Wan v. United States Postal Service et al

Filing 11

ORDER denying 9 Motion to Vacate Judgment and Dismissal. For the reasons set forth in the attached memorandum and order, plaintiff's motion to vacate the order of dismissal and judgment in this action is DENIED. Plaintiff's counsel is directed to serve a copy of the memorandum and order on plaintiff personally and to file proof of service on the docket on or before April 18, 2018. Ordered by Judge Kiyo A. Matsumoto on 4/13/2018. (Flores, Diego)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
HOI L. WAN,
Plaintiff,

MEMORANDUM & ORDER

-against-

17-CV-1560(KAM)(LB)

UNITED STATES POSTAL SERVICE and
MEGAN J. BRENNAN, POSTMASTER
GENERAL OF THE UNITED STATES POSTAL
SERVICE

Defendants.
----------------------------------X
MATSUMOTO, United States District Judge:
Presently before the court is the motion of Hoi L. Wan
(“plaintiff”) pursuant to Federal Rule of Civil Procedure
(“Rule”) 60(b) to vacate the dismissal of this action and the
judgment entered on October 5, 2017.

(See Judgment, ECF No. 7;

see also October 3, 2017 Docket Order; Notice of Motion, ECF No.
9).

In support of the motion, plaintiff has submitted a

memorandum of law (“Mem.,” ECF No. 10).

For the reasons that

follow, plaintiff’s motion is denied.
Background
Plaintiff commenced the instant action by filing a
complaint (the “complaint,” ECF No. 1), on March 20, 2017,
alleging violations of his rights under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.,
and New York State law.

On March 22, 2017, the court issued a

summons (the “summons,” ECF No. 4), as to defendants United

States Postal Service and Megan J. Brennan, Postmaster General
of the United States Postal Service (“defendants”), but
plaintiff never served the summons and complaint.
On July 11, 2017, 113 days after plaintiff filed the
complaint, Magistrate Judge Lois Bloom entered an order to show
cause on the docket of this case noting that plaintiff had
failed to file proof of service on the docket.
2017 Docket Order.)

(See July 11,

The order stated, in bold text, that “[i]f

proof of service is not filed with the Court by 8/1/2017, or if
Plaintiff fails to show good cause why such service was not
effected by 6/19/2017, the Court shall dismiss this action
without prejudice.”

(Id. (emphasis in original).)

Plaintiff’s

counsel was served with the July 11, 2017 order to show cause
via ECF.
Plaintiff failed to comply with Judge Bloom’s July 11,
2017 order, and on August 23, 2017, Judge Bloom issued a sua
sponte Report and Recommendation (“R&R” or the “Report and
Recommendation,” ECF No. 6), recommending that this court
dismiss the instant action pursuant to Rule 41(b).
3.)

(R&R at 1,

Plaintiff’s counsel was served with the report and

recommendation via ECF.

Under 28 U.S.C. § 636(b)(1) and Rule

72(b), the deadline to file an objection to the Report and
Recommendation was September 6, 2017.

Plaintiff did not object

to the Report and Recommendation, and on October 3, 2017, the
2

court adopted Judge Bloom’s Report and Recommendation and
dismissed the complaint “without prejudice.”
2017 Docket Order Adopting R&R.) 1

(See October 3,

The Clerk of Court entered

judgment dismissing this action without prejudice on October 5,
2017.

(See Judgment, ECF No. 7.)

Plaintiff’s counsel received

copies of the foregoing order adopting the Report and
Recommendation and entry of judgment via ECF.
On February 19, 2018, nearly six months after Judge
Bloom issued her Report and Recommendation and over four months
after this action was dismissed, plaintiff filed the instant
motion.
Mem.)

(See Notice of Motion, ECF No. 9; see also generally
Through the motion, plaintiff seeks vacatur of the

dismissal of this action and the action’s “restor[ation] to the
calendar.”

(Mem. at 1-2.)

For the reasons set forth below,

plaintiff’s motion is denied.
Legal Standard
A.

Rules 41(b) and 4(m)
The Report and Recommendation, which the court

adopted, recommended dismissal of the instant action under Rule
41(b).

Rule 41(b) provides as follows:
If the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant

Although the court’s order dismissing the instant action stated that
the court adopted Judge Bloom’s Report and Recommendation “in its entirety”
(see October 3, 2017 Docket Order), the court actually modified the Report
and Recommendation in one minor respect, specifically by adding that the
dismissal was “without prejudice.”

