Barnes v. Hook

Filing 64

MEMORANDUM AND ORDER DENYING 63 Plaintiff's motion to reopen (c/m to Plaintiff 12/9/13 sat). Signed by Chief Judge Deborah K. Chasanow on 12/9/13. (sat, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : JUAN SYLVESTER BARNES : v. : Civil Action No. DKC 08-3486 : DETECTIVE BRIAN HOOK : MEMORANDUM OPINION AND ORDER On August 4, 2009, following the denial of Defendant’s motion for summary judgment, Erin Miller was appointed as pro bono counsel request, the for case Plaintiff. was Thereafter, referred to a upon Plaintiff’s magistrate judge for settlement, and a settlement conference was held on March 12, 2010. On the same date, the court was advised that the parties had settled, and a settlement order was issued pursuant to Local Rule 111, dismissing the action “without prejudice to the right of a party to move for good cause within 30 days to reopen this action if settlement is not consummated.” order further provided, “If no dismissal shall be with prejudice.” party (ECF No. 36). moves to reopen, The the (Id.).1 On October 30, 2013, Plaintiff submitted what appeared to be an 1 unsigned pleading, purporting to add Ms. Miller as a The case was briefly reopened on December 10, 2010, for the purpose of considering Ms. Miller’s fee petition, which was contemplated by the parties’ settlement agreement. defendant and challenging agreement based on the validity “inef[f]ective counsel [his] 6th Am[]endm[e]nt rights[.]” issued November 1, the court of the [in] violation (ECF No. 61). directed settlement Plaintiff of By an order to clarify whether he intended “to request to reopen the case, which was settled, in order to attempt to seek further damages,” or was “seeking to make a claim against the attorneys, which would require filing a new action.” (ECF No. 62). Plaintiff’s response, received by the clerk on November 22, reflects that he intends to do both. (ECF No. 63). Specifically, he appears to seek to invalidate the settlement agreement, based on what he views as deficiencies in Ms. Miller’s representation, so that he may continue to pursue his claim for monetary damages against the original defendant, as well against Ms. Miller and associates. Insofar as Plaintiff seeks to reopen this case, his motion is untimely. The Rule 111 order provided a limited right to move to reopen within thirty days in the event that settlement was not consummated. Thereafter, the dismissal automatically became “with prejudice.” (ECF No. 36). There is no question that Plaintiff’s settlement was consummated and no motion to reopen was filed within thirty days. Thus, the dismissal was final and Plaintiff’s only recourse could be through a motion pursuant to Federal Rule of Civil Procedure 60(b). 2 That rule provides relieve that, a “[o]n party . motion . . and from just a terms, final the judgment, proceeding” for any of six enumerated reasons. 60(b). Such a motion, however, “must be court may order, or Fed.R.Civ.P. made within a reasonable time,” Fed.R.Civ.P. 60(c), and Plaintiff did not file his initial motion in this case until over three and one-half years after the Rule 111 order was entered. The record reflects that he was aware of the basis of his motion shortly after the date of settlement and he offers no explanation for the extended delay in filing. See McLawhorn v. John W. Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir. 1991) (“Motions under Rule 60(b) must be brought within a reasonable time and the movant must make a showing of timeliness”) (internal marks and citation omitted). Under these circumstances, it cannot be said that Plaintiff’s motion was filed within a reasonable time. See Moolenaar v. Gov’t of Virgin Islands, 822 F.2d 1342, 1348 (3d Cir. 1987) (Rule 60(b)(6) motion brought two years after the underlying judgment was untimely where basis of motion was known previously). Insofar as Plaintiff seeks to bring a malpractice action against his complaint. counsel, he may only do so by filing a new See Hopper v. Clemens, 172 F.3d 863, 1999 WL 18396, at *1 (4th Cir. 1999) (“Relief in a civil case on the basis of ineffective assistance of counsel 3 is a contractual matter between attorney and client and not within the jurisdiction of this Court in the present case”); Howlette v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Civ. No. CCB-09-600, 2011 WL 310264, at *1 (D.Md. Jan. 28, 2011) (“In Maryland, legal malpractice may sound in either tort or contract” and “[t]he essence of the action is the negligent breach of the contractual duty”) (internal marks and citations omitted). Accordingly, it is this 9th day of December, 2013, by the United States District Court for the District of Maryland, ORDERED that: 1. Plaintiff’s correspondence received November 22, 2013 (ECF No. 63), construed as a motion to reopen, BE, and the same hereby IS, DENIED; and 2. The clerk is directed to transmit a copy of this Memorandum Opinion and Order directly to Plaintiff, along with a form complaint for filing a new action, and to Plaintiff’s pro bono counsel. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 4

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