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Sartori v. Garrison Law Firm, LLC

United States District Court, D. New Mexico

November 1, 2017

ROBERT F. SARTORI, Plaintiff.
v.
THE GARRISON LAW FIRM, LLC, and JAKE A. GARRISON, Defendants.

          MEMORANDUM OPINION AND ORDER

          JUDITH C. HERERRA UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Plaintiff's Motion for Relief From Order, filed October 23, 2017. (Doc. 22.) The Court has considered the Motion, the relevant law, and the record, and is otherwise fully advised in the premises. For the reasons that follow, the Court finds that Plaintiff's Motion is not well taken and shall be denied.

         Background

         Plaintiff filed this action on March 15, 2017 (Doc. 1), and summonses were issued on the same date. On June 16, 2017, the Court entered an Order to Show Cause because the record reflected that Defendants had not been served and more than ninety (90) days had elapsed since Plaintiff filed his Complaint. (Doc. 4.) See Fed. R. Civ. P. 4(m) (providing that if a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time). Further, Plaintiff had failed to show good cause for the failure to serve. Id. The Court notified Plaintiff that he had until June 30, 2017, to demonstrate good cause why service had not been made. (Doc. 4.) The Court further notified Plaintiff that failure to respond within the time allotted would result in his case being dismissed without prejudice. On July 26, 2017, the Court entered an order dismissing Plaintiff's case for lack of prosecution. (Doc. 6.) As a result, Plaintiff's case was closed.

         On September 5, 2017, Plaintiff filed motions for default judgment against Jake Garrision and the Garrision Law Firm, LLC, and concurrently filed summons returned executed. (Docs. 7-10.) As grounds for his respective motions for default judgment, Plaintiff stated, in relevant part, that the complaint and summons were served on July 10, 2017, yet Defendants had not answered or responded. (Id.) On September 8, 2017, the Court entered an order denying these motions, noting that Plaintiff's case had been closed pursuant to the Court's order of dismissal entered on July 26, 2017. (Doc. 12 at 2) In this order, the Court discussed Rule 60(b), indicating that, as a matter of procedure, a plaintiff whose case has been dismissed may file a motion under that rule to reopen the case. (Id.)

         Instead of filing a Rule 60(b) motion, immediately, on October 2, 2017, Plaintiff filed a “Motion for Service of Order to Show Cause”; a “Motion for Service of Order Dismissing Case for Lack of Prosecution”; a Motion for Service of Order Denying Motion for Default Judgment”; and four affidavits of “Service Failure.” (Doc. 13-20.) In the respective motions for service, Plaintiff stated that he had not been served with, and had no knowledge of, the Court's orders in this matter, and he requested an enlargement of time within which to respond. (Docs. 13-15.) In his respective affidavits of “Service Failure, ” Plaintiff denied having received any notices, orders, or other documents from the Court regarding this case until September 19, 2017, on which date, “via an email from a buddy, ” he discovered the Court's orders. (Docs. 16-20.)

         On October 3, 2017, the Court issued an order directing the Clerk of the Court to resend to Plaintiff copies of the Order to Show Cause, the Order Dismissing Case for Lack of Prosecution, and the Order Denying Motions for Default Judgment. (Doc. 20 at 2.) In its Order, the Court denied Plaintiff's request for an enlargement of time, noting that “assuming as true Plaintiff's claim that he did not receive notice of the Court's orders, it does not alter Plaintiff's failure to timely prosecute his case.” (Doc. 20 at 2.) The Court further noted (as it had already done in its September 8, 2017 order), that, as a matter of procedure, Plaintiff could properly seek recourse by filing a motion under Rule 60(b) of the Federal Rules of Civil Procedure. (Doc. 20 at 3.)

         On October 23, 2017, Plaintiff filed the present Motion for Relief From Order. In this Motion, Plaintiff invokes Rule 60(b)(1) as grounds for relief from the Court's Order Dismissing Case for Lack of Prosecution.

         The Law Governing a Rule 60(b)(1) Motion

         Pursuant to Rule 60(b)(1), “on motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding” on the grounds of “mistake, inadvertence, surprise, or excusable neglect[.]” Such relief is extraordinary and is only granted in exceptional circumstances. Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996). Relief under 60(b)(1) for mistake or inadvertence . . . cannot be obtained unless the party makes “some showing of why he was justified in failing to avoid mistake or inadvertence. Gross carelessness is not enough. Ignorance of the rules is not enough, nor is ignorance of the law.” White v. Cassey, 30 F.3d 142 (10th Cir. 1994) (unpublished); see Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (“Carelessness by a litigant or his counsel does not afford a basis for relief under Rule 60(b)(1)”); see Cashner, 98 F.3d at 577 (“[T]he kinds of mistakes by a party that may be raised by a Rule 60(b)(1) motion are litigation mistakes that a party could not have protected against, such as the party's counsel acting without authority of the party to that party's detriment.” (emphasis added)). Whether neglect is “excusable” is an equitable determination, which the Court makes after considering: (1) the danger of prejudice to the non-movant, (2) the length of the delay and its potential impact on judicial proceedings, (3) whether the matter was within the reasonable control of the movant, and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993).

         Analysis

         Plaintiff attributes his failure to timely serve Defendants within the ninety-day time frame required by Rule 4(m) of the Federal Rules of Civil Procedure to “mistake and inadvertence.” (Doc. 22 at 2.) Specifically, Plaintiff argues that he relied on an outdated version of the Federal Rules of Civil Procedure, published in 2010, containing the then-effective Rule 4(m), which required service of process within 120 of filing a complaint. (Doc. 22 at 2-3.) Plaintiff contends that he acted in “good faith reliance” on the 2010 version of Rule 4(m), thereby excusing the untimely service in this matter, and establishing a basis for relief from the Court's Order Dismissing Case for Lack of Prosecution. (Doc. 22 at 3) The Court is not persuaded that Defendant's reliance on an outdated version of the Federal Rules of Civil Procedure constitutes a sound basis for setting aside the order of dismissal in this case.

         The Rule 4(m) amendment that effectively shortened the time for service of process from 120 to 90 days occurred in 2015-more than two years before Plaintiff filed the present lawsuit. See Fed. R. Civ. P. 4(m) advisory committee's note to 2015 amendment. Although Plaintiff is pro se, and is therefore entitled to some degree of liberal treatment, he must nevertheless abide by the Federal Rules of Civil Procedure. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (stating that the Tenth Circuit Court of Appeals “has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants”). Neither Plaintiff's ignorance of the contemporary version of Rule 4(m), nor his careless or inadvertent failure to acquire or reference the current edition of the rules justifies relief under Rule 60(b)(1). See White, 30 F.3d 142 (10th Cir. 1994) (stating that carelessness and ignorance of the rules are insufficient bases for relief under Rule 60(b)(1)).

         Nor is the Court persuaded that this is an instance of excusable neglect. In regard to the excusable neglect standard, Plaintiff contends that were the Court to reopen this case, Defendants would suffer “no prejudice” (in fact he appears to suggest that Defendants would benefit from the delay) because they have been afforded “additional time in which to prepare a defense.” (Doc. 22 at 3.) Plaintiff argues, further, that he acted in “good faith” by relying on the outdated version of the Federal Rules of Civil Procedure. (Doc. 22 at 2.) While Plaintiff does not address the length of the delay, the potential impact on judicial proceedings, or whether the matter was within his reasonable control, the Court does so ...


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