ACCURSO v. INFRA-RED SERVICES, INC. et al
MEMORANDUM AND/OR OPINION RE: PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT 195 IS GRANTED. THE COURT'S JULY 24, 2021 ORDER IS VACATED. THE CLERK OF COURT SHALL REOPEN THIS CASE. SIGNED BY THE HONORABLE GENE E.K. PRATTER ON 9/7/2021. 9/7/2021 ENTERED AND COPIES E-MAILED.(sfl, )
Case 2:13-cv-07509-GEKP Document 198 Filed 09/07/21 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Plaintiff & Counterclaim Defendant
DEFENDANTS SERVICES, INC. et al.,
Defendants & Counterclaim Plaintiffs
A jury concluded that Brian Land, Audrey Strein, and their three companies Infra-Red
Services, Inc., Roofing Dynamics Group, LLC, and Roofing Dynamics, Inc. (collectively
"Defendants") violated the Pennsylvania Wage Collection and Payment Law. After the Court
denied the parties' post-trial motions, both parties appealed. The Third Circuit Court of Appeals
affirmed in part the Court's order and reversed in part only on the issue of attorneys' fees and
costs. On remand, after the Estate of Peter Accurso ("Plaintiff') failed to comply with several of
the Court's orders, and Defendants moved to dismiss for failure to prosecute, the Court dismissed
the remaining case for failure to prosecute. Plaintiff now moves for relief from the Court's order
dismissing his case. Defendants oppose the motion.
The Court will grant Plaintiffs motion for relief.
Because the Court writes for the benefit of the parties, this Memorandum assumes their
basic familiarity with the facts of their case, albeit the events occurred some time ago. This case
was tried to a jury in April 2016 and a verdict was reached, which in part found that Defendants
violated the Pennsylvania Wage Payment and Collection Law (WPCL). Plaintiff filed a motion
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for attorneys' fees, costs, liquidated damages, and prejudgment interest. The Court later denied
the parties' post-trial motions. Doc. Nos. 180, 181. Timely appeals followed.
The Third Circuit Court of Appeals affirmed in part and reversed in part the Court's
February 15, 2018 Order. The appellate court reversed the portion of the Court's order that denied
Plaintiffs request for attorneys' fees. On remand, this Court ordered Plaintiff to submit a petition
for attorneys' fees and costs with respect to his WPCL claim, in accordance with the appellate
court's opinion, on or before May 22, 2020. Doc. No. 187. Several days after that deadline had
passed, Plaintiff had not yet submitted a fee petition. The Court then gave Plaintiff until June 12,
2020 to comply with the Court's prior order. Doc. No. 188. Defendants filed a motion to dismiss
for failure to prosecute, which was later amended. Doc. No. 190. After the Court still had not
received any response from Plaintiff, the Court then gave Plaintiff until July 21, 2020 to comply
with its prior orders, noting that the failure to do so could result in the Court dismissing the case
for failure to prosecute. Doc. No. 192. Plaintiff still did not comply with the Court's order. As a
result, the Court granted Defendants' amended motion and dismissed the attorneys' fee claim for
failure to prosecute. Doc. No. 193.
Plaintiff now moves under Rule 60(b) for relief from the Court's July 24, 2020 Order
dismissing this case for failure to prosecute.
LEGAL ST AND ARD
Under Federal Rule of Civil Procedure 60(b )(1 ), a party may move for relief from a final
judgment or order if there was "mistake, inadvertence, surprise, or excusable neglect." Such a
motion must be made within a reasonable time and, if made for the reasons provided for in Rule
60(b)(l)-(3), no more than one year after the entry of the judgment or order. Fed. R. Civ. P.
