Lender v. Unum Life Ins. Co. of America, Inc.

• Decision Date: 14 September 2007
• Docket Number: No. 8:06-CV-178-T-17EAJ.,8:06-CV-178-T-17EAJ.
• Citation: 519 F.Supp.2d 1217
• Parties: Carol LENDER, Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, INC., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

519 F.Supp.2d 1217

Carol LENDER, Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, INC., et al., Defendants.

No. 8:06-CV-178-T-17EAJ.

United States District Court, M.D. Florida, Tampa Division.

September 14, 2007.

E.C. Watkins, Jr., Law Office of E. C. Watkins, Jr., Plant City, FL, J. Troy Andrews, Andrews Law Group, Tampa, FL, for Plaintiff.

Kristina B. Pett, Lonn Weissblum, Pett Furman, PL, Boca Raton, FL, Steven L. Schwarzberg, Schwarzberg Spector Duke Schulz & Rogers West Palm Beach, FL, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

ELIZABETH A. KOVACHEVICH, District Judge.

Plaintiff, Carol Lender ("Lender" or "Plaintiff'), filed a Motion for Relief from Judgment/Order (Docket No. 23-1) on April 20, 2007, in which she petitions this Court to vacate the April 21, 2006 Order of Dismissal (Docket No. 21). This Court, under authority of 28 U.S.C. § 636(b)(1)(B), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 6.02 of the Local Rules of the Middle District of Florida, referred the motion to the Honorable Elizabeth A. Jenkins, United States Magistrate Judge, by Order dated June 14, 2007 (Docket No. 31).

After considering the Joint Pre — Evidentiary Statement (Docket No. 33) filed on July 9, 2007 and evidence entered at an evidentiary hearing held on July 12, 2007 (Docket No. 34), Judge Jenkins, on July 30, 2007, filed a Report and Recommendation ("R & R") (Docket No. 36) wherein she recommended that this Court grant Plaintiffs Motion for Relief from Judgment/Order (Docket No. 23-1) and reopen the case as to the Defendant Unum Life Insurance Company of America, Inc. ("Unum" or "Defendant"). Judge Jenkins determined that the Plaintiff sufficiently and validly demonstrated exceptional circumstances as required by Rule 60(b)(6), Federal Rules of Civil Procedure, and, therefore, recommended relief from the Order of Dismissal. Neither the Plaintiff nor the Defendant filed timely and specific objections to the Magistrate Judge's R & R.¹ After reviewing Judge Jenkins' findings, this Court adopts the Magistrate Judge's R & R.

I. FACTUAL AND PROCEDURAL BACKGROUND

Although this Court adopts the Magistrate Judge's R & R, a summary of the facts and issues in this case is presented for the benefit of the reader. They are not intended to replace, modify, or supplement the findings of the R & R.

Plaintiff filed a two-count complaint in Hillsborough County Circuit Court in December 2005, seeking a declaratory judgment and damages against Defendants on Plaintiffs allegedly valid entitlement to certain life insurance proceeds following the death of her husband (Docket No. 2). Defendants removed the suit to this Court on February 1, 2006 (Docket No. 1), correctly stating that under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001-1461 (ERISA), this Court has original jurisdiction of this claim pursuant to the provisions of 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1).

Following removal, Plaintiffs counsel, E.C. Watkins, Jr. ("Watkins") failed to file any documents in the case or otherwise make an appearance before this Court. On March 31, 2006, this Court granted on the merits Defendants Advanced Auto Parts' and Discount Auto Parts' Joint Motion to Dismiss (Docket No. 16). On April 21, 2006, this Court sua sponte issued an Order dismissing this action for failure to prosecute (Docket No. 21) following Plaintiffs failure to respond to this Court's Order to Show Cause (Docket No. 20) and Unum's Motion to Dismiss (Docket No. 18). On April 20, 2007, 364 days after dismissal of the case, Plaintiff, having obtained new counsel, filed the instant Motion for Relief from Judgment/Order pursuant to Rule 60(b), Federal Rules of Civil Procedure.

This Court denied Plaintiffs Rule 60 motion as to Defendants Advanced Auto Parts and Discount Auto Parts because this Court had granted, on the merits, their Joint Motion to Dismiss before dismissing the entire suit (Docket No. 31 at 7). However, as to Defendant Unum, this Court found that it required more evidence on Plaintiffs conduct to determine whether relief pursuant to Rule 60 is warranted. Specifically, this Court noted that Plaintiffs affidavit accompanying her Rule 60 motion offered no evidence of Plaintiffs role, participation, or efforts in the case, and cited the need for more information on Plaintiffs action, (or inaction), beginning with the time the case was removed (Docket No. 31 at 6).² This Court's referral Order stated that relief in this case could be premised either upon a finding of excusable neglect under Rule 60(b)(1) or a finding of extraordinary circumstances pursuant to Rule 60(b)(6) (Docket No. 31 at 6).

