Kingvision v. Rocca

2002 DNH 061

• Court: District Court, D. New Hampshire
• Decided: March 19, 2002
• Docket: CV-00-407-JD
• Status: Published

Opinion

Kingvision v. Rocca CV-00-407-JD 03/19/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kingvision Pay-Per-View, Ltd.

v. Civil No. 00-407-JD Opinion No. 2002 DNH 061 John L. Rocca, et a l .

O R D E R

Pursuant to Federal Rule of Civil Procedure 60(b) (1), the

plaintiff, Kingvision Pay-Per-View Ltd., brings a motion to

vacate summary judgment based on the excusable neglect of prior

counsel. The defendants did not respond.

Background

The plaintiff entered into a licensing agreement with Don

King Productions for the exclusive rights to distribute the

November 8, 1997, Holyfield/Moorer boxing match to all commercial

establishments in New Hampshire, among other places. The

defendants own On the Rocks, a restaurant and bar in Manchester,

New Hampshire. The defendants did not purchase rights from the

plaintiff to broadcast the fight, yet the fight was seen at On

the Rocks on the evening of November 8, 1997. The defendants

assert that the fight was broadcast by use of a residential cable

box. The plaintiff brought suit against the defendants, alleging

willful violations of 47 U.S.C. § 553, § 605(a), and § 605(e)(3), as well as common-law claims of breach of contract and breach of

implied contract.

The defendants moved for summary judgment on the statutory

violations, arguing that § 605 does not regulate their alleged

actions, and that the plaintiff lacks standing to sue under

either § 553 or § 605. In support of its arguments, the

defendants asserted that the plaintiff does not transmit its

events via coaxial cables, does not provide its events to

commercial establishments via local cable companies, and did not

have any agreement with Media One regarding the fight. The

defendants submitted a letter from Wayne Lonstein, one of the

plaintiff's attorneys, confirming those facts. The plaintiff did

not dispute these facts in its opposition to the motion. The

plaintiff also filed a cross-motion for summary judgment on the

statutory claims, incorporating the facts stated above. While

the motions were still pending, the parties filed a joint final

pretrial statement that included a written stipulation of

uncontested facts. The stipulation states that the plaintiff

provides its broadcasts to commercial establishments via

satellite or direct broadcast satellite systems, and it does not

provide broadcasts through, or contract with, local cable

companies.

On January 2, 2 0 02, the court granted summary judgment in

2 favor of the defendants, holding that § 605 did not apply to the

defendants' actions, and that the plaintiff did not have standing

to sue under § 553. The plaintiff's cross-motion was

subsequently denied. The parties participated in a pretrial

conference, and on January 11, 2002, the parties notified the

court that they had reached a settlement.1 On February 13, 2002,

the plaintiff, represented by new counsel, filed a motion to

vacate the summary judgment order.

Discussion

_____ The plaintiff argues that its prior counsel, the Lonstein

Law Office, inadvertently failed to dispute certain material

facts asserted by the defendants that would have established the

plaintiff's standing to sue under § 553. Specifically, the

plaintiff now asserts that the facts concerning the plaintiff's

transmission of broadcasts confirmed by Wayne Lonstein and

undisputed throughout the summary judgment proceedings are not

correct. The plaintiff argues that prior counsel's oversight is

excusable neglect, and that the court should vacate its summary

judgment ruling.

1 Trial was scheduled for the week of January 22, 2002.

3 "[T]he court may relieve a party . . . from a final

judgment, order, or proceeding for . . . mistake, inadvertence,

surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1).

" [M]otions brought under Rule 6 0 (b) are committed to the district

court's sound discretion." Torre v. Continental Ins. Co., 15

F.3d 12, 14 (1st Cir. 1994). According to First Circuit

precedent. Rule 60(b) is "'a vehicle for 'extraordinary relief,'"

and therefore " 'motions invoking the rule should be granted only

under exceptional circumstances.'" Davila-Alvarez v. Escuela de

Medicina Universidad Central del Caribe, 257 F.3d 58, 63-64 (1st

Cir. 2001), quoting Torre, 15 F.3d at 14-15 (quotations omitted).

As a general rule, a party is held accountable for the acts

and omissions of its counsel, and each party is considered to

have "notice of all facts." Link v. Wabash R. Co.. 370 U.S. 626,

633-34 (1962), quoted in Pioneer Inv. Servs. Co. v. Brunswick

Assocs. Ltd. P'ship, 507 U.S. 380, 396-97 (1993).2 In its

discretion, however, a court may vacate a judgment based on the

excusable neglect of counsel. See Pioneer, 507 U.S. at 394

(holding that excusable neglect may be found where counsel miss

2 Although Pioneer involved bankruptcy deadlines, the Supreme Court emphasized its test for "excusable neglect" was intended to extend beyond the bankruptcy context. See Pratt v. Philbrook, 109 F.3d 18, 19 & n.l (1st Cir. 1997) (applying Pioneer test to Rule 60 (b) motion) .

4 filing deadlines due to their own negligence); Graphic

Communications Int'l Union, Local 12-N v. Ouebecor Printing

Providence, Inc., 270 F.3d 1, 5-6 (1st Cir. 2001); Pratt, 109

F.3d at 19 (stating that courts would be permitted to accept late

filings caused by inadvertence, mistake, or carelessness).

