Opinion
07 Civ. 7888 (JGK) (KNF).
September 28, 2009
MEMORANDUM and ORDER
I. INTRODUCTION
On August 14, 2009, the Court issued a report recommending that the assigned district judge dismiss this action, pursuant to Fed.R.Civ.P. 41(b), based upon the plaintiffs' failure to comply with court orders. The plaintiffs submitted a letter to the assigned district judge, dated August 31, 2009, requesting, inter alia, that the Court's recommendation be rejected and, asserting they had complied with the Court's April 27, 2009 order, which directed the plaintiffs to file-on or before May 7, 2009-supplemental responses to 19 listed items and a memorandum of law. Specifically, the plaintiffs assert that an "Attorney's Supplemental Declaration" was "received" by the court, on May 7, 2009. The plaintiffs explain that, in preparing their Attorney's Supplemental Declaration, they relied upon the contents of the "Notice of Electronic Filing" e-mail message, sent to them upon entry of the Court's April 27, 2009 order, for a description of the contents of the order. Based upon the information within this e-mail message, the plaintiffs crafted their "Supplemental Declaration" responding to two of the 19 items listed in the Court's April 27, 2009 order. No memorandum of law was prepared and submitted by the plaintiffs, as required by the Court's order. In addition to their request that the undersigned's dismissal recommendation not be adopted by the assigned district court judge, the plaintiffs also seek a 30-day enlargement of time to cure any deficiencies in their "Supplemental Declaration," and that they not be "punish[ed] . . . for an unintentional misreading of the e-mail notification to their counsel." The assigned district judge deemed the plaintiffs' August 31, 2009 letter a motion for reconsideration, which should be addressed by the undersigned.
II. BACKGROUND
In February 2007, the plaintiffs commenced the instant wrongful death action, through counsel-Weitz Luxenberg-alleging the defendant engaged in conduct that caused the death of Ahmad Amer Ahmad Abualrub. By a stipulation, dated June 25, 2007, the parties agreed to transfer this action from the United States District Court for the District of Puerto Rico, to the United States District Court for the Southern District of New York. Thereafter, the case was referred to the undersigned, by the assigned district judge, for preparation of a Wrongful Death Compromise Order.
By a letter, dated December 5, 2008, the plaintiffs requested a "45 day adjournment in which to file [their] [Compromise] papers," in support of a Wrongful Death Compromise Order; and the Court granted the request by enlarging the time for the plaintiffs' submissions to January 23, 2009. By an order, dated February 6, 2009, the Court informed the parties that no submissions from the plaintiffs had been received by the court, and directed that, on or before March 2, 2009, the plaintiffs submit "all materials necessary for a Wrongful Death Compromise Order to be issued by the court."
On February 26 and 27, 2009, the plaintiffs submitted deficient materials to the Court to support their application for a Wrongful Death Compromise Order. By an order, dated March 9, 2009, the Court explained the plaintiffs' submissions "do not contain all the data needed by the Court to evaluate the submissions appropriately," and ordered the plaintiffs to supplement, on or before March 24, 2009, their submissions, by providing "all information recommended in 22 N.Y.C.R.R. Uniform Rule § 207.38." By a letter, dated March 20, 2009, the plaintiffs requested an additional two weeks — to April 7, 2009 — to comply with the Court's March 9, 2009 order, noting, "[t]he resubmission . . . is a bit more complex than we had originally contemplated." This request was granted, by a memorandum endorsement, on March 20, 2009.
Upon review of the plaintiffs' supplemental materials, which were dated April 7, 2009, the Court found they did not "contain all the data needed by the Court to evaluate" their application. By an order, dated April 27, 2009, the Court ordered the plaintiffs to submit, on or before May 7, 2009, supplementary materials. Specifically, the Court provided a list of 19 items requiring either additional information, or an explanation "for why the information is not necessary." In addition, this order directed the plaintiffs to submit, on or before May 7, 2009, a memorandum of law discussing: (1) the applicability of the Death on the High Seas Act ("DOHSA"), 46 U.S.C. App. §§ 761- 767; and (2) and whether Puerto Rico, New York or federal choice-of-law rules apply to this action. The docket sheet, maintained for this action by the Clerk of Court, reveals that no supplementary materials were filed by the plaintiffs, nor was a memorandum of law submitted, in response to the Court's April 27, 2009 order.
