            United States Court of Appeals
                        For the First Circuit


No. 17-1385

         PATRICK SKRABEC; NEIL SKRABEC; AND MARY ANN SKRABEC,

                       Plaintiffs, Appellants,

                                  v.

 TOWN OF NORTH ATTLEBORO; DANIEL ARRIGHI; JOSHUA MCMAHON; KEVIN
                 MCKEON; JOHN DOES 1 THROUGH 20,

                        Defendants, Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Nathaniel M. Gorton, U.S. District Judge]


                                Before

                   Lynch and Selya, Circuit Judges,
                      and Levy, District Judge.*


     Jeffrey B. Pine, Maria F. Deaton, and Lynch & Pine LLC on
brief for appellants.
     Jason W. Crotty and Pierce Davis & Perritano LLP on brief for
appellees.

                          December 18, 2017




     *   Of the District of Maine, sitting by designation.
                              I. INTRODUCTION

      LEVY, District Judge.       This appeal arises from the grant of

the Defendants’ summary judgment motion following the Plaintiffs’

failure to oppose the motion within the timeframe set by the

district court.       The Plaintiffs, citing excusable neglect, sought

relief   from   the    judgment   pursuant   to   Federal   Rule    of   Civil

Procedure 60(b)(1), which the court denied.          Finding no error, we

affirm the judgment.

                II. FACTUAL AND PROCEDURAL BACKGROUND

      In December 2012, during the week following the shooting at

Sandy Hook Elementary School, Patrick Skrabec — then a student at

North Attleboro High School — was arrested after telling high

school classmates that “he would like to shoot up the school.”

Skrabec v. Town of North Attleboro, 321 F.R.D. 46, 47 (D. Mass.

2017).    Patrick was charged with the misdemeanor offenses of

threatening to commit a crime, Mass. Gen. Laws ch. 272, § 2, and

disturbing a school assembly, Mass. Gen. Laws ch. 272, § 40.               Id.

Following a jury trial, Patrick was acquitted of both charges.

Id.

      In the wake of his acquittal, Patrick and his parents, Neil

and Mary Ann Skrabec, (collectively, the “Skrabecs”), filed suit,

alleging that by arresting and prosecuting Patrick, the Town of

North Attleboro, along with the Town’s Detective Daniel Arrighi,

and   Police     Officers     Joshua    McMahon     and     Kevin    McKeon,

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(collectively, the “Town”), (1) conspired to violate and violated

Patrick’s constitutional rights under 42 U.S.C. § 1983, (2) acted

negligently,       (3) negligently      inflicted     emotional      distress,

(4) committed malicious prosecution, and (5) deprived Neil and

Mary Ann Skrabec of consortium with their son, Patrick.              Id.    The

Town    answered    and   raised    affirmative     defenses.   Following    a

scheduling conference, the district court ordered the parties to

file dispositive motions by October 31, 2016, and their opposition

to any motions by November 30, 2016.              Thereafter, the Skrabecs

sent the Town a settlement demand letter on October 3, 2016.

Sadly, on October 20, Patrick passed away at the age of 21.

       The Town filed its motion for summary judgment on October 28.

The motion asserted that probable cause did in fact exist to arrest

Patrick; the individual defendants were entitled to qualified

immunity; the defendants' conduct was not sufficiently outrageous

to   impose   liability    for     intentional    infliction    of   emotional

distress; and the Skrabecs’ parental loss of consortium claim was

not recognized under Massachusetts law.

       On November 21, the Skrabecs’ attorney e-mailed the following

message to the Town’s attorney:

       Hi Jason—
       If you have a few minutes either today or tomorrow I’d
       like to touch base with you on this. As you know Patrick
       passed away and just want to get your take on where we
       stand.



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     I think our Demand and your Motion for Summary Judgment
     were sent out within a few days of each other, and we
     haven’t discussed either since.
     Thanks,
     Jeff

The Town’s attorney responded by e-mail less than an hour later:

     Jeff,
     I’m in the office all day tomorrow. Feel free to give me
     a call at your convenience.
     Regards,
     Jason

     Despite   this   e-mail   exchange,   there   were   no   additional

communications between the attorneys until after the November 30

deadline for the Skrabecs to file their opposition to the motion

for summary judgment had passed.           On December 7, the Town’s

attorney e-mailed the Skrabecs’ attorney, inquiring, “Can you tell

me what your current settlement demand is so that I can pass same

along to my client? Thanks.” The Skrabecs’ attorney replied within

minutes, renewing the Skrabecs’ previous settlement demand “for a

couple of weeks,” and stating that the offer would be withdrawn if

“it [didn’t] look like a December settlement” would be achieved.