60(c)(1 ). When analyzing a claim for excusable neglect, "factors to be considered are 'the danger
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of prejudice to the [non-movant], the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the reasonable control of
the movant, and whether the movant acted in good faith."' Stitzel v. Guarini, No. 03-cv-4 760,
2006 WL 1805972, at *5 (E.D. Pa. June 27, 2006) (alteration in original) (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P 'ship, 507 U.S. 380, 395 (1993)). The Third Circuit Court
of Appeals has held that the Supreme Court's four-factor analysis of excusable neglect in Pioneer,
which involved a bankruptcy rule, also applies to Rule 60(b ). George Harms Const. Co. v. Chao,
371 F.3d 156, 163 (3d Cir. 2004). Additionally, "[a] district court must consider each of the four
Pioneer factors and the totality of the circumstances." Kohl's Dep 't Stores, Inc. v. Levco-Route
46 Assocs., L.P., 121 F. App'x 971, 974 (3d Cir. 2005).
Motion for Relief from Judgment
Plaintiff asks this Court for relief from its July 24, 2020 Order which dismissed this case
for failure to prosecute. Plaintiff contends that the failure to comply with the Court's previous
orders was due to inadvertence and mistake. Plaintiff argues that Eric Marttila, Esq., the initial
counsel in this matter, failed to update his email address on the Court's electronic filing system
(after his firm merged with High Swartz) and then, while the case was on appeal, Mr. Marttila
resigned from High Swartz. 1 When Mr. Marttila left the firm, James Shrimp, Esq. of High Swartz
entered his appearance on behalf of Plaintiff before the Third Circuit Court of Appeals and argued
the case on appeal. However, Plaintiff contends that neither Mr. Shrimp nor any other High Swartz
Perhaps emblematic of the issues discussed in Mr. Accurso's motion, Mr. Marttila is still actively
listed as one of Plaintiffs attorneys on the Court's electronic filing system, including with his prior email
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attorney entered an appearance on Plaintiffs behalf on this Court's docket due to excusable
Plaintiff also asserts that the timing of the appellate court's March 30, 2020 decision, which
was issued just as workplace restrictions were announced by the Commonwealth due to the
COVID-19 pandemic, also contributed to Plaintiffs counsel's inadvertence and mistake. Plaintiff
argues that, because no current High Swartz attorney had entered an appearance before this Court,
and because Mr. Marttila never registered a High Swartz email address, Plaintiff and counsel never
received or had notice of the Court's previous orders. Plaintiff contends that it did not learn of any
of the Court's orders until attempting to file a supplemental petition for attorneys' fee and costs.
Plaintiffs counsel represents that "High Swartz would not have knowingly or intentionally ignored
multiple orders of this Court requiring the submission of briefing and other factual materials. " 2
Doc. No. 195-2 at 3-4.
Defendants argue that Plaintiffs alleged inadvertence and mistake are "irrelevant" because
Mr. Shrimp appeared before the Third Circuit Court of Appeals, presented oral argument, and
received notice of the appellate court's March 30, 2020 decision. Doc. No. 197-1 at 2. Defendants
assert that any attempt to blame the COVID-19 pandemic "ring[s] hollow in light of Mr. Shrimp's
active practice of law" during that time. Defendants attached to their opposition copies of dockets
for cases in which Mr. Shrimp had entered an appearance and filed documents.
maintain that none of the Pioneer factors weigh in Plaintiffs favor.
High Swartz contends that its failure to enter an appearance on this Court's docket while the case
was on appeal was due to inadvertent, excusable neglect. Doc. No. 195 at 5. High Swartz also maintains
that it took reasonable measures to avoid such a situation by automatically forwarding any emails intended
for Mr. Marttila (at his High Swartz email address) to a partner at the firm to review and monitor after he
left but that Mr. Marttila never updated his email address on the Court's electronic filing system to reflect
his new High Swartz email address after the firm merger. Id.
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Danger of Prejudice to the Non-Moving Party
Plaintiff argues that there is no danger of prejudice to Defendants because Plaintiff had
previously filed a motion for attorneys' fees and costs after trial, and that this fee request, which
was based on Plaintiff's successful WPCL claim, was one of the primary issues on appeal. Thus,
Plaintiff argues that there is no surprise or prejudice to Defendants. Doc. No. 195-2 at 5.
In response, Defendants contends that Plaintiff "caught everyone by surprise by randomly
filing [this] motion out of nowhere" and that the interest of finality weighs in Defendants' favor.
