COUSINS et al v. HIGGINS et al

Filing 108

ORDER ON SECOND MOTION FOR RELIEF FROM JUDGMENT denying 99 Motion for Relief from Judgment 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
CHISOLM, TOWN OF TREMONT, AND
TREMONT VOLUNTEER FIRE
DEPARTMENT,
DEFENDANTS

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

ORDER ON SECOND MOTION FOR RELIEF FROM JUDGMENT
BACKGROUND
The plaintiffs have appealed summary judgment in the defendants’ favor
to the First Circuit Court of Appeals.1 Now, for the second time during the
appeal, the plaintiffs have also moved for relief from judgment in this district
court. Following the First Circuit’s instructions on how a district court should
resolve such motions during an appeal, Commonwealth of Puerto Rico v. SS Zoe
Colocotroni, 601 F.2d 39, 42 (1st Cir. 1979), and following an earlier Procedural
Order and Colocotroni Memorandum explaining my delay (ECF No. 104), I now
DENY this second motion.

1

The plaintiffs filed their notice of appeal on August 29, 2018. (ECF No. 91.)

The plaintiffs bring their motion under Fed. R. Civ. P. 60(b)(1), claiming
“mistake, inadvertence, surprise or excusable neglect.” Pls.’ Mot. at 1 (ECF No.
99). They say that when they objected to the defendants’ motion for summary
judgment on February 9, 2018, Pls.’ Opp’n to Defs.’ Mot. for Summ. J. (“Pls.’
Opp’n”) (ECF No. 80), they:
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. 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. They now have docketed a 13-page “Plaintiffs Statement
of Material Fact” (“Pls.’ Statement”) (ECF No. 100) that includes citations to the
record.
Because I could not find on the ECF docket any duplicate 13-page
document—and because the defendants argued that the plaintiffs had filed only
one document, 25 pages long, not a 13-page document, and that the “claimed
mistake does not make sense,” Defs.’ Opp’n to Pls.’ Second Mot. For Relief from
J. at 1 (“Defs.’ Opp’n”) (ECF No. 103)—I asked the Clerk’s Office to elucidate what
actually happened in the February filing.

Procedural Order and Colocotroni

Mem. at 3. The Clerk’s Office has now done so in the Declaration of Michelle
Thibodeau (ECF No. 107). It appears that on February 9, 2018, the plaintiffs
emailed the Clerk’s Office two copies of the first thirteen pages (numbered 1
2

through 13) of their objection to the defendants’ summary judgment motion, as
well as a single copy of the last twelve pages (numbered 14 through 26, but with
no page 16). When the Clerk’s Office inquired by email, “Did you intend to file
duplicate documents?”, the plaintiffs responded by email, “We did not intend to
send the duplicate.” As a result, the Clerk’s Office combined one of the first two
13-page filings numbered 1 through 13 with the succeeding 12-page filing
numbered 14 through 26 (with no page 16) to generate a single 25-page
document (1 through 13 and 14 through 26, with no page 16) as the Opposition.
See Pls.’ Opp’n. That explains why no 13-page document is discernible on ECF.2
ANALYSIS
I now DENY the plaintiffs’ second motion for relief for the following reasons:
1.

The Magistrate Judge carefully explained, in advance, the summary

judgment filing requirements to these pro se plaintiffs at the Local Rule 56 prefiling conference in December 2017. Tr. at 13-14, 21-24 (ECF No. 87).
2.

The plaintiffs still have not provided an Opposing Statement of

Material Facts to rebut the 126-paragraph “Defendants’ Statement of Material
Facts” (ECF No. 76), as Local Rule 56(c) requires. “The opposing statement shall
admit, deny or qualify the facts by reference to each numbered paragraph of the
moving party’s statement of material facts and unless a fact is admitted, shall
support each denial or qualification by a record citation as required by this rule.”

