Summary
In Gonzalez the plaintiff's attorney failed to file a timely response to a summary judgment motion because a clerical worker in his office failed to note the response date on the attorney's calendar.
Summary of this case from Drew v. Life Insurance Company of North AmericaOpinion
Civ. No. 3:99-CV-1414-D.
Filed March 24, 2000.
MEMORANDUM OPINION AND ORDER
Following entry of summary judgment dismissing her lawsuit brought under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., after she failed to respond to the motion, plaintiff Rosanna L. Gonzalez ("Gonzalez") moves for a new trial. The court denies the motion for the reasons that follow.
I
Gonzalez sued defendant State Fair of Texas, Inc. ("State Fair") contending that it violated Title VII by terminating her employment based on her Hispanic race. State Fair filed a motion for summary judgment on January 14, 2000, introducing evidence that it had discharged her because of poor job performance. Gonzalez did not respond to the motion by the February 3, 2000 due date specified by N.D. Tex. Civ. R 7.1(e), and on February 7, 2000 the court entered summary judgment in favor of State Fair. On February 10, 2000 Gonzalez filed various motions that the court denied as moot in view of its prior entry of a final judgment. Gonzalez filed the instant motion for new trial on February 17, 2000. State Fair filed its opposition response on March 2, 2000. Gonzalez has not filed a reply brief, and the motion is now ripe for determination.
II
The court begins by addressing whether Gonzalez's motion should be treated as a motion for "new trial." The court holds that it should not. As the court explained in Artemis Seafood, Inc. v. Butcher's Choice, Inc., 1999 WL 1032798 (N.D. Tex. Nov. 10, 1999) (Fitzwater, J.):
Although denominated as a motion for "new trial," it obviously is not such a motion. As Rule 59(a) makes clear, a motion for new trial is appropriate when the case has been tried to a jury or to the court. The court disposed of this case on motion for summary judgment. See Patin v. Allied Signal, Inc., 77 F.3d 782, 785 n. 1 (5th Cir. 1996) ("The Patins' reconsideration motion was styled as a motion for new trial, pursuant to Fed.R.Civ.P. 59(a), but was correctly analyzed and decided in the district court as a Rule 59(e) motion to reconsider entry of summary judgment.").Id. at *1. Accordingly, because Gonzalez filed her motion within ten countable days of the date the judgment was entered on the docket, it should be treated as a Rule 59(e) motion to alter or amend the judgment. Id.
III A
The court now considers the merits of Gonzalez's motion. Gonzalez's counsel, Frank P. Hernandez, Esquire ("Hernandez"), maintains that Gonzalez failed to file a timely response to State Fair s summary judgment motion because a clerical worker in his office failed to note the response date on Hernandez's calendar. Hernandez Aff. ¶ 2. He avers that he became aware of the motion on January 14, 2000 and instructed his new clerk to note the response date on the calendar. Id. He was at the time preparing for another trial. Id at ¶ 3. Once he completed the trial and returned to his law practice, he was unaware that his calendar had not been updated, and he did not recall that State Fair's motion for summary judgment had been filed. Id. On February 7, 2000 he reviewed the file and recognized that a response had been due on February 3, 2000. Id. at ¶ 4. He immediately telephoned State Fair's counsel to request an extension. On February 8, 2000 State Fair's counsel declined to agree to one based on her client's position that Hernandez had not requested it within the response period. Id. At the time of these conversations, neither Hernandez nor State Fair's counsel was aware that the court had already ruled on State Fair's summary judgment motion. Hernandez first learned of the court's order and judgment by mail on February 10, 2000. Id.
Hernandez's "affidavit" does not contain a jurat and therefore is not a proper affidavit. See Brady v. Blue Cross Blue Shield of Tex., Inc., 767 F. Supp. 131, 135 (N.D. Tex. 1991) (Fitzwater, J.). Because Hernandez states, however, that his assertions are filed under the penalty of perjury, see Hernandez Aff at ¶ 8, the document qualifies as a declaration. See 28 U.S.C. § 1746. Declarations made under penalty of perjury can be used in lieu of affidavits with the same force and effect.
