Henry v. Abbott Laboratories

Filing 22

REPORT AND RECOMMENDATIONS: The Magistrate Judge RECOMMENDS that Plaintiff's 10/19/2013 motion to reinstate her case 17 and her 11/21/2013 motion for leave to file a reply or supplemental motion for relief from judgment instanter 20 be GRANTED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 01/03/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Delphine Henry,

:
Plaintiff

Defendant

Judge Smith

:

Abbott Laboratories,

Civil Action 2:12-cv-00841

:

v.

:

Magistrate Judge Abel

:

Report and Recommendation
This matter is before the Magistrate Judge on plaintiff Delphine Henry’s October
29, 2013 motion to reinstate her case (doc. 17) and her November 21, 2013 motion for
leave to file a reply or supplemental motion for relief from judgment instanter (doc. 20).
Background. This action was originally filed on September 13, 2012. At the time
the complaint was filed, plaintiff was represented by attorney Michael Todd Bivens. On
October 24, 2012, Mr. Bivens filed a motion to withdraw as counsel. See doc. 9. Mr.
Bivens provided a last known address and telephone number for plaintiff. Plaintiff
signed an “Acknowledgment of Withdrawal” which indicated that the motion to
withdraw had been served by regular mail to plaintiff at 293 Preswicke Mill, Blacklick,
Ohio. On October 26, 2012, the motion was granted, and plaintiff was instructed to
retain new counsel within 28 days or to file a statement with the Court indicating her
intent to represent herself. See doc. 10.
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On November 16, 2012, a preliminary pretrial conference was noticed. The notice
was sent to plaintiff at the Preswicke Mill address. On November 16, 2012, plaintiff
telephoned my office and requested additional time in which to locate new counsel. The
Order granting her request for additional time stated that the preliminary pretrial
conference would go forward as scheduled. The Order was also sent to the Preswicke
Mill address. See doc. 12.
Plaintiff failed to appear for the preliminary pretrial conference or respond to the
Court’s Order to Show Cause. On January 16, 2013, this case was dismissed.
Arguments of the Parties. Plaintiff maintains that it was not until October 2013
that she learned of the dismissal of her case. Plaintiff submitted an affidavit detailing
her interactions with her former attorney, William Patmon, III. Plaintiff hired Mr.
Patmon in December 2011. Pl.’s Aff. at ¶ 1. Plaintiff met Mr. Patmon at various times in
2011 and 2013. Id. at ¶3. Plaintiff received her right to sue letter in June 2012. Id. at ¶4.
On September 12, 2012, plaintiff’s husband received an email from Mr. Patmon’s office
manager advising plaintiff that she had until September 13, 2012 in which to file a
lawsuit and that attorney Michael Bivens would be filing the case. Id. at ¶5. Mr. Patmon
informed plaintiff that he could no longer represent her because he was being
appointed to the Civil Rights Commission and that Mr. Bivens would be representing
her. Id. at ¶6. Mr. Bivens filed the case on September 13, 2012, and he filed a motion to
withdraw as counsel on October 24, 2012. Id. at ¶¶7-8.

