Holcomb et al v. Standard Fire Insurance Company, No. 2:2007cv09757 - Document 26 (E.D. La. 2009)
Court Description: ORDER denying 22 Motion for Reconsideration WITHOUT PREJUDICE to review timely and detailed proof from medical authorities that attempt to explain the effect of counsel's medical condition upon his ability to practice law. Said proof must be provided within 17 days of entry of order by Plaintiffs' counsel. Further, Plaintiffs' counsel still faces possible financial sanctions for his untimely actions noted in this document. Signed by Judge Ivan L. R. Lemelle on 7/1/09. (sek, )
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Holcomb et al v. Standard Fire Insurance Company Doc. 26 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CHARLES HOLCOMB AND JUNE HOLCOMB CIVIL ACTION VERSUS NO. 07-9757 THE STANDARD FIRE INS. CO. SECTION: “B”(3) ORDER AND REASONS Before the Court is Plaintiffs' Motion for Reconsideration of this Court’s Order Granting Defendant’s Motion to Dismiss. (Rec. Doc. 22). The motion is opposed. (Rec. Doc. 24). After review of the pleadings, applicable law and for the following reasons, IT IS ORDERED that Plaintiffs' Motion for Reconsideration is DENIED without prejudice, subject to conditions noted at end. BACKGROUND Plaintiffs, Charles Wayne and June Holcomb, filed suit in Washington Parish seeking compensation under the terms of their homeowners insurance policy for damages caused by Hurricane Katrina to their home located at 64238 Wood Duck Lane, Bogalusa, Louisiana. recover (Rec. Doc. compensation 1). under Similarly, the insurance policy for a burglary. removed the suit to this Court. terms Plaintiffs sought of homeowners their (Rec. Doc. 1). (Rec. Doc. 1). to Defendants Subsequent to removal, Defendants sought responses to discovery through two 1 Dockets.Justia.com motions to compel. (Rec. Doc. No. 10, 16). Plaintiffs failed to respond, and as a result, Defendants moved for Dismissal1. Doc. 20). (Rec. This Court granted Defendant’s Motion to Dismiss as unopposed on December 19, 2008. (Rec. Doc. 21). Subsequently, Plaintiff filed a Motion for Reconsideration on January 21, 2009. (Rec. Doc. 22). Plaintiffs' counsel alleges his failure to prosecute was caused by health and staffing problems and seeks to be relieved of the effect of this Court’s judgment. 22). (Rec. Doc. Defendant argues Plaintiffs' counsel’s health and staffing problems do not constitute grounds for relief under Federal Rule of Civil Procedure 60. (Rec. Doc. 24). Plaintiffs' counsel does not cite legal authority for his request for reconsideration; however, Plaintiffs' counsel alleges his failure to prosecute and failure to oppose Defendant’s motion for summary judgment were caused by his health and staffing problems. (Rec. Doc. 22). Specifically, Plaintiffs' counsel claims he was immobilized from “before Christmas 2007” to “midJune 2008” because he was suffering from a bone tumor in his shoulder. (Rec. Doc. 22). Additionally, Plaintiffs' counsel claims his secretary quit without prior notice on September 29, 1 Plaintiffs' counsel also failed to prosecute Plaintiffs’ case seeking compensation for the burglary. Defendant moved for dismissal, and this Court granted the dismissal. (Civ. Action No. 08-2157; Rec. Docs. 11, 16). 2 2008, and her failure to calendar “vital deadlines” and to inform Plaintiffs' counsel of pending motions contributed to Plaintiffs' counsel’s failure to timely prosecute this case. The resignation of Plaintiffs' counsel’s (Rec. Doc. 22). secretary illness left Plaintiffs' counsel’s office vacant. 22). and his (Rec. Doc. Plaintiffs' counsel is not in the e-filing system, and because his Plaintiffs' Dismiss. office counsel was vacant after not receive did (Rec. Doc. 22). his secretary Defendant’s resigned, Motion to Accordingly, Plaintiffs' counsel asks this Court to Reconsider its Order dismissing Plaintiffs' case. Defendant argues Plaintiffs' counsel’s request for Reconsideration can be reasonably construed as a request for Relief from Final Judgment pursuant to Federal Rule of Civil Procedure 60(b), which provides parties may be relieved of the effect of a court’s judgment upon showing the judgment was the result of “mistake, inadvertence, surprise, or excusable neglect. (Rec. Doc. 24). and staffing pursuant