Opinion
CASE NO. 20-62559-CIV-SINGHAL/VALLE
2021-10-06
Nelson AUDALUS and Joseph Najjarian, Plaintiffs, v. SCOTTSDALE INSURANCE COMPANY, Defendant.
Derek Benjamin Hendricks, David Low and Associates, Fort Lauderdale, FL, James Streeter Jenkins, III, Ronald David Barcena, Jr., Jenkins Law, PL, St. Petersburg, FL, for Plaintiffs. Andrew P. Rock, The Rock Law Group, P.A., Maitland, FL, for Defendant.
Derek Benjamin Hendricks, David Low and Associates, Fort Lauderdale, FL, James Streeter Jenkins, III, Ronald David Barcena, Jr., Jenkins Law, PL, St. Petersburg, FL, for Plaintiffs.
Andrew P. Rock, The Rock Law Group, P.A., Maitland, FL, for Defendant.
ORDER ON MOTION FOR RELIEF FROM JUDGMENT
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Plaintiffs Nelson Audalus and Joseph Najjarian's Amended Motion for Relief from Judgment Pursuant to Federal Rule of Civil Procedure 60(b)(1) (DE [60]). Defendant Scottsdale Insurance Company ("Scottsdale") has filed a Response in Opposition (DE [61]), and Plaintiffs filed only an affidavit (DE [62]) in reply. For the reasons discussed below, the Court denies Plaintiffs’ Amended Motion.
I. BACKGROUND
The timeline of events is relevant in this case. As a threshold procedural matter, it should be noted that attorney Ronald David Barcena, Jr. of Jenkins Law, P.L. is listed as one of Plaintiffs’ three attorneys of record in this case. With the exception of the parties’ joint scheduling report (DE [9]), it appears that every single document filed on CM/ECF by Plaintiffs in this case shows on the docket that it was e-filed by Barcena, yet the document was actually signed by Barcena's co-counsel, James Streeter Jenkins, III. For some of these filings, the Clerk's office notified Plaintiffs that the filings violated the CM/ECF Administrative Procedures and the Local Rules because the attorney e-filing the document was not the same attorney who signed the document. See (DE [37], [40], [58]). Plaintiffs’ counsel did not take the required corrective action with respect to these three filings. Now the Court turns to the merits. Plaintiffs filed an amended complaint in state court in November 2020, and Scottsdale removed the action to this Court in December 2020. See (DE [1-3], at 37–40); (DE [1]). In June 2021, this Court entered a Scheduling Order (DE [35]) adopting Judge Ungaro's prior pretrial deadlines (DE [16]). Scottsdale timely filed its Motion for Summary Judgment ("MSJ") (DE [41]) on July 22, 2021, generating a response deadline of August 5, 2021. Plaintiffs did not file any response materials, either timely or untimely. According to Judge Ungaro's Scheduling Order (DE [16]), discovery closed on August 13, 2021.
In July 2021, the parties missed their deadline to file a mediation report, so the Court ordered them to file one. (DE [43]). Scottsdale filed a mediation report (DE [44]) indicating that, contrary to Judge Ungaro's mediation order (DE [17]), Plaintiff Audalus failed to attend mediation and failed to give advance notice that he would not be attending. Consequently, on August 5, 2021, this Court entered an Order to Show Cause (DE [45]) ordering Audalus to explain why he should not be sanctioned for his failure to attend mediation in violation of Judge Ungaro's Order.
On August 9, Scottsdale filed a motion for protective order and objections to Plaintiffs’ notice of deposition (DE [46]). Plaintiffs failed to respond to that discovery motion by the deadline, resulting in Judge Valle entering another order to show cause on August 23 (DE [49]) requiring Plaintiffs show cause by the next day why Scottsdale's motion should not be granted by default. The next day, Plaintiffs failed to respond to Judge Valle's discovery order, but they responded to this Court's August 5 Order to Show Cause. In their Response (DE [50]), Plaintiffs noted that Audalus had a family emergency in Haiti, and a certificate of authority was provided for the mediation that occurred while he was in Haiti. Audalus was scheduled to return to the United States on August 30, 2021.
