                                                             Supreme Court
                                                             No. 2015-300-Appeal.
                                                             (PC14-1984)


           Yendelby Santos                :

                  v.                      :

D. Laikos, Inc., d/b/a Monet Lounge and   :
                John Doe.




            NOTICE: This opinion is subject to formal revision before
            publication in the Rhode Island Reporter. Readers are requested to
            notify the Opinion Analyst, Supreme Court of Rhode Island,
            250 Benefit Street, Providence, Rhode Island 02903, at Telephone
            222-3258 of any typographical or other formal errors in order that
            corrections may be made before the opinion is published.
                                                                    Supreme Court

                                                                    No. 2015-300-Appeal.
                                                                    (PC14-1984)


                Yendelby Santos                 :

                       v.                       :

    D. Laikos, Inc., 1 d/b/a Monet Lounge and   :
                     John Doe.


                     Present: Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ.

                                           OPINION

          Justice Indeglia, for the Court. The plaintiff, Yendelby Santos (plaintiff or Santos),

appeals from the Superior Court’s denial of his motion to vacate final judgment in favor of the

defendant, D. Laikos, Inc., d/b/a Monet Lounge, and John Doe (collectively, defendants), on his

personal injury claim. This matter came before the Supreme Court on May 11, 2016, pursuant to

an order directing the parties to appear and show cause why the issues raised should not be

summarily decided. After hearing the arguments of counsel and reviewing the memoranda

submitted on behalf of the parties, we are satisfied that cause has not been shown. Accordingly,

we shall decide the matters at this time without further briefing or argument. For the reasons set

forth herein, we affirm the judgment of the Superior Court.




1
  In their answer and subsequent pleadings, defendants submit that the correct spelling of the
company’s name is “D. Liakos, Inc.” We will use the spelling as it appears in the case caption,
which has not been changed in light of this apparent error.
                                                    -1-
                                                 I

                                       Facts and Travel

       The facts of this case are straightforward and undisputed. On April 30, 2011, plaintiff

alleged that he sustained personal injuries during a “melee” at defendants’ Providence nightclub,

Monet Lounge. On April 18, 2014, he filed the instant personal injury action in Providence

County Superior Court. However, the complaint erroneously stated that the incident in question

occurred on November 4, 2010. 2 On April 20, 2015, defendants filed a motion to dismiss

plaintiff’s complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure, 3

stating that the three-year statute of limitations for personal injury actions barred plaintiff’s

claim. 4 The defendants’ counsel certified that he mailed both the motion to dismiss and the

accompanying memorandum of law to plaintiff’s counsel’s office, in addition to filing the

motion and memorandum of law via the recently installed electronic filing system as is now

required by the Superior Court Rules. The motion included a hearing date of June 16, 2015.

       The hearing on defendants’ motion occurred as scheduled; however, plaintiff did not

appear. As a result, the hearing justice granted defendants’ motion to dismiss on statute of

limitations grounds. On June 23, 2015, plaintiff filed an objection and motion to vacate the final

judgment, which indicated that his counsel did not receive notice of defendants’ motion to




2
  According to plaintiff’s Rule 12A statement, the error occurred because plaintiff’s counsel
“neglected to notice * * * that the template upon which the complaint was drafted referenced a
date of incident of ‘November 4, 2010.’”
3
  In the alternative, defendants also moved for summary judgment pursuant to Rule 56 of the
Superior Court Rules of Civil Procedure.
4
  In their answer filed July 29, 2014, defendants included the statute of limitations as an
affirmative defense. Although their answer was untimely, plaintiff did not seek to default
defendants.
                                               -2-
dismiss. On June 25, 2015, final judgment entered dismissing plaintiff’s claim. On that same

day, plaintiff filed a motion to amend his complaint to correct the date of the incident. 5

       On July 8, 2015, a hearing was held on plaintiff’s motion to vacate. At the hearing,

plaintiff’s counsel argued that excusable neglect pursuant to Rule 60(b)(1) of the Superior Court

Rules of Civil Procedure, or in the alterative, “any other reason justifying relief” pursuant to

Rule 60(b)(6), warranted relief from final judgment. 6 The plaintiff’s counsel stated that she

never received notice of defendants’ motion to dismiss electronically because, after taking over

the case, she failed to update the service contact in the electronic filing system with her contact

information. Further, plaintiff’s counsel represented that, if given an evidentiary hearing, she

was prepared to present evidence to overcome the presumption that notice of the motion was

received by mail.     Specifically, plaintiff’s counsel intended to call her office’s litigation

paralegal, who handled all of the mail for the firm’s litigation department.