1

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may move to dismiss the action or any claim
against it. Unless the dismissal order states
otherwise, a dismissal under this subdivision (b)
and any dismissal not under this rule – except
one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19 – operates
as an adjudication on the merits.
“Although the text of [Rule] 41(b) expressly addresses
only the case in which a defendant moves for dismissal of an
action, it is unquestioned that Rule 41(b) also gives the
district court authority to dismiss a plaintiff’s case sua
sponte for failure to prosecute.”

LeSane v. Hall’s Sec.

Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v.
Wabash R.R. Co., 370 U.S. 626, 630 (1962)).

Further, although

Rule 41(b) “explicitly sanction[s]” the court’s authority to
dismiss an action for failure to prosecute, the power to so
dismiss an action “has generally been considered an ‘inherent
power,’ governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so as
to achieve the orderly and expeditious disposition of cases.”
Lewis v. Rawson, 564 F.3d 569, 575 (2d Cir. 2009) (quoting Link,
370 U.S. at 630-31).

Accordingly, dismissal under Rule 41(b)

for failure to prosecute is committed to the court’s sound
discretion.

See id.

Additionally, although the court dismissed the instant
action under Rule 41(b), Rule 4(m), which governs the time limit
for service, is also relevant to plaintiff’s motion.
4

Rule 4(m)

obligates the court to take one of two actions where a plaintiff
fails to serve a defendant within 90 days of the filing of the
complaint: the court must either “dismiss the action without
prejudice against th[e] defendant [that has not been served] or
order that service be made within a specified time.”

Fed. R.

Civ. P. 4(m).
B.

Rule 60(b)
Rule 60(b) authorizes the court to grant “a party or

its legal representative” relief from a final judgment
for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that, with reasonable
diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3)
fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by
an opposing party; (4) the judgment is void; (5)
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 equitable; or (6) any
other reason that justifies relief.
A motion under Rule 60(b) “is addressed to the sound
discretion of the district court.”

Nemaizer v. Baker, 793 F.2d

58, 61-62 (2d Cir. 1986) (citations omitted).
Discussion
A.

Merits of the Dismissal
Plaintiff asserts that the dismissal of his complaint

was “rushed and unwarranted, under the circumstances of missing
the deadline to serve by a few months.”
5

(Mem. at 4.)

Although

an argument in this vein might have been appropriate in a timely
objection to the Report and Recommendation, plaintiff’s argument
is misplaced in the context of a Rule 60(b) motion, which is not
a substitute for an appeal or a vehicle for arguing the merits
of the underlying judgment.

See Donovan v. Sovereign Sec.,

Ltd., 726 F.2d 55, 60 (2d Cir. 1984) (“[A party] may not use
proceedings seeking relief from or modification of a judgment
under [Rule] 60 simply to relitigate matters settled by the
original judgment.”);see also Malik v. McGinnis, 293 F.3d 559,
561 (2d Cir. 2002) (“An appeal from an order denying a Rule
60(b) motion brings up for review only the denial of the motion
and not the merits of the underlying judgment” (quoting Branum
v. Clark, 927 F.2d 698, 704 (2d Cir. 1991))). 2
Further, even if the merits of the dismissal of
plaintiff’s action were properly before the court at this stage,
plaintiff would not prevail.

In recognition of the severe

nature of a dismissal under Rule 41(b), the Second Circuit has

Additionally, it appears to the court that plaintiff is barred from
litigating the merits of the dismissal of the instant action because “[w]hen
a party fails to object timely to a magistrate’s recommended decision, it
waives any right to further judicial review of that decision.” McCarthy v.
Manson, 714 F.2d 234, 237 (2d Cir. 1983) (citing John B. Hull, Inc. v.
Waterbury Petroleum Products, Inc., 588 F.2d 24, 29-30 (2d Cir. 1978)). The
only limitation applicable to this rule arises where “the magistrate’s
decision is rejected or substantially modified,” in which case “the parties
may object to all or part of that judgment and hence preserve specific issues
for appeal.” Id. at 237 n.2. Here, even if the minor modification of the
Report and Recommendation is a “substantial” modification, it inured to
plaintiff’s benefit, as discussed below. Moreover, plaintiff did not timely
object to or appeal the court’s order adopting the Report and Recommendation.
2

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set forth five factors that guide a trial court’s discretion in
dismissing an action under Rule 41(b).

