J.S. et al v. Roberts et al

Filing 46

MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Relief from Judgment and Order 39 and Motion to Extend Time 44 are DENIED; 2. The hearing in this matter set for May 14, 2012 is STRICKEN from the Co urt's calendar; and 3. Before filing any further motions pertaining to the Court's February 22, 2012 Memorandum of Law & Order or February 23, 2012 Judgment, Plaintiff shall, pursuant to Local Rule 7.1(h), request the Court's express permission to do so "by letter to the Court of no more than two pages in length, which shall be filed and served in accordance with the ECF procedures."(Written Opinion). Signed by Chief Judge Michael J. Davis on 4/24/12. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

J.S., K.S., C.S., and J.S., Minors via
Guardian and Parent SCOTT SELMER,
Plaintiffs,
MEMORANDUM OF LAW & ORDER
Civil No. 11-1537 (MJD/TNL)

v.

SAINT PAUL ACADEMY AND SUMMIT
SCHOOL, BRYN ROBERTS, CHARLES
ZELLE, JILL ROMANS, CYNTHIA
RICHTER, TIMOTHY ELCHERT, ANNE
FIEDLER, JUDY JOHNSON, DAVE
THOMFORD, THOMAS HERBERT, and
PAUL APPLEBAUM,
Defendants.

Scott Selmer, Conner McAlister Selmer, LLC, Counsel for Plaintiffs.
Ann Huntrods and Michael C. Wilhelm, Briggs & Morgan, P.A., Counsel for
Defendants.

I.

Introduction
This matter is before the court on Plaintiff Scott Selmer’s Motion for Relief

from Judgment and Order [Docket No. 39] and Motion to Extend Time [Docket
No. 44]. For the following reasons, the Court will deny the motions.
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II.

Background
The facts and procedural history in this case are discussed in detail in the

Court’s previous Orders. [Docket Nos. 32 and 38.] The relevant procedure is as
follows: Plaintiff—an attorney admitted to practice before this Court—filed this
action on behalf of himself and his minor children. Defendants moved to dismiss
on November 23, 2011. [Docket No. 18.] Plaintiff’s opposition to that motion
was due on January 12, 2012. [See Docket No. 24.] The Court’s staff contacted
Plaintiff when he failed to meet that deadline, but Plaintiff nevertheless neglected
to file an opposition or a motion to extend the relevant deadlines. On February
22, 2012, over one month after the January 12 deadline and after receiving a
timely “reply” from Defendants, the Court granted Defendants’ motion to
dismiss on the merits, based on an analysis of Plaintiff’s complaint and the
relevant law. [Docket No. 32.]
Without seeking the Court’s permission as required by the Local Rules, see
L.R. 7.1(g)-(h), Plaintiff filed a motion to reconsider accompanied by a
Declaration and Memorandum, on March 5, 2012. [Docket Nos. 34-36.] In a
March 22, 2012 Memorandum of Law and Order, the Court examined the merits
of Plaintiff’s motion to reconsider under the appropriate standard. [Docket No.

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38.] The Court concluded that Plaintiff had not shown that the Court had
committed a manifest error of law or fact. See Hagerman v. Yukon Energy
Corp., 839 F.2d 407, 413 (8th Cir. 1988). The Court accordingly denied Plaintiff’s
motion to reconsider.
III.

Discussion
Plaintiff once again seeks to challenge the Court’s February 22 Order, this

time in the form of a motion under Federal Rule of Civil Procedure 60(b)(1). 1
(Pl.’s Mem. [Docket No. 40.] at 1.) Rule 60(b)(1) states that the Court “may”
relieve a party from a final judgment or order upon a showing of “mistake,
inadvertence, surprise, or excusable neglect.” Rule 60 relief is “extraordinary”
and cannot be provided except upon a showing of exceptional circumstances.
Jones v. Swanson, 512 F.3d 1045, 4048 (8th Cir. 2008). “Rule 60(b) does not allow
a defeated litigant a second chance to convince the court to rule in his or her
favor by presenting new explanations, legal theories, or proof.” Jinks v.
AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001).

