In re Subpoenas Issued to JAMS, Inc. and Carol A. Wittenberg
Filing
29
MEMORANDUM OPINION AND ORDER.....Bertrams July 20, 2018 motion for relief from the June 29, 2018 Order pursuant to Rule 60(b)(1), Fed. R. Civ. P. is denied. (Signed by Judge Denise L. Cote on 7/24/2018) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
IN RE: SUBPOENAS ISSUED TO JAMS, INC.
:
and CAROL A. WITTENBERG,
:
:
Nonparty Respondents. :
:
--------------------------------------- :
:
CONNIE BERTRAM,
:
:
Plaintiff,
:
:
-v:
:
PROSKAUER ROSE LLP,
:
:
Defendant.
:
:
----------------------------------------X
APPEARANCES:
For JAMS, Inc. and Carol A. Wittenberg:
William E. Wallace
Capital Legal Group PLLC
1717 Pennsylvania Ave., NW #1025
Washington, District of Columbia 20006
For Connie Bertram:
Andrew Melzer
Alexandra Harwin
Sanford Heisler Sharp, LLP
1350 Avenue of the Americas, 31st Floor
New York, New York 10019
David Sanford
Sanford Heisler Sharp, LLP
1666 Connecticut Avenue NW, Suite 300
Washington, District of Columbia 20009
Kevin Sharp
Sanford Heisler Sharp, LLP
611 Commerce Street, Suite 3100
Nashville, TN 37203
17mc207 (DLC)
MEMORANDUM OPINION
AND ORDER
DENISE COTE, District Judge:
On July 20, 2018, plaintiff Connie Bertram1 moved for relief
from this Court’s June 29, 2018 Order pursuant to Rule 60(b)(1),
Fed. R. Civ. P.
She claims that because of “a clerical mistake,
[p]laintiff never received notice of the Court’s orders”
requiring her to submit briefing or dismissing this case.
For
the following reasons, the Rule 60(b)(1), Fed. R. Civ. P.,
motion is denied.
BACKGROUND
This proceeding arises out of a litigation pending in the
United States District Court for the District of Columbia
between plaintiff Connie Bertram and defendant Proskauer Rose
LLP (“Proskauer”).
901-ABJ (D.D.C.).
Bertram v. Proskauer Rose LLP, No. 17-cvAfter a mediation to resolve that dispute,
Bertram served subpoenas on the mediator, Carol A. Wittenberg
(“Wittenberg”), and the mediation organization, JAMS, Inc.
(“JAMS”).
Bertram claimed that during the mediation, Proskauer
made a retaliatory threat to terminate her from her partnership.
Her subpoenas sought Wittenberg’s notes, and “all other
documents which memorialize or reference alleged threats or
statements made by Defendant Proskauer Rose LLP, its
Plaintiff previously was proceeding pseudonymously as “Jane
Doe.” As her name has apparently been unsealed in the main
litigation, and was filed openly in plaintiff’s motion, this
Memorandum Opinion will refer to her by her actual name.
1
2
representatives, or its agents to terminate Plaintiff from the
Proskauer Rose LLP law firm.”
On June 16, 2017, JAMS and
Wittenberg moved this Court to quash the subpoenas.
After briefing and argument, this Court granted the motion
to quash.
The Court found not only that the mediation agreement
signed by the parties supported quashing that subpoenas, but
also that “strong public policy reasons” necessitated that
result.
Those rulings were memorialized in a July 28, 2017
Order.
Both sides appealed.
On April 26, 2018, the Second Circuit
remanded this case pursuant to United States v. Jacobsen, 15
F.3d 19, 22 (2d Cir. 1994).
The Second Circuit instructed this
Court to conduct an in camera review of Wittenberg’s notes “to
determine whether [JAMS and Wittenberg] have effectively
responded to the subpoenas.”
In re JAMS, Inc., 720 F. App’x
653, 654 (2d Cir. 2018) (summary order).
It also instructed
this Court to “consider, whether, based on the representations
of appellees at oral argument and [this Court’s] review of the
contents of Wittenberg’s notes, this case is moot.”
Id.
The
mandate issued on May 17, 2018.
A May 24 Order required JAMS and Wittenberg to supply
copies of Wittenberg’s notes for in camera review.
