McCarthy v. Webster University
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's Rule 60 Motions for Relief from Judgment are DENIED. [Docs. 142 and 146 ] Signed by District Judge Charles A. Shaw on 10/14/14. (KXS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:11-CV-1614 CAS
MEMORANDUM AND ORDER
This closed matter is before the Court on plaintiff’s two pro se motions pursuant to Rule 60
of the Federal Rules of Civil Procedure. Plaintiff filed a “Rule 60 Motion for Relief from Judgment
and Order”, in which she requests relief “From the Court’s November 7, 2012 Judgment and Order
of sanctions upon plaintiff in response to Defendant’s October 25, 2012 Motion for Sanctions.”
Defendant Webster University filed a memorandum in opposition to the motion. Plaintiff then filed
a second “Rule 60 Motion for Relief from Judgment and Order”, which appears to be nearly
identical. For the following reasons, the motions will be denied.
Plaintiff, who is a tenured associate professor of legal studies, initially filed her employment
discrimination complaint against Webster University on September 16, 2011. At the time her
complaint was filed, plaintiff was represented by attorney Donnell Smith. The parties proceeded to
discovery and on April 2, 2012, the case was referred to mediation pursuant to the Case
Management Order. Mr. Smith moved to withdraw from this case following mediation. It was
apparent that the attorney-client relationship had broken down, and on July 10, 2012, the Court
granted plaintiff a 30-day withdrawal period to find a new attorney. No other attorney entered an
appearance, therefore, plaintiff proceeded with this case pro se.
On August13, 2012, defendant filed a motion to compel. Plaintiff had not provided
defendant with written responses to its documents requests, which were served when plaintiff was
represented by counsel, and plaintiff had not executed full medical releases, as required. On
September 25, 2012, the Court held a hearing on the motion to compel, despite being properly
noticed, plaintiff did not appear for the hearing. The Court heard argument on defendant’s motion
and granted the motion. Plaintiff was ordered to provide defendant with written responses to
defendant’s request for production of document and all documents responsive to document request
No. 6. She was also ordered to execute full medical record authorizations. Plaintiff was warned in
the Order that her failure to comply might result in dismissal. Plaintiff did not comply with the
terms of this Order. Plaintiff did execute medical releases, but she only provide written responses
to four of the fifty-eight document requests.
On October 2, 2012, defendant served plaintiff with a deposition notice to take her deposition
on October 22, 2012. Defense counsel did take plaintiff’s deposition in May 2012, but at the time
he was unable to complete the deposition. Plaintiff agreed on the written record that the parties
would leave the record open, and that she would complete the deposition at a later date. Plaintiff
did not file a motion for a protective order in response to the October 2, 2012 deposition notice, and
she did not appear for her deposition.
On October 25, 2012, defendant filed a motion for sanctions asking that the Court dismiss
plaintiff’s case for her failure to comply with the Court’s Order and her discovery obligations,
including failing to appear for deposition. The Court held a hearing on the motion on November 7,
2012. At the hearing, plaintiff had no valid excuse for failing to comply with the Court’s Order.
She stated that she did not fully understand what she had been ordered to do. She also laid part of
the blame on her former counsel.
The Court granted defendant’s motion for sanctions, in part. Defendant had requested
dismissal, instead the Court fined plaintiff $500.00, and ordered her to pay the fees defendant
incurred in pursuit of its motion to compel and motion for sanctions.1 The Court also ordered
plaintiff to fully and completely respond, without any objections, to defendant’s written document
requests. She was ordered to sit for the completion of her deposition. Plaintiff was warned in the
written Order that “her failure to comply fully and timely with the terms of this Memorandum
and Order will result in dismissal of this action with prejudice.” See Doc. 80 (emphasis in
Plaintiff provided defendant with her written responses to defendant’s document requests,
and defense counsel resumed plaintiff’s deposition as ordered. During her deposition, plaintiff
testified that she remembered for the first time the identity of a provider who had counseled plaintiff
in 2009 for the emotional distress she alleged she incurred as a result of defendant’s discriminatory
actions. Plaintiff refused to execute an authorization for the release of records from this provider.
In addition, when asked whether she had completed a review of her own documents to determine
if she had produced all documents responsive to defendant’s document request, plaintiff responded
that she had not because they numbered in the thousands.
On December 11, 2012, after reviewing defendant’s documentation, the Court ordered that
plaintiff pay to defendant Webster University on or before January 2, 2013, the sum $10,000.00 for
the fees it has incurred in bringing the two motions. The deadline to pay the fee passed and plaintiff
did not pay. She did not request relief or modification of the Court’s Order.
On November 26, 2012, defendant filed another motion for sanctions. That same day plaintiff
also filed a motion for sanctions against defense counsel, Travis Kearbey and Dennis Donnelly. In
her motion, plaintiff maintains defense counsel breached their duty of candor with the Court and that
they perpetrated fraud on the Court.
On January 8, 2013, the Court held a hearing on the two motions for sanctions. Plaintiff was
represented by attorney Jaclyn Zimmermann, who had entered an appearance on plaintiff’s behalf
on December 14, 2012.
