Opinion
Case No. 02-2606-JWL
January 5, 2004
MEMORANDUM ORDER
Pamela Goodwin originally brought this action alleging unlawful discrimination under Title VH The court dismissed the case without prejudice for lack of prosecution. The matter is now before the court on plaintiffs motion to set aside the order of dismissal. (Doc. 8). As set forth more fully below, the court grants the plaintiffs motion under Federal Rule of Civil Procedure 60(b)(1).
BACKGROUND
On December 5, 2002, the plaintiff filed her complaint under Title VII. Thereafter, counsel for Ms. Goodwin attempted to obtain a waiver of service by contacting defendant's counsel. Ms. Goodwin's counsel did not receive a response. No attorney has entered an appearance on behalf of the defendant in this matter.
On April 14, 2003, Magistrate Judge David J. Waxse issued an order to show cause requiring the plaintiff to show good cause in writing why service of the summons and complaint was not made upon the defendant within 120 days from the filing of the complaint and to further show good cause why the action should not be dismissed without prejudice.
After receiving no response to the show cause order, the court dismissed the matter without prejudice on June 30, 2003. Plaintiff timely filed the present motion on December 26, 2003.
STANDARD
Ms. Goodwin contends that the excusable neglect of her counsel, Donald R. Aubry, justifies relief under the federal rules. Rule 60(b)(1) provides:
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 . . .
The Tenth Circuit has repeatedly noted that relief under Rule 60(b) is warranted only in exceptional circumstances. See, e.g., Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1147 (10th Cir. 1990). The decision to "Vacate judgment under Rule 60(b) is left almost entirely up to the discretion of the trial court." Greenwood Explorations, Ltd. v. Merit Gas and Oil Corp., Inc., 837 F.2d 423, 426 (10th Cir. 1988). The burden falls upon the party moving to have the judgment set aside to both plead and prove mistake, inadvertence, surprise, or excusable neglect. See Pelican, 893 F.2d at 1147.
Ms. Goodwin analyzes "excusable negelect" under the framework set forth in Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380 (1993), a case interpreting the phrase "excusable neglect" under the Bankruptcy Code. In researching the Tenth Circuit cases decided after Pioneer and discussing the Rule 60(b)(1) standard, the court finds none applying the Pioneer framework The court, therefore, will not compartmentalize its analysis to comport with the Pioneer analysis and will focus instead on applying the Tenth Circuit legal standards set forth above. However, the court notes that it would reach the same results in this case had it structured its analysis after Pioneer.
DISCUSSION
Ms. Goodwin contends that the neglect in this case is attributable to her attorney's clinical depression, which the court should consider to be "excusable" for purposes of Fed.R.Civ.P. 60(b)(1). Excusable neglect encompasses "inadvertence, carelessness, and mistake," and may be found where a party's Mure to comply with filing deadlines is attributable to negligence. Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997) (citing Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 388 (1993)), cert. denied, 118 S.Ct. 1055 (1998). Excusable neglect will not be found, however, where there has been abuse by a party. Id. "`The determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.'" Id. (quoting Pioneer, 507 U.S. at 395).The court finds that Ms. Goodwin has pled and proven excusable neglect sufficiently to justify relief under Rule 60(b)(1). In support of her motion, Ms. Goodwin attached the affidavit of her counsel, Donald R Aubry. Therein, Mr. Aubry explains that he is a member of a small law firm with four active practitioners. Within the firm, each attorney works independently on his cases. There is no evidence that the other attorneys in the firm were familiar with or actively involved in Ms. Goodwin's case. As early as 2003, Mr. Aubry began experiencing symptoms of depression, including difficulty focusing on various aspects of his practice. In particular, he found it extremely difficult to follow through on the day to day management of his cases. While he states that he never intended to neglect his duties, the symptoms of his depression rendered him incapable of effectively managing Ms. Goodwin's complaint. The other attorneys in the firm were not aware of Mr. Aubry's condition. In November of 2003, he sought assistance from the Missouri Lawyers Assistance Program. Through this program he was referred to Dr. John Wubbenhorst for treatment. Dr. Wubbenhorst diagnosed Mr. Aubry as suffering from a depressive illness that "insidiously escalated to a Major Depressive Episode, Severe." In an opinion letter from Dr. Wubbenhorst, also attached in support of the motion, he indicates that Mr. Aubry's depression reached "a point that impaired [his] ability to focus, or think through the tasks of [his] job, especially if anxiety was associated with some element of the task." Mr. Aubry has sought additional treatment from his family physician, who prescribed medication for Mr. Aubry's depression. In addition to seeking professional assistance, Mr. Aubry has discussed his condition with his law partners, and he is now working to rectify the problems that his condition has created in his professional life (as evidenced, in part, by the present motion).
