Opinion
No. C96-3931 (JCS)
June 15, 1999
ORDER DENYING MOTION FOR NEW TRIAL OR JUDGMENT AS A MATTER OF LAW UNDER RULES 50, 59, AND 60
Plaintiff Leslie Sheehan, now in pro per, seeks a new trial or, in the alternative, judgment as a matter of law on the grounds that the attorney who represented her during the trial was incompetent and failed to abide by the trial plan he agreed to prior to the trial. She also argues that the evidence overwhelmingly shows that Defendants were negligent and that no reasonable jury could have found otherwise. For the reasons set forth below, the motion is denied.
While she is now in pro per, Plaintiff Leslie Sheehan has at various times been represented by counsel. At the time of the filing of the complaint, she was represented by attorneys John L. Burris and Matthew Kumin. These attorneys represented Plaintiff from October 29, 1996, until their withdrawal on November 10, 1997. Although he had appeared before the Court at a pretrial conference before formally entering the case, Joseph Manzella was substituted in as Plaintiff's counsel on April 13, 1999, and represented Plaintiff during the trial. On May 24, 1999, Plaintiff again substituted herself in pro per in place of her attorney.
I. BACKGROUND
Plaintiff sued the City and County of San Francisco, Officer John Haggett and other individual defendants under 42 U.S.C. § 1983 and under state law. She alleged that Defendants were liable because Defendant Haggett used excessive force when he shot and killed her husband, Edwin Sheehan, while attempting to arrest him. Four claims were submitted to a jury for decision: (1) a claim under 42 U.S.C. § 1983 by
Plaintiff as the survivor of the decedent, alleging that Defendant John Haggett used excessive force; (2) a claim under 42 U.S.C. § 1983 on behalf of Plaintiff herself, alleging that Defendant John Haggett used excessive force; (3) a claim under state law that Defendant Haggett was negligent in killing Edwin Sheehan; and (4) a claim under state law for intentional wrongful death. The jury concluded, in its Special Verdict, that: (1) Defendant Haggett did not use excessive force; (2) Defendant Haggett was not negligent; and (3) Defendant Haggett did not commit a battery on Mr. Sheehan, which was the underlying conduct alleged in the claim for intentional wrongful death. Under California law, a police officer who uses excessive force commits a battery. Edson v. City of Anaheim, 63 Cal.App.4th 1269, 1272-73 (Cal.Ct.App. 1998) (citing Cal. Penal Code § 835a and BAJI No. 7.54). Judgment was entered in favor of Defendants on April 26, 1999.
The special verdict form submitted to the jury in this case also included a question regarding the claim of intentional infliction of emotional distress. That claim, however, had been dismissed by the Court before the case was submitted to the jury.
On May 5, 1999, Plaintiff filed a motion for new trial under Rules 59 and 60 of the Federal Rules of Civil Procedure (hereinafter "May 5 Motion"). In her May 5 Motion, Plaintiff argued that the attorney who represented her during trial, Joseph Manzella, failed to follow the "case outline" that she and her attorney had agreed to for conducting the trial. She also argued that she had brought the issue of her dissatisfaction with Mr. Manzella to the attention of the Court during the trial and was told that her only option was to continue with the trial and move for a new trial after it had ended.
On May 20, 1999, Plaintiff filed a "Notice of Motion for New Trial, Supporting Declaration and Memorandum of Points and Authorities (hereinafter "May 20 Declaration")." In her May 20 Declaration, Plaintiff explained how she came to retain Mr. Manzella, "about two weeks before the trial," to represent her at trial. May 20 Declaration, at 4, ll. 12-13. According to Plaintiff, she met Mr. Manzella when he came to the office of a retired attorney who had been helping her with the case, when she was in pro per. Id. at 3, ll. 3-19. She believed that Mr. Manzella was qualified to represent her at trial because he told Plaintiff that he was "qualified to practice in federal court" and seemed to "take a special interest in bringing Defendant John Haggett to justice." Id. However, at trial Mr. Manzella "seemed very inadequate and ineffective." Id. at 4, ll. 18-19. Plaintiff stated that her attorney "put in only part of the evidence he agreed to present" and that because of his incompetence, Mr. Manzella "lost the case." Id. at 4, ll. 19-20 and at 5, ll. 1. She also stated that she felt that her attorney was "more on Mr. Haggett's side than [hers]" because she overheard a conversation between Mr. Manzella and Defendant Haggett which revealed that the two were members of the same church. Id. at ll. 20-26. According to Plaintiff, Mr. Manzella told Defendant Haggett "how much the parishioners thought of Mr. Haggett." Id. Finally, Plaintiff stated that the evidence "overwhelmingly showed that Defendant John Haggett was negligent" and asked, as an alternative to a new trial, that the court enter judgment as a matter of law against defendants. Id. at 5, ll. 2-12.