Doc. No. 197-1 at 4. Defendants argue that, as small businesses, they have been impacted by the
pandemic and had braced themselves for another large expense after the appellate court's decision
in this case. As a result, they argue that the Court's order dismissing this case allowed Defendants
to make some "beneficial business and financial decisions." Doc. No. 197-1 at 5.
The Court certainly appreciates Defendants' "real world" arguments as to prejudice. And,
as a threshold matter, the Court is not necessarily impressed at all by Plaintiff's explanation for
why counsel failed to follow the Court's repeated orders concerning the filing of a fee petition.
That said, and in spite of all that, the Third Circuit Court of Appeals remanded this case for the
Court to address Plaintiff's request for attorneys' fees and costs on the WPCL claim. Here, there
does not seem to be any lasting prejudice that would befall Defendants by vacating the prior order
and allowing Plaintiff one last chance to outline a proper claim for attorneys' fees and costs.
Certainly such an outcome is not in Defendants' favor, but "the loss of an advantageous ruling [is]
not sufficiently prejudicial to deny relief under [Rule] 60(b )." Stitzel, 2006 WL 1805972, at *6.
Furthermore, Defendants will still have an opportunity to respond to the petition for attorneys' fees
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Thus, the Court finds that this factor, and the lack of fundamental prejudice to
Defendants, weighs in favor of Plaintiff.
Length of Delay and Impact on Judicial Proceedings
Plaintiff did not file this motion for relief until four months after the Court dismissed the
case for failure to prosecute. Plaintiff represents that upon discovering the Court's earlier orders
and subsequent dismissal, Plaintiff filed a Rule 60(b) motion the next day. Doc. No. 195-2 at 5.
And Plaintiff argues that despite this delay, there has been little to no impact on these proceedings
because the case has already been tried before a jury on the merits and the remaining liability issues
were addressed on appeal. Thus, Plaintiff contends that the only unresolved issue is the attorneys'
fees and costs on its WPCL claim.
Defendants argue that four months after the Court closed this case is much too long to seek
relief and weighs against reopening this case. Doc. No. 197 at 6.
In another case's holding that a three-week "delay was trivial in light of the one-year outer
limit for bringing a Rule 60(b) motion," the Third Circuit Court of Appeals also observed that it
had previously concluded that a "two-month delay was insignificant as a matter of law." In re
Cendant Corp. PRIDES Litig., 235 F.3d 176, 183 (3d Cir. 2000) (citing In re O'Brien Env 't
Energy, Inc., 188 F.3d 116, 130 (3d Cir. 1999)). The appellate court later highlighted, when
commenting on Cendant and O'Brien, that "the parties moving for relief from judgment [in those
cases] were not aware of the grounds for relief from judgment until shortly before they brought
their 60(b) motions." Kohl's, 121 F. App'x at 975 (affirming denial of Rule 60(b) motion based
on four-month delay where Kohl's waited too long to file its motion despite opposing party
"repeatedly remind[ing] Kohl's that May's consent remained outstanding").
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There is no bright-line rule as to when a period of time becomes an unreasonable delay.
That said, a motion under Rule 60(b )(1 )-(3) must be made no later than one year after the entry of
judgment or order. Here, Plaintiff did not move for relief under Rule 60(b )( 1) until four months
after the Court dismissed his case. While Plaintiffs explanation and excuse may indeed be rather
lame, the Court does not find that in an absolute sense the four-month delay here was unreasonable
in light of Plaintiffs and counsel's representation that immediately after discovering that they had
failed (albeit all of their own doing and through no fault of their opponent, the Court, or anyone
else) to comply with the Court's previous orders and that the Court had dismissed the case, they
filed their motion for relief under Rule 60(b )(1 ).
Reason for the Delay
Plaintiff argues that due to inadvertence or excusable neglect, there was no High Swartz
attorney entered as counsel on its behalf on this Court's docket. As stated above, Mr. Marttila left
High Swartz while this case was on appeal. High Swartz claims that it took reasonable steps to
avoid such a situation from occurring by automatically forwarding all emails intended for Mr.
