Moje v. Fed. Hockey League, LLC

• Decision Date: 07 July 2015
• Docket Number: No. 15–1097.,15–1097.
• Citation: 792 F.3d 756
• Parties: Kyler MOJE, Plaintiff–Appellee, v. FEDERAL HOCKEY LEAGUE, LLC, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

792 F.3d 756

Kyler MOJE, Plaintiff–Appellee

v.FEDERAL HOCKEY LEAGUE, LLC, Defendant–Appellant.

No. 15–1097.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 2015.

Decided July 7, 2015.

Dean Caras, Attorney, Chicago, IL, for Plaintiff–Appellee.

James R. Branit, Attorney, Litchfield Cavo LLP, for Defendant–Appellant.

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

Opinion

EASTERBROOK, Circuit Judge.

As in Choice Hotels International, Inc. v. Grover, No. 14–3294, 792 F.3d 753, 2015 WL 4081169 (7th Cir.2015), also decided today, the defendant's lawyer failed to file essential documents, leading to the entry of a default judgment, and the defendant wants another shot at litigation.

Kyler Moje, playing for the Danville Dashers of the Federal Hockey League, one of the minor leagues in professional hockey, lost an eye to high-sticking during a game against the Akwesasne Warriors. He sued Oakley, Inc., which made the visor that Moje blames for offering inadequate protection, and the League itself. Instead of notifying its liability insurer and letting it defend the tort suit, the League hired John A. LoFaro, of Syracuse, New York. LoFaro promised to represent the League's interests but did not do so.

The League learned about potential trouble a month after the suit began, when Oakley's attorney called Dan Kirnan, the League's President, to ask why it had not filed an answer to the complaint. Kirnan asked LoFaro what was up, and LoFaro said that an answer had been filed. He sent the League a purported copy. The court's docket did not reflect any filing, however, and Moje asked the judge to enter a default. LoFaro did not respond—nor did he do anything after the district court entered the default and permitted Moje to prove up his damages. On June 11, 2014, four months after the suit began, the district court entered a final judgment of $800,000 against the League. Kirnan maintains that he first learned about this in October 2014, after Moje commenced collection proceedings. At last Kirnan notified the League's insurer, which undertook to defend under a reservation of rights (the League's delay in notification, and the entry of a final judgment, had an obvious potential to prejudice the insurer). In December 2014 a lawyer hired by the insurer entered an appearance for the League and filed a motion under Fed.R.Civ.P. 60(b)(1) to set aside the judgment. The district court's denial of that motion led to this appeal.

As in Choice Hotels, a lawyer failed to mount a defense of the suit, a default judgment was entered, and the district court denied a Rule 60(b) motion. In Choice Hotels the motion was filed more than a year after judgment and so depended on Rule 60(b)(6), the catchall section, which limits relief to extraordinary circumstances. In this case, by contrast, the motion was filed only six months after judgment and so could invoke Rule 60(b)(1), which allows relief on account of “mistake, inadvertence, surprise, or excusable neglect”. The League maintains that “excusable neglect” led to the default judgment. The district court saw “neglect” but did not think it “excusable.” LoFaro has never offered an explanation for the combination of inaction and deceit. (To be more precise, LoFaro has never been called on to explain his conduct. We are reporting the League's allegations, but LoFaro may not agree with its description. As far as we can tell the League has not filed a complaint with the legal-ethics panel in New York—but LoFaro is not in good standing anyway, as he has failed to pay his dues.)

The League wants us to bypass the question whether LoFaro's conduct is excusable and concentrate on its own knowledge and conduct. Yet the Supreme Court held in Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 396–97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the leading decision on the meaning of “excusable neglect” in federal procedure, that a lawyer's errors are imputed to the client for the purpose of this phrase. To obtain relief, the Court held, a litigant must show that both its own conduct and its lawyer's fit the category of “excusable” neglect.

Usually this concentrates attention on counsel, for most errors will be chalked up to counsel alone. There is one potentially important exception to this norm, however. As the Supreme Court discussed in Maples v. Thomas, –––U.S. ––––, 132 S.Ct. 912, 922–23, 181 L.Ed.2d 807 (2012), and we repeated in Choice Hotels , a lawyer's abandonment of the client ends the agency relation. Abandonment leaves the client responsible for its own conduct, but not for the lawyer's—and then the question becomes whether the litigant's conduct constituted excusable neglect.

To simplify matters we shall assume that LoFaro promised to...