Ball v. S.M. Jackson & Associates, LLC et al
Filing
30
MEMORANDUM OPINION (c/m to Plaintiff 8/5/11 sat). Signed by Chief Judge Deborah K. Chasanow on 8/5/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SHAQUNNA BALL
:
v.
:
Civil Action No. DKC 10-2225
:
S.M. JACKSON & ASSOCIATES, LLC,
et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case are
two
motions
Ball.
for
reconsideration
(ECF Nos. 25, 28).1
filed
by
Plaintiff
Shaqunna
The relevant issues have been briefed
and the court now rules pursuant to Local Rule 105.6, no hearing
being
deemed
necessary.
For
the
reasons
that
follow,
Plaintiff’s motions will be denied.
I.
Background
On
or
about
July
13,
2010,
Plaintiff
Shaqunna
Ball
commenced this personal injury action by filing a complaint in
the Circuit Court for Prince George’s County, Maryland, against
S.M. Jackson & Associates, LLC, d/b/a Hair World, Hair World,
Veeco Manufacturing, Inc., Veeco Salon Furnishings, Inc., Veeco
Sales, Inc., and Veeco Instruments, Inc.
August
1
12,
Veeco
Manufacturing,
Veeco
(ECF No. 2).
Salon
Furnishings,
On
and
The second motion may fairly be read as an amended version
of the first. Nevertheless, the court considers both motions to
address certain factual discrepancies and because different
exhibits are attached.
Veeco
Sales
(collectively,
“the
Veeco
defendants”)
timely
removed to this court on the basis of diversity of citizenship.
(ECF No. 1).
The notice of removal and subsequent response to
the court’s standing order on removal reflected that the Veeco
defendants were served on July 26, but the remaining defendants
–
namely,
S.M.
Jackson
&
Associates,
Instruments – had not been served.
Hair
World,
and
Veeco
(ECF No. 1 ¶ 5; ECF No. 8 ¶
1).
On August 13, the clerk issued a letter to Plaintiff’s
state court counsel, Brandi S. Nave, advising that because she
was not a member of the court’s bar, her “appearance ha[d] not
been entered in this case and the Court w[ould] not send [her]
copies of orders and other documents.”
original)).
(ECF No. 6 (emphasis in
The letter further stated that counsel “must notify
the chambers of the presiding judge” within fourteen days as to
“whether [she would] be seeking admission or if another attorney
[would] be entering an appearance.”
(Id.).
Ms. Nave failed to
respond.
The court followed-up with a letter dated October 1.
No. 10).
(ECF
This letter reiterated that counsel was “not a member
of [the court’s] bar and that [her] appearance had not been
entered.”
(Id.).
“Without [her] appearance on [the] docket,”
the court explained, she could not “receive any copies of orders
and other documents.”
(Id.).
The court advised Ms. Nave that,
2
“[u]nless
[it]
hear[d]
from
[her]
by
October
15,
2010,
concerning [her] representation of Plaintiff, a letter w[ould]
be
sent
directly
to
proceeding pro se.”
On
November
Plaintiff,
(Id.).
1,
a
stating
that
she
will
be
Ms. Nave again failed to respond.
letter/order
was
issued
and
sent
to
Plaintiff advising that the “action w[ould] proceed with [her]
acting as [her] own attorney (pro se), unless and until new
counsel enter[ed] an appearance on [her] behalf.”
Plaintiff
was
further
advised
that
the
court
(ECF No. 11).
had
“not
been
notified that Defendants S.M. Jackson & Associates, LLC, Hair
World,
and
Veeco
Instruments,
Inc.
were
served.”
(Id.).
Pursuant to Federal Rule of Civil Procedure 4(m), the court
explained, if service of process was not effected within 120
days
after
the
complaint
was
filed
–
i.e.,
by
on
or
about
November 13, 2010 – the court was required either to dismiss the
complaint without prejudice or order that service be effected
within a specified time period.
To the extent any of these
defendants may have been served, the court directed Plaintiff’s
attention
to
Federal
Rule
of
Civil
Procedure
4(l),
which
“instructs that the person effecting service of the summons must
promptly notify the court, through an affidavit, that he or she
has served [the] summons.”
On
January
4,
2011,
(Id.).
S.M.
Plaintiff failed to respond.
Jackson
&
motion to dismiss for want of prosecution.
