Hicks v. Benton County Board of Education
ORDER DENYING PLAINTIFF'S 121 MOTION TO SET ASIDE ORDER GRANTING DEFENDANT'S MOTIONS IN LIMINE AND DENYING DEFENDANT'S 129 MOTION TO STRIKE PLAINTIFF'S MOTION TO SET ASIDE AS MOOT. Signed by Chief Judge S. Thomas Anderson on 8/21/17. (Anderson, S. Thomas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
) No. 1:14-cv-1345-STA-egb
BENTON COUNTY BOARD
ORDER DENYING PLAINTIFF’S MOTION TO SET ASIDE
ORDER GRANTING DEFENDANT’S MOTIONS IN LIMINE
AND DENYING DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S MOTION TO SET ASIDE AS MOOT
On August 18, 2017, the Court granted three motions in limine (ECF Nos. 114, 115,
117) that had been filed on August 8, 2017. (ECF No. 120.) In its order, the Court noted that
Plaintiff had not responded to the motions within the requisite time. (Setting Letter, p. 3, ECF
No. 104 (“The opposing party must file a response within five days of date of service of the
motion in limine.”)). Plaintiff has moved to set aside that order pursuant to Rule 60 of the
Federal Rules of Civil Procedure on the ground that she was not aware of the five day response
time. (ECF No. 121.)
She has also filed untimely responses to the motions in limine. (ECF
Nos. 125, 126, 128.)
Defendant has filed a motion to strike Plaintiff’s motion to set aside (ECF No. 129) on
the ground that, contrary to Plaintiff’s certificate of consultation (ECF No. 122), defense counsel
did not agree to the granting of Plaintiff’s motion. Instead, defense counsel agreed to an
extension of time in which Plaintiff could file her responses to Defendant’s motions in limine.
Plaintiff has filed an amended certificate of consultation (ECF No. 124) and a response to
Defendant’s motion to strike. (ECF No. 130.)
Initially, the Court notes that a certificate of consultation is not required by the Local
Rules of this Court. See LR 7.2(a)(1)(B) (“All motions, including discovery motions but not
including motions pursuant to Fed. R. Civ. P. 12, 56, 59 and 60 shall be accompanied by a
certificate of counsel affirming that, after consultation between the parties to the controversy,
they are unable to reach an accord as to all issues or that all other parties are in agreement with
the action requested by the motion.”) However, since Plaintiff’s attorney did file a certificate of
consultation, it was incumbent upon her to file an accurate one.
Plaintiff’s counsel asserted in her certificate on consultation as follows: “[U]ndersigned
counsel certifies that counsel for the Defendant agreed by phone call on August 18, 2017 that the
Defendant has no objection to Plaintiff’s Motion to Set Aside the Order Granting the Motions in
Limine and would not be opposed to the Court granting the Motion.” (Cert. of Con., p. 1, ECF
No. 122.) However, defense counsel has filed an affidavit stating that “[a]t no time in that
telephonic conversation with Ms. Luna did the undersigned agree to set aside the Court Order.
Further, at no point did Ms. Luna inform the undersigned that she would be filing a Motion to
Set Aside the Court Order.” (Purcell Aff., p. 1, ECF No. 129-1.)
In her response to defense counsel’s affidavit, Plaintiff’s attorney references an email to
defense counsel in which she stated, “I need to consult with you prior to filing my Motion to Set
Aside the Order granting Motions in Limine.” (Pl’s Resp., p. 2, ECF No. 30.) She contends that,
during a phone call, she asked defense counsel “the same thing that was discussed in the email”
and that defense counsel was “agreeable.” (Id. at p. 3.) Plaintiff’s attorney requests that defense
counsel retract the statement “Further, at no point did Ms. Luna inform the undersigned that she
would be filing a Motion to Set Aside the Court Order.” (Id.) In support of her response,
Plaintiff’s attorney has submitted her own affidavit, attesting to her description of the relevant
events concerning her certificate of consultation. (Luna Aff., ECF No. 130-1.). She has also
attached a copy of an email response from defense counsel stated that he “stand[s] behind what
[he] said” in his affidavit. (Id. at p. 10.)
It is concerning that the day before the trial of this matter the Court has been presented
with competing affidavits as to the events surrounding a certificate of consultation that did not
need to be filed. The Court does not have to resolve which version of the telephone conversation
is correct to decide Plaintiff’s motion to set aside. However, the Court will note that, had
Plaintiff’s counsel been more familiar with the Local Rules of this Court, the situation involving
the competing affidavits would not have arisen.