       The plaintiff’s counsel also indicated that, had she been aware of defendants’ motion to

dismiss, she would have promptly presented a motion to amend the complaint 7 to correct the

“typographical error as to the date of the incident.” She argued that “[t]here is no issue of notice

of the event as far as * * * defendant[s are] concerned” because the police report issued in

connection with the incident, of which defendants had a copy, contained the correct date.

       The hearing justice said he “d[idn’t] buy” plaintiff’s excusable neglect argument, and

denied his motion to vacate. On July 31, 2015, an order entered denying plaintiff’s motion to



5
  It is unclear from the Superior Court docket whether the motion to amend or the final judgment
was filed first.
6
  Interestingly, plaintiff did not cite to Rule 60 of the Superior Court Rules of Civil Procedure, or
any other grounds for that matter, in his motion to vacate. The objection simply stated that
plaintiff did not receive notice of defendants’ motion to dismiss pursuant to Rule 12(b)(6) of the
Superior Court Rules of Civil Procedure or notice of the hearing on said motion.
7
  The complaint was drafted by predecessor counsel.
                                                 -3-
vacate the final judgment and denying his request for an evidentiary hearing. 8 No ruling was

made on plaintiff’s motion to amend. The plaintiff timely appealed. 9

                                                   II

                                         Standard of Review

          “Our review of a decision denying a motion to vacate a judgment is limited to examining

‘the correctness of the order granting or denying the motion, not the correctness of the original

judgment.’” Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174, 187 (R.I. 2008)

(quoting Greenfield Hill Investments, LLC v. Miller, 934 A.2d 223, 224 (R.I. 2007) (mem.)). “It

is our well-settled precedent that ‘[a] motion to vacate a judgment is left to the sound discretion

of the trial justice and such a ruling will not be disturbed absent an abuse of discretion.’” Turdo

v. Main, 132 A.3d 670, 680 (R.I. 2016) (quoting Berman v. Sitrin, 101 A.3d 1251, 1260 (R.I.

2014)).

                                                   III

                                               Analysis

          On appeal, plaintiff argues that the trial justice erred in not granting his motion to vacate

“due to excusable neglect beyond [his] control.” He also contends that he should have been

afforded an evidentiary hearing on his claim of excusable neglect.

          Rule 60(b)(1) provides: “On motion and upon such terms as are just, the court may

relieve a party or a party’s legal representative from a final judgment, order, or proceeding for *

8
  The original order prepared by defendants did not reference the denial of plaintiff’s request for
an evidentiary hearing. The plaintiff objected to the original order and the requested language
was included in the final order.
9
  On July 8, 2015, plaintiff filed a notice of appeal from the judgment entered on June 25, 2015
dismissing his complaint. On August 7, 2015, plaintiff filed an amended notice of appeal which
indicated that he was not only appealing the judgment from June 25, but that he was also
appealing the order denying his motion to vacate and the denial of the request for an evidentiary
hearing.
                                                   -4-
* * [m]istake, inadvertence, surprise, or excusable neglect[.]” “With respect to plaintiff[’s] claim

for relief under the excusable neglect clause of Rule 60(b)(1), it is well established in this

jurisdiction that unexplained neglect, standing alone and without more * * * will not

automatically excuse noncompliance with orderly procedural requirements.”                 Iddings v.

McBurney, 657 A.2d 550, 553 (R.I. 1995). “Relief from a counsel’s failure to comply with

procedural requirements will not be granted unless it is first factually established that his [or her]

neglect was occasioned by some extenuating circumstance of sufficient significance to render it

excusable.” Boranian v. Richer, 983 A.2d 834, 838 (R.I. 2009) (quoting Astors’ Beechwood v.

People Coal Co., 659 A.2d 1109, 1115 (R.I. 1995)).

