                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1130n.06

                                           No. 11-3554
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                             Nov 02, 2012
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


ROBERT DOYLE,                                     )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )   ON APPEAL FROM THE UNITED
v.                                                )   STATES DISTRICT COURT FOR THE
                                                  )   SOUTHERN DISTRICT OF OHIO
MUTUAL OF OMAHA INSURANCE CO.,                    )
                                                  )
       Defendant-Appellant.                       )
                                                  )


       Before: COOK and STRANCH, Circuit Judges; STAMP, District Judge.*


       COOK, Circuit Judge. Kevin Bowman, the attorney who caused the delay and confusion

underlying this appeal, represented Plaintiff-Appellee Robert Doyle in an insurance dispute against

Defendant-Appellant Mutual of Omaha Insurance Company (“Mutual”). After months of neglecting

Doyle’s case against Mutual, Bowman disposed of it altogether by successfully moving to dismiss

the case with prejudice. When Doyle discovered Bowman’s wrongdoing nine months later, he

moved to vacate the judgment under Federal Rule of Civil Procedure 60(b)(6). The district court

granted the motion and restored the case to its docket. Mutual appeals this decision. For the reasons

stated below, we DISMISS Mutual’s appeal for lack of jurisdiction.




       *
         The Honorable Frederick P. Stamp, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.
No. 11-3554
Doyle v. Mutual of Omaha


                                                 I.


       Claiming that Mutual breached an insurance contract that he purchased for his mother, Doyle

hired Bowman to sue Mutual. In 2002, Bowman filed a complaint on Doyle’s behalf. From that

point, Bowman neglected Doyle’s case entirely: he missed discovery deadlines, failed to answer

discovery requests or make required disclosures, and neglected to follow up on a list of potential

witnesses and experts that Doyle suggested. In response to Bowman’s failures, Mutual filed motions

to compel discovery, to exclude expert testimony, and for sanctions—all of which Bowman ignored.


       Concluding this performance, Bowman moved to dismiss Doyle’s case during a telephone

conference with the district court judge. Bowman falsely told the court that Doyle wished to dismiss

his case with prejudice; the truth was, however, that Bowman never sought Doyle’s permission and

took pains to hide the dismissal from Doyle. In January 2004, the district court dismissed the case

with prejudice. Over the ensuing nine months, Doyle “periodically” called Bowman to check on the

status of his case. Each time, Bowman reassured Doyle that his case was “progressing” and that he

was “waiting on some decisions from the Court.”


       Doyle eventually uncovered Bowman’s duplicity. In late October, Doyle again called for his

periodic status check. But this time, Bowman’s firm directed Doyle to a partner at the firm, who told

Doyle that the firm recently fired Bowman. A few days later, that partner met with Doyle and broke

the unexpected news that the court dismissed his case nine months previously on Bowman’s motion.



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Doyle v. Mutual of Omaha


        A month after this meeting, the partner entered an appearance on Doyle’s behalf and moved

to vacate the January 2004 judgment under Rule 60(b)(6). Noting that the rule warrants relief in

cases presenting “extraordinary circumstances of attorney misconduct,” the court sustained Doyle’s

motion to vacate. This appeal followed.


                                                  II.


        We begin, as we must, by addressing our jurisdiction over this appeal. Title 28 U.S.C. §

1291 grants courts of appeals jurisdiction to review “all final decisions of the district courts of the

United States.” But where an order merely vacates a judgment and leaves the case pending for

further determination, we generally deem the order non-final and therefore unappealable. See, e.g.,

In re Saffady, 524 F.3d 799, 802 (6th Cir. 2008) (finding that court lacked jurisdiction to review

“[a]n order setting aside a prior judgment” because the order “clearly contemplate[d] further

proceedings”); cf. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (noting that a final,

appealable decision “ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment” (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).


        The challenged Rule 60(b) order vacated the judgment, restored the case to the court’s

docket, and scheduled a telephone conference to “set relevant dates” in preparation for trial. Because

the order contemplates further proceedings, it fails to qualify as a final, appealable order. See Fuller

v. Quire, 916 F.2d 358, 360 (6th Cir. 1990) (finding that an order setting aside a judgment and

reinstating a case under Rule 60(b)(6) was not appealable); cf. 12 James W. Moore et al., Moore’s

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Doyle v. Mutual of Omaha


Federal Practice § 60.68[2] (3d ed. 2012) (noting that in most instances a grant of Rule 60(b) relief

that merely vacates a judgment and leaves the case pending for further determination is

“interlocutory and nonappealable”).


       One case—Mallory v. Eyrich, 922 F.2d 1273 (6th Cir. 1991)—conflicts with the general

prohibition against the review of non-final orders. Mallory concluded that parties may appeal a Rule

60(b) order, apparently without distinguishing between an order granting or denying relief. See id.

at 1277. But even Mallory invoked the Coopers finality standard, and we have since read the case

narrowly. See Gen. Med., P.C. v. Horizon/CMS Health Care Corp., Nos. 10-1315, 10-1397, 2012

WL 1181486, at *3 (6th Cir. Apr. 10, 2012) (reconciling Mallory with Fuller and noting that we

have “rejected claims that Rule 60 orders constitute final judgments”). At any rate, to the extent that

Mallory conflicts with Fuller, the earlier-decided Fuller controls.          See, e.g., Dupont Dow

Elastomers, L.L.C. v. N.L.R.B., 296 F.3d 495, 506 (6th Cir. 2002) (stating that “[w]hen a later

decision of this court conflicts with the holding of a prior decision, it is the earlier case that

controls”).