In his most recent memorandum Plaintiff asserts that he “has acquired
critical evidence since the ruling by the court that was not reasonably available to
counsel.” (Pl.’s Mem. at 5.) Such evidence would potentially implicate Rule
60(b)(2). Because Plaintiff has provided no additional information about this
newly discovered evidence, the Court will not credit the assertion.
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In this, his second challenge to the Court’s final judgment in this matter,
Plaintiff raises a new argument as to the standard of review applied to Plaintiff’s
purported breach of contract claim. The Court will not entertain novel legal
theories at this late stage. Plaintiff had ample opportunity to present such
theories in opposition to Defendants’ motion to dismiss and in his motion for
reconsideration. If the Court were to accept Plaintiff’s assertion that his failure to
raise a new argument is excusable neglect, the Court
would be forced to address claims of “excusable neglect” each time a
party forgets to raise a particular legal theory or defense at any stage
in the proceeding, or neglects to file evidence that would provide a
factual basis for a claim. Such a rule would cause great uncertainty
and delay in the disposition of cases.
Jinks, 250 F.3d at 386. This risk is particularly apparent here, where Plaintiff has
yet to provide any reasonable explanation for his failure to comply with the
Court’s deadlines.
Plaintiff also belatedly asserts that he is entitled to relief because he did not
receive “actual notice of the new motion date.” (Pl.’s Mem. 1.) As discussed
above and in this Court’s previous Orders, an April 6, 2012 hearing was set and
noticed on December 22, 2011. Plaintiff acknowledges that he was aware of the
hearing, and the Court’s electronic filing (“CM/ECF”) system reflects that

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Plaintiff was in receipt of the notice setting that date. The very same notice set
out the briefing schedule which included the January 12, 2012 filing deadline for
Plaintiff’s opposition. [Docket No. 24.] There is no question that Plaintiff failed
to submit his opposition by that date or that he was aware of that failure—at the
very latest—when the Court’s staff contacted him shortly after the deadline.
Plaintiff suggests that Defendants “apparently contacted the court’s
scheduling office and changed the date of the motion for judgment on the
pleadings to a different date.” (Pl.’s Mem. at 1.) They did not. No alternate date
for a hearing was ever requested or set. Rather, in their reply brief submitted on
January 19, 2012, Defendants suggested that in the absence of an opposition by
Plaintiff the Court could consider the matter without oral argument pursuant to
Local Rule 7.1. Local Rule 7.1(e), quoted by Defendants on January 19, states:
Failure to Comply. In the event a party fails to timely deliver and
serve a memorandum of law, the Court may strike the hearing from
its motion calendar, continue the hearing, refuse to permit oral
argument by the party not filing the required statement, consider the
matter submitted without oral argument, allow reasonable
attorney’s fees, or proceed in such other manner as the Court deems
appropriate.
Plaintiff has never stated that he did not receive Defendants’ reply, and the
Court’s CM/ECF system confirms his receipt of that document at 11:09 a.m. on

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January 19, 2012. To the extent that Defendant now argues that he was unaware
of Local Rule 7.1 or the possibility that the motion might be heard on the papers
without a hearing, there is no dispute that he was aware of that possibility more
than one month before the Court acted on Defendants’ suggestion.
The only time that the hearing date was “changed” was when the Court
removed the hearing from its calendar upon ruling on Defendants’ motion on the
papers. As with all of the documents filed in the CM/ECF system, Plaintiff
received notice of that decision.
Plaintiff has also belatedly moved the Court provide him with more time
to make motions and amend his pleadings in this matter. “[D]istrict courts . . .
have considerable discretion to deny a post-judgment motion for leave to amend
because such motions are disfavored.” United States ex rel. Roop v. Hypoguard
USA, Inc., 559 F.3d 818, 824 (8th Cir. 2009). In light of the foregoing analysis and
the Court’s conclusion that relief from the judgment entered on January 23, 2012
is not warranted, the Court declines to permit Plaintiff to amend his pleadings.
The Court notes with some concern that Plaintiff has asserted that he is
“counsel inexperienced in the requirements of the court’s procedure” and that
his representation in this matter was not “adequate.” (Pl.’s Mem. at 5.) Such

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assertions are troubling because Plaintiff is an attorney licensed in the State of
Minnesota and admitted to practice before this Court. Defendant has recently
participated in matters representing other clients in this Court. See, e.g.,
Rosenbloom v. Gen. Nutrition Ctr., Inc., Civ. No. 09-1582 (DWF/SER) (last filing
by Plaintiff in January 2012).
Plaintiff has now twice challenged this Court’s judgment and proven
unwilling to follow the Federal Rules of Civil Procedure or the Court’s Local
Rules. The Court will order that Plaintiff may not file subsequent motions in this
case without first seeking the Court’s permission pursuant to Local Rule 7.1(h).
Finally, it appears that Plaintiff has inadvertently filed a notice setting a hearing
for this matter. No such hearing was authorized and any such hearing, being
unnecessary, is stricken from the Court’s calendar.
Accordingly, based on the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1. Plaintiff’s Motion for Relief from Judgment and Order [Docket No. 39]
and Motion to Extend Time [Docket No. 44] are DENIED;
2. The hearing in this matter set for May 14, 2012 is STRICKEN from the
Court’s calendar; and
3. Before filing any further motions pertaining to the Court’s February 22,
2012 Memorandum of Law & Order or February 23, 2012 Judgment,
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Plaintiff shall, pursuant to Local Rule 7.1(h), request the Court’s express
permission to do so “by letter to the Court of no more than two pages
in length, which shall be filed and served in accordance with the ECF
procedures.”

Dated: April 24, 2012

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

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