Opinion
C.A. No. 08C-10-061 PLA.
Submitted: May 13, 2010.
Decided: May 18, 2010.
ON PLAINTIFFS' MOTION FOR RELIEF FROM JUDGMENT DENIED.
This 18th day of May, 2010, upon consideration of Plaintiffs' Motion for Relief from Judgment, it appears to the Court that:
1. In this legal malpractice action, Defendants Jay Katz, Esq. and Jay Katz, LL.M. Taxation, LLC (hereinafter referred to in the singular as "Katz") attempted to file three motions for summary judgment on February 19, 2010. Because the Court viewed the filing of three simultaneous motions with a shared factual background as an attempted end-run around its motion page limits, and because each motion violated the Court's rule regarding typeface size, the Prothonotary rejected all three filings. Katz was permitted to consolidate his rejected motions into a single summary judgment motion, which was e-filed and accepted by the Prothonotary on February 24. Katz's consolidated motion presented the same bases for summary judgment that had been raised separately in the rejected motions, arguing: (1) that neither Villare nor the Vanguard Group, LLC were proper plaintiffs; (2) that Plaintiffs had not established causation; and (3) that Plaintiffs had not shown evidence supporting the existence of recoverable damages. The Court issued a letter to Plaintiffs' counsel on March 3, requesting that Plaintiffs respond to the motion for summary judgment by April 2, 2010. The Court's letter referenced only a single motion. Plaintiffs timely filed a response on April 1.
It appears that the Prothonotary may initially have designated the first of these three motions as "accepted" on LexisNexis File Serve, before it became evident that Katz was attempting to file two additional, separate summary judgment motions. Subsequently, all three motions were rejected and the reasons for the rejections were relayed to Katz's counsel.
2. By opinion dated May 10, 2010, the Court granted Katz's motion for summary judgment. Plaintiffs have moved for relief from judgment pursuant to Superior Court Civil Rule 60(b), on the grounds that Plaintiffs' April 1 response inadvertently addressed only the first rejected motion, rather than the consolidated motion actually pending before the Court. The first rejected motion concerned the issues of whether Villare was a proper party and whether Vanguard Group, LLC existed; thus, Plaintiffs argue they have not had the opportunity to address Katz's arguments regarding the absence of causation and damages evidence. Plaintiffs' counsel states that he thought the first rejected motion remained the sole motion at issue and that he was "oblivious" to the fact that all three motions had been consolidated into the February 24 filing. Plaintiffs' counsel admits that he has "no explanation as to how the [consolidated] Motion was missed. . . . It may well be that the second filing was viewed as a duplicative filing."
Pls.' Mot. for Relief, ¶ 6.
3. In response, Katz denies that this situation merits relief under Rule 60(b), and suggests that Plaintiffs' April 1 response actually addressed the correct summary judgment motion. Katz notes that Plaintiffs' April 1 response breaks its argument down into two sections, addressing paragraphs "1.-6." and "7.-9." of the summary judgment motion. However, the first rejected motion, which Plaintiffs now contend they were answering, contained thirteen paragraphs — whereas the consolidated motion actually pending before the Court contained nine. In addition, Katz argues that Plaintiffs' April 1 response addressed arguments that were not raised in the first rejected motion, but were included in the consolidated February 24 motion. Katz has also submitted e-mails from February and March in which his counsel explained to Plaintiffs' counsel that "I was told by the Court to put it all in one motion so I will do so and refile." Subsequently, on March 11, Katz's attorney e-mailed Plaintiffs' counsel a copy of the consolidated February 24 motion, including the attached cover letter confirming that that "I consolidated the three previously filed motions for summary judgment into the enclosed single motion." Even if Plaintiffs' counsel were genuinely oblivious to the February 24 motion, Katz urges that Plaintiffs' counsel was inexcusably careless in failing to resolve any confusion over which motion was pending by reviewing the LexisNexis File Serve docket. Moreover, Katz suggests that the instant motion for relief is premised on an "obvious divergence from easily verifiable facts in violation of Rule 11(b)(3)," and that attorney's fees and costs associated with the response to this motion should be assessed against Plaintiffs.
Defs.' Resp. in Opp'n to Pls.' Mot. for Relief, Ex. B.
Id., Ex. C.
