Domai v. American Express et al

Filing 62

MEMORANDUM DECISION denying 59 Motion to Review Decision. Signed by Judge Ted Stewart on 3/15/16. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GUY M. DOMAI,
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
REQUEST TO REVIEW DECISION

Plaintiff,
v.
AMERICAN EXPRESS CORPORATION,
et al.,
Defendants.

Case No. 2:13-CV-567 TS
District Judge Ted Stewart

This matter is before the Court on Plaintiff’s Motion to Review Decision. The Court will
construe this pro se Plaintiff’s Motion to Review Decision as a Motion for Relief from Judgment
under Rule 60(b). Even construed liberally, the Court finds no evidence that would support
granting relief under Rule 60(b).
I. BACKGROUND
Plaintiff filed his initial Complaint on June 26, 2013. 1 After filing his Complaint,
Plaintiff missed numerous deadlines including the deadline to submit pretrial disclosures, file an
Amended Complaint, and respond to Defendant’s Motion for Summary Judgment. Over a year
later, on July 10, 2014, Defendant filed a Motion to Dismiss Pursuant to Rules 37, 41, and 56. 2
The Court denied Defendant’s Motion without prejudice on October 15, 2014, and ordered
Plaintiff to respond to Defendant’s Rule 56 Motion within 30 days. 3 The Court was clear that
1

Docket No. 1.

2

Docket No. 30.

3

Docket No. 37.

failure to respond could result in sanctions up to, and including, dismissal. Plaintiff did not
comply with the Court’s Order. On November 17, 2014, Defendant renewed its Motion to
Dismiss. 4 On February 4, 2015, the Court gave Plaintiff yet another opportunity to respond to
Defendant’s Rule 56 Motion and Renewed Motion to Dismiss. The Court required a response by
February 9, 2015, and made it clear that failure to respond would result in dismissal of the case.
Plaintiff did not comply, but filed a Status Report with excuses as to why he had not complied
and requested additional time. 5 With no further response from Plaintiff by the Court’s deadline,
upon Defendant’s Request to Submit for Decision on February 10, 2015, the Court granted
Defendant’s Motion to Dismiss. Plaintiff stated, in a letter to the Court dated February 19, 2015,
that he planned to “file a motion for relief from judgment pursuant to rule 60(b).” Relief under
Rule 60(b)(1) is only available for up to a year after the entry of judgment. 6 Other than two
additional letters sent to the Court and lodged on the docket in March 2015, Plaintiff did nothing
on this case until February 11, 2016, when he submitted a hand-written Motion to Review
Decision, 363 days after the entry of judgment.
II. DISCUSSION
As mentioned in the Court’s Order to Dismiss, 7 “[a]lthough pro se litigants get the
benefit of more generous treatment in some respects, they must nonetheless follow the same
rules of procedure that govern other litigants.” 8 “Rule 60(b)(1) provides that ‘[o]n motion and
4

Docket No. 40.

5

Docket No. 49.

6

Fed. R. Civ. Pro. 60(c)(1).

7

Docket No. 52.

8

Creative Gifts Inc. v. UFO, 235 F.3d 540, 549 (10th Cir. 2000).
2

upon such terms as are just, the court may relieve a party or a party’s legal representative from a
final judgment . . . . [for]: (1) mistake, inadvertence, surprise, or excusable neglect.” 9 The only
one of these factors that might apply to Plaintiff is excusable neglect. “The burden is upon the
party moving to have the judgment set aside to plead and prove excusable neglect.” 10
Relevant factors to be considered in determining what constitutes excusable neglect
include (1) danger of prejudice to the opposing party, (2) the length of delay, (3) the potential
impact on judicial proceedings, (4) the reason for the delay, and (5) whether the movant acted in
good faith. 11 The most important factor is the fault in the delay, 12 and the Court should consider
“whether the mistake was a single unintentional incident (as opposed to a pattern of deliberate
dilatoriness and delay).” 13
The Court has considered these factors and finds that they weigh against reconsideration.
Defendant would be prejudiced if it has to again litigate a case that was filed almost three years
ago, never fully prosecuted, and then dismissed a year ago. Default judgments are meant to
protect the rights of such defendants and these rights must be considered on a Rule 60(b)
motion. 14 “‘[T]he diligent party must be protected lest he be faced with interminable delay and
continued uncertainty as to his rights.’” 15 The delay in this case was great with Plaintiff having

9

Jennings v. Rivers, 394 F.3d 850, 856 (10th Cir. 2005).

10

Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990).

11

Jennings, 394 F.3d at 856.

12

Id.

13

Id. at 857.

14

Cessna Finance Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444
(10th Cir. 1983).
15

Id. (quoting Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)).
3

nearly seven months to respond to Defendant’s Motion. The delay hindered the timely
resolution of the parties’ claims and wasted judicial resources. The delay was also not a single
unintentional one, but part of an ongoing pattern. Plaintiff admitted in his Status Report dated
February 4, 2015, that he “was aware of the deadline set by the court to submit the motion to
oppose defendant’s summary judgment,” but was “indisposed to work on his case.” 16 Plaintiff
now raises vague allegations that “health conditions during the case” prevented him from
responding to Defendant’s Motion. 17 Neither of these statements is sufficient to prove the prior
delays qualify as excusable neglect under Rule 60(b). Nor does Plaintiff’s earnest belief that his
long delays were justified establish that the delays were made in good faith, and therefore
excusable.
III. CONCLUSION
It is therefore
ORDERED that Plaintiff’s Motion to Review Decision (Docket No. 59) is DENIED.
DATED this 15th day of March, 2016.
BY THE COURT:

Ted Stewart
United States District Judge

16

Docket No. 49, at 3.

17

Docket No. 59, at 1.
4