Falconer v. LeHigh Hanson, Inc. et al

Filing 15

ORDER granting 10 Motion for Reconsideration. Plaintiff's Case is Dismissed.(Signed by Judge Melinda Harmon) Parties notified.(rvazquez)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GARETH FALCONER,
Plaintiff,
VS.
LEHIGH HANSON, INC., et al,
Defendants.

§
§
§
§
§
§
§
§

CIVIL ACTION NO. 4:11-CV-373

OPINION AND ORDER

Pending before the Court is Defendants’ Motion to Reconsider Reinstatement of Case
(Doc. 10) filed by Lehigh Hanson, Inc. and Campbell Concrete & Materials, L.P. (collectively,
“the Company”). Plaintiff Gareth Falconer (“Falconer”) filed a response (Doc. 12) in opposition
to the motion, and Defendants filed a reply (Doc. 13) in support.
Having considered the pleadings, the record in this case, and the applicable law, the
Court concludes that the motion should be granted and Falconer’s case dismissed.
I.

Background
Falconer first filed his Complaint (Doc. 1) in this Court on January 27, 2011. According

to that document, Falconer’s employment with the Company was terminated on March 22, 2010.
(Doc. 1 at 3-4). In early October 2010, Falconer filed a formal charge against the Company with
the Equal Employment Opportunity Commission (EEOC), and, on October 25, 2010, the EEOC
issued a right-to-sue letter. (Doc. 1 at 4). Falconer then filed his pro se complaint in this Court,
stating causes of action for (i) wrongful termination, (ii) FMLA retaliation, and (iii) worker’s
compensation retaliation. Although not disclosed at the time, that “pro se” complaint was
1 / 11

actually drafted by suspended attorney, Michael L. Barnes (“Barnes”). (Barnes Aff. ¶ 5, Sep. 14,
2012, Doc. 5 Ex. A).
After such filing, however, Falconer failed to prosecute his case. He did not comply with
two court orders, failing to appear for initial conferences on May 5, 2011 (see Order, Jan. 27,
2011, Doc. 2) and August 24, 2011 (see Notice of Setting, Doc. 3). Because Falconer never
effected service of process, the Company did not make an appearance either. Therefore, on
September 15, 2011, the Court issued an order dismissing Falconer’s case without prejudice.
(Doc. 4).
Unbeknownst to this Court, on November 14, 2011, Falconer refiled exactly the same
complaint in the Southern District of Texas, resulting in the opening of another case before Judge
Keith P. Ellison. (See Falconer v. LeHigh Hanson, Inc. (Falconer II), No. H-11-3991 (S.D. Tex.
Mar. 30, 2012)). Falconer then attempted to pay his filing fee with a check drafted in Barnes’
name, but that check was returned for nonsufficient funds on November 30, 2011. (Filing Fee
Entry, Falconer II, No. H-11-3991). When Falconer failed to remedy this deficiency, his claims
were again dismissed without prejudice. (Order of Dismissal, Falconer II, No. H-11-3991).
Falconer took no further action in that case.
On September 14, 2012, precisely 364 days after issuance of this Court’s Order of
Dismissal, Falconer filed a sworn Motion to Reinstate Case (Doc. 5). Based on Falconer’s
claimed status as a pro se plaintiff and his statement that, because of his employment and
medical situation, “effectively no further action [was] taken on the cause,” (Doc. 5 at 1, 4), this
Court made a finding of excusable neglect and reinstated this case. (Order, Dec. 3, 2012, Doc. 6).
As the Company still had not been served, it was unable at the time to pose any opposition to
Falconer’s motion. Now, having been served, the Company has submitted its motion for
2 / 11

reconsideration, arguing that the order granting reinstatement was unfairly obtained due to
Falconer’s misrepresentation of the true situation.
II.