Plaintiff's May 20 Declaration, to the extent that it is a separate motion for a new trial under Rule 59, is untimely. See Rule 59(b). Accordingly, to the extent that the May 20 Declaration raised grounds for a new trial not raised in the May 5 motion, it is denied as untimely. In addition, assuming that the May 20 Declaration was merely a document filed in support of the original May 5 motion, as set forth in the text, it is without merit and is denied on that basis.
Defendants filed an Opposition to Plaintiff's May 5 Motion on May 20, 1999. Defendants filed an additional brief on May 28, 1999 in order to respond to the new arguments raised in Plaintiff's May 20 Declaration (hereinafter, "Amended Opposition"). Defendants argue in their Amended Opposition that:
1) Plaintiff has no right to effective assistance of counsel and therefore, she is not entitled to a new trial based on her attorney's ineffectiveness [Amended Opposition, at 1-2];
2) a new trial is not necessary to prevent injustice, and in fact, would result in injustice to defendants, id. at 2-3;
3) the evidence and the law clearly support the verdict, id. at 3-4; and
4) judgment as a matter of law may not be granted because Plaintiff did not make a motion for a directed verdict at the close of all evidence. Id. at 4-5.
Defendants also dispute Plaintiff's representation of the facts — in particular, as to Plaintiff's relationship with Mr. Manzella. Defendants state that "[c]ontrary to plaintiff's contention, Mr. Manzella did not just show up at trial." Rather, Defendants assert, Mr. Manzella assisted Plaintiff in her case in a variety of ways prior to trial, beginning in June 1998. See Declaration of George Akwo in Opposition to Plaintiff's Request to Reopen Discovery and Continue Trial at 2, ¶ 5. In support of their assertion, Defendants have submitted an excerpt from witness Marina Sarmiento's deposition in which Sarmiento states that she had two or three conversations with Mr. Manzella prior to preparing a declaration in support of Plaintiff's opposition to Defendants' summary judgment motion. The opposition was filed October 27, 1998. According to Ms. Sarmiento, Mr. Manzella told her that he was assisting Plaintiff in responding to Defendants' motion for summary judgment. Defendants also state that Mr. Manzella appeared at the March 18, 1999 settlement conference, claiming that he represented Plaintiff.
II. ANALYSIS
A plaintiff in a civil case is not entitled to effective assistance of counsel. Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985). Under limited circumstances, however, attorney error or misconduct may provide a basis for granting a new trial under Rules 59 or 60 of the Federal Rules of Civil Procedure. Further, a new trial may be ordered under Rule 59 where the clear weight of the evidence does not support the verdict.
Finally, under Rule 50(b), judgment as a matter of law may be granted where the evidence supports only one reasonable conclusion. For the reasons set forth below, Plaintiff does not meet the standards for judgment as a matter of law or a new trial under any of these rules.
