Pelican Production Corp. v. Marino

Decision Date08 January 1990
Docket Number87-1855,Nos. 86-2157,s. 86-2157
Citation893 F.2d 1143
CourtU.S. Court of Appeals — Tenth Circuit
Parties1990-1 Trade Cases 68,888, 15 Fed.R.Serv.3d 808 PELICAN PRODUCTION CORPORATION, a Louisiana corporation; Brent Baker Oil & Gas, Inc.; and Harvey H. Holman, Plaintiffs-Appellants, v. John L. MARINO; C.W. Culpepper, an individual; Saturn Oil and Gas Company, Inc.; Wishbone Oil and Gas; Mar-Sher Exploration, Inc.; Mary Culpepper, an individual; Sherrye K. Harvey, an individual; Terri Lunday, an individual; Lisa L. Smith, an individual; Jeff S. Gray, an individual; Eddie Vossler, an individual; W.D. Hart, Sr., an individual; Jack Hart, an individual, Defendants-Appellees. PELICAN PRODUCTION CORPORATION, a Louisiana corporation; Brent Baker Oil & Gas, Inc.; and Harvey H. Holman, Plaintiffs-Appellants, v. John L. MARINO; C.W. Culpepper, an individual; Saturn Oil and Gas Company, Inc.; Wishbone Oil and Gas; Mar-Sher Exploration, Inc.; Mary Culpepper, an individual; Sherrye K. Harvey, an individual; Terri Lunday, an individual; Lisa L. Smith, an individual; Jeff S. Gray, an individual, Defendants-Appellees.

Daniel J. Gamino of Daniel J. Gamino & Associates, Oklahoma City, Okl., for plaintiffs-appellants.

H.B. Watson, Jr. (Leslie M. Forbes, Sharon Taylor Thomas and Janis W. Preslar with him, on the brief) of Watson & McKenzie, Oklahoma City, Okl., for defendants-appellees.

Before HOLLOWAY, Chief Judge, HENLEY * and EBEL, Circuit Judges.

HENLEY, Senior Circuit Judge.

Two appeals stemming from a single case have been consolidated and submitted for our opinion. Appellant (plaintiff below), Pelican Production Corporation (Pelican), appeals the district court's denial of its Fed.R.Civ.P. 60(b) motion to relieve it of the judgment against it; in addition, Pelican appeals the district court's adoption of a United States magistrate's recommended award of attorney fees. We affirm.

On January 24, 1986 Pelican initiated this action by filing a complaint alleging certain antitrust violations pursuant to Section 4 of the Clayton Act, 15 U.S.C. Sec. 15. Specifically, Pelican alleged that John L. Marino and other appellees (defendants below) had committed antitrust violations by producing gas from oil wells in the Oklahoma Red Fork Formation, from which Pelican claims ownership of exclusive rights to produce gas. On April 10, 1986 the United States District Court for the Western District of Oklahoma 1 entered a default judgment of dismissal against Pelican after it failed to respond to motions to dismiss and for summary judgment which had been filed by appellee Marino.

At a status conference held by the district court on May 5, 1986, an attorney who appeared on behalf of Pelican explained that Jack Wilkins, Pelican's lawyer in the suit which had recently been dismissed, had not responded to Marino's motion to dismiss because he was phasing out his law practice to start an oil company; this lawyer further indicated that Pelican had been unable to obtain new counsel.

On May 13, 1986 current counsel for Pelican filed a motion for relief from final judgment pursuant to Fed.R.Civ. 60(b)(1) & (6). 2 Pelican in its motion averred it had received no notice from Wilkins of the recently granted motion to dismiss, had no communication whatsoever from Wilkins on the matter, and that Pelican did not become aware of the default judgment until nearly a month after it was entered.

In opposition to Pelican's motion for relief from judgment, Marino contended that this case "is just one of a series of twelve prior actions brought by plaintiffs against defendants concerning the Bohanon Wells." The district judge found that two of these previous cases were dismissed and two were confessed, both by Pelican.

On June 30, 1986 the court denied Pelican's Rule 60(b) motion, finding that there was no showing of excusable neglect, mistake or inadvertence. The court stated that Rule 60(b) is "not a vehicle for an attorney's carelessness," citing Sutherland v. ITT Continental Baking Co., 710 F.2d 473, 476-77 (8th Cir.1983). The court also questioned the merits of Pelican's claim, since it appeared the controversy involved "trespass or conversion rather than antitrust."