In their Reply regarding the pending motion, the plaintiffs say: “Associated evidences cited
accompanied that disclosure. (EX 2M).” Pls.’ Reply to Defs.’ Resp. at 1 (“Pls.’ Reply”) (ECF No.
106). They attach a document that lists thirty numbered “Exhibits to Statement of Material
Facts.” (ECF Nos. 106-2, 106-3.) That document was not in the emails or related papers that
produced the original opposition filing. See ECF No. 80; see also Declaration of Michelle
Thibodeau at ¶ 11 (ECF No. 107).
2

3

Id. Therefore, as the Magistrate Judge stated on page 4 of the Recommended
Decision that I adopted: “Under the Local Rule, Defendants’ statements are
‘deemed admitted’ because Plaintiffs failed to dispute Defendants’ statements—
by denying or qualifying the statements, and by citing record evidence to support
their denials and qualifications. D. Me. Loc. R.56(f).” (ECF No. 85.)
3.

What the plaintiffs now have filed instead is apparently a counter-

statement, or a statement of “additional facts,” see Local Rule 56(c), dated
February 9, 2018. The filing is virtually identical3 to what they already included
in their docketed February opposition to summary judgment, albeit now with
citations to the record, something not included in their original filing. They
provide no reason why it took them until November 4, 2018, a date during the
appeal, to discover their February “error” in not filing this document. They could
have checked the ECF docket at any time after their February filing, especially
because the Clerk’s Office alerted them promptly that in fact they had filed a
duplicate document; the defendants pointed out the plaintiffs’ failure in March4;
and the Magistrate Judge also highlighted the omission on the fourth page of his
Recommended Decision in June (ECF No. 85).5

These observations and

challenges from the Clerk’s Office, the defendants, and the Magistrate Judge
3 The document the plaintiffs have filed now has two numbered paragraphs that were not
included in the fact section of their opposition to the defendant’s motion for summary judgment
that was filed in February. Compare Pls.’ Opp’n at 14 with Pls.’ Statement at 12. See also
footnote 2, supra.
4 “Plaintiffs did not file an opposing or additional statement of material facts. Instead, they make
a number of unsupported assertions throughout their opposition brief without any citation to
record evidence.” Defs.’ Reply at 2 (ECF No. 84).
5 On page 4 of his Recommended Decision, the Magistrate Judge wrote: “Defendants . . . have
satisfied the requirements of Local Rule 56. Plaintiffs have not complied with the Rule.
Specifically, Plaintiffs have not filed a direct response to Defendants’ statement of material facts.”
(ECF No. 85.)

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should have alerted the plaintiffs to their omission, and there is nothing about
November that explains why they have only now discovered their “error.”6
4.

The Magistrate Judge stated explicitly in his Recommended Decision

that I adopted:
In their summary judgment submission, Plaintiffs
include factual statements that could conceivably be
material to the summary judgment assessment. Plaintiffs,
however, do not cite to supporting record evidence. Without
citation to the record, Plaintiffs’ assertions do not constitute
record evidence for purposes of summary judgment. “[T]he
Court is required to maintain a strict neutrality between
opposing parties and even though a more forgiving reading
may be appropriate for a pro se party in the summary
judgment context, it is also true that ‘[j]udges and magistrate
judges who review these filings must be able to rely on
procedural rules so as to avoid becoming the lawyer for the
unrepresented [party] or devoting an excessive portion of
their time to such cases.’”

Id. at 4-5 (internal citations omitted). But he went on to say:
Nevertheless, the factual assertions contained in the
verified complaint and affidavits filed in connection with the
summary judgment motion can be considered. That is,
where a pro se litigant has failed to comply strictly with the
summary judgment rules, this Court has considered the
sworn assertions of record. In this case, in addition to the
summary judgment record, I have considered Plaintiffs’
verified complaint and the affidavits filed by Plaintiffs in this
action to the extent the allegations in the complaint and the
assertions in the affidavits include facts that would be
admissible in evidence and otherwise comply with the
requirements of Federal Rule of Civil Procedure 56(c)(4).