A. Judgement as a Matter of Law or New Trial Pursuant to FRCP 50(b)
Where the evidence "permits only one reasonable conclusion as to the verdict," a court may grant judgment as a matter of law or a new trial under Rule 50(b) of the Federal Rules of Civil Procedure. Anglo-American General Agents v. Jackson National Life Ins. Co., 83 F.R.D. 41, 43 (N.D.Cal. 1979) (quoting Kay v. Cessna Aircraft Co., 548 F.2d 1370, 1372 (9th Cir. 1977)). However, a court may not grant a motion for either judgment as a matter of law or a new trial under this rule unless the moving party made a motion for a directed verdict at the close of all evidence. Air-Sea Forwarders, Inc. v. Air Asia Co. Ltd., 880 F.2d 176, 183 n. 9 (9th Cir. 1989). As the Ninth Circuit explained in Murphy v. City of Long Beach, judgment as a matter of law is "improper if based upon grounds not alleged in a directed verdict [motion] because, among other reasons, the moving party has not called the `claimed deficiency in the evidence to the attention of the court and to opposing counsel at a time when the opposing party is still in a position to correct the deficit.'" 914 F.2d 183, 185 (9th Cir. 1990) (quoting Lifshitz v. Walter Drake Sons, Inc., 806 F.2d 1426, 1429 (9th Cir. 1986)). Here, Plaintiff made no motion for a directed verdict. As a result, Rule 50(b) does not provide a basis for granting Plaintiff the relief she seeks in this motion.
Rule 50 provides, in relevant part, as follows:
(a) Judgment as a Matter of Law.
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. . . .
(b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. . .
B. New Trial Pursuant to FRCP 59
Under Rule 59(a), the trial judge may order a new trial, "even though the verdict is supported by substantial evidence, if `the verdict is contrary to the clear weight of the evidence, or is based upon evidence which is false, or to prevent, in the sound discretion of the trial court, a miscarriage of justice.'" United States v. 4.0 Acres of Land, ___ F.3d ___, 1999 WL 261595 (9th Cir. (Ariz.)) at *4 (quoting Oltz v. S. Peter's Community Hospital, 861 F.2d 1440, 1452 (9th Cir. 1988)).
Rule 59(a) of the Federal Rules of Civil Procedure provides, in relevant part, as follows:
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action where there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. . . ."
(b) Time for Motion. Any motion for a new trial shall be filed no later than 10 days after entry of judgment. . . .
(d) On Court's Initiative; Notice; Specifying Grounds. No later than ten days after entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. When granting a new trial on its own initiative or for reasons not stated in a motion, the court shall specify the grounds in its order.
Where a motion for new trial is based upon grounds not called to the court's attention during the trial, a new trial may only be granted where the error was "so fundamental that gross injustice would result." Corder v. Gates, 688 F. Supp. 1418, 1424 (C.D.Cal. 1988). Here, Plaintiff did not contend during the trial that there was insufficient evidence to support the jury's verdict. Although she did raise the issue of her dissatisfaction with her attorney during the trial, Plaintiff did not request any relief from the Court. Accordingly, Plaintiff should be held to the higher standard. However, as Plaintiff fails to meet even the lower standard that applies when an issue was brought to the Court's attention during trial (as discussed in the text), she clearly fails to meet the "gross injustice" standard as well.
Plaintiff's motion can be construed as asserting that a new trial should be granted under Rule 59(a) because: 1) the verdict was against the weight of the evidence, or 2) Plaintiff's attorney's conduct resulted in a miscarriage of justice. Neither assertion has merit.
Plaintiff did not allege that the verdict was contrary to the weight of the evidence in her May 5 motion, but rather made this assertion for the first time in her May 20 filing. Accordingly, the motion is untimely, and is denied on that basis. See Rule 59(b). Even were the motion timely, as set forth in the text, it is without merit.
1. Verdict Against Weight of the Evidence
Under Rule 59(a), a new trial may be granted where the verdict "was against the `great weight' of the evidence or if the result was `seriously erroneous.'" Venegas v. Wagner, 831 F.2d 1514, 1519 (9th Cir. 1987) (denying motion for new trial based on insufficiency of the evidence); see also, McGhee v. Arabian American Oil Co., 871 F.2d 1412, 1420 (1989) (holding that the district court abused its discretion in granting a new trial where the verdict was not "clearly against the weight of the evidence"). In considering a Rule 59 motion, in contrast to a Rule 50 motion, the Court "may weigh the evidence and assess the credibility of witnesses and need not view the evidence in a light most favorable to the moving party." Pacific Group, U.S. v. First State Ins. Co., 841 F. Supp. 922, 929 (N.D.Cal. 1993), rev'd on other grounds, 70 F.3d 524 (9th Cir. 1995) (citing Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987). "If . . . having given full respect to the jury's findings and having reviewed the entire evidence, the Court `is left with the definite and firm conviction that a mistake has been committed,' a new trial should be granted." Id. (citing Landes, 833 F.2d at 1372 (quoting 11 C. Wright A. Miller, Federal Practice and Procedure: Civil § 2806, at 49).Here, the verdict was not against the "great weight of the evidence." Nor was the verdict "seriously erroneous." Indeed, extensive evidence was presented that supported the jury's conclusion that defendant Haggett did not use excessive force and was not negligent when he shot Edwin Sheehan.
