal of the May 4, 2017
Judgment, which was rendered after the suspension of her previous attorney. Furthermore, the
March 9, 2017 Judgment was entered by the Court on Defendants’ Motion that was opposed by
Plaintiff’s counsel, both by filing an opposition brief and by presentation of oral argument at the
January 24, 2017 hearing before Magistrate Judge Hanna. Plaintiff was given ample opportunity
to present her position in regard to the issuance of the stay and in regard to the awarding of attorney
fees to the prevailing party. Plaintiff even attended the January 24, 2017 hearing and was aware
of the issues in dispute. Plaintiff was not given the same opportunity to contest or to appeal the
amount of attorney fees to be awarded, inasmuch as her attorney had been suspended as of April
27, 2017, and she had no knowledge the amount of attorney fees to be awarded was an issue before
the Court. However, since additional litigation has been conducted, the result could possibly be
an award of attorney’s fees in excess of the amount previously awarded against the Plaintiff.
For these reasons, Plaintiff’s Motion for Relief [Doc. No. 36] as to the May 4, 2017

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Judgment is GRANTED.
Should the Defendant STRATEGIC RESTAURANTS ACQUISITION COMPANY LLC,
seek additional attorney’s fees for responding to the instant motion, it should file a supplemental
memorandum with supporting evidence no later than May 25, 2018. Plaintiff should file a
memorandum in opposition to the original Motion for Bill of Costs [Doc. No. 25] and any
supplemental request no later than twenty-one (21) days after the supplemental memorandum is
filed. Defendant will have fourteen (14) days after Plaintiff’s memorandum is filed in which to
file a reply
MONROE, LOUISIANA, this 25th day of April, 2018.

____________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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