Majda v. Moray

Filing 83

MEMORANDUM AND ORDER - The Motion for Reconsideration of Judgment on Motion forSummary Judgment, ECF No. 76 , filed by Plaintiff Thomas Majda Jr., is denied. Ordered by Chief Judge Laurie Smith Camp. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

THOMAS MAJDA, JR.,
Plaintiff,

8:16CV363

vs.
MEMORANDUM AND ORDER
BRENNA M. MORAY,
Defendant.

This matter is before the Court on the Motion for Reconsideration of Judgment on
Motion for Summary Judgment, ECF No. 76, filed by Plaintiff Thomas Majda, Jr. For
the reasons stated below, the Motion will be denied.
BACKGROUND
Plaintiff does not ask the Court to revise its factual recitation.

The Court

incorporates its background discussion from its Memorandum and Order, ECF No. 74,
granting summary judgment in favor of Defendant Brenna Moray by reference, and
provides the following summary:
On July 22, 2016, Plaintiff filed his Complaint and asserted a claim for negligence
against Defendant Brenna Moray under Nebraska law. On March 6, 2018, the Court
granted Moray’s Motion for Summary Judgment and dismissed this action with
prejudice. ECF No. 74. Plaintiff failed to respond to Moray’s Motion for Summary
Judgment and now requests relief from that final judgment under Fed. R. Civ. P.
60(b)(1) for “excusable neglect.” Specifically, Plaintiff asks the Court to vacate its final
judgment, reopen this case, and permit him to submit a brief in opposition to Moray’s
Motion for Summary Judgment. ECF No. 76.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 60(b)(1) allows a court to relieve a party from a
final judgment for “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ.
P. 60(b)(1). However, “Rule 60(b) authorizes relief in only the most exceptional cases.”
U.S. Commodity Futures Trading Comm’n v. Kratville, 796 F.3d 873, 896 (8th Cir.
2015). The Eighth Circuit has “identified two components of excusable neglect: ‘(1)
neglect or noncompliance . . . (2) that is excusable.” Id. (quoting In re Guidant Corp.
Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 866 (8th Cir. 2007)). Courts
consider the following factors when analyzing whether conduct is “excusable”: “(1) the
danger of prejudice to the non-moving party; (2) the length of the delay and its potential
impact on judicial proceedings; (3) whether the movant acted in good faith; and (4) the
reason for the delay, including whether it was within the reasonable control of the
movant.” Kratville, 796 F.3d at 896 (citing Pioneer Inv. Serv. Co. v. Brunswick Assoc.
Ltd. P’ship, 507 U.S. 380, 395 (1993). These “factors do not carry equal weight; the
reason for delay is a key factor in the analysis.” Kratville, 796 F.3d at 896 (citing Lowry
v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000). “The existence of a
meritorious defense is also a relevant factor.” Feeney v. AT & E, Inc., 472 F.3d 560,
563 (8th Cir. 2006). Rule 60(b) is not “a vehicle for relief because of an attorney’s
incompetence or carelessness.” Kratville, 796 F.3d at 896 (quoting Inman v. Am Home
Furniture Placement, Inc., 120 F.3d 117, 119 (8th Cir. 1997) (emphasis excluded)).
DISCUSSION
Plaintiff’s counsel states that he neglected to respond to Moray’s summary
judgment motion because his staff failed to place the deadline on his calendar. He also
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notes that he was tending to several other cases and he was forced to implement new
case management and scheduling software in December of 2017 after the dissolution of
a partnership. Moray moved for summary judgment on January 5, 2018. ECF No. 71.
The parties agree, and the Court does not doubt, that Plaintiff’s counsel acted in
good faith at all times. Moray does not contend that she would suffer any meaningful
prejudice if the Court granted Plaintiff’s Rule 60(b)(1) motion. However, this Court’s
local rules clearly provide that “[a] brief opposing a motion . . . for summary judgment
must be filed and served within 21 days after the motion and supporting brief are filed
and served[,]” NECivR. 7.1(b)(1)(B), and “the failure to follow the clear dictates of a
court rule [does not] constitute[ ] excusable neglect[,]” Noah v. Bond Cold Storage, 408
F.3d 1043, 1045 (8th Cir. 2005). Further, compliance with NECivR. 7.1(b)(1)(B) was in
counsel’s reasonable control, which is the key factor to be considered. Kratville, 796
F.3d at 896. As such, the Court finds that Plaintiff has failed to demonstrate excusable
neglect under Fed. R. Civ. P. 60(b)(1).
Plaintiff also contends that the Court must grant his motion under Rule 60(b)(1)
because he had a meritorious defense to the motion for summary judgment. He argues
that his claim against Moray for failure to repair or make safe the concrete stairs at
issue should not have been dismissed because the International Residential Building
Code (IRBC) imposed a tort duty upon Moray, as a landlord, to repair the stairs and
make them safe. Pl.’s Br. Mot. Reconsider, ECF No. 81, Page ID 433 (“Plaintiff here
argues that the source of that duty is the statute adopting the building codes.”). Yet,
Plaintiff failed to demonstrate that the IRBC imposes such a duty upon landlords under
Nebraska law.
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Plaintiff correctly points out that the Nebraska legislature adopted the IRBC in the
Building Construction Act, Neb. Rev. Stat. § 71-6403, and he also correctly points out
that a statute or ordinance may give rise to a tort duty, see Tolbert v. Jamison, 794
N.W.2d 877, 883 (Neb. 2011).