Legal Standard
A court, in its discretion, may relieve a party from an order or final judgment for, among

other reasons, that party’s excusable neglect or the opposing party’s fraud, misrepresentation, or
misconduct. Fed. R. Civ. P. 60(b).
The determination of excusable neglect under Rule 60(b)(1) is “an equitable one, taking
account of all relevant circumstances surrounding the party’s omission.” Bynum v. Ussin, 410 F.
App’x 808, 810 (5th Cir. 2011) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S.
380, 395 (1993)) (internal quotation marks omitted). “These circumstances include the risk of
prejudice to the non-movant; the length of delay; the reason for the delay, including whether it
was within the reasonable control of the movant; and whether the movant acted in good faith.”
Id. (citing Pioneer, 507 U.S. at 395). Not every case requires a rigorous analysis of every factor,
and in some cases, one salient circumstance will prove dispositive. Silvercreek Mgmt. v. Banc of
Am. Sec., LLC, 534 F.3d 469, 472 (5th Cir. 2008).
Rule 60(b)(3) governs instances of fraud, misrepresentation, and misconduct, defined
generally as “some purposeful behavior on the part of a party, undertaken for the sake of gaining
an unfair advantage.” Fackelman v. Bell, 564 F.2d 734, 737 (5th Cir. 1977). The moving party
must show by clear and convincing evidence that (1) the opposing party engaged in such
behavior and (2) this behavior prevented the moving party from fully and fairly presenting its
case. Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir. 2005). This rule is remedial in
nature, affording relief from orders that were “unfairly obtained,” and should be liberally
construed. Id.
3 / 11

Motions under both Rule 60(b)(1) and Rule 60(b)(3) must be made “within a reasonable
time” and will be granted only if there are “unique or sufficiently unusual circumstances” to
justify such relief. Pryor v. U.S. Postal Serv., 769 F.2d 281, 287-88 & n.5 (5th Cir. 1985).
Whether these standards of reasonableness and uniqueness are satisfied must be determined on a
case-by-case basis. Osborne v. Homeside Lending, Inc. (In re Osborne), 379 F.3d 277, 283 (5th
Cir. 2004). “What constitutes ‘reasonable time’ depends upon the facts of each case, taking into
consideration the interest in finality, the reason for delay, the practical ability of the litigant to
learn earlier of the grounds relied upon, and prejudice to other parties.” Id. (quoting Ashford v.
Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)) (internal quotation marks omitted).
III.

Discussion
The Court is faced, in essence, with dueling Rule 60(b) motions: first, Falconer sought

and obtained a court order reinstating his case for the reason of excusable neglect; now, the
Company seeks relief from that order, arguing that it was unfairly obtained. To succeed, the
Company must show that Falconer engaged in fraud, misrepresentation, or misconduct that
prevented the Company from fully and fairly arguing its case.
The starting point of this analysis is Falconer’s sworn motion to reinstate this case, where
he explained that his unemployment, medical disability, and pro se status prevented him from
prosecuting the case after filing the complaint. Falconer stated that “[t]here was effectively no
further action taken on the cause for the next nine months” and that “there has been no
substantive activity in the case; the filed cause has merely laid [sic] dormant in the clerk’s
office.” (Doc. 5 at 1, 4). Relying on Falconer’s sworn statements and his pro se status, this Court
granted his motion for relief on the basis of excusable neglect.

4 / 11

Now that the complete record is before the Court, however, it is clear that those
statements misrepresented the full reality of the situation. Falconer did not, as he argues, merely
commit “excusable neglect in his failure to diligently prosecute his case.” (Doc. 5 at 3). On the
contrary, he employed intentional delay tactics in willful violation of court orders and federal
procedural rules; for example, purposefully failing to effect service of process. As a result of that
particular tactic, the Company never made an appearance; therefore, it was unable to present any
opposition to Falconer’s motion for reinstatement. In other words, Falconer’s misconduct
prevented the Company from fully and fairly arguing its case. That argument comes now in the
form of the Company’s motion for reconsideration.
A.

