Liu v. Ma

Filing 100

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 12/14/2016. (mpha)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
LUQUN LIU,

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Plaintiff,
v.
XIAOKUI MA,
Defendant.

M E M O R A N D U M

1:15cv1026(JCC/TCB)

O P I N I O N

This matter is before the Court on Defendant Xiaokui
Ma’s (“Ma” or “Defendant”) Motion for Reconsideration [Dkt. 92].
Defendant seeks reconsideration of this Court’s August 11, 2016
Order [Dkt. 90] deeming her Motion for Judgment as a Matter of
Law as to Punitive Damages [Dkt. 84] withdrawn pursuant to
Eastern District of Virginia Local Civil Rule 7(E).

For the

following reasons, the Court will deny Defendant’s Motion for
Reconsideration.
I. Background
Plaintiff brought this lawsuit for conversion, breach
of fiduciary duty, fraud, and unjust enrichment against
Defendant on August 13, 2015.

On June 9, 2016, after a three

day trial, the jury returned a verdict against Defendant for
$20,000 in compensatory damages and $160,000 in punitive damages
on Plaintiff’s fraud claim.

(Jury Verdict Form [Dkt. 74].)
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Defendant then filed a Motion to Set Aside the Verdict [Dkt. 79]
pursuant to Rule 59(a) on July 6, 2016.

Defendant noticed the

Motion to Set Aside the Verdict for a hearing on August 4, 2016,
in compliance with Local Civil Rule 7(E).

(Notice of Hearing

Date re Motion To Set Aside Verdict [Dkt. 81].)
On July 11, 2016, Defendant filed another post-trial
motion, her Motion for Judgment as a Matter of Law as to
Punitive Damages [Dkt. 84].

Defendant failed to file either a

waiver of oral argument on this motion, or a notice of oral
argument on this motion.

Accordingly, the Motion for Judgment

as a Matter of Law was deemed withdrawn pursuant to Local Civil
Rule 7(E) on August 11, 2016, thirty-one (31) days after
Defendant had filed the motion.

Defendant then filed this

Motion for Reconsideration on August 18, 2016, and noticed it
for oral argument on August 25, 2016.

The Motion for

Reconsideration has now been fully briefed and argued and is
ripe for decision.
II. Legal Standard
Defendant asks the Court to amend its previous Order
of August 11, 2016 pursuant to Federal Rule of Civil Procedure
60(b).

Specifically, Defendant asks the Court to grant relief

pursuant to Rule 60(b)(1) because of “mistake, inadvertence,
surprise, or excusable neglect,” or under the catch-all
provision of Rule 60(b)(6).

In order to obtain relief under
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Rule 60(b) the moving party must “show (1) that the Rule 60(b)
motion is timely; (2) that [the non-moving party] will not
suffer unfair prejudice if the default judgement is set aside;
and (3) that that [the movant’s defense] is meritorious.”
Westlake Legal Group v. Yelp, Inc., 599 F. App’x 481, 484 (4th
Cir. 2015)(quoting Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 n.
3 (4th Cir. 1997)).

When the moving party seeks relief under

the catch-all provision of subsection (b)(6), she must also show
the existence of “extraordinary circumstances.”

Murchison v.

Astrue, 466 F. App’x 225, 229 (4th Cir. 2012)(quoting Reid v.
Angelone, 369 F.3d 363, 370 (4th Cir. 2004)).

“[E]xtraordinary

circumstances [are those] that create a substantial danger that
the underlying judgment was unjust.”

Id. (alterations in

original)(quoting Margoles v. Johns, 798 F.2d 1069, 1073 (7th
Cir. 1986)).
III. Analysis
The parties do not dispute that Plaintiff’s Motion for
Reconsideration was timely.

Accordingly, the Court will focus

on the other requirements of Rule 60(b), addressing the general
threshold requirements that there be no unfair prejudice and the
demonstration of a meritorious defense before turning to the
specific requirements of excusable neglect or extraordinary
circumstances.

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A.

Unfair Prejudice to the Non-Moving Party

Plaintiff argues that she would be prejudiced if the
Court were to grant Defendant’s Motion for Reconsideration
because she would be forced to litigate Plaintiff’s post trial
Motion for Judgment as a Matter of Law as to Punitive Damages.
(Pl.’s Mem. in Opp. [Dkt. 95], at 2.)