After more than three months elapsed, the Court issued a report, to the assigned district judge, recommending that the plaintiffs' action be dismissed, pursuant to Fed.R.Civ.P. 41(b), for failure to comply with the Court's orders. As discussed in that report, not only had the plaintiffs failed to file anything in response to the Court's April 27, 2009 order, but a review of the procedural history of this case revealed that a pattern of failing to file, or filing incomplete or deficient submissions, existed.
The plaintiffs now request that the "Attorney's Supplemental Declaration," which was "delivered to the `Cashiers' office," be credited as having been filed. The plaintiffs do not explain why-this being an Electronic Case Filing ("ECF") case-the document was not filed electronically, as required. In any event, the plaintiffs state that, "due to the lateness of the hour," the document was submitted to the Cashier's Office, where "[t]he Clerk that delivered it was advised by the person in the Cashiers [sic] office that it would be forwarded." The plaintiffs have provided a copy of their "Attorney's Supplemental Declaration," which bears a "received" stamp by the "Cashier's Office" and the date May 7, 2009.
In addition, the plaintiffs also request that they be given an opportunity to "cure" the "deficiencies" in the "Attorney's Supplemental Declaration" that was not filed. The plaintiffs explain that, "in error, these responses were the only ones thought necessary based on a reading of the docket text as identified in the Notice of Electronic Filing. . . . It was only upon receipt and review of the Report and Recommendations that the undersigned discovered that there was a more detailed order requesting additional items." To this end, the plaintiffs' request that the case not be dismissed, and that they be granted an enlargement of time to "further supplement and respond to all 19 items contained in the Order together with a Memo of Law as requested." In support, the plaintiffs attach a copy of an e-mail message, which states that it is "an automatic e-mail message generated by the CM/ECF system," and a "transaction was entered on [the docket sheet for case number 07-cv-7888 on] 4/28/2009." This e-mail message contains a paragraph, under the heading "Docket Text," which provides a partial summary of the Court's April 27, 2009 order, listing two of the 19 items the plaintiffs were requested to provide to the Court, and stating, in relevant part, that the plaintiffs were to provide "a copy of each such letter of guardianship . . . and as further set forth in this Order." (ellipses in original). The full text of the Court's order was also available to the plaintiffs, electronically, via the PACER system.
III. DISCUSSION
A motion for reconsideration is governed by Federal Rule of Civil Procedure 60 and Local Civil Rule 6.3 of this court. Pursuant to Fed.R.Civ.P. 60(b), a court:
may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Although no final judgment or order attends upon the issuance of a magistrate judge's report and recommendation to a district judge, in the circumstance of the case at bar, the Court determined to apply Fed.R.Civ.P. 60(b)'s reconsideration standards to the plaintiffs' request that the Court's recommendation be reconsidered.
"Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). Rule 60(b) "should be broadly construed to do substantial justice, . . . yet final judgments should not be lightly reopened." Id. (internal quotations marks and citations omitted). "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Local Civil Rule 6.3 of this court. "A motion seeking relief pursuant to Rule 60(b) is addressed to the sound discretion of the district court." Devino v. Duncan, 215 F. Supp. 2d 414, 416 (S.D.N.Y. 2002). Based upon the plaintiffs' August 31, 2009 letter, it appears that the only provisions under Fed.R.Civ.P. 60(b) relevant to the information provided by the plaintiffs are subsections (1) and (6). See Nemaizer, 793 F.2d at 62 ("Relief from counsel's error is normally sought pursuant to 60(b)(1) on the theory that such error constitutes mistake, inadvertence or excusable neglect.").
Rule 60(b)(1)
Looking to federal jurisprudence from this judicial circuit, the Court finds that the Second Circuit Court of Appeals "has consistently declined to relieve a client under [Fed.R.Civ.P. 60(b)](1) of the burdens of a final judgment entered against him due to the mistake or omission of his attorney by reason of the latter's ignorance of the law or other rules of the court, or his inability to efficiently manage his caseload." Samuels v. Northern Telecom, Inc., 942 F.2d 834, 837 n. 2 (2d Cir. 1991) (internal quotations and citations omitted).