“Dormancy” of the Cause

The most obvious evidence contradicting Falconer’s claim that “[t]here was effectively
no further action taken on the cause” is his refiling of exactly the same complaint 60 days after it
was dismissed from this Court, a fact which Falconer failed to disclose when seeking
reinstatement. He now argues that this lack of disclosure was not an attempt to mislead the
Court, reasoning that the Court “would have had routine and reasonable opportunity to be aware
of the existence of a parallel suit.” (Doc. 12 at 3). This argument is completely upside down. It is
not the place of the Court to search for evidence outside the record; rather, it is the duty of the
parties to present their positions with complete candor. In this case, because Falconer had
neglected to serve the Company, his omission of material fact went unchallenged and, until now,
uncorrected. Moreover, Falconer’s lack of service on the Company is further evidence that, like
the undisclosed refiling of his complaint, his failure to prosecute is not the result of mere neglect,
but rather purposeful and culpable conduct.

5 / 11

This conclusion does not require guesswork, as Falconer and Barnes freely admit that
their chosen strategy has been to delay all along. Falconer explains that he was “compelled—
ready or not—to file his suit within 90 days of his receipt of the [EEOC] right-to-sue letter” and
that his “actions, or lack of action, in the prosecution of the cause has been aimed at ‘buying
time.’ ” (Doc. 5 at 4-5). Falconer then concludes that “purposeful delay in the present factual
context is a legitimate tool.” (Doc. 5 at 5). Because Barnes drafted that argument, he naturally
agrees with it, stating, “The overall objective of my actions, and I believe those of Falconer as
well, has been to extend the pendency of the lawsuit…. My only motivation has been to gain …
time.” (Barnes Aff. ¶ 6). Consequently, Falconer decided not to comply with court orders, twice
failing to appear at mandatory conferences, or the Federal Rules of Civil Procedure, failing for
eight months to serve process on the Company.
Falconer continued his delaying tactics when he refiled the same complaint in Judge
Ellison’s court. In that case, Falconer again failed to serve process or prosecute the action in any
other way, including paying his filing fee.
After Judge Ellison dismissed Falconer’s case, Falconer resumed his delaying tactics in
this Court. In his view, “because there had been no material change in his predicament since the
time of the initial filing, there was no basis (and, thus, no urgency) for Falconer to file any
motion to reinstate the first case in late 2011.” (Doc. 12 at 3). Three-hundred sixty-four days
after his case had been dismissed from this Court, however, Falconer suddenly felt some urgency
to reinstate this action and filed his motion for reinstatement. This timing is not coincidental; in
fact, it is further proof of culpable delay, for Falconer makes clear that he understands the
consequence of waiting an additional day would be to lose his “excusable neglect” argument.
(See Doc. 12 at 5-6) (discussing the heightened standard for Rule 60(b) motions submitted more
6 / 11

than one year after judgment); see also Pioneer, 507 U.S. at 393 (“[A] party who failed to take
timely action due to ‘excusable neglect’ may not seek relief more than a year after the judgment
by resorting to [Federal Rule of Civil Procedure 60(b)(6)].”).
Given this sequence of events and Falconer’s admission of intentional inaction, it is
wholly inaccurate to state that this case has simply lain dormant. More precisely, it has been
smothered under a strategy of delay, and under no circumstances could such delay constitute
“excusable neglect.”
B.

Neither Excuse nor Neglect

Although Rule 60(b)(1) affords relief from judgments and orders in cases of excusable
neglect, it is well established that this relief does not extend to cases of gross carelessness,
ignorance of the rules, ignorance of the law, or even inadvertent mistake. Pettle v. Bickham (In re
Pettle), 410 F.3d 189, 192 (5th Cir. 2005). Indeed, “Rule 60(b) relief will only be afforded in
‘unique circumstances,’ ” and “a court would abuse its discretion if it were to reopen a case
under Rule 60(b)(1) when the reason asserted as justifying relief is one attributable solely to
counsel’s carelessness with or misapprehension of the law or the applicable rules of court.”
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 357 (5th Cir. 1993) (quoting Pryor, 769 F.2d
at 287); see also Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998) (holding
that where procedural rules are unambiguous, a misinterpretation of such rules virtually never
constitutes excusable neglect). These restrictions become even tighter where a party seeks relief
from the result of his own voluntary actions. Thus, “failure to evaluate carefully the legal
consequences of a chosen course of action provides no basis for relief from a judgment under
Rule 60(b)(1).” Pettle, 410 F.3d at 192 (quoting Nemaizer v. Baker, 793 F.2d 58, 62 (2d Cir.
1986)) (internal quotation marks omitted).
7 / 11

