Opinion
No. 00 Civ. 3763 (AKH)
July 2, 2002
ORDER DENYING MOTION TO VACATE DISMISSAL
By order filed August 22, 2000, I dismissed this case pursuant to Federal Rule of Civil Procedure 41(b), after Plaintiffs counsel, Ingrid N. Davis, twice failed to appear without explanation for scheduled pretrial conferences. Nearly six months later, plaintiffs second attorney, Kristian Earl Lynch, in a letter dated February 7, 2001 asked me to vacate my dismissal and reopen plaintiffs case. Mr. Lynch explained that plaintiffs original attorney, Ms. Davis, failed to appear for the court conferences because she had been disbarred, and had failed to inform plaintiff that she could no longer represent her or that plaintiff would need to obtain a new attorney. In a February 14, 2002 memo endorsement on plaintiffs February 7, 2002 letter, I advised plaintiff to proceed by a formal motion under Federal Rule of Civil Procedure 60(b).
Another six months passed. On August 30, 2001, I received a letter from counsel for defendant Laurel K. Wright, which referenced a Notice of Motion by plaintiff dated August 16, 2001 to reopen the case, and attempted to respond to such motion. Although the motion had not been filed and I had not seen it, I endorsed the letter, ordering that Wright's opposition to the motion should be made formally, and established a briefing schedule for a formal opposition and for plaintiffs reply.
Another month passed and, on October 2, 2001, a second defendant, Judith M. Harvey, filed an Affirmation in Opposition to plaintiffs motion. I still had not received plaintiffs Rule 60(b) motion, nor does such motion appear to have ever been filed with this Court. Defendant Harvey argued that plaintiffs motion should be denied because she failed to show the merit of her case and that where was personal jurisdiction over the defendants. On October 31, 2002, I denied plaintiffs request for failure to show an excuse for her defaults or the merits of her action.
Now, another seven months later, on June 2, 2002, plaintiffs third attorney in this matter, Clifford Gabel, has filed a formal motion pursuant to Federal Rule of Civil Procedure 60(b) asking me to vacate my April 22, 2000 dismissal of plaintiffs case. Plaintiff argues that plaintiffs second attorney, Mr. Lynch, negligently failed to file the papers requested by the court in support of plaintiffs first motion to vacate the dismissal, failed to inform plaintiff of my denial of her motion to vacate, and subsequently resigned from the practice of law. In short, plaintiff now argues that the incompetence of plaintiffs two former attorneys amounts to "excusable neglect" which allows me to vacate my dismissal of her case pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.
Rule 60(b) provides in pertinent part:
On motion and 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 the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment. . . . The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
Because plaintiffs current motion to vacate my dismissal of her case was filed nearly twenty-one months after her case was dismissed, the motion is not timely under Rule 60(b)(1). The requested relief can therefore only be granted pursuant to the broad equitable authority given by Rule 60(b)(6) to vacate the dismissal for "any other reason justifying relief from the operation of judgment."
In exercising this equitable authority under Rule 60(b), courts should seek "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). "For this reason, courts require that the party seeking to vacate a final judgment must produce `highly convincing' evidence in support of the motion, show good cause for failure to act sooner, and demonstrate that rescinding the judgment would impose no undue hardship on other parties." Sonhouse v. NYNEX Corp., No. 96 Civ. 3326, 2000 WL 60204 (S.D.N.Y. Jan. 24, 2000) (citations omitted), aff'd, 225 F.3d 646 (2d Cir. 2000).
Plaintiffs renewed Rule 60(b) motion at this late date does not satisfy this standard. While it may be true that plaintiffs first two attorneys were negligent, plaintiff has a responsibility to monitor the progress of her own case and to communicate with her attorneys. Over five months passed between my original dismissal of plaintiffs case and her second attorney's request to reopen her case. Similarly, over seven months passed between denial of plaintiffs first request to reopen the case and the filing of the present motion. While plaintiff contends that her second attorney failed to inform her that her request had been denied, this explanation, without more, does not excuse allowing seven months to pass before taking any further action with respect to her case. Moreover, plaintiff has not demonstrated that vacating my dismissal and reopening her case nearly two years after entry of the original order dismissing her case would not cause undue hardship to the defendants.
Accordingly, plaintiffs motion is denied.