The principal evidence to support the verdict came from Officer Haggett himself. He testified that just prior to the shooting he observed a van driven by Mr. Sheehan smash into a parked produce truck on Hyde Street in San Francisco. The impact of this collision was extensive: not only was the produce truck driven up on the curb, but Mr. Sheehan's van was also damaged and began steaming and smoking. Rather than park his vehicle, Mr. Sheehan backed out of the accident scene and drove off at a high rate of speed, swerving from side to side. Mr. Sheehan ran stop lights, causing pedestrians to scatter in order to avoid being hit by Mr. Sheehan's vehicle. Officer Haggett pursued Mr. Sheehan, using the internal police light on his unmarked police vehicle, as well as his siren. Despite this pursuit, Mr. Sheehan did not stop until he came to a stop light, where his path was blocked by a tourist van and a marked postal police vehicle. At that point, Mr. Sheehan proceeded to repeatedly smash into the postal police vehicle, apparently in an effort to either push it into oncoming traffic or to run the red light himself.
Officer Haggett then approached Mr. Sheehan's van on foot, with his police officer's badge hanging around his neck. When he reached the passenger's side of Mr. Sheehan's van, Officer Haggett yelled repeatedly at Mr. Sheehan words to the effect: "police," "stop," "show your hands," "give it up," "put your hands up," and similar warnings. Mr. Sheehan did not follow these instructions. However, at some point, Mr. Sheehan did turn his head and see the police officer. Officer Haggett noticed that Mr. Sheehan had a wild-eyed look. Based on his extensive training in the identification of persons under the influence of controlled substances, defendant Haggett concluded that Mr. Sheehan was under the influence of drugs. Upon seeing the police officer, Mr. Sheehan immediately ducked down toward the floorboard of the van. He then came up suddenly. Officer Haggett concluded that this furtive action was an effort to obtain a firearm. Defendant Haggett feared for his life and fired his weapon twice (fatally wounding Mr. Sheehan) based on his police training. Mr. Sheehan then pulled himself out of the window of his van and, after standing next to the van, collapsed on the street and died.
Under all of these circumstances, Officer Haggett reasonably believed that he was in imminent danger of being fired upon by Mr. Sheehan.
Many witnesses came forward to corroborate Officer Haggett's description of the events. A motorcycle courier who observed these events confirmed the basic facts as related by Officer Haggett. Most importantly, the motorcycle courier confirmed that Officer Haggett fired at Mr. Sheehan while he was still inside the van. Similarly, an attorney who was a bystander during these events also confirmed the basic facts as related by Officer Haggett. The attorney also confirmed that Officer Haggett told Mr. Sheehan to "stop" and "don't move." Finally, the attorney confirmed that Defendant Haggett fired shots while Mr. Sheehan was still inside the van. A DEA agent testified to the same effect: he confirmed the basic facts of the events as related by defendant Haggett and confirmed that Officer Haggett shot Mr. Sheehan while Mr. Sheehan was still in his van. Finally, a postal police officer confirmed the basic facts as related by Officer Haggett. He also confirmed that Officer Haggett had told Mr. Sheehan to stop, after identifying himself as a police officer. The postal police officer confirmed that the shots were fired while Mr. Sheehan was still inside his van.