On January 10, 2013, the Court denied plaintiff’s motion for sanction, finding it was entirely
without merit and bordered on frivolous. In the same Memorandum and Order, the Court granted
defendant’s motion for sanctions and dismissed plaintiff’s cause of action. The Court considered
whether a lesser sanction is available or appropriate, but ultimately concluded that dismissal was
warranted. The Court noted that plaintiff had willfully disregarded a number of Court orders, and
that she was warned that failure to comply might result in dismissal. The Court found defendant had
been prejudiced by plaintiff’s deliberately evasive conduct. Furthermore, the Court noted that
plaintiff had been plainly warned, both verbally and in written orders, that she must comply with
court orders and her discovery obligations, and she had even been fined to no avail. The Court
concluded the appropriate sanction was dismissal. Plaintiff did not file a notice of appeal. Instead
she filed two motions for relief from final judgment, which are presently before the Court.
A party in federal court may seek relief from final judgment pursuant to Federal Rule of Civil
Procedure 60(b). Federal Rule of Civil Procedure 60(b) relieves a party from a final judgment or
order on one of six specified grounds:
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Relief under Rule 60(b) is limited. A district court should grant a Rule 60(b) motion only
upon an adequate showing of exceptional circumstances. Schwieger v. Farm Bureau Ins. Co. of
Neb., 207 F.3d 480, 487 (8th Cir. 2000); Richards v. Aramark Srvs., Inc., 108 F.3d 925, 927 (8th
Cir. 1997) (internal quotations and citations omitted). Rule 60(b) authorizes relief based on certain
enumerated circumstances. “It is not a vehicle for simple reargument on the merits.” Broadway v.
Norris, 193 F.3d 987, 990 (8th Cir. 1999). Fed. R. Civ. P. 60(b)(5). Furthermore, “[t]he movant
must establish its right to such relief by clear and convincing evidence.” Stokors S.A. v. Morrison,
147 F.3d 759, 761 (8th Cir. 1998) (quoting United States v. Denham, 817 F.2d 1307, 1309 (8th Cir.
1987)). Rule 60(b) motions are viewed with disfavor and are addressed to the Court’s discretion.
Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984).
In her motions, plaintiff asks for relief based on “mistake, inadvertence, confusion, neglect,
and misconduct.” See Docs. 142 and 146 at 2. She argues that she had the “lack of appropriate
representation and legal counsel.” See Doc. 143 at 3. Plaintiff faults her counsel, Donnell Smith,
for not serving written discovery requests, failing to respond to defendant’s written document
requests. She also points to miscommunications with her counsel, Mr. Smith. In addition, plaintiff
asserts defendant is partly to blame for the sanctions that were imposed against her. She argues that
defense counsel should have scheduled an in person meeting with her so that she could have seen
what documents they had. She also faults defense counsel for delaying in filing a motion to compel
written document responses. In her motion plaintiff also seeks to revisit issues such as the medical
releases she executed, healthcare records that were produced, the group therapy session, her
deposition, the telephone number she provided for the record, and mediation.
There is nothing in plaintiff’s motions what warrants Rule 60(b) relief. Plaintiff asserted
many of her current arguments when she opposed defendant’s motions for sanctions, or they were
raised in the numerous other filings she has made with the Court, including her own motion for
sanctions. For example, in December 2012, in responding to defendant’s Motion to Dismiss as a
Sanction for Non-Compliance with Court Orders, plaintiff blamed her attorney, Mr. Smith, for her
failure to provide appropriate written discovery responses.
The Court has already considered and ruled upon plaintiff’s assertions about discovery
compliance, her deposition, her production of medical information – including information about
the group therapy session – and telephone number of record she provided. See Docs. 61, 80, 133.
Thus, plaintiff’s continued focus on these matters amounts to a challenge to what plaintiff apparently
considers judicial error. “A Rule 60(b) motion is not the vehicle for restating old complaints and
rearguing old evidence dealt with earlier in the proceedings.” In re Kieffer-Mickes, Inc. (In re
Kieffer-Mickes, Inc.), 226 B.R. 204, 210 (B.A.P. 8th Cir.1998) (citing Design Classics v. Westphal
(In re Design Classics), 788 F.2d 1384, 1386 (8th Cir. 1986) (stating that the proper vehicle for
addressing concerns such as these is the direct appeal).
As for the misdeeds she attributes on Mr. Smith, aside from them being previously raised
before the Court, they do not warrant relief pursuant to Rule 60(b). The Eighth Circuit has
consistently held that “Rule 60(b) has never been a vehicle for relief because of an attorney’s
incompetence or carelessness.” Inman v. American Home Furniture Placement, Inc., 120 F.3d 117,
119 (8th Cir. 1997) (quoting Sutherland v. ITT Continental Baking Co., 710 F.2d 473, 476-77 (8th
Cir. 1983)). “It is well-settled that a party is bound by the actions of her attorney.” Nolting v.
Yellow Freight Sys., Inc., 799 F.2d 1192, 1200 (8th Cir. 1986) (quoting Link v. Wabash Railroad
Co., 370 U.S. 626, 634 (1962)). Plaintiff voluntary chose her attorney, who she later fired. What
is more, plaintiff’s cause of action was not dismissed on account of Mr. Smith’s inaction. Mr. Smith
withdrew from the case in June 2012. The Court gave plaintiff numerous opportunities in the latter
half of 2012 to remedy the discovery failures that plaintiff claims Mr. Smith created.
Rule 60(b) motions are disfavored and should only be granted under “exceptional
circumstances.” Schwieger, 207 F.3d at 487; Richards, 108 F.3d at 927. Plaintiff has made no
showing that she is entitled to Rule 60(b) relief.
IT IS HEREBY ORDERED that plaintiff’s Rule 60 Motions for Relief from Judgment are
DENIED. [Docs. 142 and 146]
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 14th
day of October, 2014.
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