Because Plaintiffs failed to respond to Judge Valle's discovery order to show cause by August 24, Judge Valle entered a second order to show cause on September 8 (DE [52]) giving Plaintiffs until the next day to respond. Judge Valle warned Plaintiffs that failure to respond may result in a recommendation to the Court that the case be dismissed for failure to prosecute. Id. The next day, on September 9, 2021, this Court granted Scottsdale's MSJ (DE [53]) and entered Final Judgment (DE [54]) in Scottsdale's favor. Plaintiffs now move to vacate the Final Judgment for excusable neglect.
Plaintiffs filed an original motion for relief from judgment that failed to include a good-faith certification. See (DE [56]); S.D. Fla. L.R. 7.1(a)(3). The Court denied the motion without prejudice (DE [59]), allowing Plaintiffs to file an amended motion that included a certification. Plaintiffs’ Amended Motion (DE [60]) fares no better; it satisfies neither the letter nor the spirit of Local Rule 7.1(a)(3). The certification consists of an incomplete sentence: "(i) certify that the moving party made a good faith attempt to resolve this motion with counsel." (DE [60], at 60). It does not indicate the manner of reasonable efforts that resulted in the inability to confer (if that were the case), nor does it indicate that the attorneys did, in fact, confer but were unable to resolve the issues. See S.D. Fla. L.R. 7.1(a)(3). This is particularly relevant because Plaintiffs filed their Amended Motion merely two hours after the Court entered its Order denying without prejudice the original motion. Plaintiffs’ inadequate good-faith certification is an independent basis for denying this Amended Motion. See id. Nevertheless, the Court reaches the merits of the Amended Motion.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 60(b)(1), on "just terms," the Court "may relieve" a party from a final judgment or order based on excusable neglect. "Excusable neglect" has been defined as the "failure to take the proper steps at the proper time, not in consequence of the party's own carelessness, inattention, or willful disregard of the process of the court, but in consequence of some unexpected or unavoidable hindrance or accident[.] ..." 49 C.J.S. Judgments § 556. Thus, "[u]tter indifference and inattention to business is not excusable neglect, and the failure to pay personal attention to the case is inexcusable negligence." Id. § 557. The Eleventh Circuit has further explained that the Court must consider all relevant factors in evaluating excusable neglect:
Generally, excusable neglect under Rule 60(b)(1) is an equitable inquiry turning on "all relevant circumstances," and the pertinent factors include "the danger of prejudice to the opposing party, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Cheney v. Anchor Glass Container Corp. , 71 F.3d 848, 850 (11th Cir. 1996).
Grant v. Pottinger-Gibson , 725 F. App'x 772, 775 (11th Cir. 2018).
The Eleventh Circuit is "wary of granting Rule 60(b) relief for excusable neglect based on claims of attorney error." Revere v. McHugh , 362 F. App'x 993, 999 (11th Cir. 2010) (citing Cavaliere v. Allstate Ins. Co. , 996 F.2d 1111, 1115 (11th Cir. 1993) ); see also In re Keitel , 852 F. App'x 463, 468 (11th Cir. 2021) ("[A]n attorney's negligent failure to respond to a motion does not constitute excusable neglect, even if that attorney is preoccupied with other litigation." (alteration in original) (quoting Solaroll Shade & Shutter Corp. v. Bio-Energy Sys. , 803 F.2d 1130, 1132 (11th Cir. 1986) )); Revere , 362 F. App'x at 999 (reiterating precedent that counsel's "oversight" in failing to respond to a motion does not constitute excusable neglect, even if the oversight "appear[s] to penalize innocent clients for the forgetfulness of their attorneys" (quoting Solaroll Shade & Shutter Corp. , 803 F.2d at 1132 )).
III. DISCUSSION
The Court cannot touch on every single error Plaintiffs committed in this case because there are far too many and it has now become a waste of judicial labor. So, the Court will discuss the factors that it considers relevant to this Amended Motion. Plaintiffs begin their Amended Motion by stating that they had 21 days to respond to Scottsdale's MSJ. Am. Mot. ¶¶ 2, 22 (DE [60]). That's their first problem—this deadline is incorrect as a matter of law. See S.D. Fla. L.R. 7.1(c)(1) ("For all motions, except motions served with the summons and complaint, each party opposing a motion shall file and serve an opposing memorandum of law no later than fourteen (14) days after service of the motion." (emphasis added)).
