Halvonik v. Kappos , 263 F.R.D. 13 ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN P. HALVONIK,
Plaintiff,
Civil Action No. 09-326 (CKK)
v.
JOHN DOLL, Director, U.S. Patent and
Trademark Office
Defendant.
MEMORANDUM OPINION
(October 30, 2009)
This case comes before the Court on an order by the United States Court of Appeals for
the District of Columbia Circuit holding in abeyance Plaintiff’s appeal and directing this Court to
consider Plaintiff’s filing captioned “Appeal of Order Dismissing Case for Failure to Serve” as a
motion to reconsider the Court’s June 24, 2009 Order dismissing this case without prejudice for
failure to serve. Upon consideration of Plaintiff’s filing, the relevant case law and the record of
this case as a whole, the Court has determined that it is inclined to grant Plaintiff’s motion for
reconsideration, but is currently without jurisdiction to do so as the case is now pending on
appeal before the D.C. Circuit. Nonetheless, consistent with this Circuit’s case law, the Court
indicates herein that it will grant Plaintiff’s motion for reconsideration, in the event this case is
remanded and the Court has jurisdiction over Plaintiff’s motion. More specifically, the Court
would, on remand, reinstate the above civil action and provide Plaintiff an additional period of
30 days (running from this Court’s order on remand) to perfect service and to file proof of
service with the Court. Plaintiff’s motion for reconsideration is therefore HELD IN
ABEYANCE to permit Plaintiff to move the D.C. Circuit for remand in order that relief may be
granted, for the reasons set forth below.
I. BACKGROUND
Plaintiff, an attorney who is representing himself pro se, filed his complaint in the above-
captioned matter on February 19, 2009. On June 24, 2009, this Court issued an Order dismissing
Plaintiff’s Complaint without prejudice for failure to serve pursuant to Federal Rule of Civil
Procedure 4(m). See June 24, 2009 Order, Docket No. [4]. Approximately one month later,
Plaintiff filed a paper document with the Clerk of the Court’s Office, captioned “Appeal of Order
Dismissing Case for Failure to Serve.” See Docket No. [5]. It was initially unclear whether
Plaintiff intended that document to be treated as a notice of appeal to the D.C. Circuit of the
Court’s June 24, 2009 Order or as a motion for reconsideration pursuant to Federal Rule of Civil
Procedure 60(b). Because Plaintiff ultimately paid the required appellate fees, this Court issued
an Order on October 6, 2009, advising Plaintiff that it would treat his filing captioned “Appeal of
Order Dismissing Case for Failure to Serve” as a notice of appeal — not as a motion for
reconsideration. Shortly thereafter, Plaintiff notified this Court that he had in fact intended the
filing to be treated as motion for reconsideration and simultaneously filed a “Request to
Voluntarily Withdraw Appeal” with the D.C. Circuit, explaining that he had intended his filing to
serve as a motion for reconsideration and not as a notice of appeal to the Court of Appeals. See
Docket No. [18].
On October 20, 2009, the D.C. Circuit issued an Order responding to Plaintiff’s “Request
to Voluntarily Withdraw Appeal.” See D.C. Circuit Oct. 20, 2009 Order, Docket No. [9].
Finding that Plaintiff appeared to have “intended his district court pleading captioned ‘Appeal of
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Order Dismissing Case for Failure to Serve,’ to be a motion to reconsider the district court’s June
24, 2009 order dismissing his case, the D.C. Circuit ordered that the pleading “be referred to the
district court as a motion to reconsider its June 24, 2009 order.” Id. The D.C. Circuit further
ordered “that consideration of the request to voluntarily withdraw appeal be deferred and the case
held in abeyance pending further order of the Court.” Id. Accordingly, pursuant to the D.C.
Circuit’s October 20, 2009 Order, this Court turns now to consider Plaintiff’s pleading captioned
“Appeal of Order Dismissing Case for Failure to Serve,” which the Court shall treat as a motion
for reconsideration.