3
Associates
filed
(ECF No. 13).
a
On
the same date, the clerk sent a letter to Plaintiff, providing
notice that a dispositive motion had been filed which required
her response within seventeen days.
warned
that
response,
against
if
the
[her]
Plaintiff
Court
may
without
This letter specifically
“[did]
not
dismiss
the
further
file
a
notice.”
written
or
case
timely
enter
judgment
(ECF
No.
14).
The
following day, the court issued an order directing Plaintiff to
show cause within fourteen days why her complaint should not be
dismissed
as
to
Defendants
S.M.
World, and Veeco Instruments.
Jackson
&
(ECF No. 15).
Associates,
Hair
Plaintiff again
failed to respond.
On February 8, 2011, the court issued an order dismissing
S.M. Jackson & Associates, Hair World, and Veeco Instruments.
(ECF No. 18).
with
respect
defendants.
On the same date, a scheduling order was issued
to
the
case
going
forward
against
the
Veeco
(ECF No. 19).
Thereafter, several months passed without any activity.
On
May 31, the Veeco defendants filed a motion to dismiss for want
of prosecution, asserting that Plaintiff had failed to respond
to their discovery requests and that, because she had taken no
action in the case for over nine months, the case was subject to
dismissal pursuant to Local Rule 103.8.b.
(ECF No. 20).
The
following day, the clerk sent a letter to Plaintiff advising
that another dispositive motion was pending that required her
4
response.
(ECF No. 21).
On June 6, the court issued an order
directing Plaintiff to show cause, by June 17, as to why her
complaint should not be dismissed.
(ECF No. 23).
Plaintiff
again failed to respond.
On June 27, 2011, the court issued an order dismissing
Plaintiff’s complaint without prejudice and closing the case.
(ECF No. 24).
On
July
11,
Ms.
Nave
filed,
on
Plaintiff’s
behalf,
a
“motion to reconsider and reinstate Plaintiff’s case pursuant to
(ECF No. 25).2
Local Rule 105.10 and Fed.R.Civ.P. 60(b).”
motion
was
followed,
eleven
days
later,
by
a
“Motion
That
to
Reconsider and Motion for Enlargement of Service Pursuant to
Federal Rules 4(m), 6(b)(2), 60(b) and 41(b),” which was also
filed by Ms. Nave on behalf of Plaintiff.
(ECF No. 28).3
2
Internal court records reflect that Ms. Nave was admitted
to the court’s bar on December 6, 2010.
She entered her
appearance on July 11 via the court’s electronic case filing
system.
To date, she has not docketed an entry of appearance
and it is unknown whether Plaintiff has consented to her
representation for purposes of these motions.
3
Defendant S.M. Jackson & Associates filed a motion to
strike Plaintiff’s second motion for reconsideration. (ECF No.
29).
Federal Rule of Civil Procedure 12(f) relates to motions
to strike pleadings and cannot be used to strike motions. See,
e.g., Thomas v. Bet Sound-Stage Restaurant/BrettCo, Inc., 61
F.Supp.2d 448, 458 (D.Md. 1999). Accordingly, this motion will
be denied, but the paper is construed as an opposition to the
motions to reconsider.
5
II.
Analysis
As
Judge
Quarles
recently
explained
in
Cross
v.
Fleet
Reserve Ass’n Pension Plan, No. WDQ-05-0001, 2010 WL 2609530, at
*2 (D.Md. Sept. 14, 2010):
A party may move to alter or amend a
judgment under Rule 59(e), or for relief
from a judgment under Rule 60(b).
See
Fed.R.Civ.P. 59(e) & 60(b).
A motion to
alter or amend filed within 28 days of the
judgment is analyzed under Rule 59(e); if
the motion is filed later, Rule 60(b)
controls.
See Fed.R.Civ.P. 59(e); MLC
Auto., LLC v. Town of S. Pines, 532 F.3d
269, 280 (4th Cir. 2008); In re Burnley, 988
F.2d 1, 2-3 (4th Cir. 1992).
(footnote
omitted).
reconsideration
Here,
were
both
filed
of
within
Plaintiff’s
twenty-eight
court’s order dismissing the complaint.
motions
are
challenging
the
final
days
of
for
the
Thus, to the extent the
dismissal
properly analyzed under Rule 59(e).
motions
order,
they
are
Because they could also be
read as addressing the previous order dismissing S.M. Jackson &
Associates,
Hair
World,
and
Veeco
Instruments,
however,
the
court will also consider the motions under Rule 60(b).