Plaintiff’s counsel is DIRECTED to review the Local Rules before filing anything else
in this Court.
Plaintiff’s counsel also appears to be unfamiliar with LR 7.3 with provides:
(a) Application to Non-Final Orders. Before the entry of a judgment adjudicating
all of the claims and the rights and liabilities of all the parties in a case, any party
may move, pursuant to Fed. R. Civ. P. 54(b), for the revision of any interlocutory
order made by that Court on any ground set forth in subsection (b) of this rule.
Motions to reconsider interlocutory orders are not otherwise permitted.
LR 7.3 Motion for Revision of Interlocutory Orders (emphasis added). Thus, Fed. R. Civ. P. 60
is not an appropriate vehicle for the relief sought by Plaintiff.
However, if Plaintiff had filed her motion under the correct rule, relief would still be
denied because Plaintiff has not shown excusable neglect for her failure to respond to
Defendant’s motions in limine. Rule 60 provides that the Court may grant relief from a final
judgment or order for mistake, inadvertence, surprise, or excusable neglect. Plaintiff’s counsel
contends that her failure to know that the time to respond to a motion in limine was five days
was a mistake or excusable neglect even though the five day response time was clearly set out in
both the initial setting notice and pretrial procedures for jury trial (ECF No. 23) and the current
setting notice and pretrial procedures for jury trial (ECF No. 104) (“Any motions in limine, not
covered by the objections, must be filed two weeks before the trial date. The opposing party must
file a response within five days of date of service of the motion in limine.”) If Plaintiff’s
attorney’s contention that she did know about the response time is correct, the only conclusion
that the Court can draw is that Plaintiff’s attorney has not familiarized herself with the pretrial
instructions before the trial of this matter.
This Court has previously held that “[i]t is well established that counsel’s ‘inadvertent
mistake’ and ‘gross carelessness’ are insufficient grounds for relief under Rule 60(b)(1).” Tippie
v. Tennessee Dep’t of Revenue, 2012 WL 3060098 at *2 (W.D. Tenn. July 25, 2012), aff’d, 517
F. App'x 458 (6th Cir. 2013) (citation omitted). See also Eversole v. Allstate Ins. Co., 2010 WL
2960974 at *2 (E.D. Ky. July 26, 2010) (“Counsel was aware that a motion for summary
judgment had been filed and, for purposes of a Rule 60 motion, the failure to respond to a motion
for summary judgment or to seek an extension of time to respond does not rise to excusable
neglect.”) The failure to read the Court-issued pretrial procedures for jury trials prior to trying a
case in this Court is not a mistake or excusable neglect within the meaning of Rule 60.
Plaintiff’s counsel is DIRECTED to review the Federal Rules of Civil Procedure before
filing anything else in this Court.
Plaintiff’s attorney’s lack of knowledge of the rules of this Court is troubling especially
since the same five day response time for motions in limine has been set in Plaintiff’s attorney’s
other cases in the Western District of Tennesee. See, e.g., Keri Williams v. City of Milan, 1:08-
cv-01235-JDB-egb (ECF No. 17);1 Lindsey Whitney v. City of Milan, 1:09-cv-01127-JDB-egb
(ECF No. 188);2 and Sonya P. Williams v. Shelby County Board of Education, 2:17-cv-02050SHM-egb (ECF No. 19).3 If Plaintiff’s attorney’s statements as to her lack of knowledge of the
five day response day are truthful, and the Court has no reason to doubt that they are, then it
appears to the Court that Plaintiff’s attorney is not only unfamiliar with the Local Rules of the
Court and the Federal Rules of Civil Procedure, but also with specific instructions that the Court
Plaintiff’s counsel is DIRECTED to review all orders and instructions issued by the
Court associated with this case before filing anything else in this Court.
Plaintiff’s motion to set aside the order granting Defendant’s motion is limine is
DENIED. Defendant’s motion to strike Plaintiff’s motion is DENIED as moot.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
Chief United States District Judge
DATE: August 21, 2017
This appears to be Plaintiff’s attorney’s first case in the Western District of Tennessee with a
notice of setting.
Plaintiff’s attorney tried this case in front of a jury.
This matter is still pending.
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