Opinion
95 Civ. 6817 (LLS)
February 8, 2000
OPINION, MEMORANDUM AND ORDER
Plaintiff moves to vacate my March 24, 1999 order dismissing this action, on the grounds that plaintiff's failure to move to restore this action to my calendar within thirty days is excusable, or that plaintiff's time to move to restore should be extended. When it was reported to me that this action had been settled, the March 24, 1999 order provided:
that this action is dismissed with prejudice but without costs; provided, however, that within thirty days of the date of this order any party may apply by letter for restoration of the action to the court's calendar.
In fact, it appears that the parties kept negotiating — not over the terms of the settlement itself, but over whether the dismissal of the action should be with or without prejudice. On July 15, 1999 defendant's counsel John Harris, Esq. of Messrs. Davidoff Malito LLP wrote the court, assuring (p. 2) that "the matter is, in fact, settled" and that plaintiff's counsel's July 13 letter (requesting restoration of the case to the calendar) "is misleading, to the extent that it seeks to convey the impression that the matter is not settled" and that the only dispute was over plaintiff's wish that the discontinuance be without prejudice. Mr. Harris' July 20, 1999 letter to the court reiterated that the right to commence another action on the same claims was the sole sticking point in the settlement, and (p. 2) "it has always been the defendant's position that this action has been settled."
At a July 29, 1999 conference, Mr. Harris repeated that if it was with prejudice, defendant was ready and willing to honor the settlement. On that representation, the court suggested that plaintiff accept, and denied restoration of the case to the calendar. Thereafter plaintiff sent defendant a revised stipulation to that effect, but defendant neither responded to plaintiff nor executed the stipulation. Indeed, at a November 5, 1999 conference with the court, the defendant took the position that the case had been dismissed and that he would not consummate the settlement.
In support of that position, defendant tenders two arguments. Neither has merit.
Defendant complains that the passage of time, since the action was commenced in August 1995, has prejudiced his ability to establish matters of defense (see Harris Affidavit sworn to December 2, 1999 at pp. 8-9, ¶ 25). That argument is sham. There is no reason why the defendant could not have taken his own discovery while the case was pending. His decision not to do so was at his own risk.
Second, defendant complains that interest was accruing during the delay. That argument is equally empty: he could have suspended the accrual of interest by depositing the disputed sum into court, and in any event he has had the use of the money in the interim.
At bottom, defendant's argument is merely that since the thirty-day period expired before the application to restore the case was made, the dismissal is final and immutable.
Under Fed.R.Civ.P. 60(b)(1) a party may be relieved from a final judgment or order for excusable neglect. Here there was neglect, but it is excusable. The delay was in large part due to the unavailability of defendant's counsel. Defendant's attempts to charge plaintiff's counsel with bad faith are unpersuasive; on the contrary, it is defendant's refusal to consummate the settlement (after assuring the court that he would do so when the "without prejudice" point was dropped by the plaintiff, as it thereafter was) which seems disreputable. There is no cognizable prejudice to defendant from the restoration of the action. Indeed, it would be an unmerited windfall to defendant, at plaintiff's expense, if the action were not restored to the calendar for prosecution to its just result.
The March 24, 1999 order dismissing this action is vacated. The action is restored to my calendar and the parties will attend a pre-trial conference before me on Friday, March 17, 2000, at 3:00 p.m. to set dates for the filing of a pre-trial order, and for trial.
So ordered.