                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

CENNY C. NORRIS,

                         Plaintiff,

                         v.                              Civil Action No. 09-01042 (BAH)

KEN L. SALAZAR, Secretary,
U.S. Department of Interior

                         Defendant.
 
                                      MEMORANDUM OPINION

          Pending before the Court is the motion by plaintiff Cenny C. Norris, who is proceeding

pro se, for reconsideration, pursuant to Federal Rule of Civil Procedure 60(b), of this Court’s

Order dated April 13, 2011. ECF No. 20. That Order granted, as conceded, the motion to

dismiss of the defendant, Ken L. Salazar, Secretary of the U.S. Department of the Interior, and

entered judgment in the defendant’s favor. Id. The plaintiff explains that she first learned of the

defendant’s motion to dismiss at the same time she learned that motion had been granted due to

her former counsel’s inexplicable failure to respond. Pl.’s Mot. For Reconsideration (“Pl.’s

Mot.”), ECF No. 21, ¶¶ 3, 5, 6. For the reasons set forth below, the plaintiff’s motion is granted,

this case shall be reinstated, and the plaintiff shall have thirty days to file a response to the

defendant’s motion to dismiss, ECF No. 18.

I.        BACKGROUND

          The plaintiff initiated this case as a pro se litigant on June 2, 2009, alleging in her

    complaint racial and disability discrimination and retaliation, stemming from her employment

    from February 2000 until March 2006, as an Administrative Officer at the Commission of Fine

                                                     1
 
    Arts (“CFA”), an agency within the U.S. Department of Interior. Compl. ¶¶ 6,45, 47-51, ECF

    No. 1. The defendant then moved to dismiss two of the three counts in her complaint. ECF No.

    5. After obtaining counsel, the plaintiff – through her counsel of record, Ernest P. Francis –

    filed an opposition to the defendant’s motion for partial dismissal and sought leave to amend the

    complaint. ECF Nos. 7, 8. On September 30, 2010, the Court denied the defendant’s motion

    for partial dismissal and granted the plaintiff’s motion to file an amended complaint, which was

    docketed the same day. Mem. Op. and Order (Walton, J.), ECF Nos. 11, 12. The Amended

    Complaint alleges that, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42

    U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.,

    the CFA discriminated against the plaintiff based on her race and disability (back injury), inter

    alia, in connection with the amount of the performance-based compensation she received. See

    generally Am. Compl., ECF No. 14.

              On December 13, 2010, the defendant filed a new motion to dismiss the entire Amended

    Complaint. ECF No. 18. Pursuant to the Court’s December 8, 2010 Minute Order, the

    plaintiff’s opposition was due by January 14, 2011, on which date the Court granted a consent

    motion, filed by the plaintiff through her counsel, to extend the time for her response until

    February 14, 2011.1 Pl.’s Consent Mot. for Extension of Time, ECF No. 19. No response to the

    defendant’s motion to dismiss was filed on the plaintiff’s behalf by February 14, 2011,

    however, and no request for an additional extension of time was made to the Court.

              On April 13, 2011, two months after the due date for plaintiff’s opposition to be filed, this

    Court granted the defendant’s motion as conceded, pursuant to Local Civil Rule 7(b), which

    states, in pertinent part, that when an opposing party does not “file a memorandum of points and
                                                            
1
    This case was reassigned to the current presiding judge on January 20, 2011.
                                                               2
 
    authorities in opposition to the motion. . . within the prescribed time, the Court may treat the

    motion as conceded.”

              Three months later, on July 14, 2011, the Clerk’s office of this Court received plaintiff’s

    motion for reconsideration of the April 13, 2011 Order and the Court granted leave to file this

    motion on July 18, 2011. ECF No. 21. In her motion, the plaintiff states that she retained C.