Courts have recognized three limited grounds for granting a
motion for reconsideration pursuant to Federal Rule of Civil
Procedure 59(e): (1) to accommodate an intervening change in
controlling law, (2) to account for new evidence not available
at
trial,
manifest
or
(3)
to
injustice.
correct
See
clear
United
6
error
States
of
ex
law
rel.
or
prevent
Becker
v.
Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir.
2002) (citing Pacific Ins. Co. v. Am. Nat’l Fire Ins. Co., 148
F.3d 396, 403 (4th
(2003).
Cir. 1998)),
cert. denied, 538 U.S. 1012
A Rule 59(e) motion “may not be used to relitigate old
matters, or to raise arguments or present evidence that could
have been raised prior to the entry of judgment.”
Co.,
148
F.3d
Practice
and
at
403
(quoting
Procedure
§
11
2810.1,
Wright,
at
Pacific Ins.
et
127–28
al.,
Federal
ed.
1995)).
(2d
Where a party presents newly discovered evidence in support of
its
Rule
59(e)
motion,
it
“must
produce
a
legitimate
justification for not presenting the evidence during the earlier
Id. (quoting Small v. Hunt, 98 F.3d 789, 798 (4th
proceeding.”
Cir.
1996))
(internal
‘reconsideration
extraordinary
of
a
remedy
marks
omitted).
judgment
after
which
should
be
“In
its
used
general,
entry
is
sparingly.’”
an
Id.
(quoting Wright, et al., supra, § 2810.1, at 124).
Plaintiff
has
not
addressed
any
of
the
grounds
for
reconsideration under Rule 59(e), nor does any appear to be
applicable.
behalf,
a
Rather, Ms. Nave offers, purportedly on Plaintiff’s
litany
of
unpersuasive
and,
frankly,
implausible
excuses as to why Plaintiff took no action in this case after it
was removed.
Counsel asserts that she “diligently sought other
counsel on behalf of the Plaintiff until she became a member of
this
Honorable
Court,”
but
“such
7
efforts
were
met
with
rejections based on potential litigation cost.”
6).
(ECF No. 28, at
Thus, it appears that Ms. Nave received the clerk’s initial
letter, but nevertheless failed to respond, as directed.
She
has provided no explanation of her failure in this regard, nor
has she addressed her failure to respond to the court’s followup letter, dated October 1.
Ms. Nave claims that she “was scheduled to become a member
of
this
Honorable
Court
in
November
201[0],
but
a
family
emergency occurred a day before with her sponsor,” which delayed
her admission until December 6, 2010.
such
admittance,”
counsel
maintains,
(Id. at 6-7).
she
“After
“mistakenly
and
inadvertently thought that her appearance on this case” had been
entered.
counsel’s
(Id. at 7).
failure
If that was the case, however, then
to
respond
to
the
subsequently-filed
dispositive motions and show cause orders – or, indeed, to take
any
action
whatsoever
prior
to
dismissal
–
is
all
the
more
troubling.4
Ms. Nave further asserts that because she was not
Plaintiff’s
counsel
of
record,
4
she
“did
not
receive
any
Notably, Ms. Nave is counsel of record in one other case
in this court, Wamble v. Washington Metropolitan Area Transit
Authority, Civ. No. RWT 10-1909. Like the instant case, Womble
was removed from state court and Ms. Nave was notified by the
clerk that she could not represent the plaintiff unless and
until she was admitted to the court’s bar. On February 2, 2011,
Ms. Nave filed an entry of appearance in that case, along with a
motion for modification of the scheduling order, which was later
granted. It is unclear why she did not take the same action in
this case.
8
notice[s] [in the case] and had no knowledge that her appearance
had been stricken.”
(Id.).5
Moreover, Plaintiff “moved to a
different address around mid-November 2010 and no notices were
forwarded or received at her new address.”
(Id.).
The order
advising Plaintiff that she was proceeding pro se, however, was
mailed on November 1, i.e., prior to her alleged move date, and
the
docket
does
not
reflect
Plaintiff was returned.
that
any
subsequent
notice
to
In any event, it was Plaintiff’s duty –
and, to the extent she believed she was representing Plaintiff,
Ms. Nave’s duty as well – to ensure that the court had her
current address on file.
See Local Rule 102.1.b.
Despite her stated belief that she was Plaintiff’s counsel
of record by, at the latest, December 6, 2010, Ms. Nave claims
that she did not become aware that “a dismissal was entered on
Plaintiff’s case for failure to ‘show cause’” until “[o]n or
about
June
regarding
27,
her
2011.”6
failure
to
The
only
monitor
explanation
precipitating
she
provides
events
is
as
follows:
Counsel became aware that [her] former
paralegal . . . failed to e-file a multitude
of pleadings that were prepared and signed
5
Her appearance was not stricken – it was never entered, as
the initial letters to counsel explained.