In the instant case-a case which has been designated "ECF" — the plaintiffs purportedly attempted to file an "Attorney's Supplemental Declaration," by bringing a hard copy of this document to this court's Cashier's Office. However, pursuant to Section 13.10, of this judicial district's "Electronic Case Filing Rules Instructions," when a case is deemed an ECF case, the parties are "required to file documents electronically." While there are exceptions to this rule, the plaintiffs do not provide any basis for the Court to conclude that an exception would apply to filing the "Attorney's Supplemental Declaration," nor is it apparent to the Court that any exception does apply. The plaintiffs' failure to file the document through the ECF system, when required to do so, militates against granting the plaintiff's motion, since the failure stems from counsel's "ignorance of the . . . rules of the court." Nemaizer, 793 F.2d at 62 (quoting United States v. Cirami, 535 F.2d 736, 739 [2d Cir. 1976]); see also S.D.N.Y. "Electronic Case Filing Rules Instructions at § 13.10.
Even if the Court were to assume, arguendo, that the plaintiffs did fall within an exception to the requirement that this document be filed electronically, the plaintiffs failed to exercise any due diligence, by checking the docket sheet for this action, to ensure their "Attorney's Supplemental Declaration," was filed. The Court waited more than three months, from the time the plaintiffs purportedly attempted to file the document at the court's Cashier's Office, to recommend dismissal. During this time, if the plaintiffs had reviewed the docket sheet for this action, maintained by the Clerk of Court, they would have discovered the document was never filed. Failing to review the court's docket sheet-a duty and obligation of counsel bringing an action in federal court-during a three-month period, constitutes an "omission [by plaintiffs'] attorney by reason of the latter's ignorance of the law or other rules of the court, or his inability to efficiently manage his caseload." Samuels, 942 F.2d at 837 n. 2 (internal quotations and citations omitted); see also S.D.N.Y. "Electronic Case Filing Rules and Instructions," §§ 9, 10 ("It remains the duty of the attorney for a party to review regularly the docket sheet of the case") (emphasis in original). As such, the failure by counsel to the plaintiffs to ensure that the Supplemental Declaration was filed properly, and the plaintiffs' late effort to cure this defect-moving for relief after a report had been made recommending dismissal of the action for failure to follow court orders-does not warrant Fed.R.Civ.P. 60(b)(1) relief.
Rule 60(b)(6)
"Generally, [i]t is well established . . . that a proper case for Rule 60(b)(6) relief is only one of extraordinary circumstances, or extreme hardship. . . . In typical civil proceedings, [the Second Circuit Court of Appeals] very rarely grants relief under Rule 60(b)(6) for cases of alleged attorney failure or misconduct." Harris v. United States, 367 F.3d 74, 81 (2d Cir. 2004) (internal quotations and citations omitted) (emphasis in original). In order to constitute "extraordinary circumstances" under Rule 60(b)(6), "a lawyer's failures must be so egregious and profound that they amount to the abandonment of the client's case altogether, either through physical disappearance, . . . or constructive disappearance." Id.
In the case at bar, Weitz Luxenberg, the law firm representing the plaintiffs, did not abandon its clients' action by way of "physical disappearance," since this firm has made submissions to the court on behalf of its clients, albeit deficient ones. Additionally, case law reveals that Weitz Luxenberg's behavior does not constitute "constructive disappearance." The Second Circuit Court of Appeals has found that, when supported by some evidence, an attorney suffering from a psychological disorder which caused him or her "to neglect almost completely his [or her] clients' business while at the same time assuring [the clients] that he [or she] was attending to it, and who had made him [or her]self unavailable even to the trial judge," may establish "constructive disappearance," so as to afford Rule 60(b)(6) relief. United States v. Cirami, 563 F.2d 26, 34 (2d Cir. 1977). In addition, "constructive disappearance" has been found to encompass a situation where (1) a plaintiff's attorney's failure to file any opposition to a motion for summary judgment results in dismissal of the plaintiff's case, (2) such dismissal "was the result of a complete failure on such counsel's part to even minimally attend to his obligations," and (3) a "medical evaluation of plaintiff's former counsel is not necessary to show that something is obviously wrong with him." Azzolini v. Marriot Int'l, Inc., No. 99 Civ. 11605, 2004 WL 360448, *1 (S.D.N.Y. Feb. 25, 2004). The plaintiffs have not submitted any evidence suggesting their attorneys have a psychological disorder; and, though they have requested enlargements of time to file supplemental information, have consistently provided the Court with deficient filings, and failed to file their response to the Court's April 27, 2009 order, Weitz Luxenberg has, at least, "minimally attend[ed] to [its] obligations." Id. Therefore, it cannot be said that Weitz Luxenberg has "constructively disappeared" from this case.
