Smiley v. Haynes et al
Filing
16
ORDER denying 9 Motion For Relief. Signed by Judge Samuel H. Mays, Jr on 09/01/2017. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
AUSTIN SMILEY,
Plaintiff,
v.
TIM HAYNES and ANDREWS
AFFORDABLE MOVING CO.,
Defendants.
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No. 2:15-cv-02658-SHM
ORDER
Before the Court is Plaintiff Austin Smiley’s January 19,
2017 motion requesting relief from the judgment entered in this
matter on June 30, 2016.
(Mot. for Relief from J., ECF No. 9
(“Mot. for Relief”); cf. Am. Br. in Supp. of Mot. for Relief
from J., ECF No. 13 (“Br. ISO Mot. for Relief”).)
On July 31,
2017, the Court ordered Plaintiff to file an additional brief in
support of his Motion for Relief under Rule 60(b).
14.)
(ECF No.
Plaintiff filed his Brief In Support of Motion for Relief
From Judgment on August 14, 2017.
(ECF No. 15.)
For the reasons discussed below, the Motion for Relief is
DENIED.
I.
Background
The facts are stated more fully in the Order dated July 31,
2017.
(ECF No. 14.)
Plaintiff initiated this action on October 1, 2015, by filing a Complaint for Trademark Infringement.
(ECF No. 1.)
The
next day, Plaintiff filed an Amended Complaint for Trademark Infringement.
(ECF No. 2.)
Then there was silence.
his case.
Plaintiff did nothing to pursue
The Court entered a Show-Cause Order on June 2, 2016,
in which it directed Plaintiff “to show cause within fourteen
(14) days of the entry of this order why this matter should not
be dismissed for failure to prosecute.”
Plaintiff did not respond.
(ECF No. 5 at 36.)1
On June 30, 2016, the Court entered
an order dismissing this matter for failure to prosecute and a
corresponding judgment.
(ECF No. 6; ECF No. 7.)
On January 19, 2017, JB Smiley, Plaintiff’s new counsel,
filed the Motion to Substitute and the Motion for Relief.
No. 8; ECF No. 9; cf. ECF No. 10; ECF No. 11.)
(ECF
The Motion to
Substitute represents that Plaintiff’s prior counsel has been
suspended from the practice of law and asks that Smiley be substituted as Plaintiff’s counsel.
(ECF No. 9 at 41.)
to Substitute was GRANTED on July 31, 2017.
The Motion
(ECF No. 14 at 109-
10.)
Plaintiff’s Motion for Relief asks the Court to vacate the
Dismissal Order.
(ECF No. 9 at 42; see also ECF No. 11.)
1
Alt-
Unless otherwise noted, all in-cites for record citations are
to the “PageID” page number.
2
hough the Motion for Relief purports to be based on Rule 60(b),
Plaintiff’s brief addresses Rule 41(b).2
Because the Motion for
Relief does not address Rule 60(b), which would be the basis for
a decision, the Court ordered Plaintiff to file a new brief in
support of his Motion for Relief from Judgment.
109-110.)
(ECF No. 14 at
On August 14, 2017, Plaintiff filed the Brief In Sup-
port of Motion for Relief From Judgment in accordance with the
Court’s order.
II.
(ECF No. 15.)
Standard of Review
Rule 60(b) provides grounds for relief from a final judgment for enumerated reasons, including “mistake, inadvertence,
surprise, or excusable neglect.”
Fed. R. Civ. P. 60(b)(1).
A
Rule 60(b)(1) motion “must be made within a reasonable time . .
. no more than a year after the entry of the judgment or order
or the date of the proceeding.”
Fed. R. Civ. P. 60(c)(1).
“In
determining whether relief is appropriate under Rule 60(b)(1),”
three factors control: “(1) culpability-that is, whether the neglect was excusable; (2) any prejudice to the opposing party;
and (3) whether the party holds a meritorious underlying claim
or defense.
A party seeking relief must first demonstrate a
lack of culpability before the court examines the remaining two
factors.”
