Skrabec et al v. Town of North Attleboro et al
Judge Nathaniel M. Gorton: ENDORSED MEMORANDUM & ORDER entered denying 33 Motion to Alter Judgment "plaintiffs motion to alter the judgment (Docket No. 33) is DENIED." (Caruso, Stephanie) Modified on 4/13/2017 (Caruso, Stephanie).
United States District Court
District of Massachusetts
TOWN OF NORTH ATTLEBORO, ET AL., )
PATRICK SKRABEC, ET AL.,
Civil Action No.
MEMORANDUM & ORDER
This case derives from the arrest and subsequent
prosecution of Patrick Skrabec (“Patrick”), who is now deceased.
Plaintiffs Patrick and his parents, Neil and Mary Ann Skrabec
(collectively, “plaintiffs”), allege that defendants the Town of
North Attleboro, Detective Daniel Arrighi and Officers Josh
McMahon and Kevin McKeon (collectively, “defendants”) conspired
to violate and violated 42 U.S.C. § 1983 and that their conduct
constituted 1) negligence 2) negligent infliction of emotional
distress and 3) malicious prosecution.
Plaintiffs further claim
that defendants’ conduct resulted in the loss of consortium
between Patrick and his parents.
This Court allowed defendants’ unopposed motion for summary
judgment on all counts and plaintiffs’ motion to alter that
judgment is now before the Court.
For the reasons that follow,
that motion will be denied.
Factual and Procedural Background
In December, 2012, when he was 17 years old, Patrick
admittedly told his high school classmates that “he would like
to shoot up the school”.
A parent of another student told the
North Attleboro Police Department that he was concerned about
safety at the school based on Patrick’s comments.
month, after Detective Arrighi conducted an investigation and
interviewed Patrick, he was arrested and the Bristol County
District Attorney’s Office (“the D.A.’s Office”) charged him
with making a bomb or hijack threat under M.G.L. c. 269, § 14.
The D.A.’s Office issued a nolle prosequi of the original
complaint in February, 2013.
Contemporaneously, it charged
Patrick with the misdemeanor offenses of threatening to commit a
crime, M.G.L. c. 275, § 2, and disturbing a school assembly,
M.G.L. c. 272, § 40.
In April, 2013 the Attleboro Division of
the Massachusetts District Court Department denied Patrick’s
motion to dismiss the charges against him based on a lack of
probable cause and in February, 2014 a jury acquitted him of
The following year, plaintiffs filed suit in this Court
alleging that when defendants arrested and prosecuted Patrick,
they 1) conspired to violate and violated 42 U.S.C. § 1983,
2) acted negligently, 3) negligently inflicted upon him
emotional distress, 4) committed malicious prosecution and
5) deprived plaintiffs of consortium.
Defendants answered in
due course, denying all substantive allegations and raising
several affirmative defenses.
In September, 2015, this Court
held a scheduling conference and instructed the parties to file
dispositive motions by October 31, 2016 and oppositions by
November 30, 2016.
On October 28, 2016, defendants filed a motion for summary
dismissal of all claims against them.
By late December, 2016,
eight weeks after defendants had filed their motion for summary
judgment and more than three weeks after plaintiffs’ opposition
was due, plaintiffs had neither opposed the motion nor requested
an extension of time to do so.
This Court determined, based
upon the unopposed motion, that defendants were entitled to
summary judgment and allowed their motion.
On December 30,
2016, plaintiffs filed a motion to alter the judgment which
defendants timely opposed and is the subject of this memorandum
Motion to Alter the Judgment
A. Legal Standard
Federal Rule of Civil Procedure 60(b)(1) authorizes setting
aside a judgment on the grounds of “mistake, inadvertence,
surprise, or excusable neglect.”
“[E]xcusable neglect” is a
broad category that includes “inadvertence, mistake, or
carelessness, as well as  intervening circumstances beyond the
party's control.” Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d
33, 38 (1st Cir. 2013) (quoting Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388 (1993)).
Courts determine whether excusable neglect has occurred
with an equitable analysis that examines the totality of the
circumstances. Id. at 38-39.
Among other factors, courts
consider 1) the explanation for the delay, 2) whether the nonmovant will be prejudiced and 3) whether the party requesting
relief acted in good faith. Rivera-Velazquez v. Hartford Steam
Boiler Inspection & Ins. Co., 750 F.3d 1, 4 (1st Cir. 2014).
