Edward Wheaton, Plaintiff v. Robert H. Irwin Motors, Inc., d/b/a Irwin Toyota; Rick Glidden; Chris Irwin; Edward Kelly; Ronald O’Connor; and Wayne Thayer, Defendants

2022 DNH 064

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Edward Wheaton, Plaintiff

v. Case No. 20-cv-925-SM Opinion No. 2022 DNH 064

Robert H. Irwin Motors, Inc., d/b/a Irwin Toyota; Rick Glidden; Chris Irwin; Edward Kelly; Ronald O’Connor; and Wayne Thayer, Defendants

O R D E R

By order dated November 10, 2021, and in response to a

motion for sanctions filed by defendants, the court dismissed

plaintiff’s case for: (a) failing to respond to a prior court

order; and (b) neglecting to show cause why the case should not

be dismissed for failure to prosecute. See generally Fed. R.

Civ. P. 41(b). Two months later, plaintiff filed a motion to

vacate judgment, invoking the provisions of Rule 60(b)(1). The

court then sought additional briefing from the parties. Those

briefs have been filed and, having reviewed the arguments

advanced on both sides, the court grants plaintiff’s motion to

vacate. Plaintiff’s counsel shall, however, pay defendants’

reasonable attorney’s fees incurred in responding to plaintiff’s

motion to vacate, in an amount not to exceed $5,000.00. Standard of Review

Rule 60(b)(1) of the Federal Rules of Civil Procedure

provides that, “On motion and just terms, the court may relieve

a party or its legal representative from a final judgment,

order, or proceeding for the following reasons: mistake,

inadvertence, surprise, or excusable neglect.” In support of

his motion to vacate, plaintiff relies on the final basis for

relief under Rule 60(b)(1): excusable neglect.

The Supreme Court has instructed lower courts that

determining whether a party’s neglect is “excusable” is an

equitable endeavor. To facilitate that inquiry, the Court

identified four factors – the so-called “Pioneer factors” – for

courts to consider: the danger of prejudice to the non-movant if

the requested relief is granted; the length of the delay caused

by the movant’s conduct/oversight and its potential impact on

judicial proceedings; the reason given for the movant’s

oversight, including whether it was within the movant’s

reasonable control; and whether the movant acted in good faith.

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380, 395 (1993).

But, as the court of appeals for this circuit has noted,

“While each potential factor should be weighed, there is

2 ultimately a thumb on the scale because ‘[w]ithin the

constellation of relevant factors, the most important is the

reason for the particular oversight.’” Skrabec v. Town of N.

Attleboro, 878 F.3d 5, 9 (1st Cir. 2017) (quoting Nansamba v. N.

Shore Med. Ctr., Inc., 727 F.3d 33, 38-39 (1st Cir. 2013)). In

light of the foregoing, it is plain that “relief under Rule

60(b) is extraordinary in nature and that motions invoking that

rule should be granted sparingly.” Rivera-Velazquez v. Hartford

Steam Boiler Inspection & Ins. Co., 750 F.3d 1, 4 (1st Cir.

2014).

Background

In September of 2021, in response to plaintiff’s repeated

failures to provide requested discovery, defendants filed a

motion seeking sanctions. Plaintiff did not object or otherwise

respond. Plaintiff’s failure to engage prompted the court to

enter the following order:

Plaintiff has not responded to the motion for sanctions, and seems to signal a general failure to prosecute this litigation. Plaintiff shall file a written response to the motion on or before November 8, 2021, and, in addition, shall show cause why the case should not be dismissed for failure to prosecute.

3 Original Show Cause Order, dated October 12, 2021. Again,

however, plaintiff remained silent. Accordingly, the court

entered the following order, dismissing plaintiff’s complaint.

Plaintiff having failed to respond to the pending motion for sanctions as directed by the court’s order dated October 12, 2021, and having failed to show cause why this case should not be dismissed for failure to prosecute, the motion is granted to the extent that the case is dismissed for failure to comply with the court’s order and failure to prosecute. No award of attorney’s fees is made in that rescheduling and pursuing discovery as described was not entirely outside the norm, and dismissal is an adequate sanction for plaintiff’s failure to prosecute generally.

Order dated November 10, 2021 (emphasis supplied). See

generally Fed. R. Civ. P. 41(b). That same day, judgment was

entered in accordance with that order and the case was closed.

