B&D Partners v. Pastis ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0330n.06
Filed: May 9, 2006
No. 05-5954
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
B&D PARTNERS, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
JACK PASTIS and CHANTANA S. )
WALKER, d/b/a/ Classic Restoration, )
Inc., ) OPINION
)
Defendants-Appellants. )
_______________________________________)
Before: MOORE and GIBBONS, Circuit Judges; SHADUR,* District Judge.
KAREN NELSON MOORE, Circuit Judge. In the underlying suit, the district court
granted the summary judgment motion of Plaintiff-Appellee B&D Partners (“B&D”) after
Defendants-Appellants Jack Pastis and Chantana S. Walker, d/b/a Classic Restoration, Inc., failed
to file a response. The defendants appeal the district court’s subsequent denial of their motion for
relief from judgment under Federal Rule of Civil Procedure 60(b)(1). Because the neglect of the
defendants’ attorneys was not excusable under Rule 60(b)(1), we AFFIRM the district court’s
denial of the motion for relief from judgment.
*
The Honorable Milton I. Shadur, United States District Judge for the Northern District of
Illinois, sitting by designation.
I. BACKGROUND
After B&D initiated this suit under state law in a Tennessee court, the defendants removed
the case to federal court on the basis of diversity of citizenship.1 The defendants were represented
by T.K. Moffett (“Moffett”) and Russell Rice, Jr. (“Rice”). Moffett, a Mississippi attorney, had
recruited Rice, a Tennessee attorney, to serve as local counsel in the lawsuit. Rice was the
defendants’ counsel of record.
On January 6, 2005, B&D moved for summary judgment. At the same time, and in support
of the motion, B&D served each defendant with a request for admissions. The defendants’ response
was due on February 10, 2005. See W.D. TENN. CIV. R. 7.2(a)(2); Joint Appendix (“J.A.”) at 154
(Dist. Ct. Order at 4). The defendants did not respond to either the motion or the requests for
admissions. The district court thus deemed admitted the matters set forth in the requests for
admissions and, on April 6, 2005, issued an order granting summary judgment to B&D. On April
26, 2005, the defendants moved for relief from the judgment pursuant to Rule 60(b)(1) on the basis
of their attorneys’ neglect. The district court denied the motion, and the defendants now appeal.
II. ANALYSIS
We review the denial of a Rule 60(b)(1) motion for abuse of discretion. Burrell v.
Henderson, 434 F.3d 826, 831 (6th Cir. 2006). “A lower court abuses its discretion when it relies
on clearly erroneous findings of fact, improperly applies the law, or uses an incorrect legal
standard.” Eglinton v. Loyer (In re G.A.D., Inc.), 340 F.3d 331, 334 (6th Cir. 2003). “In reviewing
an order denying Rule 60(b) relief, we have no occasion to review the underlying judgment . . . .
1
The defendants are Mississippi citizens and B&D has Tennessee citizenship because each
of its members is a Tennessee citizen. See Safeco Ins. Co. of America v. City of White House, 36
F.3d 540, 544-45 (6th Cir. 1994) (“A partnership . . . has the citizenship of each of its members.”).
2
Instead, we merely inquire as to whether one of the specified circumstances exists in which [the
movant] is entitled to reopen the merits of his underlying claims.” Feathers v. Chevron U.S.A., Inc.,
141 F.3d 264, 268 (6th Cir. 1998).
Rule 60(b)(1) permits a district court, “upon such terms as are just,” to “relieve a party or
a party’s legal representative from a final judgment” for “mistake, inadvertence, surprise, or
excusable neglect.” The defendants do not assert any neglect of their own; instead, their claim is
premised on the neglect of their attorneys, Moffett and Rice. Unfortunately for the defendants,
“‘clients must be held accountable for the acts and omissions of their attorneys.’” McCurry v.
Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 594 (6th Cir. 2002) (quoting Pioneer Inv. Servs.
Co. v. Brunswick Assocs., 507 U.S. 380, 396 (1993)). Accordingly, the issue of excusable neglect
“does not turn solely on whether the client has done all that he reasonably could to ensure
compliance with a deadline; the performance of the client’s attorney must also be taken into
account.” Allen v. Murph, 194 F.3d 722, 724 (6th Cir. 1999) (citing Pioneer, 507 U.S. at 396).
“‘[N]eglect’ must be given its ordinary meaning, which . . . include[s] ‘late filings caused
by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the
party’s control.’” Jinks v. AlliedSignal, Inc., 250 F.3d 381, 386 (6th Cir. 2001) (quoting Pioneer,
507 U.S. at 388). It follows a fortiori that the failure to submit a filing at all constitutes neglect.
Thus, Moffett and Rice were neglectful when they failed to respond to B&D’s motion for summary
judgment.