to Defendant alleges Plaintiffs' counsel’s medical problems Rule 60(b) to not constitute because he failed grounds to for conform relief to his professional duty pursuant to the Rules for Professional Conduct Governing Lawyers. (Rec. Doc. 24). Furthermore, Defendant alleges that if someone was checking Plaintiffs' counsel’s mail 3 as he claims in pleadings, the Motion to Dismiss would have been discovered in ample time Defendant. (Rec. Doc. 24). because it was timely mailed by DISCUSSION A. STANDARD FOR MOTION FOR RECONSIDERATION A motion to reconsider an order may be properly brought as a motion to alter or amend a judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Thomas v. Great Atlantic and Pacific Tea Co., Inc., 233 F. 3d 326, 327 n.1 (5th Cir. 2000). The Federal Rules of Civil Procedure do not provide for a “Motion for Reconsideration.” Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10(5th Cir. 1998). If the Motion for Reconsideration is filed more than ten days after the judgment of dismissal, the court must hold the party seeking reconsideration to the more stringent standard of Rule 60(b). Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990). Because the present motion for Reconsideration was filed more than ten days after the Court’s dismissal, the Motion for Reconsideration will be evaluated under Rule 60(b). Rule 60(b) provides in pertinent part: . . .the court may relieve a party or its legal representative from a final judgment, order, or proceeding for one of the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 4 evidence that, with reasonable diligence, could not have been discovered in time for a new trial under Rule 59(e); (3) fraud, misrepresentation, or misconduct by an opposing party; the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Plaintiffs' counsel’s claims are reasonably construed as request for relief because of excusable negligence. B. REQUEST FOR RECONSIDERATION DUE TO EXCUSABLE NEGLIGENCE Gross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief. Bohlin v. Banning Co., Inc., 6 F.3d 350, 357 (5th Cir. 1993). Excusable neglect has been found where a party’s failure to conform to pretrial scheduling deadlines was largely caused by the court’s “peculiar, misleading, and inconspicuous notification of the bar date.” Pioneer Inv. Services, Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993). The Supreme Court used several factors to evaluate excusable negligence pursuant to Rule 60(b) including risk of prejudice, the length of delay and effect of delay on judicial proceedings, reason for the delay, and whether the movant acted in good faith. Id. weighed only slightly the “upheaval” 5 The Supreme Court resopondant’s counsel experienced in his law practice at the time of the deadline. Id. at 396. Similarly, Plaintiffs' counsel in the instant case pleads upheaval in his law practice and medical problems as the cause for his failure to timely prosecute Plaintiffs' case. In support of his contentions, Plaintiffs' counsel supplies the Court with only a narrative of his troubles and a photo which allegedly shows the mass removed from his shoulder. Plaintiffs' photo does not provide the Court with time, date, name, or other indicia of the photo’s origins or contents. Plaintiffs' counsel fails to include with the photo his doctor’s explanation of Plaintiffs' counsel’s recent medical history and what effect his condition might have on his ability to prosecute this case. this Court failure to cannot timely reasonably prosecute conclude the Accordingly, Plaintiffs' instant case was counsel’s caused by excusable negligence as Plaintiffs' counsel has failed to provide sufficient evidence of his medical condition. Accordingly, IT IS ORDERED that Plaintiffs' Motion for Reconsideration is DENIED WITHOUT PREJUDICE to review timely and detailed proof from medical authorities that attempt to explain the effect of counsel's medical condition upon his ability to practice law. 6 Said proof must be provided within 17 days of entry of order by Plaintiffs' counsel. possible financial Further, Plaintiffs’ counsel still faces sanctions for his untimely actions noted above. New Orleans, Louisiana, this 1st day of July, 2009. UNITED STATES DISTRICT JUDGE 7
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