Greene v. Union Mutual Life Insurance

102 F.R.D. 598, 1984 U.S. Dist. LEXIS 24982
CourtDistrict Court, D. Maine
DecidedAugust 7, 1984
DocketCiv. No. 84-0126 P
StatusPublished
Cited by11 cases

This text of 102 F.R.D. 598 (Greene v. Union Mutual Life Insurance) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greene v. Union Mutual Life Insurance, 102 F.R.D. 598, 1984 U.S. Dist. LEXIS 24982 (D. Me. 1984).

Opinion

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION OF ORDER GRANTING DEFENDANT’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT

GENE CARTER, District Judge.

This case comes before the Court on the motion of the Plaintiff, filed on June 15, 1984, seeking reconsideration of the Court’s Order, entered via the Clerk of Courts on June 8, 1984, pursuant to Local Rule 19(c), which granted Defendant’s Mo[600]*600tion to Dismiss and Strike Pursuant to Rule 12. That latter motion was filed on May 23, 1984, and accompanied by a supporting memorandum, as required by Local Rule 19(a).1 It sought an order of the Court striking from the Plaintiffs Complaint paragraph 3 of the prayer for relief of Count I, paragraphs 2 through 4, inclusive, of the prayer for relief of Count II, and Counts III and IV of the Complaint in their entirety.

On June 8, 1984, this motion to strike was granted by the endorsement of the Clerk, acting for the Court: “No objection having been filed motion granted per Local Rule 19(c).” (Emphasis in original.) The basis of that action was the failure of the Plaintiff to comply with the requirements of Local Rule 19(c) by filing within ten days after the filing of the Defendant’s motion “a written objection thereto.”2 By virtue of that failure, under the force of the rule Plaintiff was “deemed to have waived objection” empowering the Court to act on the motion. Local Rule 19(c).

On June 8, 1984, the Plaintiff filed a Motion to Strike Defendant’s Motion to Dismiss and Strike Pursuant to Rule 12. On the same day Plaintiff filed its objection to Defendant’s Motion to Dismiss and Strike Pursuant to Rule 12 (the original motion which had been granted by the Court’s endorsement) and Plaintiff’s Request for Additional Time Within Which to File a Responsive Memorandum. On June 14, 1984, Defendant filed its Motion to Strike Plaintiff’s Objection and Plaintiff’s Request for Additional Time and also Defendant’s Objection to Plaintiff’s Motion to Strike. Those pleadings were accompanied by an affidavit of Defendant’s counsel. The following day The Plaintiff filed its Motion for Reconsideration which is presently before the Court for decision. The Motion for Reconsideration was accompanied by the affidavit of Plaintiff's counsel. On June 25, 1984, Defendant filed its Objection to the Motion for Reconsideration.

Neither the Motion for Reconsideration nor its supporting memorandum specifies the provision of the Federal Rules of Civil Procedure pursuant to which it is brought. Both the motion itself and the argument set out in the supporting memorandum make it clear, however, that reconsideration is sought on the basis of excusable neglect of Plaintiffs counsel in failing to file, pursuant to Local Rule 19(c), a timely response to the Defendant’s Motion to Dismiss and Strike Pursuant to Rule 12. The motion specifically states in paragraph 1:

The neglect of counsel which is set forth in the accompanying affidavit of [Plaintiff’s counsel] was not a willful disregard of the procedures of this Court nor a prolonged and consistent inattention to the case but was, under the circumstances, excusable.

Motion for Reconsideration at 1 (emphasis added). The motion goes on in paragraph 2 to assert that the Defendant has incurred no prejudice because of the Plaintiff’s failure to object in a timely fashion as required by Local Rule 19(c) and in paragraph 3 observes that the Defendant is “technically in default with respect to its Answer or other response to those portions of Plaintiff’s Complaint which Defendant’s Motion to Dismiss did not reach.” The memorandum in support of the Motion for Reconsideration states as one of the bases for the Court’s reconsideration of the prior Order that:

[t]he actions of Plaintiff’s counsel ... as set forth in the accompanying Affidavit, fall within the doctrine of excusable neglect and show good cause upon which this Court may sustain Plaintiff’s motion to set aside the default judgment entered June 8, 1984.

[601]*601Memorandum in Support of Plaintiff’s Motion for Reconsideration at l.3 The memorandum proceeds to discuss various cases, all from other circuits, dealing with applications for relief from a default judgment on the basis of excusable neglect.

The only provision of the Federal Rules of Civil Procedure which authorizes the Court to grant relief from a judgment or order on the basis of excusable neglect is that contained in Rule 60(b)(1), which provides: “On motion and upon such terms as are just, the Court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ____” The Court will treat the Motion for Reconsideration as a motion brought pursuant to Rule 60(b)(1) and deal with it on the basis of the case law pertinent to the construction and application of that provision of the rules.4 See Silk v. Sandoval, 435 F.2d 1266, 1267 (1st Cir.1971).

The affidavit of Plaintiff’s counsel sets out with candor and in considerable detail the exact circumstances asserted to give rise to the failure of Plaintiff’s counsel to timely file its objection to the Defendant’s Motion to Dismiss and Strike. The operative paragraphs of the affidavit read as follows:

1. It was my understanding, based upon conversations with Richard G. Moon, Esquire, [Defendant’s counsel] in connection with the taking of the deposition of Plaintiff, Howard Greene, that no responsive pleadings would have to be filed until the completion of Mr. Greene’s deposition. Upon reviewing the correspondence and motions and affidavits in connection with the controversy presently before the Court, it appears that I may have misunderstood the oral agreement between counsel and that Mr. Moon’s letter of May 4, 1984 indicating responsive pleadings due on May 23, 1984 did not alert me to the significance of that date. The only explanation I can offer is that I was involved in extensive hearings, settlement negotiations and meetings with the Court in connection with six (6) asbestos cases which were scheduled for trial to begin approximately June 21, 1984 which cases were eventually settled. These matters were finally resolved, at least for the time being, on May 9-10, 1984.
2. For some reason, the Motion to Dismiss dated May 23, 1984 of Defendant was not date stamped as is the usual course for all such documents received by my secretary and it is possible that even though Mr. Moon indicates the Motion was mailed that it may have been hand delivered as it was to the Federal Court. At any rate, the Motion did not get into my clearing system whereby my secretary would either calendar a date for a necessary response or route the document to the attorney handling the case. I did see the document on my desk some time after May 29th and did not appreciate that [Plaintiff’s co-counsel] was unaware of the document. Also, against the background of my [602]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Philbert
340 B.R. 886 (N.D. Indiana, 2006)
Cardente v. Fleet Bank of Maine, Inc.
146 F.R.D. 13 (D. Maine, 1993)
In Re Schlosser
100 B.R. 348 (S.D. Ohio, 1989)
Mawhinney v. Heckler
600 F. Supp. 783 (D. Maine, 1985)
Phillips v. Weiner
103 F.R.D. 177 (D. Maine, 1984)
Cutler v. Lewiston Daily Sun
103 F.R.D. 172 (D. Maine, 1984)
McDermott v. Lehman
594 F. Supp. 1315 (D. Maine, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
102 F.R.D. 598, 1984 U.S. Dist. LEXIS 24982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-union-mutual-life-insurance-med-1984.