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After Mr. Bivens withdrew, plaintiff states that she contacted Mr. Patmon, who
advised her to ask the Court for additional time in which to locate a new attorney. Id. at
¶10. When plaintiff was unable to locate new counsel, Mr. Patmon agreed to represent
her and indicated his belief that he could negotiate a settlement. Id. at ¶13. Plaintiff met
with a paralegal in Mr. Patmon’s office in February 2013 and had documents associated
with her case sent to him. Id. at ¶¶15-17. Plaintiff had periodic contact with Mr.
Patmon’s office. Id. at ¶18. In October 2013, Mr. Patmon informed plaintiff that the
Court had been sending orders to her previous address and that he needed documents
demonstrating that she no longer lived at that address. He also told plaintiff he was still
trying to reach a settlement. Id. at ¶21. On October 25, 2013, Mr. Patmon gave her a
letter stating that her case had been dismissed and advised her to file a motion to
reinstate the case. Id. at ¶23. From November 2012 until October 25, 2013, plaintiff
believed that Mr. Patmon was representing her in this case. Id. at ¶26. Plaintiff was not
aware that Mr. Patmon had not filed a notice of appearance in this case. Id. at ¶28.
Plaintiff seeks relief under Rule 60(b)(1) of the Federal Rules of Civil Procedure.
Plaintiff maintains that she did not willfully ignore the Court’s order and that her
failure to act was the result of mistake, inadvertence and/or excusable neglect. Plaintiff
maintains that when she learned that Mr. Bivins was withdrawing from the case, she
took immediate action and sought additional time in which to find an attorney.
Plaintiff further maintains that she did not understand the implication of the last
known address listed on Mr. Biven’s motion to withdrawal. Furthermore, plaintiff
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believed that she was being represented by Mr. Patmon, and she believed that her case
was proceeding accordingly. Anytime plaintiff was personally aware of something that
she was supposed to do, she took prompt action. Plaintiff further argues that her case
falls within the circumstances contemplated by Rule 60(b)(6). Here, the neglect was on
the part of plaintiff’s counsel, not plaintiff warranting extraordinary relief.
Defendant argues that plaintiff’s attempt to reinstate her lawsuit should be
denied because she failed to offer sufficient justification for why she failed to keep the
Court informed as to her current address and why she signed a document filed with the
Court indicating a purportedly wrong address. Defendant also argues that plaintiff’s
allegations concerning Mr. Patmon are without merit. Plaintiff failed to attach an
engagement letter or other proof that she complied with the Court’s Order that she
retain new counsel. Defendant also contends that the gross neglect on the part of
counsel is generally not enough to set aside a judgment under Rule 60(b)(1) on the basis
of excusable neglect. When a client chooses an attorney as her representative, she
cannot avoid the consequences of the acts or omissions of her agent.
Discussion. Rule 60(b)(1) permits a court to relieve a party from a final judgment
order or proceeding on the basis of mistake inadvertence, surprise, or excusable neglect.
Here, plaintiff’s conduct constitutes excusable neglect. Generally, relief should be
granted under Rule 60(b)(6) only in unusual circumstances where principles of equity
mandate relief, Olle v. Henry & Wright Corp., 910 F. 2d 357, 365 (6th Cir. 1990), and the

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district court’s discretion to deny relief under 60(b)(6) is particularly broad. McDowell v.
Dynamics Corp., 931 F. 2d 380, 383 (6th Cri. 1991).
Although it is the responsibility of litigants to keep the Court informed as to their
current contact information, plaintiff believed that she was represented by counsel and
had no reason to expect that the Court would be contacting her. It appears that plaintiff
never received any of the orders that were mailed to her. Plaintiff asserts that given her
interaction with the attorney she believed was representing her in this action, she
believed that her case was proceeding as it should. Although plaintiff fails to identify
why she failed to correct the address provided to the Court in the motion to
withdrawal, once this error was made, she received no further communication alerting
her to the fact that no attorney had filed a notice of appearance on her behalf. As a
result, plaintiff was not aware of the scheduled preliminary pretrial conference, and she
assumed that any communications from the Court would be sent to Mr. Patmon.
The law in the United States Court of Appeals for the Sixth Circuit is that:
Relief from a judgment pursuant to Rule 60(b)(6) “is appropriate to
accomplish justice in an extraordinary situation....” Overbee v. Van Waters
& Rogers, 765 F.2d 578, 580 (6th Cir.1985). “[A] motion made under Rule
60(b)(6) is addressed to the trial court's discretion which is ‘especially
broad’ given the underlying equitable principles involved.” Hopper v.
Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir.1989) (citing
Overbee, 765 F.2d at 580; Matter of Emergency Beacon Corp., 666 F.2d 754, 760
(2d Cir.1981)). Despite the “broad” discretion that courts enjoy to grant
relief under Rule 60(b)(6), such relief is warranted “only in exceptional or
extraordinary circumstances which are not addressed by the first five
numbered clauses of [Rule 60(b)].” Hopper, 867 F.2d at 294.
Johnson v. Dellatifa, 357 F.3d 539, 543 (6th Cir. 2004).
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The question here is whether plaintiff Henry is entitled to relief from the
judgment because she did all that she could reasonably be expected to do but was
allegedly misled by her attorney into believing he was looking out for her interests.
Defendant has offered no evidence to controvert Henry’s allegations that Patmon
misled her into believing he was handling the lawsuit for her. Under these
circumstances, a plaintiff has made a sufficient showing for the court to grant the Rule
60(b)(6) motion to vacate judgment. Fuller v. Quire, 916 F.2d 358, 361 (6th Cir. 1990);
Doyle v. Mutual of Omaha Ins. Co., 504 Fed.Appx. 380, **4 (6th Cir. Nov. 2, 2012). But see,
Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845 (7th Cir. 2009).
Conclusion. For the reasons stated above, the Magistrate Judge RECOMMENDS
that plaintiff Delphine Henry’s October 29, 2013 motion to reinstate her case (doc. 17)
and her November 21, 2013 motion for leave to file a reply or supplemental motion for
relief from judgment instanter (doc. 20) be GRANTED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
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Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel
United States Magistrate Judge

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