On September 29, 1986 the district court determined that Marino should have judgment for attorney fees pursuant to Fed.R.Civ.P. 11 3 for vexatious and bad faith litigation. As a part of this order, the judge provided that if no agreement could be reached by the parties, the amount of the fees would be determined by a United States magistrate after an evidentiary hearing on the matter. No agreement was reached, and the matter was referred to the magistrate, 4 who on January 29, 1987 held an evidentiary hearing. After taking testimony from experts for both parties, with Marino's witness recommending a fee of $16,500.00 (against the request of Marino for $15,330.00), and Pelican's witness offering no discernible recommendation (against Pelican's suggestion of $4,500.00 to $5,500.00), and following reduction of the award for certain duplication the magistrate found in Marino's attorney's work effort, the magistrate ordered attorney fees in the amount of $11,498.00.

Pelican appealed the magistrate's order and argued to the district court that the award was inconsistent with the evidence in the record and the case law. Pelican asserted that the award should be reduced to $4,500.00 to $5,500.00. Though content with the magistrate's analysis, Pelican simply asserted that the award was excessive.

In its May 7, 1987 order, the district court noted that Pelican had failed to provide a record of the hearing before the magistrate. Nevertheless, the court reviewed the matter on the basis of its knowledge of the history of the underlying action, as well as the submissions of the parties.

In rejecting the attack of Pelican on the magistrate's order, the district court noted with approval the magistrate's analytical approach to attorney fee calculation. The court specifically held that the magistrate's findings "appropriately appraise the difficulty of the issues, the requisite specialized skills, and the circumstances under which the litigation was pursued."

The district court enhanced the magistrate's determination of fee by $752.50 to cover Pelican's challenge of the magistrate's determination. The court therefore approved a total fee in the matter of $12,250.50. The $752.50 does not appear to be a part of the fee which Pelican now attacks on appeal.

Rule 60(b) Motion. Pelican contends that the district court erred when it refused to grant Pelican's motion to relieve it from judgment pursuant to Fed.R.Civ.P. 60(b)(1) and (6). Our task upon review is to determine only whether the district court abused its discretion in denying such relief. See In re International Coating Applicators, Inc., 647 F.2d 121, 124 (10th Cir.1981); Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136, 139 (10th Cir.1966).

An abuse of discretion is defined in this circuit as a judicial action which is arbitrary, capricious, or whimsical. See United States v. Wright, 826 F.2d 938, 943 (10th Cir.1987). Other evidence of such abuse would include manifestly unreasonable judgment, prejudice, bias or ill will which is ascertainable from the record. See id. A failure to offer any reason for denial of such a motion could also constitute an abuse of discretion. See id. The district court has substantial discretion in connection with a Rule 60(b) motion. Greenwood Explorations, Ltd. v. Merit Gas & Oil Corp., 837 F.2d 423, 426 (10th Cir.1988).

Default judgments, to be certain, are disfavored. See Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir.1970). "However, this judicial preference is counterbalanced by considerations of social goals, justice and expediency, a weighing process which lies largely within the domain of the trial judge's discretion." Id.

Although Pelican bases its appeal on the provisions of both Rule 60(b)(1) (mistake, inadvertence, surprise, or excusable neglect) and Rule 60(b)(6) (any other reason justifying relief), we need not rigidly compartmentalize our analysis upon review. See In re Four Seasons Sec. Laws Litig., 502 F.2d 834, 841 (10th Cir.) (there is no need to pinpoint which clause of Rule 60(b) is the basis for the decision below where a timely motion is being reviewed), cert. denied, 419 U.S. 1034, 95 S.Ct. 516, 42 L.Ed.2d 309 (1974). Instead, we look to the record in its entirety to see if the trial judge clearly ignored excusable conduct or failed to recognize some other compelling reason for relief to be granted. See id.

Carelessness by a litigant or his counsel does not afford a basis for relief under Rule 60(b)(1). Ben Sager Chems. Int'l, Inc. v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir.1977). We know of no reason that the failure of Pelican's lawyer, Jack Wilkins, to answer the motion to dismiss would be excusable. Perhaps an excuse would be offered if we had his affidavit on his reason for not responding, but we do not. "Parties desiring relief must particularize, and generally do not acquit themselves of responsibility by showing merely that they placed the case in the hands of an attorney." 7 Moore's Federal Practice p 60.22, at 60-184 (2d ed. 1987). Finally, although we do not decide the issue, were Pelican to demonstrate that it was wholly innocent in the matter of failing to respond to the motion to dismiss, we might still find this not to constitute excusable conduct under Rule 60(b). Cf. Transport Pool Div. of Container Leasing, Inc. v. Joe Jones Trucking Co., 319 F.Supp. 1308, 1311 (N.D.Ga.1970) (dismissal resulting from counsel's inexcusable neglect does not amount to a dismissal for parties' excusable neglect).

The burden is upon the party moving to have the judgment set aside to plead and prove excusable neglect. Greenwood Explorations, 837 F.2d at 426. It being the obligation of Pelican to come forward with such proof--and given the fact we find no such proof...

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