Opinion
Civil Action No: 02-573 Section: "J" (5)
December 11, 2002
ORDER AND REASONS
Before the Court is plaintiff's Motion to Vacate Judgment Pursuant to Rule 60 (Rec. Doc. 5) which was set for a December 4, 2002 hearing on the briefs. After considering Plaintiff's motion and accompanying memorandum, the record, and the applicable law, the Court concludes that Plaintiff's motion should be DENIED.
BACKGROUND
This is a § 1983 civil rights case wherein Plaintiff alleges that Defendant, a Louisiana state trooper, violated his constitutional and civil rights as a result of a false arrest and battery. The underlying events occurred on February 28, 2001. Plaintiff filed suit exactly one year later on February 28, 2002. Defendant has never been served with process. As a result, on July 30, 2002, the Court sent notice to Plaintiff's original counsel, Brett Prendergast, that the case would be set for the call docket on September 11, 2002. On the same date, Prendergast, filed a Motion to Withdraw as Counsel (Rec. Doc. 3), which was granted on July 31, 2002. The case was then dismissed without prejudice on September 11, 2002 when no one appeared at the call docket on behalf of Plaintiff. Rec. Doc. 4. According to Plaintiff, he subsequently retained new counsel, Peter Meisner, on October 29, 2002. Meisner claims that at the time he accepted the case, he had no knowledge that it had been previously dismissed. Meisner has never filed a motion to enroll as counsel of record. Plaintiff is listed as representing himself pro se.
Counsel's motion properly followed the requirements of Local Rule 83.2.11, including a certificate that Plaintiff was served by certified mail with a copy of the motion to withdraw. See Rec. Doc. 3.
Meisner filed the instant motion on November 15, 2002, requesting that the Court vacate its judgment dismissing the case. The appeal deadline has passed and more importantly, so has the prescription deadline. Meisner argues that Plaintiff never received notice of the call docket hearing because the Court's notice was sent to Plaintiff's original counsel. Meisner's motion fails to state whether Prendergast passed the notice onto Plaintiff. Meisner asks that the Court, on principles of equity, not penalize Plaintiff and vacate the judgment.
DISCUSSION
Federal Rule of Civil Procedure 60(b)(1) allows a district court, in its discretion, to vacate a final judgment on the basis of "mistake, inadvertence, surprise, or excusable neglect." A Rule 60(b)(1) motion must be filed within a reasonable time and not more than one year after the judgment was entered. Fed.R.Civ.P. 60(b). Rule 60(b) motions are left to the "sound discretion of the district court." Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). The Fifth Circuit has described a court's powers under Rule 60(b) as "`a grand reservoir of equitable power to do justice in a particular case' . . . that may be tapped . . . in the sound exercise of its discretion, and within the strictures inherent in the underlying objectives of the rule." Id. (quoting Menier v. United States, 405 F.2d 245, 248 (5th Cir. 1968)). Rule 60 "seeks to strike a delicate balance between two countervailing impulses: the desire to preserve the finality of judgments and the `incessant command of the court's conscience that justice be done in light of all the facts.'" Id. at 401 (quoting Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970)).
The Fifth Circuit applies an eight-factor test which guides a court's consideration of a Rule 60(b) motion. Magness v. Russian Fed'n, 247 F.3d 609, 618 (5th Cir. 2001) ; Seven Elves, 635 F.2d at 402. The eight factors are:
(1) that final judgments should not be lightly disturbed;
(2) that the Rule 60(b) motion is not to be used as a substitute for appeal;
(3) that the rule should be liberally construed in order to achieve substantial justice;
(4) whether the motion was made within a reasonable time;
(5) whether, if the judgment was a default or a dismissal in which there was no consideration of the merits the interest in deciding cases on the merits outweighs, in the particular case, the interest in the finality of judgments, and there is merit in the movant's claim or defense;
(6) whether if the judgment was rendered after a trial on the merits the movant had a fair opportunity to present his claim or defense;
(7) whether there are intervening equities that would make it inequitable to grant relief; and
(8) any other factors relevant to the justice of the judgment under attack.Id.
In making its determination under Rule 60(b), a district court must find that the movant made "a sufficient showing of unusual or unique circumstances justifying such relief." Pryor v. U.S. Postal Service, 769 F.2d 281, 286 (5th Cir. 1985). "Gross carelessness," "ignorance of the rules," and "ignorance of the law" are not enough. Id. at 287. Furthermore, a party may not argue that he should not be penalized for errors committed by his counsel. Edward H. Bohlin Co. v. The Banning Co., 6 F.3d 350, 357 (5th Cir. 1993); Pryor, 769 F.2d at 288 (stating that "the mistakes of counsel, who is the legal agent of the client, are chargeable to the client."). "A party has a duty of diligence to inquire about the status of a case." The Banning Co., 6 F.3d at 357.
The circumstances underlying the instant motion are not so unusual or unique as to justify relief under Rule 60(b)(1). Pursuant to Fifth Circuit case law, the final judgment in this case should not lightly be disturbed. Plaintiff has never served Defendant with process, despite having almost a year to do so. Plaintiff's motion argues that his original counsel withheld service pending the outcome of the related criminal proceedings. However, this is an inadequate justification for failing to serve Defendant and put him on notice of the litigation. Furthermore, Plaintiff fails to submit any evidence of a resolution of the related state court criminal proceeding. There is no way of knowing whether Plaintiff's claims would survive an inquiry under Heck v. Humphrey, and thus have any merit. Plaintiff also waited almost three months to hire Meisner after Prendergast withdrew as counsel of record. During that interim time, Plaintiff represented himself pro se. He had a duty to monitor his case and make sure that his claims were timely prosecuted. Currently, Plaintiff is still listed as representing himself pro se. Meisner has never enrolled as counsel of record.
The above factors convince the Court that Plaintiff has failed to meet his burden under Rule 60(b) and thus the final judgment entered on September 16, 2002 should not be vacated.
Therefore;
It is HEREBY ORDERED that Plaintiff's Motion to Vacate Judgment Pursuant to Rule 60(b) (Rec. Doc. 5) is DENIED.