The pivotal factor “is the reason for the particular oversight.”
Id. (quoting Nansamba, 727 F.3d at 39).
“At a bare minimum” the
party seeking to alter the judgment “must offer a convincing
explanation as to why the neglect was excusable.” Nansamba, 727
F.3d at 39.
Ultimately, a request for relief pursuant to Rule
60(b) is “committed to the district court’s sound discretion.”
Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 100 (1st
While many courts broadly allow relief under Rule 60(b),
the First Circuit Court of Appeals (“First Circuit”) “has taken
a harsher tack.” Davila-Alvarez v. Escuela de Medicina
Universidad Cent. del Caribe, 257 F.3d 58, 64 (1st Cir. 2001).
That Court has held that Rule 60 relief is “extraordinary in
nature and . . . should be granted sparingly.” Rivera-Velazquez,
750 F.3d at 3 (quoting Karak v. Bursaw Oil Corp., 288 F.3d 15,
19 (1st Cir. 2002)).
A party requesting such relief must
demonstrate “exceptional circumstances.” Id. (quoting Karak, 288
F.3d at 19).
Plaintiffs move for relief under Fed. R. Civ. P. 60(b)(1)
on the grounds of excusable neglect.
They assert that, based on
emails from defendants’ counsel, they believed that a settlement
was forthcoming and that defense counsel would not object to a
late opposition to the summary judgment motion.
contend that exceptional circumstances exist because Patrick
unexpectedly died at the age of 21 on October 20, 2016 and that
they acted in good faith.
Defendants respond that 1) they never indicated that they
would agree to a settlement, 2) plaintiffs neither discussed an
extension of time to oppose the summary judgment motion with
them nor requested that the Court extend the deadline and 3) the
assumption of plaintiffs’ counsel that there was no need to
request an extension of the deadline was not only procedurally
incorrect it was something other than excusable neglect.
Defendants’ contention is well taken.
explanation given for the omission fails to show that the
neglect was excusable.
As the First Circuit has observed,
“routine carelessness by counsel leading to a late filing is not
enough to constitute excusable neglect.” Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 169 (1st Cir. 2016) (quoting
Negron v. Celebrity Cruises, Inc., 316 F.3d 60, 62 (1st Cir.
Furthermore, plaintiffs’ purported belief that a settlement
was forthcoming based on the emails regarding its settlement
demand “exalt[ed] hope over reason.” Nansamba, 727 F.3d at 38.
The emails, which refer to the pending summary judgment motion,
involve a settlement offer from plaintiffs’ counsel but no
favorable indication from defense counsel that a settlement was
As the First Circuit has determined “unilateral
assumptions about the meaning of correspondence, without more,
are insufficient to excuse neglect.” Id. at 39.
the fact that settlement negotiations are in progress does
not excuse a litigant from making required court filings.
de la Torre v. Cont'l Ins. Co., 15 F.3d 12, 15 (1st Cir. 1994).
Plaintiffs’ contention that the death of Patrick
constitutes an exceptional circumstance is also unavailing.
Although this Court is sympathetic to Patrick’s parents, the
First Circuit has found that an attorney’s neglect is not
excusable even after the death of a family member because “a
lawyer's duty of diligence transcends both upheaval at work and
personal tragedy.” Davila-Alvarez, 257 F.3d at 65.
plaintiffs’ explanation for the omission does not support
altering the judgment.
As for the other considerations, defendants will be
unfairly prejudiced if the Court allows plaintiffs’ motion.
the Court has already concluded, defendants are entitled to
summary judgment for dismissal of the claims against them by
virtue of their motion and unopposed statement of material
It would unfairly prejudice them to alter the judgment
when plaintiffs are unlikely to succeed on the merits. See
Caisse v. DuBois, 346 F.3d 213, 215–16 (1st Cir. 2003).
Moreover, although plaintiffs may have acted in good faith,
because the other considerations weigh against re-opening the
case, the totality of the circumstances indicate that excusable
neglect is lacking.
Therefore, plaintiffs’ motion to alter the
judgment will be denied.
In accordance with the foregoing, plaintiffs’ motion to
alter the judgment (Docket No. 33) is DENIED.
/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated April 12, 2017
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