In this case, Falconer sought relief from the natural consequence of his voluntary decision
not to take action. Even after his case was dismissed for failure to prosecute, then dismissed for a
second time, Falconer continued his dilatory ways, waiting an entire year before filing his motion
for reinstatement. This delay does not accord with the requirements of Rule 60, which states that
a 60(b) motion “must be made within a reasonable time—and for reasons (1), (2), and (3) no
more than a year after the entry of the judgment or order.” Fed. R. Civ. P. 60(c). In no way does
this mean, as Falconer implies, that “a reasonable time” is defined as “a year.” On the contrary,
Rule 60(b)(1) motions must be made within a reasonable time and within a year, and satisfying
one requirement does not automatically satisfy—or obviate the need to satisfy—the other. For
example, under the circumstances in Pryor, the Fifth Circuit concluded that waiting three months
proved too long:
Even where there exist extraordinary circumstances which might justify granting
Rule 60(b) relief, the Rule nonetheless requires that such motion be made “within
a reasonable time.” But where … the motion itself recites no acceptable excuse
for counsel’s failure to appear at a scheduled conference; where it fails to offer
any legally sufficient excuse for its own lateness, the … “Motion to Retain”
having been filed nearly three months after the dismissal of the suit; and where
the … supporting memorandum (or motion) that purports to offer grounds of
excusable neglect appropriate for Rule 60(b)(1) relief was filed yet another month
later, we cannot conclude that such filings were themselves timely within the
meaning of the Rule’s requirement.
769 F.2d at 287-88. Falconer’s lateness is even less reasonable in that it was carefully calculated
to achieve the maximum amount of delay. According to Falconer, he became aware of the need
to file a motion to reinstate this case “[w]ithin days of … filing” his Falconer II complaint on
November 14, 2011, but “there was no basis (and, thus, no urgency)” to do so. (Doc. 12 at 3).
Instead, as part of his admitted policy of purposeful delay, he waited one full year, thus
satisfying one of the two Rule 60(c) requirements. But, as in Pryor, no acceptable or legally
sufficient excuse has been offered to show that this year-long delay was reasonable, nor can one
8 / 11

be found in the record. In fact, the only excuse Falconer offers is his “desire to have the matter
handled by [his preferred] attorney,” who “has been unable to manage the case due to his
temporary ineligibility to practice in this court.” (Doc 5 at 4). This explanation does not qualify
as the type of “unique circumstance” that Rule 60(b) is intended to address.
In Pioneer, the United States Supreme Court listed factors relevant to the determination
of excusable neglect. 507 U.S. at 395. In this case, the majority of those factors weigh heavily
against Falconer: he maximized the delay in proceedings (length); he did so only to serve the
unremarkable goal of hiring his attorney of choice (reason)1; he completely controlled the pace
of proceedings by willfully ignoring court orders and federal rules (control); and he did so
specifically for the purpose of delay (good faith). In sum, these circumstances simply do not
meet the legal standard of excusable neglect.
C.

Pro Se or Not Pro Se?

The standard above is not lowered merely because the moving party is proceeding pro se,
for although the pleadings submitted by such litigants are held to less stringent standards than
those by licensed attorneys, S.E.C. v. AMX, Int’l, Inc., 7 F.3d 71, 75 (5th Cir. 1993), this leniency
does not extend so far as to excuse “[non]compliance with relevant rules of procedural and
substantive law,” Yazdchi v. Am. Honda Fin. Corp., 217 F. App’x 299, 304 (5th Cir. 2007)
(quoting Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991)) (internal quotation marks omitted);
see also McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that
procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel.”); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (“One
who proceeds pro se with full knowledge and understanding of the risks involved acquires no

1

Even if his case were to survive this motion, it appears that Falconer’s goal would not be achieved. As of the date
of this Order, Barnes is still ineligible to practice law in Texas.