II. LEGAL STANDARDS AND DISCUSSION
As explained above, the D.C. Circuit has directed this Court to consider Plaintiff’s
pleading captioned “Appeal of Order Dismissing Case for Failure to Serve” as a motion to
reconsider its June 24, 2009 Order dismissing Plaintiff’s complaint without prejudice for failure
to serve. Because this pleading was filed more than 10 days after the Court’s June 24, 2009
Order, the Court shall treat it as a motion for reconsideration pursuant to Rule 60(b). See Int’l
Painters and Allied Trades Industry Pension Fund v. Design Tech., 254 F.R.D. 13, 17 (D.D.C.
2008) (“As a general rule, courts treat . . . motions for reconsideration as a ‘[Fed.R.Civ.P.] 59(e)
motion if filed within 10 days of entry of the challenged order and as a Rule 60(b) motion if filed
thereafter.’”) (quoting United States v. Pollard, 290 F. Supp. 2d 153, 156 (D.D.C. 2003).
Importantly, a district court does not have jurisdiction to grant relief from a judgment
pursuant to Rule 60(b) while a case is pending on appeal. It may, however, consider a motion for
such relief and either: (1) deny such relief without remand from the appellate court; or (2)
indicate that it will grant relief, after which the appellant may move the appellate court for a
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remand in order that relief may be granted. See Hoai v. Vo, 935 F.2d 308, 312 (D.C. Cir. 1991)
(“[W]hen both a Rule 60(b) motion and an appeal are pending simultaneously, appellate review
may continue uninterrupted. At the same time, the District Court may consider the 60(b) motion
and, if the District Court indicates that it will grant relief, the appellant may move the appellate
court for a remand in order that relief may be granted.”); Piper v. Dep’t of Justice, 374 F. Supp.
2d 73, 77 (D.D.C. 2005) (“[W]hen, as in this case, the order or judgment from which a party
seeks relief is also the subject of a pending appeal . . . the district court may outright deny, but
cannot outright grant, a Rule 60(b) motion. If the court is inclined to grant a Rule 60(b) motion
while appellate review is ongoing, ‘the District Court may consider the 60(b) motion, and, if the
District Court indicates that it will grant relief, the appellant may move the appellate court for a
remand in order that relief may be granted.’”) (quoting LaRouche v. Dep’t of Treasury, 112 F.
Supp. 2d 48, 52 (D.D.C. 2000)). With this in mind, the Court turns to consideration of Plaintiff’s
Rule 60(b) motion for reconsideration.
Plaintiff appears to principally argue that his failure to timely serve Defendants and to file
proof of such service on the public docket was due to excusable neglect. Rule 60(b) provides,
inter alia, that, “[o]n motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise,
or excusable neglect.” FED . R. CIV . P. 60(b)(1). The Rule “was intended to preserve ‘the delicate
balance between the sanctity of final judgments . . . and the incessant command of the court’s
conscience that justice be done in light of all the facts.’” Good Luck Nursing Home, Inc. v.
Harris, 636 F.2d 572, 577 (D.C. Cir. 1980) (quoting Bankers Mortgage Co. v. United States, 423
F.2d 73, 77 (5th Cir.)). As the D.C. Circuit has emphasized, Rule 60(b) “gives the district judge
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broad latitude to relieve a party from a judgment,” Richardson v. Nat’l R.R. Passenger Corp., 49
F.3d 760, 765 (D.C. Cir. 1995), but “should be only sparingly used,” Good Luck Nursing Home,
636 F.2d at 577.
In evaluating motions for reconsideration under Rule 60(b)(1), the D.C. Circuit has
adopted the Supreme Court’s excusable neglect analysis as set forth in Pioneer Ins. Servs. Co. v.
Brunswick Assocs. Ltd. Pshp., 507 U.S. 380 (1993). See In re Vitamins Antitrust Class Actions,
327 F.3d 1207, 1209 (D.C. Cir. 2003) (applying the flexible Pioneer analysis to review of Rule
60(b)(1) motion). Relevant circumstances for the Court to consider include: “(1) the danger of
prejudice to the party opposing the modification, (2) the length of delay and its potential impact
on judicial proceedings, (3) the reason for the delay, including whether it was within the
reasonable control of the movant, and (4) whether the movant acted in good faith.” Pioneer, 507
U.S. at 395.