The record does not reflect any further communication between the

attorneys.

     On December 28, almost a month after the Skrabecs’ opposition

to the Town’s summary judgment motion was due, the district court

granted the Town’s unopposed motion for summary judgment.             Two

days later, the Skrabecs filed their motion for relief from



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judgment on the ground of excusable neglect.1              See Fed. R. Civ. P.

60(b)(1) (permitting a court to relieve a party from a final order

if   there    was   “mistake,    inadvertence,       surprise,      or   excusable

neglect”).     The Skrabecs based their request on their attorney’s

belief “that there was an understanding between counsel that they

[(the Skrabecs)] would have an opportunity to object to the Motion

for Summary Judgment in the event that settlement discussions did

not progress.”        Although Patrick Skrabec’s death was mentioned in

the Skrabecs’ motion and in their reply memorandum, it was not

cited as a reason for the Skrabecs’ failure to oppose the Town’s

summary judgment motion.           The Town, in its opposition to the

Skrabecs’ Rule 60(b)(1) motion, did not dispute that there had

been a settlement demand by the Skrabecs and communications between

counsel, but asserted that the Town had never made a settlement

offer and there was no agreement between the attorneys to extend

the November 30 deadline for the Skrabecs to oppose the Town’s

summary judgment motion.

      In     denying    Rule    60(b)(1)     relief,      the   district     court

emphasized     that    the   Skrabecs’     failure   to    oppose    the   summary



      1The Skrabecs’ motion was titled “Plaintiffs’ Motion to Set
Aside the Judgment Under Rule 60.” The motion identified excusable
neglect as the sole ground for relief. The district court’s
decision referred to the motion as a “Motion to Alter the
Judgment.” We employ the terminology of Fed. R. Civ. P. 60, thus
referring to the Skrabecs’ motion as a motion for relief from
judgment. See Fed. R. Civ. P. 60.

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judgment motion was not excusable.2      Skrabec, 321 F.R.D. at 48.

The court characterized the Skrabecs’ belief that a settlement was

forthcoming based on sparse e-mails exchanged between counsel as

“exalt[ing] hope over reason.”    Id. at 48 (quoting Nansamba v. N.

Shore Med. Ctr., Inc., 727 F.3d 33, 38 (1st Cir. 2013)). Moreover,

the court determined that even if a settlement was imminent, it

would not justify the Skrabecs’ attorney’s assumption that he did

not need to oppose the Town’s motion for summary judgment without

having either obtained the Town’s consent or having sought an

extension of the deadline from the court.    Id. at 49.   This appeal

followed.

                       III. LEGAL ANALYSIS

     Federal Rule of Civil Procedure 60(b) relieves parties from

final judgments only under exceptional circumstances.     See Dávila-

Álvarez v. Escuela de Medicina Universidad Cent. del Caribe, 257

F.3d 58, 63–64 (1st Cir. 2001) (citing Lepore v. Vidockler, 792

F.2d 272, 274 (1st Cir. 1986)).    A party seeking Rule 60(b) relief

must show, at a bare minimum, “that his motion is timely; that

exceptional circumstances exist, favoring extraordinary relief;

that if the judgment is set aside, he has the right stuff to mount


     2 In this context, an attorney’s negligence is imputed to the
clients. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 396 (1993) (rejecting the argument that “it
would be inappropriate to penalize respondents for the omissions
of their attorney” in favor of a policy holding parties accountable
for the acts and omissions of their counsel).

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a potentially meritorious claim or defense; and that no unfair

prejudice will accrue to the opposing parties should the motion be

granted.”    Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir.

2002) (internal citations omitted).

