Opinion
Nos. MDL 1148, 00-2485.
May 18, 2004
SPECIAL MASTER'S REPORT AND RECOMMENDATION REGARDING PLAINTIFFS' MOTION TO REINSTATE CASE
On October 29, 2002, Plaintiffs Kimberly and Eric Frankenfield (the "Frankenfields") filed a motion to reinstate this case pursuant to Fed.R.Civ.P. 60(a) and (b). The Court referred this matter to me for further proceedings on February 11, 2004. After careful consideration of the relevant facts, and the arguments of counsel, I issue the following written recommendation.
On April 5, 2001, defendant SmartPractice, Inc. d/b/a SmartHealth ("SmartHealth") filed a motion asking the Court to compel certain discovery responses from the Frankenfields. The Court granted the motion on April 16, 2001, and ordered the Frankenfields to comply within ten days. On April 30, 2001, the Frankenfields' then-counsel, Gary Katz, Esquire, asked that the response time be extended to June 24, 2001, due to his serious and sudden heart problems. SmartHealth did not oppose this request, and the Court granted the extension.
The Frankenfields apparently provided no further discovery responses by June 24, 2001. On July 23, 2001, SmartHealth filed a motion to compel and for sanctions. The Court granted this motion on July 31, 2001, ordering the Frankenfields to show cause why they did not obey the April 16 order, or their case would be dismissed in fourteen days. The docket entries reflect that a notation was entered on August 1, 2001, stating "Case closed."
On August 7, 2001, the Frankenfields attempted to file discovery responses with the Court, contrary to Local Rule of Civil Procedure 26.1(a). The clerk of court sent back the discovery responses to counsel for the Frankenfields, and specifically noted that Local Rule 26.1(a) did not permit them to be filed. The record does not reflect that the Frankenfields took any other action to comply with the Court's order of July 31. Both parties continued to act as if this case were still pending, until October 2002, when counsel for SmartHealth wrote a letter to the Frankenfields, noting that, according to the docket entries, this case had been dismissed.
Although the Frankenfields allege that the clerk of court "erred" by not accepting this filing, I believe that the clerk of court's actions were entirely proper, as the Frankenfields did not alert the clerk that the discovery responses were intended to serve as a response to the Court's July 31 order.
In 2001, the version of Federal Rule of Civil Procedure 58 then in effect provided that "Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a)." In turn, Rule 79(a) provides that the clerk of court shall enter listings on the civil docket corresponding to all documents and judgments filed. The entries must "show the nature of each paper filed or writ issued and the substance of each order or judgment of the court. . . ."
In my opinion, the Court's order of July 31, 2001 was not a final order or judgment. By its own terms, it contemplated that a further order dismissing the Frankenfields' case would be entered if they failed to show cause why they did not obey the April 16 order; it did not contemplate that any such order would be entered until August 14, 2001 or thereafter. Dismissal upon noncompliance was not self-executing, nor was it a ministerial action that could have been taken by the clerk. Whether the Frankenfields complied with the order to show cause was a determination for the Court to make. The docket reflects that no order dismissing the case was entered on August 14, 2001 or at any time thereafter.
What are we to make of the notation, dated July 30, 2001, and entered on August 1, 2001, reflecting that the case is closed? I agree with the Frankenfields that this can only be a clerical recordation subject to correction at "any time" under Rule 60(a), for the following reasons:
• First, no "separate document" was filed dismissing the case; the words "Case closed" are merely a notation on the docket.
• Second, the notation contradicts the Court's July 31, 2001 order, which expressly provided the Frankenfields with up to two weeks to respond before facing dismissal. The Court could not have intended to give the Frankenfields fourteen days to respond, and then contradict itself by dismissing their case the next day. The contradictory nature of the July 31 order and the August 1 notation supports the conclusion that the latter was a clerical determination rather than a court order.