The notes
were transmitted by letter of May 25 and received in Chambers on
May 29.
On May 29, Bertram’s counsel filed a letter on this
3
Court’s ECF Docket claiming that “JAMS’ [May 25] letter engages
in improper and unnecessary commentary.”
A June 8 Order required both parties by June 18 to
simultaneously brief the question of whether, if the in camera
review of Wittenberg’s notes showed that the notes did not
reference or memorialize any alleged threat, the case was moot.
On June 15, counsel for Wittenberg and JAMS submitted a brief on
this Court’s ECF Docket, and served that brief on plaintiff’s
counsel by electronic mail.
Plaintiff’s counsel did not file a
brief.
A June 29 Order dismissed this case as moot.
The Order
determined that the Wittenberg’s notes do not reference or
memorialize any alleged threat made by Proskauer to terminate
Bertram.
It also took note of the suggestion at oral argument
before the Second Circuit that the subpoenas had effectively
become limited to any notes or other documents that referenced
or memorialized any threats.
Accordingly, because JAMS and
Wittenberg had responded to the subpoena as so-limited, the case
was required to be dismissed as moot.
On July 11, 2018, Bertram filed a letter on this Court’s
ECF Docket seeking permission to file a redacted version of a
proposed motion for relief under Rule 60(b), Fed. R. Civ. P.
This Court approved the proposed redactions on July 12, 2018.
It was not until July 20, however, that Bertram filed the
4
motion, after making so-called “very minor edits” to the public
portion of the motion.
According to Bertram, due to a “clerical mistake” by this
district’s “Clerk’s office . . . Plaintiff’s counsel is not
currently entered into the case” and her counsel “never received
the Court’s June 8 order.
Nor did Plaintiff’s counsel receive
the Court’s June 29 Order dismissing this case as moot.
In
fact, Plaintiff’s counsel only learned of the dismissal, and the
prior order, inadvertently on July 5, 2018.”
In a footnote,
however, which appears to be the “very minor” edit, Bertram’s
counsel admits that they had received JAMS’s and Wittenberg’s
June 15 brief directly from their counsel.
The “clerical mistake” is described by Bertram as follows:
Despite filing a notice of appearance on June 30, 2017,
Bertram’s counsel claims to have been “removed” from ECF’s
notification system by the Clerk’s Office due to a “clerical
mistake.”
As a result, Bertram’s counsel did not receive
electronic notices of recent docket events, despite having
received such notices earlier in this case.
system records tell a different tale.
This district’s ECF
They show that Bertram’s
counsel never received e-mailed notices of electronic filing at
any point during this case, and was not recently “removed” from
5
receiving them.2
Office.
Nor was there error on the part of the Clerk’s
When Bertram’s counsel filed a notice of appearance in
June 2017, he failed to correctly associate himself with the
party he represented:
his notice of appearance was associated
with the caption of the case rather than a particular party,
which caused him not to be listed on the docket and not to
receive any e-mailed notices of electronic filing.
DISCUSSION
Rule 60(b)(1), Fed. R. Civ. P., provides that a “court may
relieve a party . . . from a final judgment, order, or
proceeding for . . . mistake, inadvertence, surprise or
excusable neglect.”
Bertram contends that the judgment should
be vacated because of her counsel’s “excusable neglect.”
The
Supreme Court has held that such motions are to be considered in
light of four factors:
“‘[1] the danger of prejudice to the
[non-movant], [2] the length of the delay and its potential
impact on judicial proceedings, [3] the reason for the delay,
including whether it was within the reasonable control of the
movant, and [4] whether the movant acted in good faith.’”
When an appeal is taken to the Second Circuit Court of Appeals,
an electronic copy of this Court’s docket is uploaded to the
Second Circuit’s docket. In this case, a copy of the notice of
electronic filings from the notices of appeal were also
included. The Second Circuit’s docket from the appeal from this
case confirms that notices of electronic filing were not being
mailed to Bertram’s counsel from this Court, nor was he listed
on this Court’s docket when the appeals were taken. See In re
JAMS, Inc., 720 F. App’x 653, No. 17-2607, Dkt. 4-2 and 18-2 (2d
Cir. 2018).