There was no testimony to contradict most of Officer Haggett's description of the events. The principal evidence offered by Plaintiff to contradict Defendants' version of the events leading to Mr. Sheehan's death was the testimony of Marina Sarmiento. Ms. Sarmiento, a career counselor at Hastings Law School, was in her office at the time of the shooting. She testified that she heard a crash and went to the window to observe what was happening. According to Ms. Sarmiento, she saw Mr. Sheehan get out of his van, where he was confronted by two armed police officers. According to Ms. Sarmiento, it was at this point that she heard two shots being fired, and saw Mr. Sheehan die. If believed, this testimony would seriously undermine Defendants' position that Officer Haggett fired in self-defense. According to Ms. Sarmiento, Mr. Sheehan was shot outside of the van when he was not evidently a threat to anyone.
The jury, however, could have reasonably discredited Ms. Sarmiento's version of the events. Four other witnesses, none of whom are affiliated with the San Francisco Police Department, testified that Mr. Sheehan was shot while he was still inside the van. All of these witnesses were in a much closer proximity to see the events than was Ms. Sarmiento. Defense counsel also seriously challenged Ms. Sarmiento's recollection and credibility. Among the facts used by defense counsel to criticize Ms. Sarmiento's credibility were her prior service as an attorney suing the San Francisco Police Department, inconsistent statements made by Ms. Sarmiento regarding the facts of the case, and several errors in her recollection.
The jury also heard testimony from the coroner concerning the angle of the gunshot wound. This testimony did not conclusively establish that either version of events was or was not correct.
Considering all of the evidence, and giving full respect to the jury's findings in this case, an order granting a new trial under Rule 59(a) on the ground that the verdict is against the clear weight of the evidence is not warranted.
2. Injustice Arising from Attorney's Conduct
As noted above, because plaintiff has no right to effective assistance of counsel, her assertion that her attorney was ineffective, even if true, does not provide a basis for granting a new trial under Rule 59. Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985) (denying motion for new trial by plaintiff in § 1983 action where counsel was alleged to have been incompetent). Even if Plaintiff's attorney engaged in outright misconduct, though, she is not entitled to a new trial because she has not demonstrated that she was prejudiced by her attorney's behavior.
A new trial may be granted under Rule 59(a) where a party can: "1) prove by clear and convincing evidence that the verdict was obtained through fraud, misrepresentation, or other misconduct and 2) establish that the conduct complained of prevented the losing party from fully and fairly presenting his case or defense." Wharf v. Burlington Northern R.R., 60 F.3d 631, 637 (9th Cir. 1995) (holding that the district court had abused its discretion in denying plaintiff's motion for new trial where counsel for defendant intentionally misled plaintiff and the jury as to a key fact).
While misconduct by an opposing party's attorney may provide grounds for a new trial, it is doubtful whether misconduct on the part of one's own attorney is grounds for relief under this rule. In Wharf, the court explained that while Rule 59 may require a slightly lower showing than Rule 60 because a motion must be filed within ten days under Rule 59, otherwise "the standards for granting new trials are essentially the same under both rules." Id. Given that Rule 60(b) explicitly allows for a new trial on the basis of "misconduct of an adverse party," it is likely that relief under Rule 59 is similarly limited. Even assuming that Rule 59(a) allows the court to order a new trial on the basis of a party's own lawyer's misconduct, however, Plaintiff in this case is not entitled to such relief because she has not demonstrated that her lawyer's misconduct prevented her from "fully and fairly presenting [her] case or defense." Id.
Plaintiff alludes to two types of conduct on the part of her attorney which arguably could be considered misconduct. First, she states that Mr. Manzella "put in only part of the evidence he agreed to present." Second, she describes a conversation she overheard between Mr. Manzella and Officer Haggett which lead her to believe that Mr. Manzella was "more on Mr. Haggett's side than [hers]." However, Plaintiff does not describe any specific evidence that Mr. Manzella failed to present, or how it would have affected the jury's verdict. Plaintiff also does not identify how Mr. Manzella's membership in Officer Haggett's church or Mr. Manzella's alleged friendliness towards Officer Haggett during the trial affected his presentation to the jury.
At oral argument, Plaintiff indicated that Mr. Manzella failed adequately to examine the Coroner.
This failure is not evident from the record: the Coroner described the wounds in Mr. Sheehan's body. His testimony and report did not establish that either version of events was conclusively correct. The jury could have reasonably believed that the Coroner's memory of the events was consistent with Defendants' version.