Since Rule 60(b)(6) relief is available only in "extraordinary circumstances," and the Second Circuit Court of Appeals has indicated it "very rarely grants relief under Rule 60(b)(6) for cases of alleged attorney failure or misconduct," Harris, 367 F.3d at 81 (internal quotations and citations omitted) (emphasis in original), the Court finds that Rule 60(b)(6) relief is not warranted in this case.
To the extent the Court's recommendation is adopted, and dismissal of this case imposes a hardship on the plaintiffs, the plaintiffs "voluntarily chose [Weitz Luxenberg] as [their] representative in the action, and [they] cannot now avoid the consequences of the acts or omissions of this freely selected agent"; rather, when "an attorney's conduct falls substantially below what is reasonable under the circumstances, the client's remedy is against the attorney in a suit for malpractice." Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 n. 10, 82 S. Ct. 1386, 1390 n. 10 (1962); see also Nemaizer, 793 F.2d at 62-63 ("an attorney's actions, whether arising from neglect, carelessness or inexperience, are attributable to the client, who has a duty to protect his own interests by taking such legal steps as are necessary").
Request to File Supplemental Materials To "Cure" the Deficient "Attorney's Supplemental Declaration"
In addition to failing to file their response to the Court's April 27, 2009 order, the plaintiffs now also admit that their "supplemental declaration" responded to only two of the 19 items listed in the Court's April 27, 2009 order and that no memorandum of law was drafted and submitted to the Court, as required by that order. The plaintiffs contend they did not realize there were more than two items in the Court's order, because they relied upon an e-mail message, generated automatically by the court's CM/ECF system, alerting the plaintiffs that an order had been entered on the docket sheet for this action. In fact, the plaintiffs maintain they were unaware the Court identified, in its April 27, 2009 order, 19 items requiring responsive information or requested a memorandum of law from them, until they received the undersigned's report and recommendation, in August 2009, which made reference to these matters.
The plaintiffs' failure to obtain and read a full copy of an order issued by the Court, before preparing a submission in response to that order, is a reckless way to represent the interests of a client(s) in a litigated matter, and does not excuse their failure to make a submission that was fully responsive to the Court's directives. "[C]ounsel who rely upon e-mailed notices of electronic filing to keep abreast of their cases do so at their peril." Banguah v. Rodriguez, No. 04 Civ. 7227, 2005 WL 2482487, at *2 (S.D.N.Y. Oct. 6, 2005). The paragraph within the e-mailed notice of electronic filing, labeled "docket text," contained an ellipsis, signifying a portion of the order was not described within the e-mail message. Thus, the e-mail message was not misleading and did not convey information improperly; the plaintiffs' counsel merely failed to review a full copy of the relevant order.
Thus, the fate recommended to be met by the plaintiffs, dismissal pursuant to Fed.R.Civ.P. 41(b) for failing to file properly a submission responsive to the Court's April 27, 2009 order, would have been warranted even if the plaintiffs had filed their single-page "Supplemental Declaration," which failed to address 17 items listed in the Court's order and the Court's request for a memorandum of law. A dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure is appropriate, based upon the plaintiffs' failure to comply with an order of the Court. See Lucas v. Miles, 84 F.3d 532, 534-35 (2d Cir. 1996). The "Attorney's Supplemental Declaration" does not comply with the Court's April 27, 2009 order.
In summary, the Court finds that the plaintiffs have not made citation to any "controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader, 70 F.3d at 257. Therefore, the Court finds, further, that no basis for reconsidering its August 14, 2009 recommendation exists.
SO ORDERED: