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)

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