Burkholder v. Ruzzo et al

Filing 17

OPINION AND ORDER denying 15 Motion to Vacate. So Ordered by Chief Judge William E. Smith on 4/15/14. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
BRIAN RUZZO, AMANDA RINN, and
)
MICHAEL MARCOTTE,
)
)
Defendants.
)
___________________________________)
DENNIS BURKHOLDER,

C.A. No. 13-257 S

OPINION AND ORDER
WILLIAM E. SMITH, Chief Judge.
This

Court

recently

dismissed

the

above-captioned

matter

based on Plaintiff’s failure to comply with discovery orders in
violation of Federal Rule of Civil Procedure 37(b). 1
days

later,

Plaintiff

filed

the

instant

Motion

Just two
to

Vacate

pursuant to Federal Rule of Civil Procedure 60(b), asking the
Court to reverse course and reinstate the case (ECF No. 15).
The Motion to Vacate is DENIED.
Rule 60(b) permits courts to “relieve a party . . . from a
final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; . . .
1

The events giving rise to the dismissal are more fully set
forth in the Court’s Order dated April 2, 2014 (ECF No. 13).
Based on Plaintiff’s missed discovery deadlines and failure to
reply to a motion to dismiss, the case just as easily could have
been dismissed for failure to prosecute.
See Fed. R. Civ. P.
41(b).

or (6) any other reason that justifies relief.” 2
Rule

60(b)

is

“extraordinary

invoking

that

rule

should

Kadant,

Inc.,

589

F.3d

be

505,

in

nature

granted
512

quotations and citation omitted).

and,

Relief under
thus,

sparingly.”

(1st

Cir.

motions

Fisher

2009)

v.

(internal

“A party seeking relief under

Rule 60(b) must demonstrate at a bare minimum, that his motion
is timely; [and] that exceptional circumstances exist, favoring
extraordinary relief . . . .”

Id.

Plaintiff’s request falls woefully short.
the

In support of

Motion

one

to

Vacate,

Plaintiff

avers,

in

his

paragraph

explanation, that: (1) the attorney handling the case recently
left the firm and those attorneys remaining were not aware of
pending matters in this case; and (2) Plaintiff’s attorneys’
computers were afflicted with a “crypto-virus.”
It is a fundamental tenet of professional responsibility
that the professional comings and goings of attorneys cannot
excuse

inadequate

client

representation.

See,

e.g.,

Rhode

Island Disciplinary Rules of Professional Conduct Preamble; Rule
1.3 (Diligence); Rule 1.4 (Communication); Maples v. Thomas, 132
S. Ct. 912, 924 (2012) (attorneys “abandoned” their client, a
death

row

inmate,

when

they

left

their

firm

without

appropriately transferring the case or formally withdrawing and
2

Rule 60(b) provides six separate reasons why a court might
grant relief. Plaintiff does not specify which of these reasons
he advances, but only those cited are arguably applicable.
2

caused the client to miss a crucial appellate deadline).

Put

simply, the primary responsibility of an attorney changing jobs
is to ensure that his or her clients are aware of the departure
and are adequately represented such that their rights are not
prejudiced.

This

failure

fulfill

to

responsibility
it

is

cannot

so

fundamental

provide

that

a

the

exceptional

Nor can a purported computer virus suffice.

See LR Gen

circumstance necessary for Rule 60(b) relief.

311(d)

(“Problems

on

the

Filing

User’s

end,

such

as

.

.

.

hardware or software problems, will not constitute a technical
failure

.

.

.

nor

excuse

an

untimely

filing.”).

It

is

undisputed that the parties had been in communication regarding
the

discovery

deadlines

and

had

even

entered

stipulation prior to the missed deadlines.

an

applicable

What is more, three

attorneys were listed as receiving electronic notifications for
Plaintiff in this case.

Only one of them is a law firm email

address that might arguably have been affected by a computer
virus;

the

addresses.

other

two

are

publicly-available

Yahoo

or

Gmail

Finally, that Plaintiff’s attorneys were not aware

of developments in the case is belied by the fact that the
Motion to Vacate was filed just two days after the electronic
docketing of this Court’s order granting dismissal.
That Plaintiff’s attorneys seemingly dropped the ball is
unfortunate.

But the proffered excuses fall far short of the
3

extraordinary

circumstances

necessary

Rule 60(b).

For this reason, Plaintiff’s Motion to Vacate is

DENIED.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: April 15, 2014

4

to

justify

relief

under