See Lewis 564 F.3d at

575-76.
Specifically, the court should consider (1) whether
“the plaintiff’s failure to prosecute caused a delay of
significant duration,” (2) whether the “plaintiff was given
notice that further delay would result in dismissal,” (3)
whether further delay would likely prejudice the defendant, (4)
the balance between “the need to alleviate court calendar
congestion” and “plaintiff’s right to an opportunity for a day
in court,” and (5) the “efficacy of lesser sanctions.”

Id. at

576 (quoting United States ex rel. Drake v. Norden Sys., Inc.,
375 F.3d 248, 254 (2d Cir. 2004)); accord LeSane, 239 F.3d at
209 (citations omitted).

The court should consider the

foregoing factors in light of the record of the entire case as a
whole, and no one factor is dispositive.

Lewis, 564 F.3d at 576

(citations omitted).
Plaintiff asserts that all five of these factors weigh
against dismissal.

(Mem. at 2-4.)

Plaintiff is incorrect.

As

to the first factor, plaintiff contends that “the delay was
minimal,” and “delay alone is not sufficient to warrant
dismissal.”

(Mem. at 3.)

A delay of three months is one of

“significant duration” when the nature of the delay completely
prevents an action from moving forward, and where the dilatory
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party becomes completely inaccessible.

See Frazier v. NRA Grp.,

LLC, No. 16-CV-2942(LDH)(RLM), 2017 WL 2547236, at *2 (E.D.N.Y.
June 13, 2017) (“Courts have found dismissal appropriate for
delays shorter than several months when a party has become
completely inaccessible, as inaccessibility strongly suggests
that Plaintiff is not diligently pursuing her claim.” (quoting
Garcia v. City of N.Y., No. 14-CV-4160, 2016 WL 275621, at *3
(E.D.N.Y. Mar. 31, 2016) (internal quotation marks omitted)));
Kent v. Scamardella, No. 07-CV-844(SHS), 2007 WL 3085438, at *2
(S.D.N.Y. Oct. 18, 2007) (“Although three months is not
necessarily a delay of ‘significant duration,’ the delay here
has functioned as a complete block to moving this litigation
forward . . . . This weighs strongly in favor of dismissal.”
(citation omitted)).

Here, despite the court’s July 11, 2017

order, plaintiff has not filed any proof of service of the
summons and complaint on defendants, thereby preventing the
action from moving forward, and was completely inaccessible to
the court from at least July 11, 2017 onward.

Accordingly, the

first factor weighs heavily in favor of dismissal.
Plaintiff asserts that the second factor, whether
plaintiff was notified that further delay would result in
dismissal, “weighs heavily against the [d]ismissal” of this
action.

(Mem. at 3 (emphasis added).)

The court clearly and

unambiguously notified plaintiff twice over a period of months
8

that further delay would result in dismissal.

The first

notification was Judge Bloom’s July 11, 2017 order, and the
second notification came over a month later, through Judge
Bloom’s August 23, 2017 Report and Recommendation.

Despite

plaintiff’s failure to respond to or comply with either
notification, as noted above, the court did

not dismiss the

instant action until October 3, 2017, nearly one month after the
September 6, 2017 deadline to object to Judge Bloom’s Report and
Recommendation.

Therefore, the second factor weighs in favor of

dismissal, contrary to plaintiff’s contention. 3
The third factor, prejudice to defendant, also weighs
in favor of dismissal.

“[P]rejudice to defendants resulting

from unreasonable delay may be presumed.”

LeSane, 239 F.3d at

210 (quoting Lyell Theatre Corp. V. Loews Corp., 682 F.2d 37, 43
The authorities plaintiff cites in arguing that the second factor
weighs against dismissal are wholly inapposite. Plaintiff cites Drake for
the proposition that 20 days’ notice that further delay will result in a
dismissal is insufficient. (Mem. at 3.) Drake, however, does not stand for
that proposition. Instead, in Drake, the Second Circuit concluded that the
second factor weighed against dismissal where “[t]he only actual notice” the
plaintiff/relator had received “was the court clerk’s warning that the case
would be dismissed unless [the plaintiff/relator] submitted a satisfactory
explanation for his delay within 20 days.” 375 F.3d at 255. More
importantly, in Drake, the plaintiff/relator “responded by submitting not
only an explanation, but the final amended complaint within that time.” Id.
In other words, the plaintiff/relator in Drake complied with the court’s
order, unlike plaintiff here, who ignored multiple warnings. Plaintiff’s
citation to Martens v. Thomann is similarly inapposite because the court
there “did not give the individual plaintiffs express notice that further
delays would result in dismissal.” 273 F.3d 159, 181 (2d Cir. 2001). As
discussed above, plaintiff here had ample express notice. Coats v.
Department of Veteran Affairs is also readily distinguishable because there,
the district court did not give a pro se plaintiff clear notice that failure
to amend his complaint would result in a dismissal with prejudice. 268 F.
App’x 125, 127. Plaintiff here is represented, and in any event, the notice
plaintiff was given was clear and unambiguous.
3

