Opinion
96 Civ. 8677 (AJP)
February 3, 2000
OPINION AND ORDER
Due to the neglect and dilatoriness of plaintiff's counsel, the firm of Lewis Inwood, trial of this automobile accident case has been much delayed, and defendants and the Court subjected to needless motion practice. Nevertheless, for the reasons set forth below, the Court grants plaintiff's Rule 60(b) motion to vacate the Order of Dismissal and reinstate this case to the Court's active docket, conditioned on plaintiff's counsel paying $5,000 to the Clerk of Court by February 9, 2000.
BACKGROUND
This case was scheduled to be tried on January 21, 1999. On or about November 24, 1998, plaintiff's counsel asked the Court to put this case on the suspense calendar to allow plaintiff to pursue coverage claims against plaintiff's under insured motorist carrier (First Trenton Indemnity) and one of the defendants' alleged excess carriers, Allstate.
By Order dated November 24, 1998, the Court placed the case on the suspense docket, the Order further providing that "[i]f plaintiff does not reinstate the action to the Court's active (trial) docket by December 1, 1999, the case will be dismissed without prejudice by the Clerk without further notice." (Dkt. No. 13.)
By Order dated December 6, 1999, the Court stated that: "Plaintiff has not taken any action to reinstate the case to the Court's active docket. Accordingly, the action is dismissed without prejudice for failure to prosecute." (Dkt. No. 16.)
On December 28, 1999, some three weeks later, plaintiff's counsel wrote the Court asking to have the case reinstated to the docket because "plaintiff incorrectly diaried this matter for reinstatement as of January 1, 2000." Defendants objected. The Court responded that "[i]n light of defendant's opposition, plaintiff must file a formal motion under Rule 60, and should explain its lack of diligence in this matter." (Dkt. No. 18: 1/3/00 Memo Endorsed Order.)
Three weeks later, on January 20, 2000, after a pre-motion conference, plaintiff served its formal Rule 60(b) motion, and on January 21, 2000, served an amended motion. (See Dkt. Nos. 19-20.)
The "lack of diligence" statement in the Court's January 3, 2000 Memo Endorsed Order referred to the fact that the New Jersey state court dismissed the action involving First Trenton Indemnity and Allstate on June 25, 1999 without prejudice to commencement of proceedings in New York State court. (Dkt. No. 20: Inwood 1/21/00 Aff. Ex. A.) Plaintiff's counsel Mr. Inwood claimed that he did not receive the New Jersey Order until August 1999. (Inwood 1/21/00 Aff. at p. 2.) In any event, it was not until January 20, 2000 — after dismissal of this action and after a premotion conference with the Court criticizing plaintiff's counsel for not having commenced the New York State action — that plaintiff commenced the New York State action against First Trenton and Allstate. (See Inwood 1/21/00 Aff. at p. 4 Exs. F-G; Inwood 1/27/00 Reply Aff. ¶ 10 Exs. C, E.)
Plaintiff's counsel claims not to have received two orders of this Court that the Court mailed to all counsel. Mr. Inwood needs to better deal with his firm's mail.
Mr. Inwood's only excuse for not filing the New York State action earlier is that he expected New Jersey co-counsel to do so. (Inwood 1/27/00 Reply Aff. ¶ 10.) Mr. Inwood's excuse for not asking for this action to be restored to the Court's active docket before the December 1, 1999 deadline is that he mis-diaried it for January 1, 2000. (Inwood 1/21/00 Aff. at p. 2.) Mr. Inwood admitted that this was "law office failure" and that he was "negligent." (Id.)
Mr. Inwood claims that "[h]aving to diary a matter for more than one year it was all too easy to make an error and diary the wrong date." (Inwood 1/21/00 Aff. at p. 2.) This is a lame excuse.
On the other hand, because of the statute of limitations, a without prejudice dismissal effectively would be a dismissal with prejudice. (See Inwood 1/21/00 Aff. at p. 2.) That would not be fair to plaintiff (although, of course, plaintiff is responsible for the actions, or inactions, of counsel). That is especially so here where both defendants' insurance carriers have agreed to tender their full $10,000 policy limits. (See Criscitelli 1/25/00 Aff. ¶ 10; Inwood 1/21/00 Aff. at p. 1.) Defendants have not demonstrated any prejudice from plaintiff's counsel's delay. While defendants state that "[t]his case has languished long enough" and the "spector of litigation over the defendants should remain closed" (Criscitelli 1/25/00 Aff. ¶ 11), no specific prejudice is shown.
While defendants have tendered their policy limits, the case has not settled because of plaintiff's issues regarding its under insured motorist coverage and the Allstate excess coverage. (See Inwood 1/21/00 Aff. at p. 1.)
ANALYSIS
Rule 60(b)(1) of the Federal Rules of Civil Procedure allows the Court to relieve a party from a final judgment, based on counsel's "mistake . . . or excusable neglect," "upon such terms as are just." Fed.R.Civ.P. 60(b)(1). As this Court previously has explained:
This Court is a firm believer that when attorneys . . . fail to follow Court scheduling orders and deadlines, there should be a consequence — often a monetary sanction on counsel payable to the Clerk of Court — or deadlines will be meaningless. Rule 60(b) allows relief "upon such terms as are just" — and the Court believes a monetary sanction . . . payable to the Clerk of Court by [plaintiff's counsel] within five business days of this Order, is "just" here.
Barrett v. F.W. Woolworth Corp., 96 Civ. 7538, 1997 WL 752416 at *2 (S.D.N.Y. Dec. 5, 1997) (Peck, M.J.), aff'd, 1997 WL 762134 at *1 (S.D.N.Y. Dec. 10, 1997) (Martin, D.J.).
Plaintiff's counsel here appears to have recognized that a monetary sanction was inevitable and appropriate. The last substantive line in Mr. Inwood's reply affidavit is: "Sanction me but not my client." A $3,000 sanction on Mr. Inwood is "just" here (and is not to be passed on to plaintiff). Accordingly, upon Mr. Inwood's payment of $3,000 to the Clerk of Court by February 9, 2000 (with proof of same to be provided to my chambers by that same day), the Rule 60(b) motion will be granted and the action reinstated. If Mr. Inwood does not pay the $3,000 sanction by February 9, 2000, the Rule 60(b) motion will be denied and the prior dismissal will remain in effect. Finally, if the case is reinstated pursuant to the above procedure, the case is set for trial on February February 14, 2000 at 9:00A.M.
SO ORDERED.