Lepkowski v. U.S. Dept. of Treasury

• Decision Date: 14 November 1986
• Docket Number: No. 85-5867,85-5867
• Parties: , 6 Fed.R.Serv.3d 504 Robert LEPKOWSKI, Appellant, v. UNITED STATES DEPARTMENT of the TREASURY, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1310

804 F.2d 1310

256 U.S.App.D.C. 281, 6 Fed.R.Serv.3d 504

Robert LEPKOWSKI, Appellant, v. UNITED STATES DEPARTMENT of the TREASURY, et al.

No. 85-5867.

United States Court of Appeals District of Columbia Circuit.

Argued April 29, 1986.

Decided Nov. 14, 1986.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-02964).

Mitchell Eskenazi, Arlington, Va., a member of the Bar of the Second Division First Appellate Section of New York, pro hac vice by special leave of Court for appellant. Jack B. Solerwitz, Mineola, N.Y., was on the brief for appellant.

Janet A. Bradley, Atty., Dept. of Justice, Roger M. Olsen, Acting Asst. Atty. Gen., Michael L. Paup and Robert S. Pomerance, Attys., Dept. of Justice, Washington, D.C., were on the brief for appellees.

Joseph E. diGenova, U.S. Atty., Washington, D.C., also entered an appearance for appellees.

Before ROBINSON and STARR, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge STARR.

Opinion concurring in the judgment filed by Circuit Judge ROBINSON.

STARR, Circuit Judge:

This is an appeal from the District Court's denial of a motion for reconsideration sought under Rule 60(b)(1) of the Federal Rules of Civil Procedure. The underlying action had been dismissed for protracted failure to file an opposition to a motion to dismiss filed by the Department of Treasury. Attorneys for Mr. Lepkowski argued before the District Court that their failure to file a timely response to a motion to dismiss was "excusable neglect" within the meaning of Rule 60(b). ¹ The District Court was unpersuaded that counsel's undisputed neglect was, in fact, excusable. As we may review the trial court's Rule 60(b) determination only for abuse of discretion, Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978), this court cannot lightly overturn that decision. ² As no substantial reason for reversal has been advanced, we are constrained on the record before us to affirm.

Mr. Lepkowski's complaint under the Privacy Act, 5 U.S.C. Sec. 552 (1982), was filed in September 1984 by his attorney of record, Jack B. Solerwitz, in the United States District Court for the District of Columbia. Mr. Solerwitz's principal law offices, as we understand from his various filings, are located in Mineola, New York. In November 1984, the Government moved to dismiss the complaint for want of subject matter jurisdiction based upon the applicable statute of limitations and for failure to state a claim for relief under the Privacy Act.

Rule 1-9(d) of the Local Rules of the District Court requires that an opposition to a motion to dismiss be filed within ten days; the Rule further provides that "[i]f such opposing statement is not filed within the prescribed time, the court may treat the motion as conceded." The opposition was due in early December 1984, yet as confirmed by the testimony of Mr. Solerwitz's associate, a timely response was never filed or served. Hearing Transcript at 4 (Feb. 27, 1985).

Some time after the due date, although ultimately to no avail, the District Judge's law clerk telephoned Mr. Solerwitz's law offices to inquire about the matter. According to the testimony of Mr. Solerwitz's associate, he and Mr. Solerwitz (the sole attorney of record) drafted another opposition for the latter's signature, which was then mailed. Id. However, neither the court nor opposing counsel received that document.

A number of telephone conversations between the Clerk's Office of the District Court and Mr. Solerwitz's office over the next two months failed to produce the long-awaited opposition. Id. at 2. On January 29, 1985, again prompted by the Clerk of the Court, Mr. Solerwitz's associate either "redrafted," id. at 5, or "ran off," id. at 2, yet another copy of the opposition for Mr. Solerwitz's signature. Again, neither court nor counsel received the elusive document.

The District Court finally set the motion for hearing at a status conference on February 27, 1985, three months after the motion to dismiss had been filed. Mr. Solerwitz's associate attended the status conference, ³ with a copy of the unfiled January 29th opposition and certificate of service (dated Jan. 30, 1985) in hand, which he then personally furnished to opposing counsel. The attorney failed, however, to file the opposition with the District Court. No opposition ever having been received, no explanation for the delay ever having been provided, and no tenable defense to the statute of limitations defense having been interposed, the District Court treated the motion to dismiss as conceded under Local Rule 1-9(d) and dismissed the complaint with prejudice. Order, Civ. No. 84-2964 (Feb. 27, 1985).