This would undeniably

prejudice Plaintiff, as the deadline for filing a Motion for
Judgment as a Matter of Law has since passed, and if the Court
does not grant Defendant’s Motion for Reconsideration, Defendant
will be unable to renew that motion.

But this prejudice is not

the kind of unfair prejudice the Court is concerned with in the
context of a Rule 60(b) motion.

The prejudice to the non-moving

party must be more substantial to preclude a Rule 60(b) motion.
See Werner v. Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984)
(finding no unfair prejudice where “the only prejudice claimed
by [movant] is that presented when any judgment is vacated: the
protraction of proceedings, the time and expense of a new trial,
the loss of post-judgment interest”).

Defendant has therefore

succeeded in demonstrating that granting her Motion for
Reconsideration would not inflict any unfair prejudice on
Plaintiff.

Defendant, however, cannot similarly demonstrate

that her Motion for Judgment as a Matter of Law was meritorious,
that her failure to notice a hearing for Motion for Judgment as
a Matter of Law was the result of excusable neglect, or that
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this case presents extraordinary circumstances.
B.

Meritorious Defense

This case is unusual in the context of Rule 60(b)
motions, as rather than requesting relief from the judgment, the
Rule 60(b) motion is requesting relief from an Order deeming
Defendant’s prior motion seeking relief from the judgment
withdrawn.

This kind of procedural confusion has unfortunately

characterized this entire case.
Generally, the requirement that the movant show a
meritorious defense requires the movant to demonstrate that
granting relief pursuant to Rule 60(b) would not be a “futile
gesture.”

Boyd v. Bulala, 905 F.2d 764, 769 (4th Cir. 1990).

Here, that inquiry entails an analysis of Defendant’s Motion for
Judgment as a Matter of Law as to Punitive Damages.
Generally, the movant must demonstrate the presence of
a meritorious defense as part of their motion for
reconsideration itself.

They cannot rely on “mere conclusionary

statements that a claim or a defense is meritorious.”

Holland

v. Virginia Lee Co., Inc., 188 F.R.D. 241, 250 (W.D. Va.
1999)(quoting 12 James Wm. Moore et al., Moore’s Federal
Practice § 60.24[2]).

As Plaintiff correctly points out,

Defendant’s Motion for Reconsideration relies solely on the
conclusory allegation that “she has a meritorious defense
against the verdict with regard to the punitive damages on the
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ground of [sic] all the evidence introduced at trial hardly
demonstrates actual malice of Ms. Ma against Ms. Liu.”
Mem. in Supp. at 4.)

(Def.’s

The Court therefore cannot find that

Defendant has carried her burden of demonstrating the presence
of a meritorious defense in her Rule 60(b) Motion.
The Court could deny Defendant’s Motion for
Reconsideration on this basis alone, but in the interest of
thoroughness, the Court notes that Defendant’s underlying Motion
for Judgment as a Matter of Law is equally conclusory, spanning
just over 2 pages, containing no citations to the record and
only one string citation to legal authority.

(Def.’s Mem. in

Supp. of Mot. for Judgment as a Matter of Law [Dkt. 84].)

The

Motion for Judgment as a Matter of Law as to Punitive Damages is
little more than an unsourced, unsupported, incomplete thumbnail
sketch of the evidence presented at trial coupled with a renewed
request for judgment as a matter of law on the availability of
punitive damages.

The Court denied Plaintiff’s Motion for

Judgment as a Matter of Law the first two times it was made, at
trial, and her renewed, written, post-trial motion offers no
more persuasive research, authority, or argument than did those
previously denied motions.

Accordingly, the Court finds that

Defendant has failed to demonstrate the presence of a
meritorious defense, and is therefore not entitled to relief
pursuant to Rule 60(b).
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C.

Excusable Neglect

Defendant seeks relief pursuant to Rule 60(b)(1).

In

order to prevail on this basis “the Rule 60(b)(1) movant must
demonstrate that [s]he has a meritorious defense and that one of
the four conditions for relief applies – mistake, inadvertence,
surprise or excusable neglect.”

Universal Film Exchanges v.