The requirements of the IRBC, however, do not

automatically give rise to a particular tort duty on the part of landlords to repair and
make safe.

Stonacek v. City of Lincoln, 782 N.W.2d 900, 909 (Neb. 2010) (citing

Claypool v. Hibberd, 626 N.W.2d 539, 545 (Neb. 2001) (“Consideration of the
Legislature’s purpose in enacting a statute is central to the analysis of whether the
statute defines a duty in tort.”). The Nebraska Supreme Court has clearly explained:
a statute . . . may give rise to a tort duty to act in the manner required by
the statute where the statute is enacted to protect a class of persons
which includes the plaintiff, the statute is intended to prevent the particular
injury that has been suffered, and the statute is intended by the
Legislature to create a private liability as distinguished from one of a public
character.
A.W. v. Lancaster Cty. Sch. Dist. 0001, 784 N.W.2d 907, 920 (Neb. 2010) (emphasis
added).
Plaintiff’s Rule 60(b)(1) motion concludes, without engaging in the foregoing
analysis, that the IRBC1 imposed a tort duty upon Moray to repair and make safe the

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The purpose of the Building Construction Act, which adopted the IRBC, is to:

(1) Adopt a state building code to govern the construction, reconstruction, alteration, and
repair of buildings and other structures within Nebraska;
(2) Provide state standards to safeguard life, health, property, and the public welfare by
regulating and controlling the design, construction, quality of materials, use and
occupancy, and maintenance of buildings and structures within this state; and
(3) Provide for the use of modern and innovative methods, devices, materials, and
techniques in the design and construction of buildings and other structures.
Neb. Rev. Stat. § 71-6402.

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stairs at issue because § 76-1419(1)(a) of the Uniform Residential Landlord Tenant Act
(URLTA), Neb. Rev. Stat. § 76-1401 et seq., requires landlords to comply with
“applicable minimum housing codes.” However, § 76-1419(1) does not give rise to a
civil tort duty. Neb. Rev. Stat. § 76-1419(1) (“The obligations imposed by this section
are not intended to change existing tort law in the state.”). With respect to the IRBC,
Plaintiff has not identified any express terms that impose civil tort liability nor has he
attempted to show that the Nebraska Legislature provided for such civil tort liability by
implication.

Stonacek, 782 N.W.2d at 909 (“[W]here the Legislature has not by its

express terms or by implication provided for civil tort liability, under principles of judicial
restraint, it is prudent that [courts] not do so.”). Plaintiff has also not cited any case law
in Nebraska which holds that the IRBC imposes any particular tort duty upon landlords.
Thus, Plaintiff has failed to show he had a meritorious defense to the motion for
summary judgment.
Accordingly, based on all of the relevant factors, the Court finds that Plaintiff has
failed to demonstrate excusable neglect under Fed. R. Civ. P. 60(b)(1).
IT IS ORDERED: The Motion for Reconsideration of Judgment on Motion for
Summary Judgment, ECF No. 76, filed by Plaintiff Thomas Majda Jr., is denied.
Dated this 20th day of March, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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