COUSINS et al v. HIGGINS et al

Filing 104

PROCEDURAL ORDER AND COLOCOTRONI MEMORANDUM By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROBERT L. COUSINS
COUSINS,

AND

JUDY A.

PLAINTIFFS
V.

KEITH HIGGINS, HEATH HIGGINS,
TADD JEWETT, MATTHEW
TETREAULT, MATTHEW LINDSLEY,
COLTON SANBORN, SAMUEL
CHISHOLM, TOWN OF TREMONT,
AND TREMONT VOLUNTEER FIRE
DEPARTMENT,
DEFENDANTS

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CIVIL NO. 1:14-CV-515-DBH

PROCEDURAL ORDER AND COLOCOTRONI MEMORANDUM
This is a case where summary judgment in the defendants’ favor is on
appeal to the First Circuit.1 Now for the second time during the appeal, the
plaintiffs have moved for relief from judgment in this court.2 I follow the First
Circuit’s direction as to how a district court should resolve such motions during
an appeal:
[W]hen an appeal is pending from a final judgment, parties
may file Rule 60(b) motions directly in the district court
without seeking prior leave from us. The district court is
directed to review any such motions expeditiously, within a
few days of their filing, and quickly deny those which appear
to be without merit, bearing in mind that any delay in ruling
could delay the pending appeal. If the district court is
inclined to grant the motion, it should issue a brief
memorandum so indicating. Armed with this, movant may
then request this court to remand the action so that the
district court can vacate judgment and proceed with the
action accordingly.
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2

The plaintiffs filed their notice of appeal on August 29, 2018 (ECF No. 91).
I denied the first motion on October 23, 2018 (ECF No. 98).

Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir.
1979). Moreover:
If the district court is unable conscientiously to dispose of
the motion within a few days of its filing because it requires
further argument, briefing, or the like, it should issue a brief
memorandum to this effect. The memorandum should
indicate that the motion is non-frivolous and not capable of
being fairly decided solely on the basis of the court’s initial
screening and that the court will require a specified number
of more days to complete its review and issue an order. . . .
This memorandum will enable us to act intelligently on
extension requests made in the appeal.

Id. at 42 n.3.
The plaintiffs bring this motion under Fed. R. Civ. P. 60(b)(1), claiming
“mistake, inadvertence, surprise or excusable neglect.” They say that when they
objected to the defendants’ motion for summary judgment on February 9, 2018
(ECF No. 80):
[W]e inadvertently submitted a 13 page document in
duplicate instead of the correct 13 p. PLAINTIFFS’
STATEMENT OF MATERIAL FACT (documented from the
record). Plaintiff’s mistakenly believed that the document
had been filed properly. Plaintiffs acted in good faith and had
no comprehension of what had been done.

Pls.’ Mot. at 1 (ECF No. 99). They also say: “For this error in submission, we
apologize. The error was not discovered by us until (November 4, 2018). There
is simply too much at stake to lose because of the difficulty in ascertaining that
proper filing was accomplished.” Id.
In the defendants’ response to the motion, they say that “Plaintiffs’ claimed
mistake does not make sense.” Defs.’ Opp’n to Pls.’ Second Mot. for Relief from
J. at 1 (ECF No. 103). In fact, there does not appear to be any 13-page document
on the ECF docket, duplicate or otherwise, on or around that February date.
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The plaintiffs are pro se parties and under this Court’s procedures, they
email their documents to the Clerk’s Office ECF Inbox. Admin. Proc. Governing
the Filing and Service by Electronic Means, D. Me. L.R. App. IV (b)(2); District of
Maine, Information for Pro Se Parties, Appendix G: ECF Registration Form for
Pro Se Filers and Instructions for Non-Prisoner, Pro Se Litigants Registered with
CM/ECF, https://www.med.uscourts.gov/pdf/PRO_SE_INFORMATION_HANDOUT.pdf. It is
then incumbent upon the case managers to docket what they have emailed. I
am attempting to reconstruct, with the assistance of the Court’s IT staff, what
the plaintiffs actually emailed in February and what the case managers docketed.
I need to do that before I can determine whether there is substance to the
plaintiffs’ motion and, if so, what the consequence should be.
In accordance with the Colocotroni instruction, 601 F.2d at 42 n.3, I now
state that until I can clarify the ECF filing and docketing record, the plaintiffs’
motion is not capable of being fairly decided solely on the basis of the Court’s
initial screening. The plaintiffs’ reply to the defendant’s response to their motion
is due December 14, 2018. This Court will require until December 21, 2018, to
review that response, finish its clarification of the ECF filing and docketing
record, and issue an order.
The Clerk’s Office shall immediately provide this memorandum to the
Court of Appeals.
SO ORDERED.
DATED THIS 4TH DAY OF DECEMBER, 2018
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
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