6
This was the same date the complaint was dismissed. (ECF
No. 24).
In her second motion, Ms. Nave asserts that she
learned of this fact on July 18, i.e., one week after the date
she filed her initial motion. (ECF No. 28, at 8).
9
by undersigned.
At this time and recent
awareness of her paralegal’s mistakes and
failure to follow instructions, undersigned
terminated [the paralegal].
Undersigned
then contacted the US District Court Clerk
Office to obtain additional information
regarding such dismissal. The Clerk advised
undersigned that the Order was entered and
dismissed without prejudice[] on July 27,
2011.
Subsequently, undersigned could not
log into Pacer because [the paralegal]
changed the passcode to Pacer and such
passcode
was
unretrievable
[sic],
but
through mail.
Undersigned is in receipt of
the new passcode as of today’s date [i.e.,
July 11, 2011].
(Id.).
Needless to say, responsibility for any error “falls on
the attorney regardless of whether the error was made by an
attorney or a paralegal.”
Pincay v. Andrews, 389 F.3d 853, 856
(9th Cir. 2004) (citing Model Rules of Prof’l Conduct R. 5.5 cmt.
2 (2002)).
Moreover, the fact that counsel may not have had
access to PACER is clearly no excuse for her inactivity.
Among the documents that would have been filed, according
to
counsel,
“prepared
was
and
a
signed
“Motion
.
.
to
.
Extend
approximately
dismissal [i.e., around May 27, 2011].”
Ms.
Nave
attaches
to
Discovery”
Plaintiff’s
30
days
(Id. at 4).
first
that
prior
was
to
Indeed,
motion
for
reconsideration a document entitled “Motion to Extend Discovery
and Service.”
(ECF No. 25-2).
in several respects.
to
this
motion
and
This would-be motion is notable
First, it recites that “Defendant consents
no
party
will
10
be
prejudiced
in
granting
[it].”
(Id. at 1).
While it is unknown which “Defendant”
allegedly provided consent, at the time Ms. Nave asserts that
the motion would have been filed the Veeco defendants were the
only remaining defendants in the case.
Given that the Veeco
defendants moved to dismiss for want of prosecution at around
the
same
time,
asserting
that
“no
action
has
been
taken
by
Plaintiff . . . to prosecute this action for more than nine
months” (ECF No. 20, at 2), it seems curious that they would
have
consented
to
an
motions deadlines.
extension
of
discovery
and
dispositive
Moreover, the motion would have asked the
court to “allow [Plaintiff] additional time in which to reissue
service on Defendant” (ECF No. 25-2 ¶ 12), apparently referring
to S.M. Jackson & Associates, a defendant that was dismissed
nearly four months prior to the time Ms. Nave allegedly intended
to file the motion.
In short, assuming, arguendo, that this
motion was drafted at the time Ms. Nave now claims, it would
have evidenced her lack of a even a rudimentary knowledge of the
relevant procedural issues presented in this case.
Both
motions
for
reconsideration
recite,
at
length,
counsel’s efforts to serve S.M. Jackson & Associates, which Ms.
Nave suggests acted to evade service.
In the first motion, Ms.
Nave appears to cite these facts in support of a claim that she
acted diligently in prosecuting the case.
Plaintiff’s counsel
fails to recognize, however, that the Federal Rules of Civil
11
Procedure
provide
a
mechanism
for
effecting
service
on
business entity where initial attempts are unsuccessful.
a
See
Fed.R.Civ.P. 4(h)(1)(A) (service of a corporation, partnership,
or association may be effected “in the manner prescribed by Rule
4(e)(1) for serving an individual,” i.e., by “following state
law . . . in the state where the district court is located or
where
service
is
made”);
Md.
Rule
2-124(o)
(permitting
substitute service upon the State Department of Assessments and
Taxation where, inter alia, “two good faith attempts on separate
days to serve the resident agent have failed”).
In this case,
not only did Plaintiff not make use of that mechanism, but she
never
requested
defendant
after
that
a
removal,
summons
nor
be
did
issued
she
file
for
an
the
unserved
affidavit
of
service with respect to any defendant in this case, as required
by Fed.R.Civ.P. 4(l).
