Leszyczynski v. Home Depot USA, Inc.

• Decision Date: 30 November 2020
• Docket Number: Case No. 18-13432
• Parties: Kim Leszyczynski, Plaintiff, v. The Home Depot USA, Inc., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

Kim Leszyczynski, Plaintiff, v. The Home Depot USA, Inc., Defendant.

Case No. 18-13432

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

November 30, 2020

Judith E. Levy United States District Judge

Mag. Judge David R. Grand

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT [16]

On January 15, 2020, the Court granted Defendant The Home Depot USA, Inc.'s motion for summary judgment and entered judgment against Plaintiff Kim Leszyczynski. (ECF Nos. 14, 15.) Before the Court is Plaintiff's January 29, 2020 motion for relief from final judgment. (ECF No. 16.) For the reasons set forth below, Plaintiff's motion is DENIED.

I. Background

The facts giving rise to this case were set forth in detail in the Court's previous opinion. (ECF No. 14, PageID.231-235.) In short, Plaintiff was injured during a slip and fall at Defendant's Roseville, Michigan store on November 2, 2016. (Id. at PageID.231-232.) While walking toward the store's Garden Center and looking ahead, Plaintiff suddenly felt her right leg slide out from under her and landed on the ground. (Id. at PageID.231.) While Plaintiff was still on the ground, she saw what appeared to be a red "Slurpee" drink that was "spattered" across the floor that she identified as the source of her fall. (Id. at PageID.231-232.) Plaintiff finished her shopping and returned to her car, but twenty to thirty minutes later she re-entered the store and reported the incident to two of Defendant's employees. (Id. at PageID.232-234.) She did not seek medical treatment until approximately one week later after returning home to Florida. (Id. at PageID.234.) Plaintiff alleges that she still experiences the residual effects of her injuries from the fall. (Id. at PageID.234-235.)

On September 20, 2018, Plaintiff filed her complaint in Macomb County Circuit Court (ECF No. 1, PageID.15), alleging that Defendant was liable for her injuries under theories of premises liability, negligence, respondeat superior, and nuisance (id. at PageID.17-22). Defendant removed the case to this Court on November 2, 2018 and answered the complaint on November 7, 2018. (ECF Nos. 1, 2.)

On October 3, 2019, Defendant moved for summary judgment. (ECF No. 12.) That day, the Court suspended the remaining scheduling dates and scheduled a hearing for February 6, 2020. (ECF No. 13.) Plaintiff did not respond to Defendant's motion within 21 days as required under the Local Rules. See LR 7.1(e)(1)(B). The Court nevertheless reviewed Defendant's motion on the merits, and on January 15, 2020, granted summary judgment to Defendant on all claims and entered judgment against Plaintiff. (ECF Nos. 14, 15.)

On January 29, 2020, Plaintiff filed a timely motion for relief from final judgment under Fed. R. Civ. P. 60(b)(1). (ECF No. 16.) She states that "Plaintiff's counsel's employee, Kelly Folster, was solely responsible for calendaring motion hearing dates and response deadline dates" and that "Ms. Folster inadvertently calendared a response due date for [Defendant's motion for summary judgment] on January 30, 2020 by incorrectly following the Michigan Court Rules."¹ (Id. at PageID.256; see also ECF No. 16-7.) Plaintiff also attached a proposed response to Defendant's motion for summary judgment. (ECF No. 16-10.)

II. Legal Standard

Under Fed. R. Civ. P. 60(b)(1), the Court may grant a party relief from a final judgment due to "mistake, inadvertence, surprise, or excusable neglect." Relief under Rule 60(b) is discretionary. See Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). "Moreover, relief under Rule 60(b) is circumscribed by public policy favoring finality of judgments and termination of litigation." Berry v. Del. Cnty. Sheriff's Off., 796 F. App'x 857, 866 (6th Cir. 2019) (internal quotation marks omitted) (citing Blue Diamond Coal Co. v. Trs. of UMWA Combined Ben. Fund, 249 F.3d 519, 524 (6th Cir. 2001)), cert. denied, ___ U.S. ___, 140 S. Ct. 2671 (2020). "[T]he party seeking relief under Rule 60(b) bears the burden of establishing the grounds for such relief by clear and convincing evidence." Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008) (citing Crehore v. United States, 253 F. App'x. 547, 549 (6th Cir. 2007)).

"In determining whether relief is appropriate under Rule 60(b)(1), courts consider three factors: '(1) culpability—that is, whether the neglect was excusable; (2) any prejudice to the opposing party; and (3) whether the party holds a meritorious underlying claim or defense. A party seeking relief must first demonstrate a lack of culpability before the court examines the remaining two factors.'"² Yeschick v. Mineta, 675 F.3d 622, 628-29 (6th Cir. 2012) (quoting Flynn v. People's Choice Home Loans, Inc., 440 F. App'x. 452, 457-58 (6th Cir. 2011)). Because clients are accountable for their chosen attorneys' acts or omissions, the proper focus in assessing a claim of excusable neglect includes the conduct of both the parties and their counsel. Id. at 629 (citing McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 594-95 (6th Cir. 2002)).