    Gregory Stewart as counsel in this matter in March 2006, but Mr. Stewart did not advise her of

    “a verbal agreement with Ernest P. Francis… to file legal documents with the court” and “never

    informed [her] of the motions for dismissal, the requests for extensions or the deadlines for

    filing documents in this case.” Pl.’s Mot. ¶¶ 3, 6.2 She indicates that she first learned on June

    16, 2011, of these circumstances, including the defendant’s motion to dismiss and the Court’s

    dismissal of the case because of the failure “to file the brief by the court’s deadline of February

    14, 2011.” Id. ¶¶ 3, 5. Based upon these circumstances, the plaintiff argues that “it would be

    unjust for the Plaintiff to suffer because the attorneys failed to adhere to DC Court rules,

    attempted to circumvent the rules, and because Mr. Stewart did not properly submit an

    application to practice law in the District of Columbia.” Id. at 4-5.3

    II.       DISCUSSION

              The plaintiff seeks relief under Rule 60(b) of the Federal Rules of Civil Procedure


                                                            
2
  The plaintiff’s statement that she was unaware of the arrangement between Messrs . Stewart and Francis is
corroborated by Mr. Francis’ statement that he “has never met Plaintiff and talked with her only after the case was
dismissed.” Response to Pl.’s Mot., ECF No. 23, at 1.
3
  The plaintiff incorrectly asserts that Mr. Stewart’s arrangement for Mr. Francis to serve as local counsel of record
amounts to the unauthorized practice of law and a violation of professional ethics. Pl.’s Mot. at 5. This arrangement
comports with the local rules of this Court that all papers submitted to this Court must be signed by counsel who are
members of the Bar of this Court. LCvR 83.2(c). On the other hand, the plaintiff’s motion does raise other serious
issues about, inter alia, whether her former counsel failed to act competently, failed to consult with her about the
means of pursuing the litigation and the scope of the representation, failed to keep her informed as to the status of
the representation or otherwise to communicate with her, and failed to represent her zealously and diligently within
the bounds of the law. See D.C. Rules of Professional Conduct, Rules 1.1(a), 1.2(a), 1.3(c), 1.4(a), 1.5(b).
                                                               3
 
    because she claims the circumstances of this Court’s dismissal of the case constitute either

    “mistake, inadvertence, surprise, or excusable neglect” under Rule 60(b)(1) or qualify as “any

    other reason that justifies relief” from the judgment under Rule 60(b)(6). Pl.’s Mot. at 3-4

    (“The facts outlined above demonstrate surprise and extraordinary circumstances,” citing Rule

    60(b)(1) and (6)). The defendant counters that the plaintiff is not entitled to “this extraordinary

    remedy under either Rule 60(b)(1) or Rule 60(b)(6), and she also fails to proffer any basis for

    the Court to conclude that she has a potentially meritorious claim that would justify the Court’s

    exercise of its equitable powers to reopen this case.” Def.’s Opp’n, ECF No. 22, at 2. For the

    reasons set forth below, the Court will grant the plaintiff’s motion for reconsideration.

    A.     Legal Standard

          Federal Rule of Civil Procedure 60(b) authorizes a court to relieve a party from a

    previous judgment or order for six enumerated reasons: (1) mistake, inadvertence, surprise, or

    excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other

    misconduct by an opposing party; (4) a void judgment; (5) a satisfied, released, or discharged

    judgment; or (6) “any other reason justifying relief from the operation of the judgment.” Fed. R.

    Civ. P. 60(b). The party seeking relief from judgment bears the burden of proof. See Rufo v.

    Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383-84 (1992); United States v. 8 Gilcrease Lane,

    668 F. Supp. 2d 128, 130-131 (D.D.C. 2009); Mazengo v. Mzengi, 542 F. Supp. 2d 96, 100 n.3

    (D.D.C. 2008). While all motions under Rule 60(b) must be made “within a reasonable time,”

    applications for relief under the first three reasons must be made within a year after entry of the

    judgment or order. Fed. R. Civ. P. 60(c)(1).