In Plaintiff’s second motion for reconsideration, Ms. Nave
requests an extension of time in which to serve S.M. Jackson &
Associates,
provides
pursuant
that
“[w]hen
to
an
Fed.R.Civ.P.
act
may
or
6(b).
must
Rule
be
done
6(b)(1)(B)
within
a
specified time, the court may, for good cause, extend the time .
. . on motion made after the time has expired if the party
failed to act because of excusable neglect.”
Plaintiff does not
point to any authority suggesting that a Rule 6(b) motion may be
used to extend the time to effect service of process as to a
12
dismissed defendant, however – nor is the court aware of any.
Moreover,
service
motions
of
for
process
are
extension
governed
of
by
time
in
which
Fed.R.Civ.P.
to
effect
4(m),
which
provides that “if the plaintiff shows good cause for the failure
[to serve within 120 days], the court must extend the time for
service for an appropriate period.”
Here, Plaintiff failed to
respond to the court’s show cause order; thus, no showing of
good cause was made.
To the extent Plaintiff attempts to revive her complaint by
reference to Rule 60(b), Judge Motz considered a similar motion
in Cronin v. Henderson, 209 F.R.D. 370 (D.Md. 2002).
In that
case, the plaintiff moved for relief pursuant to Rules 60(b) and
6(b) after her complaint was dismissed without prejudice for
failure to effect service and failure to respond to a show cause
order.
In discussing the plaintiff’s “excusable neglect” claim,
the court set forth the following standard:
In Pioneer Inv. Serv. Co. v. Brunswick
Assoc. Ltd. P’ship, 507 U.S. 380, 113 S.Ct.
1489, 123 L.Ed.2d 74 (1993), the Supreme
Court interpreted the phrase “excusable
neglect.” The Court articulated four factors
to be considered in determining whether
excusable neglect has occurred: “[1] danger
of prejudice to the [non-movant], [2] the
length of delay and its potential impact on
judicial proceedings, [3] the reason for the
delay, including whether it was within the
reasonable control of the movant, and [4]
whether the movant acted in good faith.” Id.
at 395, 113 S.Ct. 1489. The Fourth Circuit
has noted “that ‘inadvertence, ignorance of
13
the rules, or mistakes construing the rules
do
not
usually
constitute
excusable
neglect.’”
Thompson
v.
E.I.
DuPont
de
Nemours & Co., Inc., 76 F.3d 530, 533 (4th
Cir.1996) (citing Pioneer, 507 U.S. at 392,
113 S.Ct. 1489). “‘Excusable neglect’ is not
easily demonstrated, nor was it intended to
be.” Id. at 534.
Cronin, 209 F.R.D. at 371 (footnotes omitted).
In denying the
motion, Judge Motz explained, in part:
The
second
and
third
factors
articulated in Pioneer weigh even more
strongly against Cronin. This action was
pending for more than seven months before I
dismissed it. Further, Cronin did not file
this motion for relief from judgment until
nearly three months after the dismissal.
Thus,
the
delay
has
been
substantial.
Further,
the
only
reason
that
Cronin
provides for the delay was the alleged
ineptitude of her prior attorney. The Fourth
Circuit has made it clear “that it [is]
appropriate to hold a client accountable for
the mistakes of counsel.” Thompson, 76 F.3d
at 533 (citing Pioneer, 507 U.S. at 396-97,
113 S.Ct. 1489).
Id. at 372.
Plaintiff cannot show excusable neglect in this case for
similar reasons.
approximately
Her complaint was pending in this court for
eleven
months
prior
to
dismissal,
during
which
time the record reflects that she took no action whatsoever,
despite
repeated
prompting
multiple defendants.
cites
for
incredible.
delay
are,
from
the
clerk,
the
court,
and
As noted, the reasons Plaintiff’s counsel
at
best,
unpersuasive
and,
at
worst,
Under these circumstances, the court cannot find
14
that Plaintiff’s counsel has acted in good faith.
Thus, even
considered under Rule 60(b), Plaintiff’s motions cannot prevail.
Finally,
Plaintiff’s
counsel
asserts
that
Plaintiff
is
precluded from raising her claims in a subsequent suit because
the relevant statutes of limitations have expired; thus, she
will suffer extreme prejudice if the requested relief is not
granted.
One of the primary purposes of statutes of limitation,
however,
is
“to
prevent
plaintiffs
from
sleeping
on
their
rights,” Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345,
352 (1983), and that is precisely what has happened in this
case.
III. Conclusion
For
the
foregoing
reasons,
reconsideration will be denied.
Plaintiff’s
motions
for
A separate order will follow.
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
15
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