9

(2d Cir. 1982)).

Plaintiff notes that defendant was not served,

and asserts that consequently, defendant could not have been
prejudiced.

(Mem. at 3.)

This argument, however, overlooks the

presumption of prejudice under Second Circuit law.

Because

prejudice is properly presumed where a plaintiff unreasonably
delays, even absent affirmative indications of actual prejudice,
the third factor “does lean in the direction of dismissal,
[although] it does so only slightly.”

LeSane, 239 F.3d at 210.

Further, although the presumption is rebuttable, Drake, 375 F.3d
at 257 (citation omitted), plaintiff did not object to the
Report and Recommendation, or otherwise attempt to rebut it.
The third factor therefore weighs in favor of dismissal.
Regarding the fourth factor, plaintiff asserts that
the Second Circuit requires compelling evidence of an extreme
effect on court congestion.

(Mem. at 4.)

Here, the relevant

evidence is that plaintiff commenced the instant action on March
20, 2017, was issued a summons on March 22, 2017, required the
court to monitor compliance and to issue multiple court orders,
and still did nothing to serve process or prosecute the action
prior to dismissal on October 3, 2017 – a period of nearly 200
days.

Allowing plaintiffs to “prosecute” actions in this manner

has effectively contributed to court congestion and repeated
orders.

Thus, the fourth factor weighs in favor of dismissal.

10

As to the fifth factor, plaintiff asserts that the
court did not consider lesser sanctions.

(Mem. at 4.)

Plaintiff does not affirmatively suggest that a lesser sanction
would have spurred him to act, and such a suggestion would
appear meritless given that nearly four months passed between
the dismissal of this action, and the filing of plaintiff’s
instant motion to vacate the judgment.

Moreover, plaintiff’s

assertion that the court did not consider a lesser sanction is
mistaken.

The Report and Recommendation recommended outright

dismissal under Rule 41(b).

(R&R at 2-3.)

Subject to

exceptions not applicable here, an outright dismissal under Rule
41(b) “operates as an adjudication on the merits” unless the
dismissal order expressly states otherwise.
41(b).

Fed. R. Civ. P.

Here, the court opted to specify that dismissal of

plaintiff’s complaint was “without prejudice,” (October 3, 2017
Docket Order), and therefore affirmatively opted for a lesser
sanction than outright dismissal. 4
Finally, the court notes that although it dismissed
plaintiff’s complaint without prejudice under Rule 41(b),
dismissal without prejudice under Rule 4(m) would unquestionably
have been proper.

Rule 4(m) expressly authorizes dismissal of

Plaintiff submits that even a dismissal without prejudice would bar
relief because plaintiff is now “outside of the time period to file” his
Title VII complaint. (Mem. at 4.) To the extent this is accurate, this
result has come about entirely because of inaction on the part of plaintiff
and his representatives.

4

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an action without prejudice for failure to serve a summons and
complaint “within 90 days after the complaint is filed,” unless
plaintiff shows good cause for an extension of time.

It is

undisputed that plaintiff did not serve defendant with the
summons and complaint, did not seek an extension of time to
serve process, nor show good cause for his failure to serve.
Therefore, dismissal without prejudice under Rule 4(m) would
have been proper as early as June 20, 2017, 5 and was certainly
proper as of the actual date of dismissal, October 3, 2017,
which was over one hundred days after plaintiff’s service
deadline under Rule 4(m).

Plaintiff’s characterization of the

dismissal of his complaint under these circumstances as “rushed
and unwarranted” (Mem. at 4), strains credulity.
B.

Relief Under Rule 60(b)(1)
Plaintiff seeks vacatur of the dismissal of this

action under Rule 60(b)(1), and asserts that the court should
find “excusable neglect.”