Id. at 5 (internal citations omitted) (emphasis added).

The plaintiffs do not

explain how their filing now of the “Plaintiffs’ Statement of Material Fact” should

They state: “Plaintiff’s had electronic difficulties during this time as well as access to our Pacer
account. To complicate things, this rolled into health issues with Robert who underwent triple
heart bypass surgery followed by aortic abdominal aneurism surgery just one month after.” Pls.’
Reply at 1. This statement does not justify their indifference, until now, to the ongoing recurrent
observations and challenges (in February, March, and June) recounted in text.
6

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change the outcome of the Magistrate Judge’s recommendation (which I
adopted), given the evidence he already considered.
The First Circuit is clear that securing relief under Rule 60(b)(1) is a
“demanding standard,” Santos-Santos v. Torres-Centeno, 842 F.3d 163, 169 (1st
Cir. 2016) (speaking there of excusable neglect7), and that there

“must be

something more than an attorney’s failure to monitor the court’s electronic
docket.” Id. Under the circumstances here, I see no reason to let the pro se
plaintiffs escape that monitoring requirement. See Bennett v. Dr Pepper/Seven
Up, Inc., 295 F.3d 805, 807-08 (1st Cir. 2002) (dealing with the question of a pro
se litigant’s excusable neglect).
The First Circuit has also said:
Deciding what constitutes excusable neglect is a casespecific
exercise,
which
requires
“an
equitable
determination, taking into account the entire facts and
circumstances surrounding the party’s omission.”
The
pertinent facts and circumstances typically include such
things as “the danger of prejudice to the non-movant, the
length of the delay, the reason for the delay, and whether the
movant acted in good faith.” Nevertheless, these factors are
not entitled to equal weight. “Within the constellation of
relevant factors, the most important is the reason for the
particular oversight.”

Rivera-Velázquez v. Hartford Steam Boiler Inspection & Ins. Co., 750 F.3d 1, 4
(1st Cir. 2014) (internal citations omitted).8 Addressing those factors, I find that
7 The cases generally address the “excusable neglect” component, but there is no suggestion that
inadvertence or mistake should produce a different analysis. Although the plaintiffs’ caption to
their motion describes it as a “motion for relief from judgement 60b(1) mistake, inadvertence,
surprise or excusable neglect,” (ECF no. 99 at 1), surprise is not at issue here.
8 See also Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 29 (1st Cir. 1980):
The fact remains that [the plaintiff’s] affidavit was not offered prior to the entry of
[summary] judgment; in addition, no explanation was given for the failure to
present the affidavit or its contents earlier, and no claim was made that further
facts became known to [the plaintiff] only after judgment had been entered. In
these circumstances, particularly where [the plaintiff] should have been aware of

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there is no plausible explanation for the plaintiffs’ claimed oversight; no reason
for their ongoing delay in uncovering that oversight; a lengthy delay that has
extended into the appeal’s pendency; and a danger of prejudice to the other
party, which has invested resources in pursuing the summary judgment motion,
in resisting the plaintiffs’ objection to the recommended decision, and in resisting
the appeal of my decision adopting the recommended decision, all on the premise
that the record was complete. The defendants challenge the plaintiffs’ good faith,
Defs.’ Opp’n at 3, but I have no evidence for a finding on that issue in either
direction. Finally, the plaintiffs have not demonstrated that granting the motion
and entertaining the late filing now would change the ultimate outcome.
CONCLUSION
Considering all the factors of Rivera-Velázquez and Santos-Santos, I
conclude that the plaintiffs have failed to make their case for Rule 60(b)(1) relief,
and I DENY their motion.
SO ORDERED.
DATED THIS 17TH DAY OF DECEMBER, 2018
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

the deficiencies in his case before the entry of judgment, relief under Rule 60(b)
would not have been justified. Grounds for relief under Rule 60(b)(1), due to
“mistake, inadvertence, surprise, or excusable neglect,” were not presented.
7