In mid-April 1985, Mr. Solerwitz filed a motion for reconsideration pursuant to Rule 60(b), contending that his failure to file an opposition had been "unintentional and inexplicable," Motion to Reconsider at 10 (Apr. 16, 1985), the result of "law office failure." Id. at 6. This motion was heard in June 1985. Although Mr. Solerwitz was himself a member of the District Court bar, the firm chose not to send one of its own attorneys to the hearing, but instead retained local counsel in the District of Columbia to argue the motion. The local attorney offered argument on the underlying merits of Mr. Lepkowski's cause of action, Transcript at 5 (June 28, 1985), and on the reasons for the post-dismissal delay in seeking reconsideration, id. at 6, but never advanced any explanation for Mr. Solerwitz's neglect, as sole counsel of record, to file any response to the dismissal motion, other than to observe that "[h]e is a busy lawyer, who had an associate who was assigned to the case." Id. at 6.

This continuing course of conduct has nowhere been justified in the record. Mr. Solerwitz describes his failure to respond to a motion to dismiss his client's complaint as merely an "irregular presentation," Motion to Reconsider at 11. But, in truth, it was no presentation at all. Mr. Solerwitz has never, to this day, filed an opposition with the District Court; it appears in the record as an appendix to the Motion for Reconsideration. Although counsel was aware of his own default throughout the entire period, and indeed received repeated notice to that effect from the court, he failed to exert the minimal effort which would have cured his omission. Mr. Solerwitz readily concedes that the failure to respond was strictly due to the neglect of his office, yet he claims that his lack of attention in this matter was excusable. The only "excuse" offered, however, has been the reiteration of the protracted derelictions of counsel. Not a word of explanation nor a justification for the manifest negligence in this chronicle of events has been forthcoming. Mr. Solerwitz does indeed go to great lengths to explain why the Motion to Reconsider was not unduly delayed; this, however, is scarcely relevant to the point at hand and cannot do service as a justification for the failure to respond in the underlying action.

On this record, we are unable to say that the District Court's denial of the Rule 60(b) motion rose to the level of an abuse of discretion. It was well within the bounds of the court's permissible discretion to find that Mr. Lepkowski's counsel had not even attempted to demonstrate that his dilatory failings were the product not of mere neglect but, rather, excusable neglect, for which his client should not be penalized.

In a recent decision, Shea v. Donohoe Construction Co., 795 F.2d 1071 (D.C.Cir.1986), this court has had occasion to analyze decisions in which excusable neglect was raised as the basis of either a direct appeal or a Rule 60(b) motion for reinstatement. Unlike Shea, this is not a case in which dismissal reflected an exercise of the court's inherent power to control its docket. See also Instantwhip v. Aeration Processes, Inc., 797 F.2d 1093 (D.C.Cir.1986) (dismissal at pretrial conference was improper discovery sanction; no violation of a court rule or court order). Rather, a neutral rule of general application required a response to a motion within ten days. Dismissal under such a neutral rule is by no means an ad hoc sanction for misconduct; in such situations, violation of the rule itself indicates prejudice to an already overburdened system of litigation.

In this case, the Government's motion to dismiss challenged the very timeliness of Mr. Lepkowski's complaint. The Local Rule gave notice to the world that failure to respond within the prescribed time could be treated by the trial court as a concession of the motion. Moreover, as we have seen, the District Court did not act precipitously, but to the contrary, took steps to ensure that the litigation process could get back on track, repeatedly attempting to pry out an opposition to the motion. Through his continued silence, Mr. Solerwitz conceded this legal issue. In pursuing reopening of the judgment, no showing was made that the client was misled by counsel as to the status of his case or even that he was unaware of his counsel's action. Jackson v. Washington Monthly Co., 569 F.2d 119, 122 & nn. 12, 16, 18 (D.C.Cir.1977).

Finally, motions for relief under Rule 60(b) are not to be granted unless the movant can demonstrate a meritorious claim or defense; we cannot escape the fact that the complaint and the proposed opposition were insufficient as a matter of law to defeat the motion on the statute of limitations ground. ⁴ Under these circumstances, we cannot say that the District Court abused its discretion in denying relief from judgment.

Our concurring colleague is troubled that our analysis embodies a form of mechanical jurisprudence which exalts the Local Rule to a role of unduly dispositive preeminence. We seek to allay these concerns for we have no such intent. To the contrary, we emphatically do not countenance...