Opinion
Civil Action No: 02-573
January 29, 2003
ORDER AND REASONS
Before the Court is Plaintiff's Motion to Reconsider (Rec. Doc. 7) which was set for hearing on the briefs on January 22, 2003. After considering Plaintiff's motion and accompanying memorandum, the record, and the applicable law, the Court concludes that Plaintiff's motion should be DENIED.
BACKGROUND
This is a § 1983 civil rights case wherein Plaintiff alleges that Defendant, a Louisiana state trooper, violated his constitutional and civil rights as a result of a false arrest and battery. The underlying events occurred on February 28, 2001. Plaintiff filed suit exactly one year later on February 28, 2002. Plaintiff alleges that he terminated his original counsel, Brett Prendergast, on July 25, 2002. Defendant has never been served with process in this case. As a result, on July 30, 2002, the Court sent notice to Prendergast that the case would be set for the call docket on September 11, 2002. See Rec. Doc. 2. On the same date, Prendergast filed a Motion to Withdraw as Counsel, which was granted on July 31, 2002. See Rec. Doc. 3. The case was then dismissed without prejudice on September 11, 2002 when no one appeared at the call docket on behalf of Plaintiff. See Rec. Doc. 4.Plaintiff's original motion to reconsider was filed on November 15, 2002 by Peter Meisner, an attorney who never filed a motion to enroll as counsel of record. See Rec. Doc. 5. According to the original motion, Plaintiff retained Meisner on October 29, 2002. Meisner claimed that at the time he accepted the case, he had no knowledge that it had been previously dismissed. The Court denied Plaintiff's motion on December 11, 2002. See Rec. Doc. 6. In denying the motion, the Court held that Plaintiff failed to make a sufficient showing of unusual or unique circumstances justifying relief under Rule 60(b)(1). The Court stressed that Plaintiff never properly served Defendant with process, despite having almost one year to do so. The Court rejected Plaintiff's argument that service was withheld pending the outcome of the related criminal proceedings. Plaintiff also has never submitted any evidence of a resolution of the related state court criminal proceeding.
The Court also took into account that Plaintiff allegedly waited three months to hire Meisner after Prendergast withdrew as counsel of record. The Court stated that Plaintiff, representing himself pro se, had a duty to monitor the case and make sure that the claims were timely prosecuted.
Subsequently, on December 20, 2002, Joshua Koch enrolled as counsel of record for Plaintiff. See Rec. Doc. 8. Plaintiff has now filed this second motion to reconsider under Rule 60, alleging that Meisner fraudulently misrepresented facts to the Court which justify vacating the final judgment. Specifically, Plaintiff now alleges that he retained Meisner's services on July 30, 2002. Plaintiff also alleges that he informed Meisner of the call docket Meisner then told Plaintiff that he did not need to hearing. Meisner told Plaintiff that he did not need to personally attend and that Meisner would attend the hearing. Plaintiff does not dispute that no one attended the hearing on his behalf. Finally, Plaintiff asserts that Meisner requested him to execute a second retainer agreement on October 22, 2002. Plaintiff executed the second agreement on October 29, 2002.
Plaintiff thus argues that he was diligent in prosecuting this matter. He contends that a denial of the instant motion would penalize him not for his inactions, but for the wrongdoings of his prior counsel.
DISCUSSION
Federal Rule of Civil Procedure 60(b)(6) allows a district court, in its discretion, to vacate a final judgment on the basis of "any other reason justifying relief from the operation of the judgment." Rule 60(b) motions are left to the "sound discretion of the district court." Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). Rule 60 "seeks to strike a delicate balance between two countervailing impulses: the desire to preserve the finality of judgments and the incessant command of the court's conscience that justice be done in light of all the facts." Id. at 402. (quoting Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970). Under Rule 60(b)(6), the movant must show that the initial judgment was manifestly unjust. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 357 (5th Cir. 1993). Rule 60(b)(6) "is a residual or catch-all provision to cover unforeseen contingencies-a means to accomplish justice under exceptional circumstances." Id. Clause (6) does not give a court the power to relieve a party from his "free, calculated, and deliberate choices." The party continues to have the duty to take all legal steps necessary to protect his own interests.Id.
Despite Plaintiffs' new allegations of fraudulent misrepresentation by Meisner, the motion to reconsider must be denied. Irrespective of the allegations against Meisner, Plaintiff can still not explain why he has never properly served Defendant. The alleged incident underlying this lawsuit took place on February 28, 2001. Thus, nearly two years have passed and Defendant still has never received notice of the lawsuit. Furthermore, Plaintiff has still never informed the Court of the status of the related state court criminal proceedings. There is no way of knowing whether Plaintiff's action can survive an inquiry under Heck v. Humphrey, and thus have any merit.
Additionally, Plaintiff cannot explain away the fact that from July 31, 2002-December 20, 2002, he was listed in the record as representing himself pro se. He had a duty to monitor his case and make sure that his claims were timely prosecuted. Lastly, Plaintiff is bound by the actions of his attorneys. Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390 (1962). Both Prendergast and Meisner failed to affect proper service upon Defendant. It appears that this was a strategic maneuver. The call docket hearing was set because of the existence of the lack of service. The case was dismissed, and final judgment entered against Plaintiff, because both Meisner and Plaintiff failed to appear at the hearing to explain why proper service was lacking in this case. The events that occurred after the September 11, 2002 hearing are irrelevant under Rule 60(b)(6) because they do not speak to the grounds for the Court's dismissal of the case and the entry of the final judgment. Plaintiff has failed to show that entry of the final judgment was manifestly unjust in this case or that exceptional circumstances exist justifying the Court to vacate the final judgment.
Some circuits have held that a showing of an attorney's gross negligence can be sufficient grounds under Rule 60(b)(6) to vacate a final judgment. See, e.g., Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168-1172 (9th Cir. 2002) (holding that an attorney's gross negligence may constitute extraordinary circumstances warranting relief under Rule 60(b)(6)); see also Vaughn v. Mobil Oil Exploration, 1990 WL 93859 at *1-2 (E.D.La. 1990) (discussing gross negligence under Rule 60(b)(6)). Based on Plaintiff's recent allegations, the Court is deeply concerned about the alleged fraudulent misrepresentations of fact made by Meisner to the Court in the original motion to reconsider. However, it does not appear that Prendergast or Meisner acted with gross negligence prior to the entering of the final judgment, which is the time period relevant for Rule 60(b)(6) purposes.
Therefore;
It is HEREBY ORDERED that Plaintiff's Motion to Reconsider (Rec. Doc. 7) is DENIED.