Ferguson v. Sniezek et al

Filing 110

MEMORANDUM re MOTION for Relief from Judgment 102 filed by John Ferguson (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 10/7/15. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN FERGUSON,
Plaintiff
v.
T.R. SNIEZEK, et al.,
Defendants

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CIVIL NO. 1:CV-10-02638
(Judge Rambo)

MEMORANDUM
Before the court is a motion for relief from judgment pursuant to Rule 60(b)
of the Federal Rules of Civil Procedure, filed by Plaintiff John Ferguson’s son,
Christopher Ferguson. (Doc. 102.) In the motion, Mr. Ferguson requests that the
court vacate its June 26, 2014 memorandum and order (Docs. 96 & 97) striking the
motion to substitute party, filed by Pamela Varnam, a non-attorney representative
of Plaintiff. For the reasons that follow, the motion for relief from judgment (Doc.
102) will be denied.

I.

Background
On December 27, 2010, Plaintiff, through counsel, filed this action, raising

Bivens claims and related claims under the Federal Tort Claims Act (“FTCA”).
(Doc. 1.) In the complaint, Plaintiff asserted that Defendants were deliberately
indifferent to his serious medical needs related to his cataracts in both eyes and

resulting aggravation of his anxiety disorder. On July 18, 2011, Defendants filed a
motion to dismiss and for summary judgment. (Doc. 20.) After several extensions
and other delays,1 on July 30, 2013, the court granted summary judgment in favor
of Defendants and directed the Clerk of Court to close the case. (Doc. 75.)
Plaintiff did not timely file an appeal and, unfortunately, died on October 4, 2013.
(See Doc. 80 ¶ 8.)
On January 21, 2014, Ms. Varnam filed a motion for substitution of proper
party (Doc. 78) with a supporting brief (Doc. 79), as well as a suggestion of death
of Plaintiff John Ferguson (Doc. 80), a durable power of attorney (Doc. 81), and
two declarations (Docs. 77 & 82). In her filings, Ms. Varnam informed the court
that Plaintiff died on October 4, 2013. After the parties responded and replied to

After Defendants filed their brief in support of the motion to dismiss and for summary
judgment on August 5, 2011, (Doc. 31), on September 7, 2011, the court directed Plaintiff’s
counsel to file a brief in opposition on or before September 20, 2011, (Doc. 33). On September
21, 2011, Plaintiff’s counsel filed a motion to enlarge the opposition deadline. (Doc. 36.) The
court granted Plaintiff’s motion that same day and directed Plaintiff to file his opposition by
October 4, 2011. (Doc. 37.) On September 26, 2011, Plaintiff filed a pro se motion to defer
judgment on Defendants’ dispositive motion due to his counsel’s lack of response to the court
orders and deadlines. (Doc. 39.) Further, on September 30, 2011, Plaintiff’s counsel filed a
motion to withdraw. (Doc. 40.) Thereafter, by order dated October 3, 2011, the court granted
the motion to withdraw and set the following deadlines: Plaintiff had until November 15, 2011 to
obtain new counsel; and his opposition to Defendants’ dispositive motion was due by December
5, 2011. (Doc. 41.) After three enlargements of time, Plaintiff filed his opposition to
Defendants’ dispositive motion on the same day that the court entered an order closing the case
due to Plaintiff’s failure to file a timely opposition. (Docs. 61 & 63.) Plaintiff filed a motion for
reconsideration, (Doc. 69), which the court granted by order dated May 17, 2012, (Doc. 71).
After Defendants filed their reply brief, (Doc. 74), the court granted summary judgment in favor
of Defendants by memorandum and order dated July 30, 2013, (Doc. 75).
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the motion, by memorandum and order issued on June 26, 2014, the court ordered
the motion to substitute party stricken from the record. (Docs. 96 & 97) (“June
2014 order”). Specifically, the court found that the motion should be stricken
because Ms. Varnam is not permitted to represent Mr. Christopher Ferguson pro se
in federal court due to her status as a non-attorney, or “attorney-in-fact.”
Thereafter, on April 8, 2015, Mr. Ferguson filed the instant motion for relief
from judgment. (Doc. 102.) In the motion, Mr. Ferguson seeks to have the court
vacate the June 2014 order striking the motion to substitute party and, instead,
decide the motion to substitute on the merits. Defendants have filed a brief in
opposition (Doc. 106), and Mr. Ferguson has filed a reply, (Doc. 109). Thus, the
motion for relief from judgment (Doc. 102) is ripe for disposition.

II.

Discussion
Rule 60(b) provides, in pertinent part:
On motion and just term s, the co urt may relieve a pa rty or its legal
representative from a final j udgment, order, or proceeding 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;
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(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 prospec
tively is no longer equitable;
or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a
reasonable time, and for reasons (1), (2), and (3), no more than a year after the
entry of judgment. Fed. R. Civ. P. 60(c)(1). Further, the decision to grant or deny
relief pursuant to Rule 60(b) lies in the sound discretion of the trial court guided by
accepted legal principles applied in light of all relevant circumstances. Ross v.
Meagan, 638 F.2d 646, 648 (3d Cir. 1981).
Initially, the court notes that the motion for relief from judgment is timely,
as it was filed within ten (10) months after the entry of the order from which Mr.
Ferguson now seeks relief, the June 2014 order. However, the instant 60(b)
motion is improper. Mr. Ferguson argues that it was excusable neglect to miss the
filing deadline for a motion to reconsider the court’s June 2014 order striking the
motion to substitute party because the Clerk of Court did not serve Ms. Varnam or
Mr. Ferguson with the June 2014 order. While that may or may not be the case, a
failure to serve either of these individuals with the court’s June 2014 order would
not cause the court to now grant relief to Mr. Ferguson on his Rule 60(b) motion.
The reason for this is plain. Even if the court granted the relief Mr. Ferguson now
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seeks, namely consideration of the motion to substitute on the merits, the only
relief available to him would be for the court to reconsider the June 2014 order
which struck the motion to substitute. Again, that motion to substitute was stricken
based on the fact that Ms. Varnam is not an attorney and, therefore, is not entitled
to act as an attorney or pro se for others in federal court. See 28 U.S.C. § 1654
(“In all courts of the United States the parties may plead and conduct their own
cases personally or by counsel as, by the rules of such courts, respectively, are
permitted to manage and conduct causes therein.”); People ex rel. Snead v.
Kirkland, 462 F. Supp. 914, 918 (E.D. Pa. 1978) (holding non-attorney is not
authorized to act as an attorney for others in a federal court); see also Estate of
Keatinge v. Biddle, 316 F.3d 7, 14 (1st Cir. 2002) (“[T]he holder of a power of
attorney is not authorized to appear pro se on behalf of the grantor.”); Powerserve
Int’l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001) (“attorney-in-fact” for daughter
is not permitted to litigate pro se on her behalf). Rather, as the court stated in its
June 2014 order, Mr. Ferguson would have to appear through counsel or proceed
pro se. (See Doc. 96 at 5.) Based on this well-settled law, the court will deny Mr.
Ferguson’s 60(b) motion.

III.

Conclusion
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For the reasons set forth herein, the motion for relief from judgment
pursuant to Federal Rule of Civil Procedure 60(b) will be denied. An appropriate
order will issue.

s/Sylvia H. Rambo
United States District Judge
Dated: October 7, 2015.