(Mem. at 5.)

Plaintiff notes that

the attorney responsible for his representation “suddenly left”
the law firm that represents plaintiff in the instant action,
“and the instant action got lost in the reshuffle.”
1.)

(Mem. at

Therefore, plaintiff contends,

The date ninety days after the date on which plaintiff filed his
complaint was June 18, 2017. Because June 18, 2017 was a Sunday, however,
plaintiff’s deadline to serve the summons and complaint was automatically
extended to Monday, June 19, 2017 by operation of Rule 6(a)(1)(C).
5

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[t]he reason for the delay is excusable. A
turnover [of personnel] at [plaintiff’s
counsel’s] [f]irm was not expected, and while
[counsel’s firm] prides [it]sel[f] on diligent
and professional conduct, unfortunately mistakes
do happen, and cases fall by the wayside.
Accordingly, the Plaintiff, who timely filed the
Complaint, should not pay for the inadvertent and
honest mistake of [plaintiff’s counsel’s] [f]irm.
(Mem. at 5.) 6
Plaintiff is correct that, for purposes of Rule 60(b),
excusable neglect “is understood to encompass situations in
which the failure to comply with a filing deadline is
attributable to negligence.”

Canfield v. Van Atta Buick/GMC

Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997) (quoting Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
394 (1993)).

All that this means, however, is that “although a

late filing will ordinarily not be excused by negligence, that
possibility is by no means foreclosed.”

Id. (quoting Briones v.

Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1998)).
Additionally, in Canfield, the Second Circuit expressly stated
its view that the principle that “excusable neglect” encompasses
negligence does not “alter[] the principle that failure to

Regarding the issue of attorney turnover, the court notes that the
docket presently indicates that the attorney who filed the instant motion on
plaintiff’s behalf is associated with a law firm other than the firm
representing plaintiff. Additionally, a review of the docket indicates that
the attorney who initially filed the complaint on plaintiff’s behalf has not
moved to withdraw as counsel in the instant action, despite plaintiff’s
contention that she left the firm.

6

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follow the clear dictates of a court rule will generally not
constitute such excusable neglect.”

Id.

Here, the presence of “neglect” is clear: plaintiff
failed to prosecute the instant action in any way and ignored
Judge Bloom’s July 11, 2017 Order to Show Cause, as well as her
August 23, 2017 Report and Recommendation.

The only “excuse”

plaintiff offers, however, is that “unfortunately mistakes do
happen, and cases fall by the wayside.”

(Mem. at 4.)

This is

insufficient, as it could apply with equal force to any
situation in which a party seeks to avoid the consequences of
ignoring unambiguous, express court orders or rules.

See

Canfield, 127 F.3d at 250 (“[T]he ‘excusable’ portion of
‘excusable neglect’ must provide the limitations necessary to
prevent abuse by the parties.”).
Additionally, although plaintiff argues that he
“should not pay” for his counsel’s mistakes (Mem. at 5), courts
in this circuit have consistently “declined to relieve a client
under [Rule 60(b)(1)] of the ‘burdens of a final judgment
entered against him due to the mistake or omission of his
attorney by reason of the latter’s ignorance of the law or other
rules of the court, or his inability to efficiently manage his
caseload.’”

Nemaizer, 793 F.2d at 62 (quoting United States v.

Cirami, 535 F.2d 736, 739 (2d Cir. 1976)); see also Gomez v.
City of New York, 805 F.3d 419, 423 (2d Cir. 2015) (“[C]ourts
14

are generally reluctant to recognize attorney error as a basis
for relief from an order or judgment.” (citation omitted)).
“This is because a person who selects counsel cannot thereafter
avoid the consequences of the agent’s acts or omissions.”
Nemaizer, 793 F.2d at 62 (citing Link, 370 U.S. at 633-34).
Absent a compelling “excuse” for plaintiff’s neglect,
the court sees no reason to deviate from the general principle
that failure to abide by the express terms of a rule or order
“will . . . not constitute excusable neglect.”
F.3d at 250.

Canfield, 127

Additionally, the court has considered plaintiff’s

arguments regarding prejudice, the length of the delay, and
plaintiff’s good faith (Mem. at 4-5), and concludes that these
arguments are unavailing because of the lack of a compelling
excuse for plaintiff’s neglect.