4. Rule 60(b) provides that "upon such terms as are just, the Court may relieve a party or a party's legal representative from a final judgment, order, or proceeding" for certain reasons, including "[m]istake, inadvertence, surprise, or excusable neglect" or "any other reason justifying relief from the operation of the judgment." Excusable neglect occurs when the moving party has committed "neglect which might have been the act of a reasonably prudent person under the circumstances."
Hardy v. Harvell, 930 A.2d 928, 2007 WL 1933158, at *2 (Del. July 3, 2007) (TABLE) (quoting Battaglia v. Wilm. Sav. Fund Soc'y, 379 A.2d 1132, 1135 n. 4 (Del. 1977)).
5. For the concept of "excusable neglect" to retain any meaning, the Court cannot find that Plaintiffs are entitled to relief. At best, Plaintiffs' counsel was unjustifiably remiss in failing to respond to the proper motion, particularly after it was submitted to him twice. Plaintiffs' attorney had been informed in advance that Katz would be submitting a consolidated motion in lieu of his previous filings. When that motion was filed on February 24, it included a cover letter reiterating that it consolidated and subsumed the three earlier summary judgment motions, which had all been rejected. Consistent with the explanation from Plaintiffs' counsel that he has a staff member channel motions in his cases to the proper "paperless" files, File Serve confirms that the correct February 24 motion was electronically accessed by personnel in his firm on March 17. Because Katz's three earlier summary judgment motions had been rejected, the February 24 consolidated motion was the sole summary judgment motion visible in the File Serve docket for this case. Plaintiffs' counsel bore responsibility for ensuring that his staff did not erroneously discard electronic filings. If Plaintiffs' counsel somehow continued to be confused as to which motion was accepted after receiving the correct motion from opposing counsel and through File Serve, the correct course of action was to check the File Serve docket or to communicate with the Court. Responding to a motion he had reason to know was rejected cannot be construed as a reasonably prudent decision under the circumstances.
Administrative Directive 2007-6, which controls the Court's LexisNexis File Serve procedures, requires users to "maintain proper delivery information." Relief is available in certain circumstances when an "electronic filing is not filed with the Prothonotary or served," but in this case both filing and service were accomplished. Admin. Dir. 2007-6 (Del. Super. Dec. 13, 2007).
6. Furthermore, the Court must acknowledge some apparent merit to Katz's position that the Plaintiffs' April 1 response was intended to address the proper summary judgment motion. Rule 11(b)(3) states that an attorney's submission of a written motion constitutes a certification to the Court that "to the best of the person's knowledge, information, and belief, formed after a reasonable inquiry under the circumstances . . . the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation." Katz has presented several cogent arguments that suggest Plaintiffs' motion for relief may run afoul of this principle.
7. Plaintiffs' April 1 response adopted the position that Katz bore the burden of proof to disprove the existence of a loss caused by his alleged negligence. Although the Court rejected this proposition, Plaintiffs' own logic at the time the response was filed could have implied that they did not see a need to present concrete evidence or extensive argument regarding causation and damages at the summary judgment stage. Thus, the absence of these features from Plaintiffs' April 1 response does not establish to the Court's satisfaction that Plaintiffs' counsel had not read and responded to the proper summary judgment motion. The Court considers it notable that Plaintiffs' motion for relief failed to mention that Katz's attorney e-mailed Plaintiffs' counsel the proper motion after it had been filed, which undermines the suggestion that Plaintiffs' counsel was "oblivious" to the existence of the proper motion. And, as Katz points out, Plaintiffs' April 1 response appears structured to present a reply to the paragraphing structure used in the correct summary judgment motion. If Plaintiffs' April 1 response was their reply to the proper summary judgment motion, the instant motion would constitute an impermissible ploy to allow Plaintiffs a second bite at the apple after receiving the Court's opinion.
7. Because Plaintiffs' April 1 response to Katz's summary judgment cannot be considered the product of excusable neglect even if their version of events is true, the motion for relief from judgment must be DENIED. Pursuant to Rule 11(c)(1)(B), Plaintiffs' counsel is hereby ORDERED TO SHOW CAUSE within ten days as to why his assertion that he was ignorant of the existence and content of Katz's February 24, 2010 motion for summary judgment was not in violation of Rule 11(b)(3) such that Plaintiffs should bear the fees and costs arising from Katz's response.
IT IS SO ORDERED.