More than two months later (and four months after

defendants filed their motion for sanctions), plaintiff filed a

Motion to Vacate Judgment, invoking the provisions of Rule

60(b)(1) of the Federal Rules of Civil Procedure. Defendants

objected, saying plaintiff’s meager filing failed to establish

entitlement to the relief sought. Indeed, defendants were

correct: plaintiff’s motion was vague, insufficiently supported,

and deficient. It gave no clear explanation for why counsel

neglected to oppose defendants’ motion for sanctions. And, as

4 to the failure to respond to the court’s original show cause

order, counsel explained that he was unaware of its existence

because notice of the order had been mistakenly directed to his

email “spam” folder.

Rather than deny plaintiff’s motion to vacate judgment, and

recognizing that dismissal is a harsh sanction, the court

afforded plaintiff an additional opportunity to brief the issues

raised in his motion. In particular, the court directed

plaintiff to address, “in detail, with supporting documentation,

and with appropriate citations to legal authority” – the

following questions:

1. How the relief sought in the motion to vacate can be reconciled with counsel’s professional obligation to independently monitor the court’s docket. See, e.g., Santos-Santos v. Torres- Centeno, 842 F.3d 163, 168–69 (1st Cir. 2016) (noting that an attorney’s failure to monitor the court’s docket is not “excusable neglect” under Rule 60(b)(1)).

2. How counsel can overcome the presumption that a document properly submitted to the court’s electronic-filing system was distributed to, and received by, all registered counsel in the case. See, e.g., Am. Boat Co. v. Unknown Sunken Barge, 418 F.3d 910, 913 (8th Cir. 2005); Dempster v. Dempster, 404 F. Supp. 2d 445, 449 (E.D.N.Y. 2005). See generally Fed. R. Civ. P. 5(b)(2)(E).

3. How counsel can reconcile the relief requested with precedent holding that the misdirection of court email into an attorney’s “spam” folder is insufficient cause to support relief under Rule

5 60(b). See, e.g., Trevino v. City of Fort Worth, 944 F.3d 567, 572 (5th Cir. 2019) (“Emails mistakenly going to a spam folder do not merit Rule 60(b) relief.”); Hill v. World Class Auto. Corp., No. 06-CV-2496 SLT RLM, 2008 WL 4809445, at *3 (E.D.N.Y. Nov. 4, 2008) (“Unsurprisingly, courts have repeatedly rejected the argument that the lack of actual notice due to problems with spam overrides an attorney’s obligation to monitor the docket.”).

Second Show Cause Order, dated February 23, 2022 (document no.

28).

Discussion

In response to the court’s Second Show Cause order,

plaintiff argues that he “has a valid claim to prevail on his

motion to vacate the dismissal [and] therefore plaintiff’s

[case] should not be dismissed for failure to prosecute.”

Plaintiff’s Response (document no. 29) at 2. The problem with

that argument (and, indeed, the problem with counsel’s entire

approach to the court’s order) is plain: plaintiff’s case has

already been dismissed. That plaintiff could have presented a

compelling and meritorious argument to the court’s original show

cause order is largely immaterial at this point in the

proceedings. At this stage, the question presented is whether

plaintiff can meet Rule 60(b)(1)’s requirement that he show

“excusable neglect” for having failed to object to defendant’s

motion for sanctions and, more importantly, for having failed to

6 respond to the court’s Second Show Cause order. Whether he has

done so is certainly open to reasonable debate.

Making matters more difficult is the fact that, in support

of his position, plaintiff cites no authority from this court,

other district courts in this circuit, the Court of Appeals for

the First Circuit, or the Supreme Court. Instead, he relies

almost exclusively on non-binding authority from the Courts of

Appeals for the Second and Fifth Circuits. See generally

Plaintiff’s Motion to Vacate Dismissal (document no. 25) (citing

no authority) and Plaintiff’s Supplemental Memorandum in Support

of his Motion to Vacate Dismissal (document no. 29) (applying

factors identified by the Fifth Circuit to determine whether a

dismissal under Rule 41(b) was appropriate). In large measure,

then, plaintiff’s counsel has left it to the court to do the

necessary legal research, identify the relevant precedent, and

apply the governing law to the relevant facts. In short,

counsel’s briefing is decidedly unhelpful – a fact that is

particularly surprising given the seriousness of the issues at

hand.