An attorney's mistaken understanding of the law does not constitute excusable neglect. See Advanced Estimating Sys., Inc. v. Riney , 130 F.3d 996, 997 (11th Cir. 1997) ("[A]s a matter of law, the lawyer's failure to understand clear law cannot constitute excusable neglect."); see also In re Rosenberg , 724 F. App'x 882, 884 (11th Cir. 2018) ("[A]ttorney error based on a misunderstanding of the law [is] an insufficient basis for excusing a failure to comply with a deadline." (alterations in original) (quoting Riney , 130 F.3d at 998 )). Thus, as a matter of law, Plaintiffs’ counsel did not act with excusable neglect here.
Even setting aside this misunderstanding of the law, the equities of this case do not warrant a finding of excusable neglect. Scottsdale's MSJ primarily relied on the expert report of professional engineer Ryan Ayres to establish the undisputed material facts. See (DE [42], [42-4], [42-6]). Plaintiffs currently assert in their Amended Motion for Relief that they had determined at some point that they needed to depose Ayres before responding to Scottsdale's MSJ. On August 11, 2021—two days before discovery was set to close, and six days after the deadline to respond to the MSJ had already passed—the parties agreed to coordinate Ayres's deposition. See (DE [56], at 9). Without moving for an extension of the discovery deadline or notifying the Court, the parties apparently scheduled Ayres's deposition for September 23, 2021. See id. at 9–12.
In Plaintiffs’ haste to file their Amended Motion for Relief from Judgment, they forgot to attach the emails that were attached to the original motion that the Court denied without prejudice. Nevertheless, the Court considers the emails at DE [56] as part of this Amended Motion.
The paralegal at Plaintiffs’ counsel's law firm, Jorge Vasquez, explains what led to the missed deadline. He attests that he was not the original paralegal assigned to this case. (DE [62] ¶ 5). Barcena, the lead attorney, resigned from the firm effective July 9, 2021, and the case was subsequently handled by several other attorneys. Id. ¶ 5. One of the other paralegals assigned to this case also resigned on July 20, 2021. Id. ¶ 6. Vasquez himself further attests that he was "out several times" in July and August 2021 because of health-related issues. Id. ¶ 7.
According to Vasquez, he "inadvertently neglected to calendar the date" to move for an extension of time to respond to Scottsdale's MSJ because of his "several absences, the lead attorney resigning, [and] the turnover in the office which affected the ability of the office to provide coverage for the cases [he] was handling." Id. ¶ 8. He attests that "but for" his neglect in calendaring the date, Plaintiffs and Scottsdale were "actively working" to schedule Ayres's deposition. Id. ¶ 9.
Vasquez also explains that Judge Valle's September 8, 2021 discovery order to show cause was sent to Barcena, who had already resigned, and Vasquez was busy preparing for trial in another case and "did not become aware" of Judge Valle's order until September 10, after the case was "dismissed." Id. ¶¶ 11–12. After discovering the "dismiss[al]," the firm reviewed the file and realized it failed to respond to Judge Valle's first order to show cause and failed to calendar the date to move for an extension. Id. ¶ 13. Vasquez "respectfully submit[s]" that these facts "rise to the level of excusable neglect." Id. ¶ 15.
The Court disagrees. Plaintiffs’ counsel attempts to offer excuses for counsel's failure to respond to Judge Valle's two discovery orders to show cause. See Am. Mot. ¶¶ 15–20 (DE [56]). Those failures are not the subject of this Amended Motion, though they do demonstrate counsel's pattern of failing to pay attention to the filings and Court orders in this case. And while it may be true that Vasquez was not the original paralegal assigned to this case, a filing as early as March 1, 2021, in this Court lists Vasquez as the paralegal to be contacted. See (DE [19], at 2). Notably, one of Plaintiffs’ state-court filings (discussed in more detail in footnote 4 below) also indicates that Vasquez had been handling this file as early as June 2020. (DE [1-3], at 18).
Plaintiffs’ counsel also asserts that it was "never the intention" of counsel to not respond to the MSJ or any other Court order. Id. ¶ 21. Counsel curiously contends that there are so many orders to show cause on the docket that they "created confusion." See id. Counsel frames the non-compliance as a "technical error" and "slight mistake" and states that "there is no substantial prejudice" to Scottsdale if the MSJ were to be vacated. Id. ¶ 23.