Accordingly, plaintiff’s motion

for relief under Rule 60(b)(1) is denied.
C.

Relief Under Rule 60(b)(6)
Plaintiff requests, in the alternative, that the court

vacate the dismissal of his complaint under Rule 60(b)(6).
Clause (6) of Rule 60(b) allows the court to grant a party
relief from a judgment for “any . . . reason that justifies
relief” other than the reasons set forth in clauses (1) through
(5) of Rule 60(b).

Fed. R. Civ. P. 60(b).

Rule 60(b)(6) “is

properly invoked only when there are extraordinary circumstances
justifying relief, when the judgment may work an extreme and
15

undue hardship, and when the asserted grounds for relief are not
recognized in clauses (1)–(5) of the Rule.”

Nemaizer, 793 F.2d

at 63 (citations omitted).
Following from the foregoing, “[w]here, as here, an
attorney’s incompetence or neglect is the asserted basis for
relief, the motion more properly arises under Rule 60(b)(1).”
Hill v. World Class Auto. Corp., No. 06-CV-2496(SLT)(RLM), 2008
WL 4809445, at *3 (E.D.N.Y. Nov. 4, 2008) (citing Stefanopoulos
v. City of New York, No. 01-CV-0771(SJ)(VVP), 2007 WL 160819, at
*3 (E.D.N.Y. Jan. 17, 2007)); see also Nemaizer, 793 F.2d at 63
(declining to “accept the proposition that when counsel’s
conduct shows gross negligence relief to a client may be
afforded under Rule 60(b)(6)” (emphasis in quoted material)).
Further, the Second Circuit has concluded that Rule 60(b)(1) and
Rule 60(b)(6) are “mutually exclusive,” and therefore “any
conduct which generally falls under the former cannot stand as a
ground for relief under the latter.”

Stevens v. Miller, 676

F.3d 62, 67 (2d Cir. 2012) (quoting Cirami, 535 F.2d at 740).
Therefore, where a Rule 60(b) motion is “premised on grounds
fairly classified as mistake, inadvertence, or neglect, relief
under Rule 60(b)(6) is foreclosed.”

Id. (citation omitted).

Plaintiff here does not set forth any basis for relief
other than those the court discussed in rejecting plaintiff’s

16

motion for relief under Rule 60(b)(1).

Accordingly, plaintiff’s

motion for relief under Rule 60(b)(6) is also denied. 7
The court recognizes that the instant action may be of
“monumental” importance to plaintiff.

(Mem. at 6.)

The Second

Circuit, however, has rejected the proposition that dismissal of
a claim because of “counsel’s unexcused conduct imposes an
unjust penalty on the client.”

Cirami, 535 F.2d at 740.

“P[laintiff] voluntarily chose []his attorney as his
representative in the action, and he cannot now avoid the
consequences of the acts or omissions of this freely selected
agent.

Any other notion would be wholly inconsistent with our

system of representative litigation, in which each party is
deemed bound by the acts of his lawyer-agent and is considered
to have notice of all facts, notice of which can be charged upon
the attorney.”

Id. (internal quotation marks omitted).
Conclusion

For the reasons set forth above, dismissal of
plaintiff’s action was proper, and plaintiff has not shown that
affording him relief under Rule 60(b) would be an appropriate
7
Some out-of-circuit authority suggests that Rule 60(b)(6) may be
available where an attorney is grossly negligent and the client is diligent
in seeking to prosecute his case. See Cirami, 535 F.2d at 741 (noting that
the District of Columbia Circuit has “found that Rule 60(b)(6) was broad
enough to permit relief when ‘personal problems of counsel cause him grossly
to neglect a diligent client’s case and mislead the client’” (quoting L.P.
Steuart, Inc. v. Matthews, 329 F.2d 234, 235 (D.C. Cir. 1964))). Here,
however, plaintiff’s memorandum of law concedes that plaintiff was not
diligent. (See Mem. at 1 (“Plaintiff, assuming the case was pending, did not
reach out for a status.”))

17

exercise of the court’s discretion.

Accordingly, plaintiff’s

motion to vacate the order of dismissal and judgment is DENIED.
Plaintiff’s counsel is directed to serve a copy of this order on
plaintiff personally and to file proof of service on the docket
on or before April 18, 2018.
SO ORDERED.
Dated:

April 13, 2018
Brooklyn, New York
___________/s/______________
Hon. Kiyo A. Matsumoto
United States District Judge

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