Accepting as true Watkins' poor health, this Court determined that available relief hinged on evidence of Plaintiff's general diligence after removal. This Court indicated that even if Watkins' conduct failed to constitute excusable neglect under Rule 60(b)(1), this Court could set aside the judgment pursuant to subsection (b) (6) if Plaintiff could show, general diligence (Docket No. 31 at 6). At the evidentiary hearing, Plaintiff claimed entitlement to relief pursuant to only Rule 60(b)(6) and affirmatively waived any argument of excusable neglect under Rule 60(b)(1) (Docket No. 36 at 3).

In the instant motion, Plaintiff argues that the April 21, 2006 Order of Dismissal should be vacated because Watkins was mentally incapacitated by severe diabetes from February 2006 to April 2006. During that time, Watkins failed to respond to any filings or make an appearance, resulting in dismissal of the action. Plaintiff maintains that she never authorized Watkins to abandon her case, nor did she have any knowledge of Watkins' inactivity on the case or of his debilitating condition until recently. In support of her argument that Watkins' medical and mental condition rendered him mentally incompetent to handle her case, Plaintiff cites the testimony of John K. Kilgore, M.D. ("Dr. Kilgore") in a Florida Bar Grievance proceeding against Watkins on January 2, 2007 (Docket No. 23-2).

This Court, in its referral Order, accepted as true Dr. Kilgore's testimony about Watkins' mental and physical condition in the months immediately preceding dismissal of this case in 2006 (Docket No. 31 at 6).³ Further, Plaintiff noted that this Court sua sponte terminated Watkins from representation in another matter⁴ in 2006, after Watkins failed to serve process on a defendant. Defendant's sole argument is that Plaintiff has not met her burden to justify entitlement to the relief she seeks under either Rule 60(b)(1) or (b)(6) (Docket No. 26). Plaintiff correctly points out that denying the instant motion would effectively bar the action because a dismissal for failure to prosecute pursuant to Rule 41, Federal Rules of Civil Procedure, operates as an adjudication on the merits (Docket No. 23-1 at 5). See Bierman v. Tampa Electric Co., 604 F.2d 929, 930-31 (5th Cir.1979).⁵

II. STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION

This Court must first determine the standard to be applied in reviewing the Magistrate Judge's findings of fact and law. Under the appropriate standard, this Court must then review: (1) the law the Magistrate Judge followed in recommending granting Plaintiff's Motion for Relief from Judgment/Order (Docket No. 23-1), and (2) the Magistrate Judge's findings in light of the lack of objections.

Under the Federal Magistrate's Act (the "Act"), Congress vested Article III judges with the power to authorize a United States Magistrate Judge to conduct evidentiary hearings. The relevant portion of this Act is found at 28 U.S.C. § 636. A district court judge may designate a United States Magistrate Judge to conduct hearings, including evidentiary hearings, in order to submit proposed findings of fact and recommendations (i.e. "R & R") for the disposition of motions. 28 U.S.C. § 636(b)(1)(B). Within ten days after being served with a copy of the R & R, any party may file written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1). Section 636(b)(1) also states that a judge of the court shall make a de novo determination of those portions of the R & R to which objection is made. Id.

Rule 72 of the Federal Rules of Civil Procedure places into practice the powers codified in 28 U.S.C. § 636(b)(1). Rule 72 follows the statutory example and sets forth different provisions for the two types of pretrial matters that can be referred to a Magistrate Judge. The first provision under § 636(b)(1)(A) states in part that a judge may designate a Magistrate Judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. Rule 72(a) refers to the type of a pretrial matter set out in § 636(b)(1)(A) as one that is not dispositive of a claim or defense.

The second provision, under § 636(b)(1)(B), states in part that a district judge may designate a Magistrate Judge to conduct hearings, including evidentiary hearings, and to submit proposed findings of fact and recommendations (ie. R & R) for disposition, by a judge, of any motion including those excepted in subparagraph (A). Rule 72(b) refers to the type of a pretrial matter set out in § 636(b)(1)(B) as one that is dispositive of a claim or defense. Here, the Order for Report and Recommendation (Docket No. 31) was referred for an evidentiary hearing under § 636(b)(1)(B).

In United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), the Court upheld the constitutionality of this provision of the Act. The Court found that Congress adequately protected the Act...