At oral argument, Plaintiff for the first time asserted that Officer Haggett had participated in the prosecution of an individual who had molested a friend of Mr. Manzella's daughter. This version was disputed by defense counsel, who asserted that Mr. Manzella, an experienced criminal defense lawyer, had an adversarial relationship with Officer Haggett as a result of numerous cross-examinations during previous trials.
Even assuming that Plaintiff's claim is true, it would not justify a new trial. As discussed in the text, the fact that counsel for a party may have fallen below the standard of care does not justify a new trial. Here, there is no evidence that would demonstrate a conflict of interest under the applicable California Code of Professional Responsibility. See Cal. R. Prof. Conduct 3-310(B) (conflict arises where the attorney has a personal relationship with an adverse party which is not disclosed to the client). The fact that a friend of the daughter of Mr. Manzella had contact with Defendant Haggett is certainly not a conflict of interest under governing law.
In any event, Plaintiff was not prejudiced by this supposed conflict: the evidence offered at trial clearly demonstrated that Defendant Haggett did not use excessive force and was not negligent.
In fact, despite Plaintiff's general statement that she "feel[s] that Mr. Manzella lost the case," there is no indication that Mr. Manzella's failure to follow the plan he agreed to prior to trial or his exchange of comments with Officer Haggett resulted in prejudice to Plaintiff.
As described above, there was substantial evidence to support the jury's conclusions contained in its verdict. Plaintiff has not identified any item of evidence that was either presented in error, or was not presented in error, which might have changed this result. There is no evidence to suggest that there has been a miscarriage of justice here.
C. New Trial Pursuant to FRCP 60(b)
Under Rule 60(b), the district court may "relieve a party or a party's legal representative from a final judgment, order or proceeding for the following reasons: 1) mistake, inadvertence, surprise or excusable neglect; . . . or 6) any other reason justifying relief from the operation of the judgment."
Although Rule 60(b) is usually applied where a party seeks relief from a default judgment, it may also provide a basis for relief where the judgment follows a trial. For instance, the Supreme Court held in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 870 (1988) that the Court of Appeals had properly granted a new trial under Rule 60(b)(6) where the trial judge who presided over a bench trial refused to recuse himself even though he was a trustee of a university that had an interest in the litigation.
1. Excusable Error Under Rule 60(b)(1)
Although excusable error on the part of a party or her attorney may provide a ground for relief under Rule 60(b)(1), the Ninth Circuit has made clear that "[n]either ignorance nor carelessness on the part of the litigant or his attorney provide grounds for relief under Rule 60(b)(1)." Engleson v. Burlington Northern R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992). Further, a number of courts have held that it would be an abuse of discretion to grant a new trial under Rule 60(b)(1) on the basis of a party or her attorney's negligent mistake. See, e.g., Lavespere v. Niagara Machine Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990) (holding that if failure to submit evidentiary materials was solely due to attorney carelessness it would be an abuse of discretion to grant a new trial under Rule 60(b)(1)).In Engleson, the plaintiffs initially filed a complaint under the wrong statute. Engleson, 972 F.2d at 1040. Accordingly, their claims were dismissed for lack of subject matter jurisdiction. Id. Subsequently, plaintiffs brought a similar complaint under the correct statute. Id. However, by that point, the statute of limitations on plaintiffs' claims had already run. Id. Instead of dismissing the second complaint on the basis of statute of limitations, however, the district court considered the second complaint to be a motion to vacate the earlier dismissal under Rule 60(b)(1) on the basis of "mistake, inadvertence, surprise or excusable neglect," which it granted. Id. The court then granted defendants' motion for summary judgment on the merits. The Ninth Circuit held that the district court had abused its discretion in treating the second complaint as a 60(b)(1) motion and reaching the merits of plaintiffs' claims, stating that "counsel's ignorance of the statute that governs labor law disputes between a railway worker and his or her employer does not constitute excusable neglect." Id. at 1044.
Here, there is no indication that Mr. Manzella's alleged errors constituted "excusable neglect." Nor is there any case law to support granting a new trial under Rule 60(b)(1) on the theory that Plaintiff was surprised by Mr. Manzella's performance, or mistaken in choosing him for her attorney. Indeed, such a holding is precluded by the rule stated above, that a party or her attorney's "ignorance or carelessness" is not a ground for relief under Rule 60(b)(1).
