Jennings v. Rivers

• Decision Date: 04 January 2005
• Docket Number: No. 04-6000.,04-6000.
• Citation: 394 F.3d 850
• Parties: Alison JENNINGS, Plaintiff-Appellant, v. Marcellus RIVERS; Alvin Porter, Defendants, and J.B. Flowers; Evan Howell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

394 F.3d 850

Alison JENNINGS, Plaintiff-Appellant, v. Marcellus RIVERS; Alvin Porter, Defendants, and J.B. Flowers; Evan Howell, Defendants-Appellees.

No. 04-6000.

United States Court of Appeals, Tenth Circuit.

January 4, 2005.

COPYRIGHT MATERIAL OMITTED

Mark Hammons and Tamara L.F. Gowens of Hammons & Associates, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Before LUCERO, McKAY, and PORFILIO, Circuit Judges.

McKAY, Circuit Judge.

In this civil diversity case, the district court entered a default judgment against defendants J.B. Flowers and Evan Howell when they failed to participate in the litigation. At the scheduled damages hearing, plaintiff and her counsel arrived approximately twenty minutes late, to learn that the district court had awarded zero dollars in damages based on a failure of proof. The district court denied plaintiff's subsequent motion for relief. On appeal, we conclude that the district court abused its discretion in denying plaintiff's motion to set aside the judgment. We reverse and remand for further proceedings.¹

I. Relevant facts and proceedings

Plaintiff sued four defendants under diversity jurisdiction, alleging that, as a group, defendants sexually assaulted her.² Two of the defendants entered into a settlement with Ms. Jennings. Mr. Flowers and Mr. Howell, however, did not even answer the complaint. The district court granted plaintiff's motion for default against them.

When attorney Charles Prather entered an appearance on Mr. Flowers' behalf and filed an answer, however, the district court set aside the default against Mr. Flowers. But then Mr. Flowers did not attend a court-ordered settlement conference. The district court issued an order for Mr. Flowers to show cause why default should not be re-entered. At the show-cause hearing, Mr. Prather and Mr. Mark Hammons, plaintiff's counsel, were present; Mr. Flowers was not. Mr. Prather explained to the court that Mr. Flowers knew the consequences of non-appearance but that "he [was] through with this case" and "he just wasn't going to show." Aplt. App. at 46. Mr. Prather also said that he would "like to be able to withdraw with the necessary papers," but that if the court wished, he would "stay on through [a damages] hearing." Id. Based on Mr. Prather's statements, the district court found that Mr. Flowers had notice of the hearing and intentionally failed to appear. It entered default against him and set the matter for a hearing on damages, with regard to Mr. Flowers and Mr. Howell, at 1:30 p.m. on Thursday, October 2, 2003. The court later issued a written order memorializing its finding of default and the setting of the hearing. Mr. Prather did not participate further in the case, but did not file a motion to withdraw.

At the time scheduled for the damages hearing, only Mr. Howell was present, appearing pro se after traveling from his home in Baton Rouge to court in Oklahoma City. The district court checked with chambers' staff and learned that Mr. Hammons had not telephoned to say that he and plaintiff would be late. The court then called the hearing to order, "award[ed] no damages to the plaintiff for her failure to present evidence," and closed the matter. Id. at 55. The court told Mr. Howell that "[i]t pays to show up." Id. The court recessed at 1:46 p.m., sixteen minutes after the hearing was to begin, id.; and entered a written order of judgment in favor of plaintiff for zero dollars in damages.

In the meantime, plaintiff's counsel, Mr. Hammons, was laboring under the mistaken belief that the hearing was scheduled for 2:00 p.m. He and his client arrived at the courthouse approximately four minutes after the hearing concluded. Mr. Howell had apparently departed and the district court refused to hold an ex parte discussion with plaintiff and Mr. Hammons. Later that afternoon, Mr. Hammons filed a motion asking the district court to set aside its judgment and schedule another damages hearing.

Though plaintiff's request did not denominate the rule under which she sought relief, the district court treated it as a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e). The court denied the motion as it related to Mr. Howell, Aplt. App. at 68-69, but did not rule on it relative to Mr. Flowers. Concluding that it would be unjust to rule without Mr. Flowers' receiving notice of the situation, the court reserved a ruling until "Mr. Flowers and his attorney" were served with a copy of the motion and had sufficient time to respond. Id. at 69. The court warned that the motion would be denied unless plaintiff provided proof of mailing within five days of its order.