9 / 11

greater rights than a litigant represented by a lawyer”; “[r]ather, such a litigant acquiesces in and
subjects himself to the established rules of practice and procedure.”). Moreover, where an
ostensibly pro se litigant is actually prosecuting his case with the assistance of an attorney, there
is even less cause for leniency. Such is the case here.
Falconer has signed each of his pleadings, including his sworn Motion for Reinstatement,
as pro se. There are two troubling aspects of this claim: first, Falconer is, in fact, acting with the
assistance of an attorney; second, that attorney, Barnes, is apparently licensed to practice law in
the District of Columbia but suspended from practicing in Texas. As Barnes explains in his
affidavit:
I am currently a member of the Bar Association of the District of Columbia….
Until March 2010, I was a member of the State Bar of Texas….
….
I agreed to help [Falconer] with the drafting of an original complaint in his case.
In fact, I did most of the drafting of the initial filing in order to assure some
appropriate level of demonstrated competence in this court document…. Falconer
signed the original complaint as a “pro se” plaintiff.
(Barnes Aff. ¶¶ 2, 5). Barnes’ next explicit involvement with Falconer’s claims comes in
Falconer II, where the filing fee was submitted by a check in Barnes’ name—a check that was
subsequently returned for “nonsufficient funds.” (Filing Fee Entry, Falconer II, No. H-11-3991).
Then, upon reinstatement of this case, Barnes attended and participated in the January 17, 2013
conference before Magistrate Judge Frances Stacy. (Doc. 13 at 4). Even a cursory glance at
Falconer’s other pleadings suggests that this involvement has continued, though reaching such a
finding is not necessary to decide the motion presently before the Court.2 What is important is
that Falconer has not, according to Barnes’ sworn statement, acted without the assistance of an

2

Although this Order dismisses Falconer’s case, thereby preventing the possibility of further misconduct, it is worth
noting that the procedural facts of this case raise serious questions regarding ghostwriting and the unauthorized
practice of law. As a word of caution, such misconduct exposes both litigants and counsel to the possibility of
sanctions, including fines, contempt, and professional discipline.

10 / 11

attorney; therefore, even if this situation warranted some degree of leniency toward pro se
litigants, that standard would not apply to Falconer.
At the same time, Falconer is not merely the victim of an attorney’s transgressions and,
therefore, cannot ask for leniency on that ground. See Raborn v. Inpatient Mgmt. Partners Inc.,
278 F. App’x 402, 406 (5th Cir. 2008) (“Where the dismissal is ordered primarily in response to
counsel’s dereliction, we have stressed that alternatives to dismissal should be attempted first….
This is particularly true where … there is ‘nothing whatever in the record to indicate that the
[litigant] had any knowledge of, or participation in, any of the derelictions of his counsel.’ ”
(emphasis in original; citations omitted)). In other words, by putting himself forth as pro se,
Falconer cannot now argue that he was not himself culpable in flouting court orders and federal
procedural rules and in misleading this Court by omitting material facts from his motion for
reinstatement. Falconer was not, as he argues, “prevented … from actively prosecuting the case,”
(Doc. 12 at 2); instead, he intentionally pursued a strategy of delay. But for his failure to serve
process on the Company—one of the delaying tactics employed as part of that strategy—his
motion for reinstatement would not have gone unchallenged and, therefore, would never have
succeeded. The Company’s motion for reconsideration now allows that error to be remedied.
IV.

Conclusion
For the foregoing reasons, it is hereby
ORDERED that Defendants’ Motion to Reconsider Reinstatement of Case (Doc. 10) is

GRANTED and Plaintiff’s case is DISMISSED.
SIGNED at Houston, Texas, this 9th day of July, 2013.

___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
11 / 11