          Rule 60(b)(1) states that a court may relieve a party from a final judgment for “mistake,

inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). The determination of
                                                 4
 
“surprise” or “excusable neglect” is an equitable matter that requires consideration of, inter alia,

the risk of prejudice to the non-movant, the length of delay, the reason for the delay, including

whether it was in control of the movant, and whether the movant acted in good faith. FG

Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir. 2006)

(citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395-97 (1993)).

Negligence, or even gross negligence, on the part of counsel does not constitute the “excusable

neglect” warranting relief under this section of the rule. See Lightfoot v. District of Columbia,

555 F. Supp. 2d 61, 67 n.5 (D.D.C. 2008) (citing Bershad v. McDonough, 469 F.2d 1333, 1337

(7th Cir. 1972) (affirming that “neither ignorance nor carelessness on the part of a litigant or his

attorney will provide grounds for rule 60(b)[(1)] relief”)).

          If the first five reasons set forth in Rule 60(b) are inapplicable, the court may look to the

    “catch-all” provision of Rule 60(b)(6), which “gives courts discretion to vacate or modify

    judgments when it is ‘appropriate to accomplish justice.’” 8 Gilcrease Lane, 668 F. Supp. 2d at

    130-131 (quoting Klapprott v. U.S., 335 U.S. 601, 614-15 (1949)); see also Liljeberg v. Health

    Servs. Acquisition Corp., 486 U.S. 847, 863 (1988). Rule 60(b)(6) is only available when “the

    motion . . . is not premised on one of the grounds for relief enumerated in clauses (b)(1) through

    (b)(5).”); Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007) (Rule 60(b)(6) is mutually

    exclusive with other grounds for relief under Rule 60(b)). The Supreme Court has held that only

    “extraordinary” circumstances warrant relief under Rule 60(b)(6), Ackermann v. United States,

    340 U.S. 193, 202 (1950), and this Circuit “has cautioned that it ‘should be only sparingly

    used.’” Twelve John Does v. District of Columbia, 841 F.2d 1133, 1140 (D.C. Cir. 1988)

    (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980); Epps v.

    Howes, 573 F. Supp. 2d 180, 185 (D.D.C. 2008); Campbell v. United States, No. 92-0213, 2006
                                               5
 
    U.S. Dist. LEXIS 36544, at *2 (D.D.C. May 19, 2006). The requisite “extraordinary

    circumstances” under Rule 60(b)(6) may be found when a faultless plaintiff seeks relief from a

    final judgment or order due to counsel’s ineffective assistance amounting to neglect of the

    movant’s case. See Peter B. v. U.S., No. 05-2189, 2006 WL 2038512, at *1-2 (D.D.C. Jul. 19,

    2006).

          Rule 60(b) “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, 636 F.2d at 577 (quoting Bankers Mortg. Co. v.

    United States, 423 F.2d 73, 77 (5th Cir. 1970), cert. denied, 399 U.S. 927 (1970)). Thus, the

    granting or denial of a Rule 60(b)(6) motion “is entrusted to the sound discretion of the district

    court.” Randall v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 110 F.R.D. 342, 344 (D.D.C.

    1986) (citing S. Pac. Telecomm. Co. v. Am. Tel. & Tel. Co., 740 F.2d 1011, 1017 (D.C. Cir.

    1984)).

    B.    Analysis

          The defendant urges the Court to deny the plaintiff’s motion for reconsideration of the

April 13, 2011 Order because (1) “the ineptness of counsel alleged here” does not “satisfy the

‘excusable neglect’ standard under Rule 60(b)(1),” nor does it constitute sufficiently

“extraordinary circumstances” to qualify for relief under Rule 60(b)(6), Def.’s Opp’n, ECF 22, at

5,7; and (2) the plaintiff “does not meet the additional requirement that she show she has a

potentially meritorious claim.” Id. at 6. Although the defendant is correct that the plaintiff has

not established her entitlement to relief under Rule 60(b)(1), the Court will grant her motion for




                                                    6
 
reconsideration under Rule 60(b)(6).4

              The plaintiff’s statements regarding her conversations with counsel provide no basis for

excusing counsel’s failure to file a timely opposition to the defendant’s motion to dismiss under