The next day, plaintiff's attorney notified the court that he had mailed a copy of the motion to "Pro se defendant" Flowers at his home address. Id. at 71. After the five-day time period had elapsed, the district court ruled. The order pointed out plaintiff's failure to meet the additional requirement of serving Mr. Prather, as counsel of record, and "reluctantly" denied the motion for relief with respect to Mr. Flowers. Id. at 82. In this court, plaintiff appeals the entry of judgment for zero damages and also the denial of her postjudgment motion. Neither Mr. Howell nor Mr. Flowers has appeared or participated in this appeal.

II. Judgment for zero damages

We generally examine a factual determination on the appropriate amount of damages for clear error. Nieto v. Kapoor, 268 F.3d 1208, 1221 (10th Cir.2001). It is axiomatic that a plaintiff bears the burden of providing evidence in support of her damages claim. O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1256 (10th Cir.2001). Here, due to the absence of plaintiff and her counsel, proof of damages was totally lacking. Consequently, there was no factual error in the district court's finding of zero damages. It was simply one of "the procedural consequences of proper, if perhaps unintended, litigation actions or decisions." Sec. Nat'l Bank v. John Deere Co., 927 F.2d 519, 521 (10th Cir.1991).

Moreover, it was not unreasonable for the court to open the hearing, note the absence of plaintiff, and conclude the hearing with an award of zero damages. A district court is far too busy to conduct a search for missing attorneys and litigants or wait an indefinite amount of time in anticipation of a belated appearance. "[A] workable system of justice requires that litigants not be free to appear at their pleasure." Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444 (10th Cir.1983). "The burden of litigation is too pressing, and trial courts' patience has too long been tried, to permit parties to evade the consequences of neglecting their cases." M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 873 (10th Cir.1987). Though the district court's determination was severe, it was not erroneous and is not subject to reversal on appeal.

III. Orders denying plaintiff's postjudgment motion

A. Order concerning Mr. Howell

Plaintiff's case, however, did not end with the court's entry of judgment. In the belief that the hearing began one-half hour later than the scheduled time, plaintiff and Mr. Hammons appeared at the courthouse within minutes of the time the court left the bench. The same day, Mr. Hammons filed an undenominated motion for relief from the judgment. The motion described counsel's personal "failure to correctly note the time and the error of relying on his memory rather than checking the docket." Aplt. App. at 60. Mr. Hammons recognized the inconvenience to the court and emphasized that he, not his client, was the wrongdoer who should bear the consequences of his mistake. The motion suggested that Mr. Flowers (who had not appeared) would not be prejudiced by a rescheduling of the hearing and that Mr. Hammons could remedy any prejudice to Mr. Howell by paying the expenses and costs associated with a return to court. In response, Mr. Howell filed a pro se objection describing his travel difficulties — leaving a job placement workshop early and requiring his father to miss work to drive him 1200 miles roundtrip for the court appearance.³

The district court denied plaintiff's postjudgment motion. On appeal, this court reviews that ruling for abuse of discretion. Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1186 n. 5 (10th Cir.2000). "`The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.'" United States v. Johnston, 146 F.3d 785, 792 (10th Cir.1998) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)).

The Federal Rules of Civil Procedure provide that a postjudgment motion may "aris[e] under either Rule 59(e) (motion to alter or amend the judgment) or Rule 60(b) (relief from judgment for mistake or other reason). The[se] two rules serve different purposes and produce different consequences, both substantive and procedural." Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir.1988) (citation and footnote omitted). Here, plaintiff's motion asked the court to reopen the judgment based on counsel's mistake, inadvertence, or excusable neglect: the reasons expressed in Rule 60(b)(1). It asked for an opportunity to present her damages case in the first instance, not the "reconsideration of matters properly encompassed in a decision on the merits" contemplated by Rule 59(e). Osterneck v. Ernst & Whinney, 489 U.S. 169, 174, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989) (internal quotation marks omitted).

Notwithstanding the clear import of plaintiff's motion, the district court construed it as a motion to alter or amend the judgment pursuant to Rule 59(e). And a Rule 59(e) motion is normally granted "only to correct manifest errors of law or to present newly discovered evidence." Adams, 225 F.3d at 1186 n. 5 (internal quotation marks omitted). Consequently, the court reviewed the circumstances, determined that plaintiff had "not demonstrated that a...