       In the case at bar, we discern no extenuating circumstances which render excusable

plaintiff’s failure to object to or to attend the hearing on defendants’ motion to dismiss. The

plaintiff’s explanation for his failure to take any action in response to defendants’ motion—that

the motion was never received—falls short of what this Court has deemed excusable neglect.

Rather, this is precisely the type of “unexplained neglect” and case mismanagement that we have

said, on its own, does not suffice. See, e.g., Astors’ Beechwood, 659 A.2d at 1115-16 (holding

that attorney’s excuse that his heavy workload caused him to miss a deadline to reject an

arbitration award did not amount to excusable neglect).          “Instead, for a party to establish

excusable neglect, the party generally must show that the circumstances that caused the party to

miss a deadline were out of that party or counsel’s control.” Boranian, 983 A.2d at 840. For

example, we found excusable neglect when a defendant missed the ten-day motion to dismiss

deadline because his counsel was not appointed until after the deadline expired, State v.

Dominguez, 679 A.2d 873, 874-75 (R.I. 1996), and when an attorney violated the anti-contact

rule by telling the opposing party to “forget about court,” thereby causing that party to default.



                                                 -5-
Pleasant Management, LLC v. Carrasco, 960 A.2d 216, 225 (R.I. 2008). Here, there was no such

interference beyond plaintiff’s control.    Instead, it was his counsel’s failure to update the

electronic filing system with the correct service contact information in a timely fashion, as well

as an apparent mishap with the office mail, that caused the oversight. 10

       Furthermore, we are satisfied that the hearing justice did not abuse his discretion in

denying plaintiff’s motion to vacate on the basis of “[a]ny other reason justifying relief” under

Rule 60(b)(6). “If inexcusable neglect precludes relief under Rule 60(b)(1), then the same

inexcusable neglect cannot constitute the ‘other’ grounds under Rule 60(b)(6) unless ‘other

extraordinary and unusual factors are also present.’” Labossiere v. Berstein, 810 A.2d 210, 215

(R.I. 2002) (quoting Bailey v. Algonquin Gas Transmission Co., 788 A.2d 478, 483 (R.I. 2002)).

Indeed, we have said that Rule 60(b)(6) is “not intended to constitute a ‘catchall’ and * * * that

‘circumstances must be extraordinary to justify relief.’” Allen ex rel. Allen v. South County

Hospital, 945 A.2d 289, 297 (R.I. 2008) (quoting Bailey, 788 A.2d at 483). The plaintiff

presents no such “other extraordinary and unusual factors” beyond the explanation and evidence

in support thereof for excusable neglect.      Accordingly, plaintiff’s motion to vacate on the

alternate Rule 60(b)(6) grounds 11 was properly denied.



10
   “Moreover, ‘[t]he determination of excusable neglect is at bottom an equitable one, taking
account of all relevant circumstances surrounding the party’s omission.’” Boranian v. Richer,
983 A.2d 834, 839 (R.I. 2009) (quoting Pleasant Management, LLC v. Carrasco, 960 A.2d 216,
225 (R.I. 2008)). Here, as the hearing justice aptly stated, “there [were] a series of things that
fell through the cracks[]” on plaintiff’s end.
11
   Crucially, plaintiff only relied on Rule 60(b) in support of his motion to vacate and did not
aver that the subsequent motion to amend also warranted vacation of the final judgment.
Generally, once a final judgment has entered, a party seeking to amend his or her complaint must
first set aside the judgment. See Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir. 1985) (stating
that “once judgment is entered the filing of an amended complaint is not permissible until
judgment is set aside or vacated pursuant to Fed.R.Civ.P. 59(e) or 60(b)” (citing 6 C. Wright &
A. Miller, Federal Practice and Procedure § 1489 (1971))). This is because “until a motion to
vacate a judgment is granted, there is nothing left to amend[.]” Bengar v. Clark Equipment Co.,
                                                -6-
       The plaintiff also avers that the hearing justice erred in denying his request for an

evidentiary hearing to put forth evidence that the motion was never received. To be sure, “[t]he

existence of excusable neglect is a question of fact to be proven by evidence.” Iddings, 657 A.2d

at 553 (quoting Vitale v. Elliott, 120 R.I. 328, 331, 387 A.2d 1379, 1381 (1978)). “To trigger an

evidentiary hearing supporting [a Rule 60(b)] motion, the moving party should present affidavits,

sworn testimony, or witnesses who are prepared to testify at the hearing thereon to grounds that,

if found to be true, would support a vacation of the judgment, order, or decision in question.”