Yeschick v. Mineta, 675 F.3d 622, 628-29 (6th Cir.
2
References to “Rule __” are to the Federal Rules of Civil Procedure.
3
2012) (internal quotation marks omitted).
Rule 60(b)(1) must be
applied “equitably and liberally . . . to achieve substantial
justice.”
Williams v. Meyer, 346 F.3d 607, 613 (6th Cir. 2003)
(internal quotation marks omitted).
Courts can also provide relief for “any other reason that
justifies relief.”
Fed. R. Civ. P. 60(b)(6).
Rule 60(b)(6) “is
a catchall provision that provides for relief from a final judgment for any reason justifying relief not captured in the other
provisions of Rule 60(b).”
(6th Cir. 2015).
West v. Carpenter, 790 F.3d 693, 696
“Rule 60(b)(6) applies only in exceptional or
extraordinary circumstances where principles of equity mandate
relief.”
Id. at 696-97.
“Clients must be held accountable for the acts and omissions of their attorneys.”
Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 396 (1993).
“Thus, in as-
sessing a claim of excusable neglect, ‘the proper focus is upon
whether the neglect of [the parties] and their counsel was excusable.’”
McCurry
ex
rel.
Turner
v.
Adventist
Health
Sys./Sunbelt, Inc., 298 F.3d 586, 594 (6th Cir. 2002) (alteration in original) (quoting Pioneer Inv. Servs. Co., 507 U.S. at
397).
III. Analysis
a. Rule 60(b)(1) Claim
4
Plaintiff argues that his former attorney’s failure to show
cause was excusable neglect under Rule 60(b)(1).
113-18.)
(ECF No. 15 at
That depends on an analysis of the three factors.3
The threshold question is whether Plaintiff or his former
attorney is culpable.
The analysis of culpability “takes into
account the length and reasons for the delay, the impact on the
case and judicial proceedings, and whether the movant requesting
relief has acted in good faith.”
Burrell v. Henderson, 434 F.3d
826, 832 (6th Cir. 2006).
Plaintiff argues that he is not culpable because he justifiably
relied
on
misrepresentations
by
his
former
attorney.
Plaintiff claims that “the sole actions and/or inactions of [his
attorney] led to the dismissal of this action.”
115.)
(ECF No. 15 at
Plaintiff represents that his former attorney failed to
advise Plaintiff to acquire new counsel.
Plaintiff argues that the actions of his former counsel do
not rise to the level of culpable conduct because Plaintiff’s
“former counsel was simply attempting to comply with Tennessee
Supreme Court’s order suspending him from the practice of law.”
(Id. at 115.)
Plaintiff’s arguments do not support a finding of excusable
neglect.
Plaintiff’s former attorney knew
3
that he could no
Plaintiff filed his Rule 60(b)(1) motion less than one year after the Court entered its judgment dismissing the case. The motion is timely under Rule 60(b)(1).
5
longer represent Plaintiff during the former attorney’s suspension.
The former attorney violated the Supreme Court of Tennes-
see’s Order of Suspension by failing to inform Plaintiff of his
suspension4 and by failing to withdraw from Plaintiff’s case.5
(ECF No. 9-2 at 76.)
Given that “out-and-out lawyer blunders .
. . do not qualify as ‘mistake’ or ‘excusable neglect’ within
the meaning of Rule 60(b)(1),” Plaintiff’s former counsel’s violation of the Supreme Court’s Order and of the terms of his suspension is not a ground for relief.
McCurry, 298 F.3d at 595
(internal quotation marks and brackets omitted).
The acts and omissions of Plaintiff’s former counsel are
the acts and omissions of Plaintiff himself.
As the United
States Supreme Court has said, “[t]here is certainly no merit to
the contention that dismissal of petitioner's claim because of
his counsel's unexcused conduct imposes an unjust penalty on the
client.
Petitioner voluntarily chose this attorney as his rep-
resentative in the action, and he cannot now avoid the conse4
The Supreme Court of Tennessee’s Order of Temporary Suspension
ordered Plaintiff’s former attorney to “comply with Tenn. Sup.