Of the four Pioneer factors the court must consider, three

arguably weigh in plaintiff’s favor (or are neutral): the danger

of prejudice to defendants in granting plaintiff’s requested

7 relief is small, the length of the delay caused by plaintiff’s

inattentiveness has been modest, and while plaintiff’s counsel

has been exceedingly sloppy, there is no suggestion that he has

acted in other than good faith. The fourth and singularly most

important factor – the reason for the delay – weighs against

plaintiff. Counsel has an undeniable professional obligation to

monitor the court’s docket and keep himself informed of all

relevant developments in his case. See, e.g., Santos-Santos v.

Torres-Centeno, 842 F.3d 163, 168–69 (1st Cir. 2016). See also

Alvi v. United Airlines, Inc., No. 08 CV 701 (SJ) (JMA), 2009 WL

10706589, at *2 (E.D.N.Y. Sept. 29, 2009) (collecting cases).

Counsel neglected that professional obligation and, as a

consequence, failed to respond to a direct order from this

court.

Counsel’s proffered justification for failing to object to

defendants’ motion for sanctions and then neglecting to respond

to the court’s original show cause order – that a single email

notification from the court was misdirected to his “spam” folder

– may be an explanation for his failures, but it is certainly

not an excuse. See, e.g., Trevino v. City of Fort Worth, 944

F.3d 567, 572 (5th Cir. 2019) (“Emails mistakenly going to a

spam folder do not merit Rule 60(b) relief.”). See also Hill v.

World Class Automotive Corp., No. 06-CV-2496 (SLT) (RLM), 2008

8 WL 4809445, *4 (E.D.N.Y. Nov. 4, 2008) (Townes, J.)

(“Unsurprisingly, courts have repeatedly rejected the argument

that the lack of actual notice due to problems with spam

overrides an attorney’s obligation to monitor the docket.”).

Turning, then, to precedent from this circuit, one

discovers that different panels of the court of appeals have

expressed qualitatively different views on the appropriate

response to circumstances such as these. Compare Santos-Santos

v. Torres-Centeno, 842 F.3d 163, 168–69 (1st Cir. 2016) (noting

that “excusable neglect” is a “demanding standard” and such an

“exceptional justification must be something more than an

attorney’s failure to monitor the court’s electronic docket”)

with Keane v. HSBC Bank USA for Ellington Tr., Series 2007-2,

874 F.3d 763, 766–67 (1st Cir. 2017) (distinguishing Santos, by

focusing on the equitable nature of 60(b)(1) relief, and

concluding that because counsel’s behavior was “neglectful” but

not “intentional, egregious, or repetitive” a sanction less than

dismissal was appropriate).

Here, the court will indulge plaintiff and take its cue

from Keane rather than from Santos-Santos. Counsel’s conduct

was, undeniably, neglectful. He concedes as much. See

Supplemental Memorandum in Support of Motion to Vacate (document

9 no. 29) at 14 (“Plaintiff failed to respond to the Court’s

orders dated October 12, 2021, and November 10, 2021, was [sic]

due to negligence and not a stubborn resistance to authority.”).

But counsel’s conduct does not appear to have been “intentional,

egregious, or repetitive.” Keane, 874 F.3d at 767. The delay

caused by counsel’s conduct was not substantial and he appears

to have acted in good faith throughout these proceedings.

Considering the totality of the circumstances, see Pioneer,

supra, and Keane, supra, dismissal of plaintiff’s lawsuit based

upon his counsel’s conduct to date would be a disproportionate

sanction.

Conclusion

In light of the foregoing, plaintiff’s Motion to Vacate

Dismissal (document no. 25) is granted. The court’s order dated

November 10, 2021, dismissing plaintiff’s action is hereby

vacated.

As a sanction for his failings – including both his failure

to provide timely discovery and his failure to respond to the

court’s original show cause order - plaintiff’s counsel shall

personally pay defendants’ reasonable attorney’s fees incurred

in connection with responding to his motion to vacate, not to

exceed the sum of Five Thousand Dollars ($5,000.00). Because

10 plaintiff’s counsel has represented to the court that he has now

provided defendants with the long-sought-after medical releases,

Defendants’ Motion for Sanctions (document no. 23) is, in all

other respects, denied.

If the plaintiff has not yet been deposed, defendants may

take that deposition at their convenience notwithstanding any

scheduling order impediments or deadline expirations.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

May 11, 2022

cc: Roger A. Peace, Jr., Esq. Paul T. Fitzgerald, Esq. Arthur E. Maravelis, Esq.