DeLuca v. DeLuca, 839 A.2d 1237, 1242 (R.I. 2004).

       Even assuming that the plaintiff was entitled to an evidentiary hearing, the extent of any

such evidence he may have offered was in effect offered at the hearing on the motion to vacate,

and the hearing justice found it to be unavailing. At the hearing, the plaintiff’s counsel was

given the opportunity to provide an offer of proof, at which time she laid out the crux of what her

litigation paralegal would testify to at a subsequent evidentiary hearing: that the firm has a “very

detailed mailing system,” that all mail is “time stamped * * * dated, * * * [and] filed,” and thus,




506 N.E.2d 147, 149 (Mass. App. Ct. 1987), reversed on other grounds, 517 N.E.2d 1286 (Mass.
1988). However, we note that several other jurisdictions have treated a motion to amend that has
been filed within ten days of the entry of judgment—as was the case here—as a motion to
vacate. See Bengar, 506 N.E.2d at 150 (collecting cases). Given the liberal amendment policy
with regard to Rule 15 of the Superior Court Rules of Civil Procedure, these motions are often
granted despite having the effect of eradicating the entry of judgment. See Foman v. Davis, 371
U.S. 178, 182 (1962) (reversing denial of motion to vacate judgment of dismissal where the
District Court abused its discretion in denying motion to amend); Laber v. Harvey, 438 F.3d 404,
426-29 (4th Cir. 2006) (holding it was an abuse of discretion for the District Court to deny the
plaintiff’s motions for reconsideration and to amend); Adams v. Gould Inc., 739 F.2d 858, 869-
70 (3d Cir. 1984) (holding it was an abuse of discretion to deny the plaintiff’s motion to reopen
judgment and amend its complaint); Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594,
597-600 (5th Cir. 1981) (holding the District Court abused its discretion in denying the
plaintiff’s post-judgment motion to amend). Here, plaintiff’s motion to amend was filed on the
same day judgment was entered, but the hearing justice never determined the effect of such
motion.
                                                -7-
the defendants’ motion to dismiss was never received by her office. 12 After remarking that the

defendants’ certification that the motion was mailed creates a rebuttable presumption that it was

in fact received, the trial justice stated that the plaintiff was attempting to “prov[e] the negative”

by purporting to show the motion never arrived. With regard to the “detailed” mailing system

supposedly employed by the office, the hearing justice stated that, “[p]eople make mistakes.

People misfile things[,]” and he thus found the plaintiff’s proffered evidence to fall short of

supporting a claim of excusable neglect. We are satisfied that the hearing justice heard and

considered the plaintiff’s evidence in support of his claim of excusable neglect and that a

subsequent formal evidentiary hearing would have been futile in this scenario.

                                                 IV

                                            Conclusion

       For the reasons set forth above, the judgment of the Superior Court is affirmed. The

papers in this case may be returned to the Superior Court.

       Justice Goldberg did not participate.




12
   The plaintiff’s counsel briefly indicated that she was prepared to call the previous attorney of
record in attempt to prove she was not listed as a service contact in the electronic filing system at
the time the motion was filed; however, as the hearing justice pointed out, the electronic filing
system itself shows as much—thus, the previous attorney’s testimony was unnecessary to prove
this particular point.
                                                 -8-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Yendelby Santos v. D. Laikos, Inc., d/b/a Monet Lounge and John
                      Doe.

CASE NO:              No. 2015-300-Appeal.
                      (PC 14-1984)

COURT:                Supreme Court

DATE OPINION FILED: June 7, 2016

JUSTICES:             Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Richard A. Licht

ATTORNEYS ON APPEAL:

                      For Plaintiff: Shelagh R. McCahey, Esq.

                      For Defendants: Fausto C. Anguilla, Esq.