Ct. R. 9 in all respects, and particularly as provided in Tenn.
Sup. Ct. R. 9, § 28.” (ECF No. 9-2 at 76.) Tenn. Sup. Ct. R.
9, § 28.2(a) provides that disciplined attorneys shall, “no later than ten days after the effective date of the order . . . notify . . . all clients being represented in pending matters.”
5
Tenn. Sup. Ct. R. 9, § 28.7 provides that disciplined attorneys
“shall within twenty days after the effective date of the order
file in the court, agency or tribunal in which the proceeding is
pending a motion for leave to withdraw or a motion or agreed order to substitute.”
6
quences of the acts or omissions of this freely selected agent.”
Link
v.
Wabash
R.R.,
370
U.S.
626,
633–34
(1962);
see
also
McCurry, 298 F.3d at 595 (“[A] client, having chosen a particular attorney to represent him in a proceeding, cannot avoid the
consequences of the acts or omissions of this freely selected
agent . . . .”) (quoting Pioneer Inv. Servs. Co., 507 U.S. at
397).
The Sixth Circuit “has been extremely reluctant to uphold
the dismissal of a case or the entering of a default judgment
merely to discipline an errant attorney.”
Buck v. U.S. Dep't of
Agric., Farmers Home Admin., 960 F.2d 603, 608 (6th Cir. 1992)
(internal quotation marks omitted).
ciplining an errant attorney.
This is not a case of dis-
Discipline is a matter for the
Supreme Court of Tennessee and the Tennessee Board of Professional Responsibility.
Plaintiff’s former attorney failed to
follow the orders of the Supreme Court of Tennessee after his
suspension.
His failure demonstrates “a reckless disregard for
the effect of [his] conduct on [these] proceedings.”
F.2d at 608 (internal quotation marks omitted).
and
inactions
“give
rise
--
to
constitute
a
“gross
successful
claim
7
that
excusable
Yeschick, 675 F.3d at 631 (citation omitted).
attributable to Plaintiff.
His actions --
carelessness”
of
Buck, 960
cannot
neglect.”
His conduct is
Plaintiff has not established the “excusable neglect” sufficient to set aside the Court’s dismissal of this case.6
b. Rule 60(b)(6) Claim
Plaintiff argues, in the alternative, that the Court's order of dismissal for failure to prosecute should be set aside
under Rule 60(b)(6).
(ECF No. 15 at 118.)
“any other reason that justifies relief.”
sis added).
That subpart covers
Rule 60(b)(6) (empha-
Because the subsections of Rule 60(b) are “mutually
exclusive,” Pioneer Inv. Servs. Co., 507 U.S. at 393, a plaintiff seeking relief under Rule 60(b)(6) must offer reasons independent of the other subsections.
Blue Diamond Coal Co. v.
Trustees of UMWA Combined Ben. Fund, 249 F.3d 519, 524 (6th Cir.
2001).
Plaintiff’s arguments for relief under Rule 60(b)(6) rely
on
the
underlying
60(b)(1).
facts
cited
to
support
relief
under
Rule
Because Plaintiff has failed to show that something
other than the neglect of his former attorney would justify re-
6
Because Plaintiff has not succeeded in demonstrating a lack of
culpability, the Court need not analyze the remaining factors.
Yeschick, 675 F.3d at 628-29. The prejudice factor, however, is
worth noting. Defendants would suffer significant prejudice if
Plaintiff were granted relief. More than 22 months have passed
since Plaintiff filed his complaint. Defendants have never been
served. That delay would “create increased difficulties of discovery” if the case were to go forward. INVST Fin. Grp., Inc.
v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 398 (6th Cir.
1987)(internal quotation marks omitted).
8
lief, Plaintiff’s motion for relief under Rule 60(b)(6) is denied.
IV.
Conclusion
For the foregoing reasons, the Motion for Relief is DENIED.
So ordered this 1st day of September, 2017.
/s/ Samuel H. Mays, Jr. ____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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