Hernandez maintains that his client's failure to respond to State Fair's motion was the result of counsel's errors, not Gonzalez's indifference to the motion. Id. at ¶ 7.
B
In Artemis Seafood the court granted summary judgment after the nonmovants failed to respond to the motion. Artemis Seafood, 1999 WL 1032798, at *1. The nonmovants then sought relief from the judgment via a motion that the court treated as one to alter or amend the judgment. Id. The court applied certain of the nonexclusive factors of Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), that it deemed pertinent to a case in which no summary judgment response had been timely filed. Artemis Seafood, 1999 WL 1032798, at *2 ("In any event, the Lavespere factors are nonexclusive, and the court may base its decision on those grounds that assist it in exercising its discretion in striking a proper balance between the need to bring litigation to an end and the need to render just decisions based on all the facts.").
1
In Artemis Seafood the court first considered, as it does now, the reasons for the nonmovants' default. The court found that "[i]t [was] obvious that the fault for [the parties'] failures to respond rests in varying degrees with their counsel." Id. at *3. "Both concede[d] that they received [the summary judgment] motion and both acknowledge[d] that they erroneously failed to move for extensions of times despite what they believed were valid grounds . . . for doing so." Id. The court held that "[a] party is not entitled to have a summary judgment set aside on the basis of evidence not produced prior to summary judgment unless he demonstrates a valid excuse for the failure to produce the evidence prior to the court's summary judgment ruling." Id (quoting Wallace v. Texas Tech Univ., 80 F.3d 1042, 1052 (5th Cir. 1996)). The court found that this factor weighed against granting relief from the summary judgment. Id.
The court reaches the same result in the present case. Hernandez candidly admits his errors, and those of his office staff; that contributed to his client's failure to respond to State Fair's motion. He received the motion but failed to calendar it, and he did not independently recall that it had been filed. At the time he completed the trial of another case, Hernandez still had two weeks in which to file a response, obtain an agreed extension of the response date, or move the court for such relief Hernandez has not demonstrated a valid excuse for failing to file a summary judgment response or to request an agreed or court-ordered extension of the response date.
2
The court next considers the likelihood that State Fair will suffer unfair prejudice if the case is reopened. As the court stated in Artemis Seafood, "a summary judgment movant will suffer some form of prejudice anytime it obtains such relief and the opposing party is successful in having it set aside. The court must therefore assess whether the prejudice is unfair." Artemis Seafood, 1999 WL 1032798, at *3 As in Artemis Seafood, the court holds that, except to the extent that State Fair should be compensated for the cost of responding to plaintiff's Rule 59 motion, and of preparing other post-judgment pleadings, the prejudice in the present case is not unfair.
3
The court next assesses the reasons for plaintiff's failure to respond. The court held in Artemis Seafood that it may properly consider these reasons, provided it does not require a showing as onerous as Rule 60(b) would require. Id. The court explained its rationale for reaching this conclusion:
Because, under Lavespere, a court's Rule 59(e) discretion is "not limitless," it cannot be the rule that a party who, without valid excuse, fails to respond to a summary judgment motion will get a second bite at the apple in any case in which the summary judgment movant cannot show unfair prejudice. It this were so, the prejudice factor would not be nonexclusive, it would be determinative. Moreover, a party could with virtual impunity ignore a court's response deadline. Provided it moved for relief from the judgment within a ten-day period, it would benefit from the more lenient standard of Rule 59(e). The party could almost always show that the prejudice to the summary judgment movant was not unfair prejudice, but was instead nothing more than the harm that occurs anytime a favorable judgment is set aside.Id. (citation omitted).
Hernandez has offered no valid reasons for failing to respond or to request a timely extension of the response date. The errors that occurred here are not even sufficient to rise to a level of excusable neglect. Instead, they are more akin to inadvertence, which is insufficient to warrant relief. See, e.g., Texas Housing Agency v. Verex Assurance, Inc., 176 F.R.D. 534, 536 (N.D. Tex. 1998) (Means, J.).
Accordingly, having considered the reasons for Gonzalez's failure to respond to State Fair's motion, the court finds them insufficient, and concludes that this factor weighs against granting her relief from the judgment.
Having considered all the relevant factors, the court denies Gonzalez's motion.
SO ORDERED.