Of course, the operative question is whether the neglect is excusable. “The failure to respond
to a motion for summary judgment or to request an extension of time to file a response thereto is
inexcusable neglect.” Kendall v. Hoover Co., 751 F.2d 171, 175 (6th Cir. 1984) (internal quotation
3
marks omitted); see also Cacevic v. City of Hazel Park, 226 F.3d 483, 490-91 (6th Cir. 2000)
(applying Kendall). That is precisely what occurred here, as Moffett and Rice neither filed a
response to B&D’s summary judgment motion nor asked the district court for an extension. See
FED. R. CIV. P. 6(b)(1) (“[T]he court for cause shown may at any time in its discretion . . . with or
without motion or notice order the period enlarged if request therefor is made before the expiration
of the period originally prescribed . . . .”); J.A. at 154 (Dist. Ct. Order at 4) (“[I]t would have been
a simple matter to file a motion for an extension of time to respond if either Mr. Moffett or defendant
Pastis were unavailable.”). Moffett and Rice could have asked for an extension even after the
February 10 deadline had passed (the district court did not issue its ruling for another two months),
but they did not. See FED. R. CIV. P. 6(b)(2) (“[T]he court for cause shown may at any time in its
discretion . . . upon motion made after the expiration of the specified period permit the act to be done
where the failure to act was the result of excusable neglect . . . .”); J.A. at 154 (Dist. Ct. Order at 4)
(“[T]here should have been ample time to seek permission from the Court to file a late response to
the motion after counsel realized no response had been filed.”). Kendall squarely controls this case.
The defendants do not acknowledge Kendall (and in fact cite no cases supporting their
position) in asking that their attorneys’ neglect be excused for three reasons. First, Moffett was
periodically called away for duties arising out of his membership in the U.S. Army Reserve.2
Second, the attorneys were unable to contact one of the defendants, Jack Pastis, because he was out
2
The defendants do not specify the precise dates when Moffett was unavailable, but they do
note that his military duty occupied twelve days per month. Yet the attorneys had much longer than
twelve days to act: the response was due more than a month after B&D’s filing of the motion, and
the district court did not rule for another two months after that.
4
of his office for work-related reasons for some unspecified period of time.3 Third, Rice did not
receive his copy of the summary judgment motion for about fifteen days, apparently because it was
not labeled with the complete mailing address.4 These asserted excuses are unconvincing for the
reasons stated in the footnotes.
It is obvious that the real source of the problems here was the two attorneys’ failure to
communicate. If Moffett and Rice had simply spoken to each other, it would have been immediately
apparent that neither one was working on the response. “Gross carelessness . . . [is an] insufficient
bas[i]s for 60(b)(1) relief . . . .” FHC Equities, L.L.C. v. MBL Life Assurance Corp., 188 F.3d 678,
685 (6th Cir. 1999) (internal quotation marks omitted); see also 11 CHARLES ALAN WRIGHT,
ARTHUR R. MILLER, AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2858 (2d ed.
1995) (“Gross carelessness is not enough.”) (citing cases). Put another way, “when inadvertent
conduct leads to a judgment, a claim of mistake or excusable neglect will always fail if the facts
demonstrate a lack of diligence.” 12 MOORE’S FEDERAL PRACTICE § 60.41[1][c][ii] (3d ed. 2005)
(citing cases). Failing to pick up a telephone to call one’s co-counsel after a dispositive motion has
3
The defendants claim that Pastis was out of the office “a majority of the time” and thus “he
was often not readily available.” Appellant Br. at 6. Pastis’s alleged unavailability might have
hampered the attorneys if they had actually tried to prepare a timely response to the summary
judgment motion, but they admit that they did not. Thus, this circumstance is beside the point.
4
This delay was Rice’s own doing, as the incomplete address was one that Rice himself had
provided on court documents. Appellant Br. at 6. In any event, when Rice eventually received his
copy of B&D’s motion, more than two weeks remained until the response was due. Rather than use
the remaining time to work on the response, Rice simply assumed that Moffett was handling it.
Appellant Br. at 6-7; J.A. at 102 (Rule 60(b) Mot. at 1). Rice offers no justification for making this
erroneous assumption.
5
been filed epitomizes a lack of care and diligence.5 Thus, the district court did not abuse its
discretion by denying the defendants’ Rule 60(b) motion.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s denial of the motion for
relief from judgment.
5
This is especially so in light of the fact that Moffett and Rice almost missed the deadline for
removing the case to federal court. Appellant Br. at 6. One would expect the attorneys to have been
more diligent after the near-miss, but they were less careful instead.
6