Neglect must be excusable, however, to justify vacating a

judgment. See Pioneer, 507 U.S. at 395; Graphic, 270 F.3d at 5-

6. "[The] evaluation of what constitutes excusable neglect is an

equitable determination, taking into account the entire facts and

circumstances surrounding the party's omission. . . ." Davila-

Alvarez , 257 F.3d at 64, citing Pioneer, 507 U.S. at 395.

Factors considered by the court include the danger of prejudice

to the non-movant, the length of the delay, the reason for the

delay, and whether the movant acted in good faith. Ri. The

plaintiff argues that all of these factors weigh in favor of

vacating the judgment.

To support its contention, the plaintiff submits the

affidavits of Skip Klauber, attorney-in-fact for the plaintiff,

and Julie Cohen Lonstein of the Lonstein Law Office. Julie

Lonstein affirms that: "Due to an oversight, my firm failed to

dispute these factual assertions which are, in fact, incorrect."

(Lonstein Aff. at 12.) Klauber states that the plaintiff "did

not have an opportunity to review the summary judgment opposition

5 papers, containing the factual errors, before they were filed."

(Klauber Aff. at 55.) He states that when he reviewed the

summary judgment order from the court, he realized that the

court's conclusions rested on an incomplete and erroneous record

which directly resulted from prior counsel's "inadvertent failure

to put material facts before the court." (Klauber Aff. at 57.)

Unlike the bulk of cases decided pursuant to Rule 60(b)(1),

the mistake argued by the plaintiff does not involve a procedural

deadline. C f ., e.g.. Pioneer, 507 U.S. at 394-95 (filing

deadline); Graphic, 270 F.3d at 2-3 (filing deadline); Davila-

Alvarez , 257 F.3d at 64 (failure to prosecute); Pratt, 109 F.3d

at 18-19 (settlement notification deadline); Torre, 15 F.3d at

14-15 (filing deadline). The plaintiff argues that its prior

counsel's failure to effectively oppose the defendants' summary

judgment motion on its merits constitutes neglect that could be

excused under Rule 60(b)(1). However, the plaintiff does not

point to any First Circuit precedent to support its argument, and

the court has found no authority to suggest that a Rule 60

vacateur would be appropriate in these circumstances. See

Warfield v. AlliedSiqnal TBS Holdings, Inc., 267 F.3d 538, 543

(6th Cir. 2001) (rejecting vacateur of dismissal where plaintiff

did not provide reason for her failure to know all the obtainable

facts before her voluntary dismissal); Lavaspere v. Niagara Mach.

6 & Tool Works, 910 F.2d 167, 173 (5th Cir. 1990) (suggesting that

it would be abuse of discretion for district court to grant Rule

60(b)(1) motion based on party's failure, through carelessness,

to submit evidence in timely manner), cited in Torre, 15 F.3d at

15-16.

A party asserting excusable neglect must give a satisfactory

explanation for the neglect. See Pioneer, 507 U.S. at 395;

Graphic, 27 0 F.3d at 5; Hospital de Maestro v. Nat'l Labor

Relations B d ., 263 F.3d 173, 175 (1st Cir. 2001) (noting that

"the excuse given for the late filing must have the greatest

import" among the factors considered by the court). Here, the

plaintiff provides no excuse. The plaintiff had ample

opportunity in its objection to defendants' motion for summary

judgment and in its cross-motion for summary judgment to contest

defendants' factual allegations and to present its own version of

the facts. Klauber affirms that the plaintiff did not have an

opportunity to review the summary judgment papers prior to

filing. This may explain why the plaintiff failed to oppose the

motion effectively but it is no excuse since a plaintiff who has

chosen counsel for representation "cannot avoid the consequences

of the acts or omissions of his freely selected agent." Pioneer,

507 U.S. at 397, quoting Link, 370 U.S. at 633-34. To the extent

that Klauber's statement may be construed as an excuse, it

7 carries little weight. See id.; Hospital de Maestro, 263 F.3d at

175. Lonstein affirms that her firm "failed" to dispute certain

factual allegations due to "oversight." Again, this may explain

why the failure occurred but it certainly does not amount to an

excuse for the failure.

The court concludes that the plaintiff has not articulated

any sufficient reason to excuse the failure of prior counsel to

dispute certain material facts in the defendants' summary

judgment motion. Prior counsel had a duty to consult with the

plaintiff after the defendants' summary judgment motion was filed

and to prepare an informed objection and cross-motion setting

forth any disputed material facts. For reasons that have not

been provided, counsel failed to perform this very basic duty.

The United States Court of Appeals for the First Circuit stated,

in the context of a procedural failure, "When there is no

proffered reason that would justify, or even plausibly explain,

[a] misreading of the rules," even a favorable outcome on the

remaining Pioneer factors does not excuse the party's oversight.

See Hospital de Maestro, 263 F.3d at 175. The same reasoning

applies to the facts of this case. While prior counsel's

negligence may have resulted in unfortunate consequences for the

plaintiff, the plaintiff has failed to carry its burden of

showing that the negligence was excusable and therefore warrants

8 the extraordinary relief provided for under Rule 60(b)(1). The

court declines to exercise its discretion under these

circumstances to vacate the summary judgment order.

Conclusion

For the foregoing reasons, the plaintiff's motion to vacate

(document no. 35) is denied. The parties are ordered to submit

settlement documents by March 28, 2002. No extensions will be

granted.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

March 19, 2002

cc: Julie Cohen Lonstein, Esquire Gregory W. Swope, Esquire Dan A. Rosenbaum, Esquire Roy W. Tilsley Jr., Esquire