Rule 60(b)(1). Likewise, the statements of her counsel of record do not provide any excuse for

counsel’s neglect in filing an opposition. Her counsel of record merely indicates that even

though both he and retained counsel were aware of the deadline for filing an opposition, they

made inadequate efforts to prepare an opposition filing and made no effort to obtain an extension

of time. See generally, Resp. to Pl.’s Mot., ECF No. 23. As a consequence, the plaintiff has not

established any excusable neglect by counsel that would qualify for relief under Rule 60(b)(1).

              The defendant suggests that the “failure of Plaintiff’s counsel to file a response here

appears to be based on a reasoned determination by counsel of record that Plaintiff lacks a

meritorious claim and that the Complaint would be dismissed for the reasons raised in

Defendant’s motion.” Def.’s Opp’n at 6. Neither the explanations offered by the plaintiff nor

those offered by her counsel of record, however, support the defendant’s suggestion that the case

was conceded based upon counsel’s evaluation of the merits of plaintiff’s claims.

              On the contrary, the plaintiff contends that, although her retained counsel allegedly

provided a draft opposition to local counsel in March 2011 (after the Court deadline, but before

dismissal), local counsel decided not to file the brief since it was not written properly and

returned it to retained counsel. Pl.’s Mot. at 2-3, ¶¶ 5-7. Local counsel, for his part, states that

retained counsel timely asked that he “attempt to obtain a further extension” of the February 14,


                                                            
4
  The defendant raises no issue concerning the timeliness of the plaintiff’s motion, which was submitted to the Court
on July 14, 2011, and thus is well within the one-year period required for a motion under Rule 60(b)(1). The
plaintiff’s motion falls within a reasonable period of time following dismissal of this action in April 2011 and the
plaintiff’s discovery of the dismissal in June 2011. 
                                                               7
 
2011 deadline, but local counsel did not do so. Resp. to Pl.’s Mot. at 2. Retained counsel

provided another draft opposition to the defendant’s motion on April 5, 2011, and a “corrected”

draft on April 11, 2011, but after reviewing the drafts, local counsel did not file these papers, nor

seek an extension of time within which to do so. Id. at 3. Thus, contrary to the defendant’s

suggestion, the plaintiff’s counsel apparently was making some effort, ineffectual and

incomplete as it was, to oppose the defendant’s motion to dismiss. While Rule 60(b)(6) may not

be used to relieve a party from the consequences of improvident strategic decisions or “free,

calculated, deliberate choices,” Ackermann, 340 U.S. at 198, in this case, no strategy or

deliberate choice appears to have been made. Rather, the plaintiff and her local counsel of

record cite inadequate draft work product and apparent failed communications between local

counsel and retained counsel as the reason for failure to file a response to the defendant’s

motion.

       The defendant also contends that the plaintiff has failed to establish that she has a

meritorious claim and that this is fatal to her motion for reconsideration. Def.’s Opp’n at 6-7.

While the burden on the movant to show a meritorious claim is correctly stated by the defendant,

this factor generally applies when the court has exercised the opportunity to review the merits of

the case. See Lepkowski v. United States Dep’t of Treasury, 804 F.2d 1310, 1314 n.4 (D.C. Cir

1986) (affirming denial of Rule 60(b) motion when district court granted motion to dismiss as

conceded after district court heard “brief argument on the merits by Government counsel which

accurately summarized [plaintiff’s] response to the statute of limitations challenge” and made

apparent that a “flaw in the proposed, unfiled opposition was that it did not set forth facts (or

support any facts by affidavits or other material)” to defeat the motion to dismiss); accord

Norman v. United States, 377 F. Supp. 2d 96, 98 (D.D.C. 2005) (plaintiff’s Rule 60(b) motion
                                               8
 
denied where “the Court [was] persuaded that reinstatement would ultimately be futile”), aff’d,