The court may properly consider Mr. Aubrey's severe illness in determining whether his neglect was excusable. Wuliger v. Cohen, 215 F.R.D. 535, 538 (N.D. Ohio 2003); Carcello v. TJX Companies, Inc., 192 F.R.D. 61, 64 (D. Conn. 2000); Fetik v. New York Law School, 1999 WL 459805, at * 4 (S.D.N.Y. June 29, 1999). In Wuliger and Carcello, however, the courts stated, in conclusory fashion, that counsel's illness alone is insufficient to warrant relief under Rule 60(b)(1). Specifically, the Wuliger court cites Carcello for this proposition without any analysis. In turn, the Carcello court relies on Andree v. Center for Alternative Sentencing and Employment Serv., Inc., et al., No. 92cv616, 1993 WL 362394, at *2-3 (S.D.N.Y. Sept. 14, 1993), for the same proposition. It appears this reliance is somewhat misplaced. In Andree, the plaintiff relied on her attorney's back condition to excuse counsel's failure to respond to a summary judgment motion. The court found that the negligence was not excusable because the attorney failed to communicate with opposing counsel or with the court to apprise them of his condition. Id. at *2. Moreover, although the attorney claimed to have drafted a motion for extension of time, he did not attach that as an exhibit to the motion for relief from judgment. Id. Also, after he left the hospital and was able to resume routine legal work, he did not inquire into the status of the case. Id. Based on these facts, the court found that his illness alone was insufficient to justify relief. The court's holding does not appear to stand for the broad proposition that an attorney's illness alone can never be sufficient to warrant relief.
Additionally, the facts in this case are distinguishable from Andree, First, Mr. Aubrey's ailment is distinguishable from the attorney's back problems in Andree, Clinical depression (as experienced by Mr. Aubrey) interferes with an attorney's performance in ways that a back injury does not. An attorney with a back ailment retains the mental faculties to notify opposing counsel or the court of his or her condition. In contrast, according to Mr. Aubrey's psychologist, the sympotms of his depression made "it difficult to perform even routine aspects of [his] employment . . . and reached a point that impaired [his] ability to focus, or think through the tasks of [his] job. . . ." Thus, Mr. Aubrey's condition rendered him unable to take appropriate action to effectively manage Ms. Goodwin's claim. Second, unlike the attorney in Andree, once Mr. Aubrey sought assistance and received treatment for his condition, he attended to his clients and took steps to remedy the situation that he created.
In short, the Andree court does not appear to have adopted a per se rule that illness alone can never warrant relief under Rule 60(b)(1). To the extent that other district courts have expressly or implictly relied on Andree to support such a rule, the court refuses to join them because the facts in Andree are distinguishable from those in this case. Moreover, the Tenth Circuit has not taken the position that an attorney's illness alone is inadequate to demonstrate the existence of excusable neglect. Thus, the court believes that the more prudent course of action is to examine a particular attorney's illness and its effect on his or her performance in deciding whether relief is justified Here, Ms. Goodwin has extensively documented that Mr. Aubrey suffered from a severe episode of clinical depression and that this condition caused the neglect in this case. Thus, the court believes that counsel's neglect was excusable under Fed R. Civ. P. 60(b)(1)
Moreover, the interests of justice are best served by granting relief in this case. As noted above, the defendant was never served and no attorney entered his or her appearance on behalf of General Motors. Thus, it is reasonable to assume that the defendant did not expend any time or money in defending the matter. Moreover, the court dismissed the claim without prejudice and did not reach the merits of plaintiffs claim. Thus, there was no final adjudication on the merits upon which the defendant could rely. See 11 Charles Alan Wright, Arthur R. Miller Mary K. Kane, Federal Practice and Procedure § 2857 at 257-58 (2d ed. 1995) (noting that "[t]here is much more reason for liberality in reopening a judgment when the merits of the case never have been considered than there is when the judgment comes after a full trial on the merits."). In contrast, Ms. Aubrey appears to have a colorable claim, evidenced by the fact that she received a probable cause determination from the Equal Employment Opportunity Commisssion. These facts, combined with the court's preference to resolve claims on their merits, weigh heavily in favor of granting relief in this case. See Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970) ("[t]he preferred disposition of any case is upon its merits . . ."). As such, the court concludes that Ms. Goodwin is entitled to relief under Fed.R.Civ.P. 60(b)(1).
IT IS THEREFORE ORDERED that plaintiffs motion to set aside the court's June 30, 2003 order (Doc. 8) is granted.
IT IS SO ORDERED.