McDermott v. Lehman

• Decision Date: 24 September 1984
• Docket Number: Civ. No. 82-0295 P.
• Citation: 594 F. Supp. 1315
• Parties: Arthur P. McDERMOTT, Plaintiff, v. John F. LEHMAN, Jr., Defendant.
• Court: U.S. District Court — District of Maine

594 F. Supp. 1315

Arthur P. McDERMOTT, Plaintiff, v. John F. LEHMAN, Jr., Defendant.

Civ. No. 82-0295 P.

United States District Court, D. Maine.

September 24, 1984.

COPYRIGHT MATERIAL OMITTED

Robert E. Mittel, Donald F. Fontaine, Portland, Me., for plaintiff.

Kevin A. Gaynor, Asst. U.S. Atty., Portland, Me., Susan D. Warshaw, Dept. of the Navy, Washington, D.C., for defendant.

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT AND MOTION TO ALTER OR AMEND JUDGMENT AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GENE CARTER, District Judge.

I.

This case comes before the Court on Plaintiff's Motion to Alter or Amend Judgment and Plaintiff's Motion for Relief From Judgment or Order. The motions were filed on June 27, 1984. Both motions seek reconsideration of the Court's Order, entered via the Clerk of Courts on June 25, 1984, pursuant to Local Rule 19(c), which granted Defendant's Motion for Summary Judgment.

Defendant's Motion for Summary Judgment was filed on June 4, 1984. On June 25, 1984, the motion was granted by the endorsement of the Clerk, acting for the Court: "No objection having been filed motion granted per Local Rule 19(c)." (Emphasis in original.) The basis of that action was the failure of Plaintiff to comply with the requirements of Local Rule 19(c) by failing to file within ten days after the filing of Defendant's motion "a written objection thereto."¹ By virtue of that failure, Plaintiff was "deemed to have waived objection," empowering the Court to act on the motion. Local Rule 19(c).

On June 26, 1984, Plaintiff filed an objection to Defendant's Motion for Summary Judgment. The following day Plaintiff filed his Motion for Relief from Judgment or Order and Motion to Alter or Amend the Judgment, each accompanied by an affidavit of Plaintiff's counsel. Defendant filed its objection to Plaintiff's motions and a memorandum of law in opposition to Plaintiff's motions on July 6, 1984. On July 18, 1984, Plaintiff filed a reply memorandum to Defendant's memorandum.

Plaintiff seeks relief under Fed.R.Civ.P. 59(e) and Fed.R.Civ.P. 60(b). He presents three arguments: (1) his failure to respond to Defendant's Motion for Summary Judgment was excusable neglect; (2) application of Local Rule 19(c) was precluded by Rule 41(b); and (3) application of Local Rule 19(c) was precluded by Rule 56. It is first necessary to determine whether these arguments assert proper grounds for relief under Rule 59(e) or Rule 60(b).

II.

In his Motion to Alter or Amend Judgment pursuant to Rule 59(e), Plaintiff states that he prepared his objection to Defendant's Motion for Summary Judgment on June 25, 1984. Plaintiff states that, "through inadvertence," the objection was mailed rather than filed with the Court.

Decisions of this Circuit indicate that relief under Rule 59(e) is not available in cases of neglect or inadvertence of counsel. See Scola v. Boat Frances R., Inc., 618 F.2d 147, 153-4 (1st Cir.1980); Morgan Guaranty Trust Co. v. Third National Bank, 545 F.2d 758, 760 (1st Cir.1976); Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir.1971). In each of these cases, the First Circuit refused to permit motions relating to the merits of the case to be brought under Rule 60(b). Conversely, a basis for relief that falls clearly within the scope of Rule 60(b) is not a proper ground for a motion under Rule 59(e). In a decision holding that a motion for attorney's fees pursuant to 42 U.S.C. § 1988 is not within the scope of Rule 59(e), the United States Supreme Court discussed the purpose of Rule 59(e):

Its draftsmen had a clear and narrow aim. According to the accompanying Advisory Committee Report, the Rule was adopted to "make clear that the district court possesses the power" to rectify its own mistakes in the period immediately following the entry of judgment.

....

Consistently with this original understanding, the federal courts generally have invoked Rule 59(e) only to support reconsideration of matters properly encompassed in a decision on the merits. By contrast, a request for attorney's fees under § 1988 raises legal issues collateral to the main cause of action — issues to which Rule 59(e) was never intended to apply.

White v. New Hampshire Department of Employment Security, 455 U.S. 445, 450-51, 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325 (1982) (footnotes and citations omitted). Plaintiff's neglect is not a ground for relief relating to the merits of his cause of action. Grounds relating to neglect or inadvertence of counsel fall squarely within the scope of Rule 60(b). See Gideon v. Administrator, United States Small Business Administration, 102 F.R.D. 604 (D.Me.1984); Greene v. Union Mutual Life Insurance Company, 102 F.R.D. 598 (D.Me.1984). Plaintiff's claim of excusable neglect, therefore, must be examined in light of the standards for relief under Rule 60(b).