467 F.3d 773 (D.C. Cir. 2006).

        By contrast, in this case, the Court granted the defendant’s motion to dismiss as conceded

before reaching the merits of plaintiff’s claims or arguments potentially available to her in

opposition to the defendant’s motion. Resolution on the merits is preferable to a judgment by

default and, therefore, courts should liberally allow relief under Rule 60(b), as a “corrective

remedy, mitigating the harsh impact of calendar rules when a litigant’s action is dismissed as a

result of counsel’s neglect.” Butler v. Pearson, 636 F.2d 526, 530 (D.C. Cir. 1980) (internal

quotations and citations omitted); see also Pulliam v. Pulliam, 478 F.2d 935, 936 (D.C. Cir.

1973) (Rule 60(b) relief should be liberally allowed to mitigate the impact of counsel’s neglect);

Spann v. Comm’rs of the District of Columbia, 443 F.2d 715, 716 n.1 (D.C. Cir. 1970) (“The

liberal spirit of [Rule 60(b)], together with the basic policy favoring resolution of litigation on

the merits requires us to review closely” denials of Rule 60(b) motions that have “preclude[d]

consideration of the merits of the controversy.”); Bibeau v. Northeast Airlines Inc., 429 F.2d 212,

213-214 (D.C. Cir. 1970) (reversal of district court’s denial of a motion to reinstate a wrongful

death action which had been dismissed for want of prosecution of a few months duration);

Lawrence v. Gutherie, No. 08-1292, 2011 U.S. Dist. LEXIS 88961, at *7-8 (D.D.C. Aug. 11,

2011) (“Our judicial system is imbued with a strong presumption in favor of adjudications on the

merits.”); see also 11 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC., §

2857 (2d ed.) (“There is much more reason for liberality in reopening a judgment when the

merits of the case never have been considered than there is when judgment comes after a full

trial on the merits.”).


                                                  9
 
       Finally, the defendant makes no claim of prejudice should the plaintiff’s motion be

granted. Given the nature of the claim here as well as the relatively few months that have passed

since the April 13, 2011 Order of dismissal, no prejudice could be shown. In similar

circumstances involving a counsel’s failure to file timely responses to interrogatories or to notify

the court of difficulties in complying with deadlines, a movant who had not “personally

misbehaved,” and an opponent that had “not been harmed,” the D.C. Circuit in Butler v. Pearson

reversed the district court’s denial of the plaintiffs’ motion for reinstatement of the case. 636

F.2d at 531. The Court observed that “[p]ublic confidence in the legal system is not enhanced

when one component punishes blameless litigants for the misdoings of another component of the

system; to laymen unfamiliar with the fundamentals of agency law, that can only convey the

erroneous impression that lawyers protect other lawyers at the expense of everyone else.” 636

F.2d at 531 (quoting Jackson v. Wash. Monthly Co., 569 F.2d 119, 123-24 (D.C. Cir. 1977)); see

also Peter B., 2006 WL 2038512, at *2 (Rule 60(b)(6) motion granted where defendant’s motion

to dismiss was granted as conceded rather than on merits following full briefing, defendant

alleged no prejudice if the motion were granted, “[n]othing indicate[d] that the plaintiff himself

was less than diligent in pursuing his claim,” and “the unfortunate circumstances that befell his

original lawyer should not prevent plaintiff from having his day in court.”).




                                                 10
 
    III.   CONCLUSION
           For the foregoing reasons, the Court grants the plaintiff’s motion, pursuant to Rule

60(b)(6), for reconsideration of the April 13, 2011 Order, which granted the defendant’s motion to

dismiss as conceded. This case shall be reinstated and the plaintiff is directed to file any

opposition to the defendant’s pending motion to dismiss within thirty days, by November 18,

2011. The defendant shall file any reply by November 28, 2011.


DATED: October 18, 2011                                         /s/Beryl A. Howell
                                                                BERYL A. HOWELL
                                                                United States District Judge



 

 

 




                                                   11
 