      A party seeking relief under the “excusable neglect” prong of

Rule 60(b)(1) must additionally show that its conduct meets that

standard. Excusable neglect “requires more than a showing of

neglect simpliciter; it requires a further showing that the neglect

is excusable.” Nansamba, 727 F.3d at 38.          Deciding whether conduct

is excusable is an equitable determination.                See Pioneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 389

(1993). Four factors are generally considered in connection with

a request for relief from a judgment that was issued as a result

of a missed deadline: (1) the danger of prejudice to the non-

moving party, (2) the length of the delay and its potential impact

on   the   judicial   proceedings,    (3)   the   reason    for   the   delay,

including whether it was within the control of the movant, and (4)

the movant’s good faith. Id. at 395; see also Sheedy v. Bankowski,

875 F.3d 740, 745 (1st Cir. 2017) (emphasizing that excusable

neglect is a demanding standard and reiterating the four Pioneer

factors)    (internal   citations    omitted).      While    each   potential

factor should be weighed, there is ultimately a thumb on the scale

because “[w]ithin the constellation of relevant factors, the most

important is the reason for the particular oversight.”              Nansamba,

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727 F.3d at 38–39 (citing Dimmitt v. Ockenfels, 407 F.3d 21, 24

(1st Cir. 2005)).

        We review the denial of a Rule 60(b) excusable neglect motion

under    an    abuse-of-discretion        standard.       Bouret-Echevarría    v.

Caribbean Aviation Maint. Corp., 784 F.3d 37, 43 (1st Cir. 2015)

(citing Ahmed v. Rosenblatt, 118 F.3d 886, 891 (1st Cir. 1997)).

The standard is deferential, and we will not lightly substitute

our judgment for that of the trial court, which is more familiar

with the case and its management. See Lamboy-Ortiz v. Ortiz Vélez,

630     F.3d    228,    236       (1st   Cir.    2010);    see   also     Santos-

Santos v. Torres-Centeno, 842 F.3d 163, 169 (1st Cir. 2016) (“The

trial judge has wide discretion in this arena, and we will not

meddle unless we are persuaded that some exceptional justification

exists.”) (internal quotation marks omitted).

        Here, the Skrabecs contend that they failed to respond to the

motion for summary judgment because of their attorney’s good faith

belief that he and the Town’s attorney understood that the Skrabecs

were not required to oppose the motion so long as settlement

discussions were ongoing.           That belief, however, was unsupported.

The attorneys had not discussed extending the November 30 deadline

for   the     filing   of   the    Skrabecs’     opposition.     The    Skrabecs’

attorney’s belief that the Town’s attorney had agreed or would

agree to an extension was no more than an assumption.                   Thus, the

attorney’s failure to timely file an opposition to the Town’s

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summary judgment motion, or to move the court to extend the

deadline, was not excusable.              Where, as here, a moving party

proffers “no valid reason for the noncompliance, the protestations

of good faith . . . plainly do not suffice as grounds for setting

aside the district court’s determination that his mistake could

not be considered ‘excusable neglect.’”             Dimmitt, 407 F.3d at 25.

      The Skrabecs seek to bolster their claim of excusable neglect

by    asserting     that      Patrick’s     death     “disrupted    settlement

negotiations      and   the   preparation      of   Plaintiffs’    case.”   This

contention is unavailing.            Even if, as the Skrabecs contend,

Patrick’s death disrupted the settlement negotiations and the

preparation of their case, the Skrabecs do not explain how the

death contributed to their attorney’s belief that he did not need

to oppose the Town’s motion so long as settlement negotiations

were ongoing.     See Dávila-Álvarez, 257 F.3d at 65 (concluding that

even the death of counsel’s brother and law partner was not

sufficient upheaval to make counsel’s neglect excusable).

      Litigants     seeking     to   suspend    formal   proceedings    during

settlement negotiations may alert the court and seek the extension

of an outstanding deadline.          See Fed. R. Civ. P. 6(b).        That did

not   happen   here.       Without   having     raised   the   possibility    of

extending the response deadline with the Town or the court, there

was no reason for the Skrabecs to assume that the deadline was

extended and that they were relieved of the need to oppose the

                                      - 9 -
summary judgment motion by November 30, as had been ordered.                      See

de la Torre v. Cont'l Ins. Co., 15 F.3d 12, 15 (1st Cir. 1994)

(“The fact that settlement negotiations are in progress does not

excuse a litigant from making required court filings . . . .                       It

is common sense, as well as common courtesy, to alert the judge to

the ongoing negotiations and request that he or she postpone

imminent     deadlines        before   they     have        expired.     A   litigant

who . . . fails         to    take   that    simple    step     courts   disaster.”)

(internal citations omitted).               Having weighed all of the relevant

factors, the district court acted well within its discretion in

concluding       that   the    Skrabecs     failed     to    demonstrate     excusable

neglect.      


     We affirm the judgment of the district court.




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