Opinion
Cause No. IP99-0039-C-D/F.
March 10, 2000.
ENTRY on Plaintiff's "Emergency Motion for Relief from Judgment" (doc. no. 39).
The defendant filed a motion for summary judgment on January 13, 2000 and, according to the motion's certificate of service, a copy was served on the plaintiff by first-class mail on the same day. The plaintiff had 30 days to file a response, S.D.Ind.LR 56.1(b), which made her response due on February 15, 2000. The plaintiff did not file a response by that deadline and did not move for an extension of time. By not filing a response, the plaintiff allowed the defendant's motion to be subject to summary ruling, LR 7.1(a), and allowed the facts as asserted by the defendant and supported by admissible evidence to be deemed admitted to exist without controversy, LR 56.1(g). On March 2, 2000, sixteen days after the plaintiffs' response was due, the Court granted the defendant's motion and entered Judgment against the plaintiff.
The count begins on January 14 because the day that the motion for summary judgment was filed, January 13, is not counted. Fed.R.Civ.P. 6(a) (first sentence). Because the motion was served by mail, three days are added to the 30-day period, Rule 6(e), at the beginning, Epperly v. Lehmann, 161 F.R.D. 72 (S.D.Ind. 1994); Kruger v. Apfel, 25 F. Supp.2d 937, 939-40 (E.D.Wis. 1998); Mullins v. Hinkle, 953 F. Supp. 744, 748 (S.D.W. Va. 1997). Therefore, the 30-day period begins on January 17. Including intermediate Saturdays, Sundays, and legal holidays in the count, Rule 6(a) (third sentence), the 30-day period ends on February 15. The last day of the period is counted. Rule 6(a) (second sentence).
The plaintiff now moves for relief from the judgment under Rule 60(b)(1) and (6). Plaintiff's counsel contends that, contrary to the routine and customary practice of his law firm, the defendant's motion for summary judgment was not calendared which caused him to miss the deadline for filing the plaintiff's response. Despite a thorough investigation, counsel does not know the reason why the motion was not calendared — yet he assures the Court that additional safeguarding procedures have been implemented to ensure that the mistake is not repeated. However, counsel admits that he was aware of the motion when it was received at his office and that he intended to file an extension of his time to respond because the parties were preparing for a mediation on February 15, 2000, the same day the response would be due, which might moot the motion, and essential depositions of the defendant's experts would not be completed until the end of January. Confusing this case with another one pending in this Court, plaintiff's counsel assumed that an extension of time had been granted for the plaintiff's response. Plaintiff's counsel continued to prepare for the mediation (continued to March 29, 2000) when he learned of the Judgment against the plaintiff on March 6th. Two days later he filed the present motion.
Relief may be granted under Rule 60(b)(1) for an attorney's "mistake, inadvertence, surprise, or excusable neglect" and under Rule 60(b)(6) for "any other reason justifying relief from the operation of the judgment". Because the Court concludes that Rule 60(b)(1) applies to plaintiff's counsel's assertion of an excuse, Rule 60(b)(6) is unavailable. Webb v. James, 147 F.3d 617, 622 (7th Cir. 1998). The Supreme Court made clear in Pioneer Investment Services Co. v. Brunswick Associates, Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), that "excusable neglect" under Rule 60(b)(1) is broad enough to include attorney carelessness, which decision overturned contrary precedent in this Circuit. Federal Election Commission v. Al Salvi for Senate Committee, ___ F.3d ___, 2000 WL 254341, *4, 2000 U.S.App.Lexis 3513, *13 (7th Cir., March 8, 2000); Robb v. Norfolk Western Railway Co., 122 F.3d 354, 358-59 (7th Cir. 1997).
Without doubt, plaintiff's counsel was negligent in failing to calendar the defendant's motion for summary judgment and failing to check the docket sheet for status. However, considering the fact that he had been actively litigating the case, the circumstances of his confusion with another pending case, the absence of any record we could discover of similar lapses in other cases in this Court, the absence of prejudice to the defendant, and counsel's showing that the plaintiff can make a reasonable response to the defendant's motion, persuades the Court that counsel's negligence was excusable. Therefore, relief from the judgment is warranted under Rule 60(b)(1). Separate orders will issue.
The plaintiff's motion is granted.
Done this 10th day of March, 2000.