In this case, Plaintiff, an attorney who is representing himself pro se, has advised the
Court that an extensive family medical emergency prevented him from timely filing proof of
service as required by the Court’s May 5, 2009 Order. According to Plaintiff, he caused
Defendants to be timely served with a copy of the Complaint in this matter by June 19, 2009, as
required, but was unable to file proof of service in a timely manner as a result of family illness.
Plaintiff has now attached an affidavit purporting to show proof of service to his motion for
reconsideration. Upon consideration of Plaintiff’s pleading, the Court finds that he has
demonstrated excusable neglect. First, Defendants have not yet entered an appearance in this
case, and the Court finds that they would not be prejudiced by reopening this case and permitting
Plaintiff to perfect service. Second, although Plaintiff delayed several weeks before filing the
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pending motion for reconsideration and would have been better served to file the instant motion
in a more timely manner, providing Plaintiff additional time to perfect service and to file proof of
such service will have a minimal impact on these judicial proceedings in light of the case’s
current procedural posture. Third, Plaintiff has explained that his failure to timely file proof of
service was due to an unexpected medical emergency that was beyond his reasonable control.
Fourth and finally, there is no indication of bad faith on Plaintiff’s part. Although it is not clear
from the record whether Plaintiff in fact served Defendants in compliance with Rule 4, it appears
that Plaintiff made a good faith effort to timely serve Defendants. Accordingly, upon
consideration of the circumstances in this case, the Court finds that Plaintiff has demonstrated
excusable neglect and that — in the event the case is remanded to this Court — his motion for
reconsideration should be granted and this civil action reinstated.
As mentioned above, however, it is not clear from the record now before the Court that
Plaintiff has perfected service against Defendants as provided for under the Federal Rules. More
specifically, Rule 4(c)(1) mandates that “[a] summons must be served with a copy of the
complaint.” The proof of service attached by Plaintiff to his motion for reconsideration indicates
only that the Complaint was served on Defendants and is silent as to whether the Summons was
also served. The Court notes that, “[a]lthough ‘[p]ro se litigants are allowed more latitude than
litigants represented by counsel to correct defects in service of process and pleadings,’ ‘this
consideration does not constitute a license for a plaintiff filing pro se to ignore the Federal Rules
of Civil Procedure,’ nor is it of much consolation to plaintiff, since he is a practicing attorney.”
Ning Ye v. Holder, __ F. Supp. 2d __, Civ. Act. No. 09-103, 2009 WL 2475169, *2 (Aug. 13,
2009) (quoting Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993) and Jarrell v.
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Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987)). Nonetheless, the Court is inclined, on remand, to
provide Plaintiff an additional 30 days (running from this Court’s order on remand) to perfect
service and to file proof of service with the Court. See Fed. R. Civ. P. 4(m) (“[I]f the plaintiff
shows good cause for the failure [to timely serve], the court must extend the time for service for
an appropriate period.”). If Plaintiff fails to do so, the Complaint will be dismissed.
III. CONCLUSION
For the reasons set forth above, the Court is inclined to grant Plaintiff’s motion for
reconsideration, but currently is without jurisdiction to do so as the case is now pending on
appeal before the D.C. Circuit. Accordingly, consistent with this Circuit’s case law, the Court
indicates herein that — in the event this case is remanded and the Court has jurisdiction over
Plaintiff’s motion — it will grant Plaintiff’s motion for reconsideration and provide Plaintiff an
additional period of 30 days (running from this Court’s order on remand) to perfect service and to
file proof of service with the Court. Plaintiff’s motion for reconsideration is therefore HELD IN
ABEYANCE to permit Plaintiff to move the D.C. Circuit for remand in order that relief may be
granted in accordance with this Memorandum Opinion.
Date: October 30, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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