• Third, Rule 77(d) requires the clerk of court to serve notice of the entry of a final order or judgment on all the parties, and to "make a note in the docket of such service." There is no notation in the docket that any such service was made, nor do the parties allege that it was made. While a clerk's failure to serve notice does not affect the validity of a final order, I believe that the lack of such service supports the conclusion that the August 1 notation was an improper notation.
• Fourth, until October 2002, both parties proceeded as if the case had not been dismissed. This pattern of behavior also supports the conclusion that the August 1, 2001 "dismissal" was an inaccurate recordation.
I recommend, therefore, that the Frankenfields' Rule 60(a) motion to correct the docket entries should be granted because no order dismissing this case was ever entered. If the Court grants the Rule 60(a) motion, there is no need for it to consider or resolve plaintiffs' arguments under Rule 60(b), and to that extent I recommend that their motion be denied as moot.
Because the Court never entered an order dismissing this case, the Court's July 31, 2001 order to show cause is still pending. The Frankenfields have not been diligent in responding to the Court's order. Over 2 ½ years later, they still have not properly responded to the Court's order to show cause. However, it is clear that the Frankenfields submitted discovery responses to SmartHealth within the 14-day period following the Court's order of July 31, 2001. For that reason, I do not believe that their case should be dismissed. Another reason for not dismissing this case is that SmartHealth has also acted in a dilatory fashion. It never asked this court to take any further action on the July 31 order to show cause, but allowed months to pass before disputing whether the Frankenfields' August 2001 responses were sufficient.
The parties' briefs make it clear that there is still some dispute about whether the Frankenfields have satisfied their discovery obligations, but they do not contain enough information to permit the Court to resolve the dispute. I therefore recommend that this Court take the following actions:
(a) Vacate the July 31, 2001 order to show cause.
(b) Grant SmartHealth 14 days in which to amend its July 23, 2001 motion to compel, if it still believes that the Frankenfields' discovery responses are insufficient. If SmartHealth chooses to amend the motion, it shall specify the rules or other authority on which it relies, and shall state why it believes the Frankenfields' discovery responses are insufficient. If SmartHealth does not file an amended motion within 14 days, the July 23, 2001 motion shall be denied without prejudice, and the case will continue.
(c) Should SmartHealth file an amended motion to compel, the Frankenfields will have 14 days in which to file an answer. The Frankenfields must explain why their discovery responses are sufficient and, in the alternative, explain why they should not be sanctioned if their discovery responses prove to be insufficient.
I believe that such an order will help get this case back on track. If it turns out that the Frankenfields' discovery responses are inadequate, then the Court should consider appropriate sanctions.
ORDER
On this ____ day of ____, 2004, upon consideration of plaintiffs' motion to reinstate case, defendant's reply thereto, and the report and recommendation of the special master, this Court hereby orders the following:
(a) Plaintiffs' motion to reinstate case pursuant to Fed.R.Civ.P. 60(a) is GRANTED, and the clerk of court is directed to change the docket entries to reflect that this case was not closed or otherwise dismissed on August 1, 2001.
(b) To the extent that plaintiffs' motion is based on Rule 60(b), the motion is DENIED as moot.
(c) This Court's order of July 31, 2001, is hereby VACATED.
(d) If defendant still believes that plaintiffs' discovery responses are incomplete or inadequate, defendant may amend its motion of July 23, 2001 within fourteen days of the date of this order. If defendant chooses to amend its motion of July 23, 2001, defendant shall specify: the rules or other legal authority on which it relies; why it believes that plaintiffs' responses are incomplete or inadequate; and any sanctions sought. If defendant does not file an amended motion within fourteen days of the date of this order, its motion of July 23, 2001 shall be denied without prejudice.
(e) If defendant files an amended discovery motion, plaintiffs will have fourteen days from the date the motion is filed to file their reply. If plaintiffs file a reply, they must explain why their discovery responses are sufficient and, in the alternative, explain why they should not be sanctioned if their discovery responses are insufficient.