Marttila to a firm partner to review and monitor.
However, whatever system the firm had
obviously failed to work as intended because Mr. Marttila's registered email address in this case
was for his former firm, not his High Swartz email address, and he had never updated it prior to
leaving the firm. Thus, given its faulty "system", High Swartz contends that they did not receive
any notice of the Court's orders.
Defendants respond that "[t]he reason for the delay in this case is not because of some
email snafu," but rather, they correctly argue, that the delay was the result of counsel's failure "to
think about this case for eight months after the Third Circuit ruled in his client's favor and directed
that he and his firm could file for attorneys' fees." Doc. No. 197-1 at 6.
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That Mr. Shrimp failed to check this Court's docket at any time after securing a partial
appellate victory for his client is certainly embarrassing to him and to his firm. However, the Court
acknowledges that when the appellate court issued its decision, the effects of the global pandemic
were just beginning to be felt-including office closings and work from home routines that were
just getting underway. But litigation still continued. Here, it appears that a perfect storm occurred
in which Mr. Marttila never updated his email address, left the firm, and no other attorney ever
entered an appearance on this Court's docket. Such a practice is ill-advised and obviously warrants
future precautions, if only as a rudimentary loss prevention matter. That said, the Court finds that
the neglect here on the part of Plaintiff, its counsel, and counsel's firm amounts to the kind of
neglect under these circumstances that can actually happen to many well-meaning professionals.
Of course, such a series of unfortunate events could be avoided entirely in the future so long as
attorneys actively monitor the dockets of their cases. Such is the nature of excusable neglect.
Though it will be of only cool comfort to defense counsel here, the paraphrased admonitions "He
who lives by the sword shall die by the sword," Matthew 26:52, and "There but for the grace of
God go I," John Bradford, OXFORD ENGLISH DICTIONARY (4th ed. 1992), are applicable. This
factor also weighs in favor ofletting Plaintiff have another opportunity.
Plaintiff and his counsel maintain that this motion was filed in good faith as soon as it
discovered that no current attorney of High Swartz was entered on the docket, that several Courtordered deadlines were missed, and that the case was closed. Plaintiff maintains that it did not
learn that the case had been dismissed until counsel was about to file a supplemental fee petition.
Plaintiffs counsel admit that they made inadvertent errors and mistakes, but they contend that they
would not knowingly or intentionally ignore this Court's orders. Doc. No. 195-2 at 8.
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Defendants point to Plaintiffs counsel's active litigation in a number of other cases as
support for their contention that counsel has acted in bad faith here by not entering his appearance
in this case on this Court's docket. They contend that it was "reckless" for Plaintiffs counsel to
fail to enter his appearance after receiving an appellate ruling in his client's favor.
When the Court dismissed this case, it did so upon a finding that the Plaintiffs "failure to
comply was willful, is the sole responsibility of Plaintiff, and has prejudiced the opposing parties
in moving this case forward," and because the delay had been repeated, no alternative sanctions
other than dismissal were appropriate at the time. Doc. No. 193. Having now again analyzed
Plaintiffs motion for relief, it appears the Court's orders went unnoticed because no attorney of
record had an active email address registered on the Court's electronic filing system. And,
apparently due in part to the pandemic (which is, of course, fast becoming the favorite explanation
for many missteps) and the neglect of both Mr. Shrimp and his firm, no one reviewed this Court's
docket. Although the Court takes it quite seriously when its orders are ignored and finds Plaintiffs
excuse rather unsatisfactory, the Court nonetheless concludes that Plaintiff has not acted in bad
This case is an example of what happens when technology, coupled with casual
assumptions, are relied upon to a fault and goes to show the importance of actively checking the
dockets of the cases one manages. The computer simply is no substitute for professionalism. Here,
however, the Court will conclude that Plaintiffs failure to comply with the Court's earlier orders
should again be excused under the Pioneer factors which weigh in favor of granting Plaintiffs
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motion. Accordingly, the Court will vacate its previous order, reopen this case, and instruct
Plaintiff to file its fee petition. An appropriate order follows.
UNITED STATES DISTRICT JUDGE
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