The Court may have been persuaded by Plaintiffs’ arguments had they missed only one deadline. But that is not the case here. Plaintiffs could have notified the Court any time after July 22, 2021, that they needed more time to depose Ayres or to respond to the MSJ. But they failed to do so. It strains credulity to suggest that neither of Plaintiffs’ two attorneys of record realized he forgot to move for an extension until September 10, 2021. Of course, Plaintiffs’ repeated failure to comply with CM/ECF Administrative Procedure Section 3J(1) and Local Rule 5.1(b) complicates matters. It appears that Barcena never withdrew as counsel in this case when he resigned from Jenkins Law in July. Indeed, he is still listed as an attorney of record on the docket sheet, so he was presumably receiving notices of electronic filings that should have been sent to his two other co-counsel.
After reviewing all relevant circumstances in this case, the Court does not find that Plaintiffs’ counsel's conduct rises to the level of excusable neglect under Grant . See 725 F. App'x at 775. First, Scottsdale will be prejudiced by having to expend more time and resources in defending this action. Discovery would have to be reopened until Ayres can be deposed, and then Scottsdale would have to file reply materials to Plaintiffs’ response in opposition to the MSJ. Thus, Plaintiffs’ claim that there will be "no substantial prejudice" to Scottsdale is without merit.
On the other hand, regarding the second Grant factor, Plaintiffs moved to vacate the MSJ only one day after it was entered on the docket, so there was seemingly no unreasonable delay. But even this Amended Motion (DE [60]) contained a major flaw—it was incomplete. The Motion had no affidavit or sworn statement attached. Vasquez's affidavit was not filed until three weeks later, after Scottsdale pointed out the problem in its Response. So, even this factor is not simple and evinces careless work by counsel. In any case, even if the Court weighs the second Grant factor in Plaintiffs’ favor—which it should not—the Court finds that the judicial proceeding would be adversely affected by a vacatur of the MSJ: This case, which was removed to this Court in December 2020 and set to proceed to trial on October 25, 2021, would have to be reset with a new scheduling order, further prolonging the case. Regarding the third factor, the reason for the delay is counsel's carelessness and inattention to this case as opposed to an unexpected or unavoidable hindrance. See 49 C.J.S. Judgments §§ 556, 557. The Court acknowledges that counsel and the paralegal were preoccupied with a trial in another case, but this is still not excusable conduct. See In re Keitel , 852 F. App'x at 468 ; Revere , 362 F. App'x at 999.
Oddly, the affidavit (DE [62]) opens with "County of Pinellas," is notarized in Miami-Dade County, and the law offices involved are in Pinellas and Broward Counties.
Lastly, regarding the fourth factor, the Court cannot find that Plaintiffs’ counsel acted in bad faith. Nevertheless, the Court considers another relevant factor: Plaintiffs’ repeated failure to comply with other Court orders in this case. While those non-final orders are not the subject of this Rule 60(b)(1) Amended Motion, the Court finds it relevant that Plaintiffs—even in state court—repeatedly missed deadlines and failed to monitor the filings in this case. Accordingly, under all the relevant facts of this case, the Court does not find that Plaintiffs’ counsel's conduct rises to the level of excusable neglect such that the Final Judgment in Scottsdale's favor should be vacated. It is therefore
This is not the first time Plaintiffs have moved to set aside an order for excusable neglect. In state court, before this case was removed, Najjarian failed to comply with the trial court's order to effectuate service of process within thirty days, resulting in the case being dismissed with prejudice. (DE [1-3], at 16). The trial court ultimately granted Najjarian's motion to vacate for excusable neglect. Id. at 18–21, 33–34. In the state-court filing, Najjarian's excuse was that Vasquez—the same paralegal here—began exhibiting COVID-19 symptoms in June 2020 and received a positive result in July 2020, and counsel made a "clerical or administrative mistake" by failing to timely effectuate service of process. Id. at 18. Najjarian subsequently filed an amended complaint adding Audalus as a plaintiff. Id. at 37–40.
ORDERED AND ADJUDGED that Plaintiffs’ Amended Motion for Relief from Judgment Pursuant to Federal Rule of Civil Procedure 60(b)(1) is DENIED . The Final Judgment in Scottsdale's favor (DE [54]) still stands. Within 7 days of the date of this Order, Plaintiffs’ counsel shall deliver a copy of this Order by certified mail to each Plaintiff and shall file a Notice of Compliance in this Court when they have done so.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 6th day of October 2021.