III. Analysis

A. Plaintiff Cannot Demonstrate Excusable Neglect

Plaintiff's counsel's failure to timely respond to Defendant's motion for summary judgment does not constitute excusable neglect. The Sixth Circuit has made clear that a party's "failure to respond to a motion for summary judgment or to request an extension of time to file a response thereto is inexcusable neglect." Broach v. City of Cincinnati, 244 F. App'x 729, 734 (6th Cir. 2007) (emphasis in original) (quoting Kendall v. Hoover Co., 751 F.2d 171, 173 (6th Cir. 1984)). "Gross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief . . . . In fact, a court would abuse its discretion if it were to reopen a case under Rule 60(b)(1) when the reason asserted as justifying relief is one attributable solely to counsel's carelessness or misapprehension of the law or the applicable rules of court." FHC Equities, L.L.C. v. MBL Life Assur. Corp., 188 F.3d 678, 685 (6th Cir. 1999) (alteration in original) (quoting Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356-57 (5th Cir. 1993)); see also Yeschick, 675 F.3d at 631 ("[G]ross carelessness or inadvertent conduct that results in judgment will not give rise to a successful claim of excusable neglect if the facts demonstrate a lack of diligence."). Moreover, attorneys have an affirmative duty to monitor the docket to keep apprised of any filings by other parties, orders of the court, or changes in deadlines. See Yeschick 675 F.3d at 629-30.

Applying these principles, courts in this Circuit have consistently refused to excuse an attorney's neglect even when the attorney's failure to respond was due to a good faith clerical error. In Burnley, the plaintiff's attorney failed to respond to the defendant's motion for summary judgment "because his scheduling calendar was misplaced when he moved his office." Burnley v. Bosch Americas Corp., 75 F. App'x 329, 331 (6th Cir. 2003). The district court granted the defendant's motion on the merits and denied the plaintiff's subsequent motion for relief under Rule 60(b)(1). Id. at 332. While the Sixth Circuit noted that plaintiff's counsel "demonstrated good faith because he filed for an extension two days after the court granted [defendant's] motion for summary judgment," the court nevertheless found that the attorney's neglect was "inexcusable, and did not warrant relief under Rule 60(b)(1)." Id. at 333.

In Yeschick, the plaintiff's attorney alleged that he failed to respond to the defendant's motion to compel and motion to dismiss because he did not receive the relevant email notifications from the CM/ECF system. 675 F.3d at 626-27. These notifications were not delivered because counsel did not update his email address with the court after his email provider moved his account from one domain to another. Id. at 627. The Sixth Circuit affirmed the district court's denial of plaintiff's Rule 60(b) motion. Id. at 629-31. The court emphasized that counsel's neglect was inexcusable because, among other things, he "had notice that filings in the case were to be expected if he failed to respond to the [defendant's] discovery requests and was also aware of the discovery cut-off date and the deadline for dispositive motions." Id. at 630. Moreover, the fact that the email address was changed by a third party did not absolve counsel of his duty to update his email address with the court or to monitor the docket. Id.

Finally, in a recent district court case, counsel for respondents failed to object to a petition seeking enforcement of an arbitration award under the Federal Arbitration Act. See Thyssenkrupp Presta Danville, LLC v. TFW Indus. Supply & CNC Mach., LLC, No. 19-MC-50863, 2019 WL 5653253, at *1 (E.D. Mich. Oct. 31, 2019). Counsel later explained that its paralegal failed to calendar the relevant deadline for the objections following her husband's death. Id. at *2. In denying relief under Rule 60(b)(1), the Honorable Gershwin A. Drain pointed out that "at least three other individuals at [r]espondent's firm, two of whom are lawyers, could have caught the calendaring issue" which "indicate[d] that the mistake was within the reasonable control of [r]espondent's firm." Id. at *3.

The overwhelming weight of authority demonstrates that Plaintiff's failure to timely respond to Defendant's motion for summary judgment is inexcusable neglect. The Court does not doubt that Ms. Folster acted in good faith and appreciates her candor. However, it was counsel's failure to verify that the date was entered correctly—and not Ms. Folster's application of the Michigan Court Rules—that resulted in Plaintiff's failure to respond. As in Yeschick, Plaintiff's counsel had notice from the Court's scheduling order that the deadline for dispositive motions was October 3, 2019. (ECF No. 9, PageID.84.) On October...