Jiang v. Porter et al

Filing 231

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendant N.M. for reconsideration [Doc. # 218 ] is denied. Signed by District Judge Carol E. Jackson on 8/3/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REV. XIU HUI “JOSEPH” JIANG,
Plaintiff,
vs.
TONYA PORTER, et al.,
Defendants.

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Case No. 4:15-CV-1008 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant N.M., pursuant to
Federal Rules of Civil Procedure 59(e) and 60, for reconsideration and to alter or
amend the order imposing sanctions. Plaintiff has filed a declaration of his former
attorney in opposition to the motion.
I.

Background
On May 26, 2016, the Court entered an order compelling discovery which

required N.M. to produce and disclose information and documents within 14 days.
In an email dated December 13, 2016, plaintiff’s counsel warned that a motion for
sanctions would be filed if N.M. did not comply with the order by December 16,
2016. After N.M. failed to provide the discovery as required, plaintiff filed a motion
for sanctions.

N.M. did not respond, and the motion for sanctions was granted on

May 4, 2017. Defendant now moves for relief from the sanctions order, claiming
that her counsel because of unavoidable computer error or excusable neglect, was
unaware of the filing of plaintiff’s motion for sanctions.

Prior to granting the motion for sanctions, the Court, on January 24, 2017,
extended

certain

deadlines

set

forth

in

the

case

management

order

by

approximately 120 days. The extension applied to the deadlines for completion of
expert and non-expert discovery, Rule 35 examinations, dispositive motions, and
alternative dispute resolution.

The extension was prompted by a motion filed by

plaintiff with consent of all the defendants.
II.

Discussion
A. Rule 60(b)(1)
Defendant seeks relief from the sanctions order due to error, mistake, and/or

excusable neglect so that she may file a response to the motion for sanctions.
Defendant’s counsel states that due to a computer glitch or other error, he did not
see or receive the motion for sanctions even though he was working on the case on
the very day the motion was filed. Under Rule 60(b)(1), a district court may grant
relief from a judgment on the grounds of “mistake, inadvertence, surprise, or
excusable neglect.” The term “excusable neglect” in this context is generally
“understood to encompass situations in which the failure to comply with a filing
deadline is attributable to negligence.” Union Pac. R.R. v. Progress Rail Servs.
Corp., 256 F.3d 781, 782 (8th Cir.2001) (quoting Pioneer Inv. Servs. Co. v.
Brunswick Assocs., 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). To
be excusable, however, the neglect must be accompanied by a showing of good
faith and some reasonable basis for not complying with the rules. Ivy v. Kimbrough,
115 F.3d 550, 552 (8th Cir.1997).
Defendant asks the Court to allow her to belatedly file an opposition to
plaintiff’s motion for sanctions. While the failure of defendant’s counsel to respond

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to plaintiff’s motion for sanctions qualifies as neglect, the Court does not find this
neglect to be excusable, in good faith, or supported by a reasonable basis.
Defendant’s counsel states that neither he nor his intern received or saw the motion
for sanctions.

Defendant’s counsel further states that while the document in the

Court’s file indicates service on counsel, counsel was only apprised of the
document’s existence upon receipt of the order imposing sanctions.
According to the Case Management/Electronic Case Filing system, a copy of
the motion for sanctions was emailed to defendant’s counsel. One hundred thirtynine days passed between service of the motion for sanctions and entry of the
order imposing sanctions. During that time, other electronic activity occurred in the
case, including the issuance of several orders.

Defendant’s counsel would have

received electronic notification of all of this activity.

Had defendant’s counsel

looked at the electronic case record even once between December 2016 and May
2017, he would have seen the motion for sanctions.

Furthermore, defendant’s

counsel was on notice as early as December 13, 2016, of plaintiff’s intention to file
a motion for sanctions.
Defense counsel’s assertion that the response to the motion for sanctions
was “stayed” as a result of the order extending the case management order
deadlines is unavailing.

The January 24, 2017 order specifically described the

deadlines that were to be extended. Nothing in the order refers to extending the
deadline for responding to a pending motion.
Counsel for N.M. argues that because he had procedures in place to prevent
losing documents that are served on him and because he had hired a law clerk to
help him specifically with this case, he cannot be said to have acted willfully or

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neglectfully. This argument misses the point. Defense counsel knew that he had
not produced the required discovery and was warned that a motion for sanctions
would be filed. Yet, he chose not to look at the electronic case record because he
thought the case was “on hold.” Klopfenstein Aff., ¶ 31 [Doc. # 218-1]. Neither
the systems he had in place nor the law clerk he hired would have made any
difference if he wasn’t going to check the electronic case record anyway.
“Excusable neglect” under Rule 60(b) does not include carelessness on the part of
an attorney. See Hunt v. City of Minneapolis, 203 F.3d 524, 528 n. 3 (8th
Cir.2000); Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969).

Here,

defense counsel made an unreasonable interpretation of the January 24 order
which led to his unreasonable decision to ignore the case record for 120 days. This
was carelessness at best.
In light of all the circumstances discussed above, the Court finds that N.M.’s
failure to respond to the motion for sanctions was not due to excusable neglect.
B. Rule 59(e)
Defendant also asks that the Court alter or amend the sanctions order, as
she claims she is now in full compliance with the order compelling discovery.
Although the May 26 order required defendant N.M. to produce all documents
reflecting or relating to any divorce proceeding between defendant and her husband
A.M., defendant admits that the documents still have not been produced.
A district court enjoys broad discretion in determining whether to grant or
deny a Rule 59(e) motion. United States v. Metro. St. Louis Sewer Dist., 440 F.3d
930, 933 (8th Cir. 2006). Motions under Rule 59(e) “serve the limited function of
correcting ‘manifest errors of law or fact or to present newly discovered evidence.’”

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Id. “Rule 59(e) motions cannot be used to introduce new evidence, tender new
legal theories, or raise new arguments which could have been offered or raised
prior to the entry of judgment.” Id. at 934.
After careful consideration, the Court finds there is no manifest error of law
or

fact,

or

newly

discovered

evidence

justifying

relief

under

Rule

59(e).

Defendant’s counsel states that he has made every possible effort to find and
produce the files requested by plaintiff and that the files either do not exist or are
not accessible to him.

However, plaintiff’s former counsel, John D. Sauer, has

submitted with his declaration emails that contradict defense counsel’s assertions.
A phone conversation memorialized by Sauer and sent to defendant’s counsel via
email noted that defendant’s counsel had found relevant records by Alexandra Hart
and Mason Klippel, former divorce attorneys for defendant. [Doc. #220-2, p. 7].
Subsequent emails pertaining to the records went unanswered, although defense
counsel responded to other emails in the case.
More than a year has elapsed since N.M. was ordered to produce the divorce
records.

She still has not complied nor shown good cause for not doing so.

Because N.M. has not shown the existence of manifest error of law or fact or newly
discovered evidence, she has failed to demonstrate that she is entitled to relief
under Rule 59(e).
For the reasons discussed above,
IT IS HEREBY ORDERED

that the motion of defendant N.M. for

reconsideration [Doc. #218] is denied.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 3rd day of August, 2017.
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