2
6
Silvanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir.
2003) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs.
L.P., 507 U.S. 380, 395 (1993)) (alterations in original).
The
Second Circuit has said that “[i]n the typical case, the first
two Pioneer factors will favor the moving party,” id., and that
“rarely . . . is the absence of good faith at issue.”
Id.
Therefore, “despite the flexibility of ‘excusable neglect’ and
the existence of the four-factor test in which three of the
factors usually weigh in favor of the party seeking the
extension, we and other circuits have focused on the third
factor: the reason for the delay, including whether it was
within the reasonable control of the movant.”
Id. (citation
omitted).
This case is a typical case:
factors generally favor Bertram.
does not.
the first, second, and fourth
The third factor, however,
This Court’s ECF Rule 9.1 states that “[i]t remains
the duty of Filing and Receiving Users to . . . regularly review
the docket sheet of the case.”
provides that:
ECF Instruction 13.14 further
“[E]-mail is not infallible.
It remains the
duty of Filing and Receiving Users to regularly review the
docket sheet of the case in order not to miss a filing.”
And,
whenever an attorney logs in to this Court’s ECF system,
emblazoned on the home page of that system is the text
“Important Note - ‘It remains the duty of the attorney for a
7
party to review regularly the docket sheet of the case.’ (SDNY
ECF Rule #9).”3
In this case, by Bertram’s counsel’s own admission, they
failed to check the docket of this case for at least a four-week
period, from June 8, 2018 to July 5, 2018, which was the period
immediately following this Court’s receipt of the approximately
15 pages of notes for in camera review.
There appears to have
been no clerical mistake on the part of this district’s Clerk’s
Office -- the error appears to have originated from Bertram’s
counsel.
More importantly, the records of this district’s ECF
system and the Second Circuit’s docket show that Bertram’s
counsel never received e-mailed notifications of docket events
from this Court in this case.
Bertram’s counsel should have
contacted this district’s ECF Help Desk to rectify the
situation, and ensured that he was regularly checking the docket
sheet of the case.
Moreover, JAMS and Wittenberg’s counsel e-
ECF Instruction 20.2 also provides the following Question and
Answer:
20.2 If the attorney’s name is on the docket sheet why
doesn’t the attorney receive e-mail notification of
filings?
It could be because the attorney’s name was added to
the docket sheet before the attorney obtained an ECF
password. In that case the attorney’s name and firm
address will appear at the top of the docket sheet,
but the e-mail address will be missing. If this is
the case the solution is to obtain an ECF password.
Or it could be because the attorney filed a Notice of
Appearance but failed to check the “Notice” box when
creating an association with the client. In this
case, call the ECF Help Desk at (212) 805-0800.
3
8
mailed a copy of their June 15 brief to Bertram’s counsel.
Although Bertram’s counsel does not recall receiving that brief,
there has been no reason provided for why that should not have
been additional notice to Bertram’s counsel of the June 18
filing deadline.
Two other factors bear on the disposition of this motion.
First, Bertram’s counsel claims that “Plaintiff took action to
vacate the judgment within days of learning that she never
received notice of the Court’s orders.”
It appears that from
July 5 to July 11, Bertram was likely preparing the motion.
But
there has been no explanation provided for the delay from July
12, when the redactions were approved, to July 20, when the
motion was actually filed.
Second, Bertram has not identified any prejudice from her
lack of an opportunity to submit a brief prior to the June 29
Order disposing of the motion.
She has not provided even a
preview of the argument she would have made, or in any way
explained how this Court’s June 29 Order was incorrect.
It is always an unfortunate result when the errors of
counsel must be visited on their client.
But, when counsel does
not even attempt to describe the arguments that might be made if
the error were excused, there is no reason to hesitate in
applying the Pioneer factors and denying the request.
Rule
60(b)(1), Fed. R. Civ. P., does not permit the relief sought
9
here.
CONCLUSION
Bertram’s July 20, 2018 motion for relief from the June 29,
2018 Order pursuant to Rule 60(b)(1), Fed. R. Civ. P. is denied.
SO ORDERED:
Dated:
New York, New York
July 24, 2018
__________________________________
DENISE COTE
United States District Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?