       Fuller concluded that no final, appealable order results from a Rule 60(b) order setting aside

a judgment and reinstating a case where the order is “merely one of the orders which the district

court has made and will make in the process of reaching a decision.” 916 F.2d at 360. But Fuller

recognized a narrow exception: a party may appeal the grant of a Rule 60(b) motion where “the

district court acts without the power to do so.” Id.; see also McDowell v. Dynamics Corp. of Am.,


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Doyle v. Mutual of Omaha


931 F.2d 380, 382 (6th Cir. 1991). Under Fuller, if the district court exceeded its power in granting

relief, then we may exercise jurisdiction and reverse; if the court acted within its power, then we lack

jurisdiction to hear the appeal and must dismiss the appeal. See McDowell, 931 F.2d at 382-84.


       Answering this jurisdictional question requires some inquiry into the merits. In both Fuller

and McDowell, the appellants argued that the district court improperly granted relief under Rule

60(b)(6) to avoid the one-year time limitation that applies to the rule’s other provisions. See Fuller,

916 F.2d at 360; McDowell, 931 F.2d at 383. Because a court may grant Rule 60(b)(6) relief only

in “exceptional or extraordinary circumstances which are not addressed by the first five numbered

clauses” of Rule 60(b), both cases turned on whether the facts warranted relief under Rule 60(b)’s

first five provisions. McDowell, 931 F.2d at 383 (internal quotation marks omitted). If so, then the

district court lacked authority to set aside judgment under Rule 60(b)(6). Id.; Fuller, 916 F.2d at

360. Determining whether the situation fell within the rubric of 60(b)’s other provisions required

a look at the underlying facts. See McDowell, 931 F.2d at 383; Fuller, 916 F.2d at 362.


       Seeking a similar review of its claim on the merits, Mutual frames its argument on appeal

as a challenge to the district court’s authority to grant relief. The district court set aside judgment

after finding that the profound failures of Doyle’s attorney to prosecute his case amounted to an

“extraordinary circumstance” warranting relief under Rule 60(b)(6). See Blue Diamond Coal Co.

v. Trustees of UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001). Mutual argues

that the misbehavior of Doyle’s attorney could never justify Rule 60(b)(6) relief, because the acts



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Doyle v. Mutual of Omaha


of an attorney generally bind his client, regardless of whether the attorney acts with inexcusable

negligence. See, e.g., Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396-

97 (1993); Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962).


        But unlike the arguments raised in Fuller and McDowell—whether the applicability of Rule

60(b)’s other provisions deprived the court of the power to grant Rule 60(b)(6) relief—Mutual’s

argument thinly disguises an attack on the district court’s exercise of its discretion in granting relief.

In its initial briefing, Mutual contended only that the district court abused its discretion in granting

Rule 60(b)(6) relief—an argument that we lack jurisdiction to address. After we directed the parties

to show cause why we should not dismiss this appeal for lack of jurisdiction, Mutual recast its

argument as a challenge to the court’s authority to grant relief under Rule 60(b)(6).


        Assuming Mutual’s challenge falls within Fuller’s exception, Doyle has the better of this

argument. In rare cases, we have found a lawyer’s failures sufficiently egregious to warrant relief

under Rule 60(b)(6). E.g., Fuller, 916 F.2d at 361 (holding that a district court acted within its

discretion in granting 60(b)(6) relief vacating judgment after attorney failed to attend docket call and

failed to inform the client of the dismissal for more than a year despite the client’s frequent

inquiries); Valvoline Instant Oil Change Franchising, Inc. v. Autocare Assocs., Inc., No. 98-5041,

1999 WL 98590, at *4-6 (6th Cir. Jan. 26, 1999) (reversing district court and granting 60(b)(6) relief

from a default judgment entered after an attorney lied to his clients about the status of their case,

failed to appear at depositions, failed to file a response to a motion for summary judgment, and failed



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Doyle v. Mutual of Omaha


to make other required filings); see also Travelers Cas. & Sur. Co. of Am. v. J.O.A. Constr. Co., No.

09-1610, 2012 WL 1547973, at *12 (6th Cir. May 2, 2012) (noting that “courts occasionally deem

attorneys’ misconduct sufficiently egregious to warrant post-judgment relief for their abused clients,”

but affirming district court’s denial of relief). After reviewing cases within our circuit finding that

Rule 60(b)(6) supplied relief in similar circumstances, the district court concluded that the conduct

of Doyle’s attorney was “even more egregious” and found Rule 60(b)(6) relief warranted.


       Though we have no occasion to pass judgment on the merits of the district court’s

determination, we find that it acted within its authority in granting relief under Rule 60(b)(6). The

district court therefore had jurisdiction, and we do not. Fuller, 916 F.2d at 361. The remainder of

Mutual’s arguments exceed the scope of this limited jurisdictional inquiry. See, e.g., Quality First

Staffing Servs., Inc. v. Fed. Express Corp., 80 F. App’x 461, 463 (6th Cir. 2003); Nat’l Passenger

R.R. Corp. v. Maylie, 910 F.2d 1181, 1184 (3d Cir. 1990).


                                                 III.


       Because we find that the trial court acted within its authority in granting Doyle Rule 60(b)(6)

relief, we DISMISS Mutual’s appeal.




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