2. Extraordinary Circumstances Under Rule 60(b)(6)
A new trial also may be granted under Rule 60(b)(6) where "such action is appropriate to accomplish justice." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988) (quoting Klapprott v. United States, 335 U.S. 601, 614-15 (1949)). Such relief may be granted, however, only where there are "extraordinary circumstances." Id. In a small number of cases, a few courts have held that the conduct of a party's own attorney may constitute "extraordinary circumstances" under 60(b)(6), thus entitling a party to a new trial. See, e.g. United States v. Cirami, 563 F.2d 26 (2d Cir. 1977) (holding that where counsel had mental illness which manifested itself only after clients had relied upon him for months and where counsel's mental illness led to a default judgment, parties who were not themselves neglectful were entitled to a new trial under Rule 60(b)); L.P. Steuart, Inc. v. Matthews, 329 F.2d 234, 235 (D.C. Cir. 1964) (holding that district court had not abused its discretion in granting a new trial under Rule 60(b)(6) where default judgment was entered after counsel failed to prosecute because of serious personal problems and where the party himself was not neglectful), cert. denied, 397 U.S. 824 (1964). In each of these cases, the court has made clear that the circumstances were extreme and the party seeking a new trial was blameless.
There appears to be no Ninth Circuit authority to support the proposition that relief may be granted under 60(b)(6) on the basis of negligence or misconduct by the moving party's attorney. Moreover, the Ninth Circuit recently held that "attorney error is insufficient grounds for relief under both Rule 60(b)(1) and 60(b)(6)." Allmerica Financial Life Ins. Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir. 1997) (holding that attorney's failure to assert an affirmative defense did not justify relief under Rule 60(b)(1) or 60(b)(6)).
Even assuming, though, that an attorney's negligence or misconduct can ever be a basis for granting a new trial under Rule 60(b)(6), the facts here do not constitute the type of "extraordinary circumstances" required to grant such relief. First, as noted above, there is no indication that Mr. Manzella's representation of Plaintiff at trial resulted in prejudice to the Plaintiff. Therefore, a new trial is not required to prevent a miscarriage of justice. Second, to the extent that Plaintiff was dissatisfied with Mr. Manzella's representation at trial, she cannot be considered entirely blameless, as she voluntarily chose to retain Mr. Manzella and had received assistance from him on a number of occasions prior to trial and so had had an opportunity to observe his performance as a practitioner.
Plaintiff also asserts in her May 5 Motion that:
6) Plaintiff prepared a letter to the Court to explain her dilemma [explaining counsel's failure to follow the case outline] asking what options, if any, did she have.
7) The Court received the letter (letting all parties concerned to view it), informing Plaintiff that the case, already in trial, that a motion for a new trial would be my only option.
Plaintiff's assertion is incorrect: the Court did not advise her that her only option was to move for a new trial. Indeed, the Court declined to advise Plaintiff — except to say that the choice of which lawyer to hire was hers alone. After all of the evidence had been concluded in the case, on the morning of closing arguments, Plaintiff submitted a letter to the Court and all counsel stating that she was dissatisfied with her counsel, and seeking advice. In response, the Court indicated to the Plaintiff that: "I am not in a position to give you the advice that you seek in your letter as to what your options are." The Court indicated to the Plaintiff that "the decision on counsel is up to you, but if you would want a few minute break to discuss the matter with Mr. Manzella, I'll be happy to grant that." The Court reiterated that "the choice of counsel is totally up to you." Although the Plaintiff did not request a continuance, the Defendants' counsel vigorously objected that they would be prejudiced unless the trial proceeded. In view of the fact that the parties had litigated the case nearly to conclusion, and had submitted all of their evidence to the jury, which was awaiting closing argument, the Court declined to stop the case sua sponte. Plaintiff elected to continue with Mr. Manzella as her counsel.
III. CONCLUSION
For all of the foregoing reasons, Plaintiff's motion is denied.IT IS SO ORDERED.