Plaintiff's argument that application of Local Rule 19(c) in this case conflicts with Rule 41(b) and Rule 56, on the other hand, raises questions as to the legal correctness of the standard applied by the Court in granting judgment. Thus, these arguments present proper grounds for relief under Rule 59(e), and will be so considered.

III.

The affidavit of Plaintiff's counsel sets forth the circumstances giving rise to the failure of Plaintiff's counsel to timely file objection to the Defendant's Motion for Summary Judgment:

2. I failed to file an Opposition to the Defendant's motion for summary judgment by June 14, 1984, for the following reason: During the first three weeks of June I have been heavily burdened with other matters pending before various tribunals in Maine. I have had contested hearings in Ellsworth, in Lewiston twice, and in Augusta, Maine. Also, I have had several more hearings scheduled in Portland, some of which were continued but three of which were conducted. This week I have four contested hearings. These are all civil matters of moderate complexity.

3. The pressure of this schedule and the complexity of the present matter before the Court prevented me from working on this case until June 25, 1984.

4. I have only this single action pending in the United States District Court, for the District of Maine, and I simply did not remember the 10 day rule for applying sic to motions.

The issue, once again, is whether "a mere palpable mistake by counsel" or by counsel's staff constitutes "excusable neglect" under Rule 60(b).² The applicable decisional law of this Circuit has been previously reviewed in the cases of Greene v. Union Mutual Life Insurance Co., 102 F.R.D. 598 (D.Me.1984) and Picucci v. Town of Kittery, 101 F.R.D. 767 (D.Me. 1984). The mere fact that an attorney is busy with other matters does not excuse a neglect on his part for the purposes of Rule 60(b). Greene, at 602. No aspect of counsel's explanation for the neglect constitutes the "unique or extraordinary" circumstances that renders counsel's neglect "excusable." Spound v. Mohasco Industries, Inc., 534 F.2d 404, 411 (1st Cir.1976), cert. denied 429 U.S. 886, 97 S.Ct. 238, 50 L.Ed.2d 167 (1976), reh'g denied 429 U.S. 988, 97 S.Ct. 513, 50 L.Ed.2d 601 (1976). Plaintiff, therefore, is not entitled to relief under Rule 60(b) on the ground of excusable neglect.

IV.

Plaintiff further argues that application of Local Rule 19(c) in this case is precluded by Rule 41(b). It is clear that in this Circuit the District Court is entitled to insist, in appropriate circumstances, upon compliance with the requirements of Local Rule 19(c). Corey v. Mast Road Grain and Building Materials Co., Inc., 738 F.2d 11 (1st Cir.1984). It is also clear, however, that local rules must not be inconsistent with the federal rules. Rule 83.³ If Plaintiff's assertion that application of Local Rule 19(c) in this case is inconsistent with a federal rule is correct, then he would be entitled to relief from the operation of Local Rule 19(c).

Plaintiff relies upon the first sentence of Rule 41(b):

For failure of the plaintiff to prosecute or comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.

Plaintiff argues that the Court's order granting Defendant's Motion for Summary Judgment for Plaintiff's failure to object within ten days as required by Local Rule 19(c) is "in effect" a dismissal of the case for failure to prosecute or to comply with "these rules." Plaintiff thus seeks the benefit of decisional law that disfavors dismissal, with prejudice, under Rule 41(b) for failure to prosecute. See, e.g., Colokathis v. Wentworth-Douglass Hospital, 693 F.2d 7, 9 (1st Cir.1982); Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir.1977); Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir.1971).

The Court need not consider the standards governing dismissal under Rule 41(b) because Plaintiff's attempt to recharacterize the Court's action under Local Rule 19(c) as a Rule 41(b) dismissal fails. The purpose of Rule 41(b) is to safeguard against delay in litigation and harassment of a defendant. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2370 (1971). It provides a remedy, available by its terms to defendants only, for lack of diligence by plaintiffs. The very different purpose of Local Rule 19(c) is to ensure the orderly, efficient and expeditious management of the extensive motion practice of this Court. Gideon v. Administrator, United States Small Business Administration, 102 F.R.D. 604, 607 (D.Me.1984). It serves the need of this Court to have reasonably prompt notice of contest on matters which require its substantive action and the administrative attention of the office of the Clerk. Picucci v. Town of Kittery, 101 F.R.D. 767, 769 (D.Me.1984). Unlike Rule 41(b), which is available to defendants or to the Court in cases of "inaction or dilatoriness of the parties seeking relief," Link v. Wabash Railroad Company, 370 U.S. 626, 630, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962), Local...