Lust, 479 F.2d 573, 576 (4th Cir. 1973).
Defendant argues that their failure to set a hearing
date for their motion within the time allowed by the Eastern
District of Virginia Local Civil Rules constitutes either a
“mistake” or “excusable neglect” because of “filling issue of
the Motion [sic] and misunderstanding of the hearing date.”
(Pl.’s Mem. in Supp. at 4.)

As clarified by the affidavit from

Plaintiff’s Counsel Shaoming Cheng that accompanied Plaintiff’s
Memorandum in Support, there were two such “filing issue[s].”
First, Defendant had difficulty filing the Motion for
Judgment as a Matter of Law because Defendant waited until the
time to do so had nearly expired, at which point Mr. Cheng was
out of the country on a business trip to China, forcing another
of Defendant’s attorneys, Geoffrey Mason, to attempt a last
minute filing without local counsel.

The second such “issue”

was apparently confusion over the effect of this Court’s July
19, 2016 Order [Dkt. 85], which granted an extension of time to
file response briefs and set a revised briefing schedule for
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both Defendant’s Motion to Set Aside the Verdict Pursuant to
Rule 59(a) [Dkt. 79] (later withdrawn), and Defendant’s Motion
for Judgment as a Matter of Law.
In the July 19, 2016 Order, the Court ordered that the
opposition and rebuttal briefs on Defendant’s Motion to Set
Aside the Verdict and Defendant’s Motion for Judgment as a
Matter of Law be submitted as single, combined opposition and
rebuttal brief, respectively.

The Order never set, or even

addressed a hearing date for Defendant’s Motion for Judgment as
a Matter of Law.

The Order dealt only with the briefing

schedule for Defendant’s then pending motions.

Whether

Defendant’s attorneys were unaware that they had only noticed
one of their post-trial motions for a hearing in accordance with
Local Civil Rule 7(E), or some of Defendant’s attorneys were
altogether unaware of the need to either waive oral argument or
file a notice of oral argument within 30 days under the local
rules, the failure of Defendant’s attorneys to follow the local
rules is not “excusable neglect” for purposes of a Rule 60(b)
motion.

See Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403,

413 (4th Cir. 2010).

A party whose attorney fails to “act with

diligence will be unable to establish that his conduct
constituted excusable neglect pursuant to Rule 60(b)(1).”
Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 413 (4th
Cir. 2010).
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D.

Extraordinary Circumstances

In the alternative, Defendant seeks relief under the
catch-all provision of Rule 60(b)(6).

Relief should be granted

pursuant to Rule 60(b)(6) only where extraordinary circumstances
exist that “create a substantial danger that the underlying
judgment was unjust.”

Murchison, 466 F. App’x at 229 (quoting

Margoles, 798 F.2d at 1073).

The Fourth Circuit and the Supreme

Court have repeatedly emphasized that relief under Rule 60(b)(6)
is appropriate only in “truly ‘extraordinary circumstances.’”
Aikens v. Ingram, 652 F.3d 496, 500 (4th Cir. 2011)(quoting
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863
(1988)(Rehnquist, C.J., concurring)).
As discussed above, Defendant’s underlying Motion for
Judgment as a Matter of Law was unlikely to succeed in any
event.

Therefore, the Order deeming that Motion withdrawn does

not create a substantial danger of injustice.

Further, the

circumstances of Defendant’s failure to notice her Motion for
Judgment as a Matter of Law are not extraordinary.

Defendant’s

local counsel was out of the country on a business trip, and her
other attorneys failed to comply with the local rules.

There

was no chicanery on the part of the Plaintiff, no act of God
affecting the parties or the area, nor was there any particular
personal hardship being suffered by Defendant or her attorneys
that resulted in the failure to comply with the local rules.
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Business trips are a routine occurrence in the modern practice
of law, not an extraordinary circumstance.

As Defendant has

filed to demonstrate excusable neglect or extraordinary
circumstances, the Court would deny her Motion for
Reconsideration even if she had met the threshold requirement of
demonstrating a meritorious defense.
IV. Conclusion
For the foregoing reasons, the Court will deny
Defendant’s Motion for Reconsideration.

An appropriate Order

shall issue.

December 14, 2016
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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